KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

  APPEAL  NO:1013/2004

                                 JUDGMENT DATED:1..12..2008.

PRESENT

SRI.M.V.. VISWANATHAN                          :   JUDICIAL MEMBER

SRI.S.CHANDRAMOHAN NAIR                 : MEMBER

1.The Managing Director,

  Kerala Water Authority,

  Vellayambalam, Trivandrum.

                                                                        : APPELLANTS

2.The Assistant Ex. Engineer,

  Central Sub Division,

  Kerala Water Authority,

Thiruvananthapuram.

(By Adv: Sri.V.S. Hareendranath)

          V.

1.Lathakumari,

  T.C.12/74, P.M.G.Junction,

  Plamood Road, Trivandrum.

                                                                      : RESPONDENTS

2.C. Chandramohan,

  Proprietor, Venpakal Foto City,

  T.C.25/2312, Near S.M.V. High School,

  Thiruvananthapuram.

(By Adv: Sri.R.Ajay Kumar)

                                              JUDGMENT

SHRI.M.V. VISWANATHAN: JUDICIAL MEMBER

The above appeal is preferred from the order dated:23..2..2004 passed by CDRF, Thiruvananthapuram in OP:255/03(A).  The complaint in the aforesaid OP was filed by the respondents herein as complainants 1 and 2 respectively seeking the relief for getting the arrear bills dated:6..6..2003, 7..8..2003 and 7..10..2003 cancelled.  The appellants were the opposite parties in the said complaint in OP:255/03.  They filed written version contending that the arrear bills were issued based on the meter readings taken and that the said bills were issued for the water actually consumed by the consumer.  It is also contended that the complainant/consumer remitted the water charges up to July 1995 for 13 K.Ltrs. at the rate of Rs.62/- and there after no payment was effected by the consumer with No:PCH-1930/N.  They had also given the calculations regarding the arrears.  Thus, the opposite parties requested for dismissal of the complaint.  But the Forum below accepted the case of the complainants to certain extent and thereby cancelled all the arrear bills issued for the period after 4/99.  The opposite party/Kerala Water Authority is directed to take future readings for next 3 months after installation of a new meter and to issue arrear bill based on the average monthly consumption.  The complaint was allowed with a cost of Rs.500/-.  Hence the present appeal by the opposite parties in OP:255/03(A).

2. When this appeal was taken up for final hearing on 26..11..2008, there was no representation for the respondents/complainants.  An adjournment application was filed by Adv.Anvar Hussain.I, who had no vakalath in this appeal.  It is to be noticed that notice was ordered to be served on the counsel for the respondents/complainant and the same was issued on 27..11..2007 and the same was signed by the concerned counsel.  The said notice was given intimating the posting of this appeal.  But even thereafter there was no effective representation for the respondent/complainants.  So, on 26..11..2008 we heard the counsel for the appellants and for hearing the respondents the appeal was adjourned to 29..11..2008.  But on 29..11…2008 also there was no representation for the respondents/complainants.  So, the appeal was taken for orders. 

The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the Memorandum of the present appeal.  He relied on the calculations given in the written version and the consumer ledger produced from the side of the opposite parties.  He canvassed for the position that the meter was functioning in March 1999 with the readings 3564.K.Ltrs. and so the arrear bills were issued based on the meter readings taken in January 1996, June 1998 and March 1999.  It is further submitted that the arrear bills were issued based on the meter readings and there is no justifiable reason or ground for quashing the aforesaid arrear bills.  It is further submitted that there is no document or evidence produced from the side of the complainants to disprove the case of the opposite parties. Thus, the appellants/opposite parties requested to setaside the impugned order passed by the Forum.

3. The points that arise for consideration are:-

1.                        Is there any sustainable ground or reason to quash Exts.P1 to P4 arrear bills issued by the opposite party/Kerala Water Authority?

2.                        Whether the complainants have defaulted in making water charges due to Kerala Water Authority by virtue of the Provisional Invoice Card issued to the Consumer No:PCH-1930/N?

3.                        Whether the Forum below can be justified in quashing all the arrear bills issued by the 2^nd opposite party, the Assistant Executive Engineer, Kerala Water Authority, Pattur Section, Thiruvananthapuram?

4.                        Is there any sustainable ground to interfere with the impugned order passed by the Forum below?

4. Point Nos:1 to 4:-

We will refer the parties to this appeal according to their status before the Forum below in OP:255/03 (A).

5. Admittedly the consumer No:PCH-1930/N stands in the name of Kalyanikutty Amma.  The 1^st complainant Lathakumari is the legal heir of the original consumer Smt.Kalyanikutty Amma.  Admittedly the 1^st complainant has not taken any steps to get the said water supply connection with Consumer no:PCH-1930/N transferred or registered in her name.  By virtue of regulation 7(f) the transfer of the house connection is to be effected only on the written application by the owner of the premises.  In this case the 1^st complainant has not taken any steps to get the connection transferred in her name.  At any rate the 1^st complainant can be treated as a beneficiary under the original consumer.  It is also to be noted that the 2^nd opposite party, the Assistant Executive Engineer of Kerala Water Authority issued arrear bills to the 1^st complainant by treating her as the consumer.  So, the complaint preferred by the 1^st complainant can be treated as maintainable.

6. The 2^nd complainant is said to have been the tenant under the 1^st complainant; but no document is forthcoming to show that there is Land Lord-Tenant relationship between the 1^st complainant and the 2^nd complainant.  No document is also forthcoming from the side of the complainants to substantiate their case that the 2^nd complainant is consuming water as a beneficiary in his capacity as the tenant under the 1^st complainant.  But no relief is granted infavour of the 2^nd complainant.

7. The 1^st complainant has been enjoying the benefit under the consumer No:PCH-1930/N.  There can be no doubt about the fact that the 1^st complainant has been provided with a provisional Invoice Card.  It is the definite case of the opposite parties that minimum water charge for 13 K.Ltrs of water at the rate of Rs.62/- has been remitted by the consumer up to July 1995.  It is also specifically contended that thereafter there was no payment from the side of the consumer.  The 1^st complainant as consumer has not adduced any evidence to prove payment of minimum water charges from July 1995 onwards.  It is the bounden duty of the consumer to make payments towards the Provisional Invoice Card (PIC) without any demand.  No specific or separate demand is necessary to make the payments under the PIC.  In the absence of any evidence from the side of the complainants it can only be concluded that the 1^st complainant being the consumer with consumer No:PCH-1930/N is a defaulter in making the amounts due under the PIC, from July 1995 onwards.  As per the agreement entered into between the consumer and the Kerala Water Authority it is the duty of the consumer to make payments under the PIC and also to make payments towards the  adjustment bills or arrear bills.  In the present case on hand the 1^st complainant was a defaulter in making payment of minimum water charges from July 1995 onwards.  Thus, the 1^st complainant can be treated as a chronic defaulter in making payment towards the minimum water charges.  There can be no doubt that the 1^st complainant is bound to pay the minimum water charges with the necessary fine or penal interest as stipulated in the water supply regulations, 1991.  Unfortunately the Forum below has failed to consider this aspect regarding the primary liability of the consumer to pay the minimum water charges due under the PIC.  So the opposite party/Kerala Water Authority will at liberty to issue arrear bill for the minimum water charges with the necessary fine or penal interest.  Even without any demand the 1^st complainant is legally bound to make the said payment with necessary fine or penalty.

8. The Forum below marked Exts.P1 to P4 arrear bills dated:4.12..2003, 7..10..2003, 6..6..2003 and 7..8..2003 issued to the complainant by the 2^nd opposite party.  Ext.P1 arrear bill is for Rs.81,473/-.  As per the said arrear bills, arrears up to September 2003 with fine/penalty is claimed.  P2 is the arrear bill dated:7..10..2003 for the arrears up to July 2003 with necessary fine/penalty.  P3 is the arrear bill dated:6..6..2003 for the arrears up to April 2003 and P4 is the arrear bill dated:7..8..2003 for the arrears up to May 2003 with fine/penalty.  Thus, it can be seen that P1 is the last bill dated:4..12..2003 demanding a sum of Rs.81,473/-.  P1 to P4 arrear bills would show that the arrears are claimed from 1994 onwards.  The same can be seen from the calculations given in the written version.  P1 to P4 bills would also make it clear that the opposite parties have also claimed fine/penalty on the said arrears of water charges due from 1994 onwards.  Regulation-13 of the Water Supply Regulations, 1991 prescribes the method of issuing arrear bills/adjustment bills and the manner in which the meter readings are to be taken.  It is the admitted case of the opposite parties that the last meter reading was taken in March 1999 with the readings at 3564.K.Ltrs.  The aforesaid Regulation-13, stipulates that the meter readings are to be taken once in every 6 months and adjustment bills are to be issued once in every 6 months.  So, there was failure on the part of the opposite party/Kerala Water Authority in taking the reading of the water meter installed at the premises of the complainant and issuing arrear bills within the time stipulated in Regulation 13(d) of the Water Supply Regulations, 1991.

 What would be the effect of non compliance of the provisions of the Regulation 13(d)?  Nowhere in the Kerala Water Supply and Sewerage Act or in the Water Supply Regulations, 1991 stated that the consumer need not pay the arrears of water charges for non compliance of Regulation-13 of the Water Supply Regulations.  On the other hand, it is made clear in the Act and the regulations that the consumer is legally bound to make payments for the water actually consumed.  Moreover, the consumer had also executed an agreement infavour of the Kerala Water Authority agreeing to make payment for the arrears of water charges.  There is also no time bar in demanding and levying the arrears of water charges due to the Kerala Water Authority.  There can be no doubt that the consumer will be put in a difficult situation by demanding arrears of water charges for a lengthy period.  It is the duty of the Kerala Water Authority to issue arrear bills once in every 6 months.  If there occurred failure on the part of the water authority to issue such arrear bills they are not entitled to get the fine or penalty on the said arrears of water charges.  So, the claim or demand made by the opposite party by way of fine/penalty cannot be treated as a reasonable and fair demand,  The arrears became due only because of the failure on the part of the opposite party in taking the meter readings within the stipulated time and also their failure in issuing the arrear bills.  The consumer cannot be burdened with the liability to pay fine or penalty on the said arrears of water charges.  If that be so, the amounts claimed in P1 to P4 arrear bills including fine or penalty cannot be upheld.  The Forum below is justified in quashing Ext.P1 to P4 arrear bills because the amounts claimed by way of fine/penalty are not liable to be paid by the consumer.  It is made clear that the opposite party/Kerala Water Authority can only demand and levy the actual arrears of water charges based on the meter readings which were taken in March 1994, January 1996, June 1998 and March 1999.

9. The Forum below cancelled the arrear bills on the sole ground that the meter was not working.  It is true that in P1 to P4 arrear bills the status of the meter is shown as not working.  It is to be noted that the bills were issued in the year 2003.  It would denote that he meter was not working on the date of the said bill.  In other words, the entry in P1 to P4 were bills as “not working” would only denote that the meter was not working in the year 2003.  The opposite parties in their written version has made it clear that the meter was working in March 1999.  It is also made it clear that the meter was installed at the premises of the Consumer No:PCH-1930/N on 1..3..1994 and thereafter meter readings were taken in March 1994, January 1996, June 1998 and March 1999.  There is nothing on record to show that the meter was faulty from March 1994 to March 1999.  So, the opposite party/Kerala Water Authority can very well claim the arrears of water charges based on the said meter readings.

10. The 1^st complainant was legally bound to get the water meter repaired or replaced Regulation 12(e) of the Water Supply Regulations 1991 would make it abundantly clear that it is the responsibility of the owner or occupier of the premises to keep the meter, meter box and its surroundings clean and easily accessible for taking meter readings, inspection and servicing by the Assistant Executive Engineer or any one authorized by him to do so.  It is also the duty of the consumer or the occupier of the premises to intimate the Assistant Executive Engineer about the defective nature of the water meter.  It is also the duty of the consumer or owner or occupier of the premises to take necessary steps to get the defective meter replaced by a defect free meter.  But in the present case the 1^st complainant as the consumer and owner was keeping mum.  She deliberately failed to take necessary steps to get the defective meter replaced by a defect free meter.  The meter readings taken from 1994 to 1999 would make it clear that the consumer has been consuming water over and above the quantity of water fixed in the PIC.  It may be seen that as per the prevailing PIC the permitted quantity was only 13 K.Ltrs and the monthly rate was only Rs.62/-.  But the meter readings taken and incorporated in the written version would make it clear that the consumer has been using the water at the rate of 56, 82, 62.01 and 53.7 K.Ltrs.  Thus, the Kerala Water Authority fixed the minimum charges at Rs.409, for the period from April 1999 onwards.  The aforesaid calculation made by the opposite party can be treated as just and proper.  Especially in the light of the failure on the part of the 1^st complainant/consumer to get the defective meter replaced.  It is further to be noted that the complainant has no case as to when the meter became defective.  No explanation is forthcoming from the side of the 1^st complainant for her failure to take necessary steps to get the defective meter replaced.  She has not given the date from which the meter was not working.  P1 to P4 documents would make it clear that no meter rent has been claimed.  It would give a clear indication that the 1^st complainant (consumer) was the owner of the said meter.  The opposite party is legally entitled to claim the water charges as per the meter readings taken in March 1999.  So, the claim made at the rate of Rs.409/-, per month is to be upheld.  Unfortunately the Forum below omitted to consider the duty cast upon the 1^st complainant (consumer) by virtue of Regulation 12 (e) of the Water Supply Regulations, 1991.  The Forum below has also failed to consider the aspect regarding the consumption of water by the 1^st complainant as consumer from March 1999 onwards.  If that be so, the direction given by the Forum below to calculate the arrears of water charges based on the average consumption of water after installing a new meter cannot be treated as just and proper.  It is to be noted that the complainants can very well limit the use of the water for the purpose of avoiding payment of the water charges for the water actually consumed from March 1999 onwards.  The aforesaid order passed by the Forum below to take the future readings for next 3 months after installation of new meter and to issue arrear bills based on the new meter readings cannot be upheld. The 1^st complainant/consumer is bound to make the arrears based on the consumption at 53.7 K.Ltrs at the rate of Rs.409/- for the period from April 1999.  It is made clear that the aforesaid arrears of water charges would not carry any fine/penalty.

11.  The Forum below passed the impugned order without considering the consumer ledger and the other calculations produced before the Forum below.  It is also to be noted that the Forum below failed to mark the said consumer ledger produced by the opposite parties.  But it is stated in the impugned order regarding the production of the consumer ledger by the opposite party.  It is also to be noted that the complainants have not filed any proof affidavit in lieu of examination in chief.  But P1 to P4 bills produced have been marked on the side of the complainants.  At the same time the consumer ledger produced from the side of the opposite party has not been marked.  It is true that the opposite parties have also not filed any proof affidavit in lieu of examination in chief.  It is further to be noted that no evidence was adduced from either side to substantiate their respective cases.  It is also to be noted that the 1^st complainant has no case that she has not consumed any excess water other than the permitted minimum quantity of 13.K.Ltrs.  Another important aspect to be noted at this juncture is the failure on the part of the complainants to produce the PIC.  The aforesaid card would make the entries regarding the meter readings taken by the meter reader of the Kerala Water Authority.  Thus, in all respects the impugned order passed by the Forum below is to be modified.  Thereby the cancellation of the arrear bills (P1 to P4) is upheld.  But the order directing to issue fresh bills based on the future consumption of water is setaside.  The opposite party/Kerala Water Authority can very well issue the arrear bill based on the meter readings taken in March 1999 at the rate of Rs.409/- from April 1999.  The said arrear bills can be issued without claiming or demanding any fine/penalty.  At the same time the complainant is bound to make the payment under the PIC with fine/penalty from July 1995 onwards.  These points are answered accordingly.

In the result the appeal is allowed partly.  The impugned order dated:23..2..2004 passed by the CDRF, Thiruvananthapuram in OP:255/03(A) is modified.  Thereby the order passed by the Forum below cancelling Exts.P1 to P4 arrear bills is confirmed.  But the order regarding taking of future readings for the next 3 months and to issue arrear bills based on the said future readings is set aside.  The opposite parties are given the right and liberty to issue arrear bills based on the meter readings taken in June 1998 and March 1999.  Thereby the monthly rate is fixed at Rs.409/-.  The aforesaid arrear of water charges would not carry any fine or penal interest.  It is made clear that the 1^st complainant (consumer) is bound to make the arrears of minimum water charges due under the PIC from July 1995 with necessary fine/penalty.  The order directing to pay cost of Rs.500/- is also cancelled.  The 1^st complainant will get the instalment facility thereby the arrears which would be calculated and demanded can be remitted in 10 equal bimonthly instalments.  The parties to these proceedings are directed to suffer their respective costs throughout.

                    M.V. VISWANATHAN : JUDICIAL MEMBER

                    S.CHANDRAMOHAN NAIR : MEMBER

VL.