BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 52/2004 Filed on 28/01/2004 Dated: 15..09..2009
Complainant: General Manager, Karamana Co-operative Urban Bank Ltd.No.1761,Nedunkadu,Karamana-P.O., Thiruvananthapuram, Branch Office at Thirumala, Thiruvananthapuram.
(By Adv. P. Ramachandran Nair)
Opposite parties: Managing Director, Kerala Water Authority, Vellayambalam, Thiruvananthapuram. Assistant Executive Engineer, Kerala Water Authority, East Sub Division, Thiruvananthapuram.
(By Adv. Santhamma Thomas)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02/01/2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..08..2009, the Forum on 15..09..2009 delivered the following: ORDER
SHRI.G. SIVAPRASAD, PRESIDENT: The case of the complainant is that, complainant is a consumer of opposite parties vide temporary consumer No. TMA/SPL/1257 and permanent consumer No. TMA/10342/N, that complainant obtained a temporary water connection in the year 1998 on deposit of Rs.3,000/-, that complainant had remitted water charges for the water used by the complainant, that on April 2001 the said water connection was converted to permanent connection and monthly charge was fixed as Rs.102/- per month and complainant was included in the non-domestic category. Complainant had to remit Rs.102/- per month from April 2001 onwards, and that 2nd opposite party issued bills dated 24/7/2003, 19/9/2003 and 23/11/2003 demanding to remit Rs.102/- per month and as per the last bill opposite parties demanded Rs.204/-. On 30/12/2003 complainant approached the 2nd opposite party and offered the water charge for the period from March 2001 to December 2003, but the opposite party told the complainant that an amount of Rs.70,000/- is to be remitted as outstanding dues and directed the complainant to remit the same, and that the 2nd opposite party refused to accept the water charges offered by the complainant. On 17/1/2004, 2nd opposite party issued a notice to the complainant for Rs. 84,703/- towards water charges. In the said notice it was stated that 'if the complainant fails to remit the said amount within 7 days from the date of receipt of notice the water connection will be disconnected'. Opposite parties attempted to extract huge amount as water charge from the complainant. There is deficiency of service on the part of the opposite parties. Hence this complaint to direct opposite parties to withdraw the proceedings initiated against the complainant vide notice dated 17/1/2004 and to pay a compensation of Rs. 25,000/- along with a cost of Rs.2,000/- to the complainant. 2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts, that water connection was taken in the year 1998 for construction purpose of the building, that after completion of the building tariff was converted to non-domestic category, that the consumer had remitted amount for special connection and Provisional Invoice Card was issued to the complainant for payment of monthly water charges to the permanent connection and that since complainant had not remitted any amount after 4/2001, towards water charges, a notice was issued to the complainant on 17/1/2004 for remitting, the amount within 7 days. Adjustment bills were given to the complainant on 7/03, 9/03 and 11/03, but no amount was remitted by the complainant. Complainan has used excess quantity of water and he is bound to pay amounts as per bills. Hence opposite parties prayed for dismissal of the complaint.
The points that arise for consideration are:
Whether the complainant is liable to pay water charge vide notice dated 10/3/2004 and subsequent bills? Whether there has been deficiency in service on the part of opposite parties? Whether complainant is entitled to get compensation and cost, If so, at what amount?
3. In support of the complaint, complainant has filed affidavit in lieu of examination in chief, and Exts. P1 to P4 were marked. Complainant has not been cross examined by the opposite parties. In rebuttal, 2nd opposite party has filed affidavit and Ext.D1 was marked. 2nd opposite party did not appear for cross examination inspite of specific direction to appear for cross examination. 4. Points (i) to (iii): Admittedly, complainant is the consumer of opposite parties vide temporary consumer No. TMA/SPL/1257 and permanent consumer No. TMA/10342/N. It has been the case of the complainant that complainant had obtained a temporary water connection in the year 1998 on deposit of Rs.3,000/-, that complainant had remitted a sum of Rs.685/- vide receipt No.A-077964 dated 23/4/1998, Rs.820/- on 11/9/1999, vide receipt No.A-086266, Rs.855/- on 16/7/1999 vide receipt No.A-100239, Rs.1,505/- vide receipt No.A-105725 dated 16/7/1999, Rs.645/- vide receipt No.A-113836 dated 8/12/1999 and Rs.1505 vide receipt dated 6/9/2000. Ext.P1 is the notice dated 10/3/2004 issued to the complainant by the opposite parties informing him that complainant has not paid Rs.93,602/- towards water charges upto 2/2004 as per bill and Provisional Invoice Card issued to him within time allowed. In the said notice it is seen informed that the supply of water will be cut off from the said premises after 7 days of the said notice served upon him. Ext.P2 is the Provisional Invoice Card wherein it is seen recorded 'connection category domestic', and consumer No.TMA/SPL/1297. The aforesaid payment is seen recorded on payment schedule overleaf of Ext.P2 Provisional Invoice Card. Ext.P4 is the Provisional Invoice Card wherein the consumer Number recorded is TMA/10342, consumption category is under non-domestic. It is further recorded in Ext.P4 that TMA/SPL/1297 is converted and monthly amount to be remitted is Rs.102/-. It is pertinent to note that no arrear is mentioned in the said Ext.P4, though there is provision for mentioning arrears if any till the issuance of Ext.P4. Ext.P3 series include three consumer bills dated 21/1/2004, 22/7/2004 and 17/8/2004. As per consumer bill dated 21/1/2004, it is seen recorded previous reading 5828kl on 29/9/2003 and present reading 5844kl on 28/11/2003 and average consumption would come to 8.1kl and monthly charge is Rs.100/- plus service charge Rs.2/-. As per consumer bill dated 22/7/2004, no meter reading is recorded in the relevant columns, but average consumption recorded is 95.5kl and meter status is 'not working'. As per consumer bill dated 17/8/2004 meter reading not recorded, and meter status is 'not working'. Ext.P6 series include prior bills dated 24/7/2003, 19/9/2003 and 24/11/2003. A perusal of the said bill would reveal that as per bill dated 24/7/2003, from 5/4/2003 to 22/10/2003, average consumption would come to 9.8kl, that as per bill dated 19/9/2003, from 31/7/2003 to 5/4/2003, average consumption would come to 7.3kl and as per consumer bill dated 24/11/2003 the average consumption would come to 7.6kl. Ext.P5 series include receipts issued by the opposite parties. As per Ext.P1, Provisional Invoice Card, the amount indicated for monthly payment is only provisional. The actual amount due will be ascertained on reading the meter and necessary adjustment bill showing amounts due to will be sent to consumer once in six months. It is contended in the version filed by the opposite parties that on 17/4/2001, meter reading was '0' which rose to 2661kl on 22/11/2001 and average consumption per month was 369.6kl and amount per month was Rs.3758/-. On 19/3/2002 meter reading rose to 4955kl, and average consumption rose to 596.4kl per month and monthly amount rose to Rs.6,162/-, thereafter on 22/10/2002, meter reading rose to 5732kl and average consumption fell to 108.9 kl per month and monthly amount fell to Rs.994/-. From 5/4/2003 to 17/1/2004, average consumption had continuously fallen from 108.9kl to 95.5kl. Ext.D1 is the consumer ledger copy. At this juncture it is to be highlighted Provision 13 of the Water Supply Regulation. As per the Provision 13(d), an adjustment bill shall be issued once in every six months to consumer indicating the excess or short remitted by the consumer. In this context it is to be pointed out that no due is seen recorded in Ext.P1. It is argued by opposite parties that the water connection was converted to non-domestic on 17/4/2001. As per Ext.P2, PIC, complainant had remitted upto 2/2001. If there were any arrears due it would definitely mention in Ext.P4 PIC or issue arrear bill along with Ext.P4. In this case, no arrear bill is seen issued along with the issuance of Ext.P4. Further in Ext.P4 the monthly amount to be remitted is recorded as Rs.102/-. The said amount might be assessed by the opposite parties on the basis of previous consumption. It is further to be noted that as per Ext.P2 prior PIC, no arrear amount was due upto 3/1997. On a perusal of the pattern of meter reading, and average monthly consumption as stated in the version as well as Ext.D1 consumer ledger, from 17/4/2001 to 22/11/2001 the meter reading rose from '0' to 2661kl, which rose to 4955kl on 19/3/2002 and to 5732 on 22/10/2002. Thereafter meter reading varied from 5813kl to 6001kl on 17/1/2004. Average monthly consumption varied from 369.6kl to 95.5kl during the said period. Meter status is seen recorded as 'non-working' from 17/1/2004 onwards. The onus of explaining such a high meter reading from '0' to 5732 from 17/4/2001 to 22/10/2002 would rest on the opposite parties. In this context it is to be noted, that complainant had filed an application for cross examination of the opposite parties which was allowed by this Forum and opposite parties were directed to appear for cross examination vide order dated 28/4/2005, that even after repeated summons opposite parties did not appear for cross examination, as such the affidavit filed by the opposite parties to substantiate version is liable to be rejected. If a party who filed version did not appear in box and offer himself to be cross examined by the other party, the only course open to the Forum would be to draw adverse inference. It is further to be pointed out that on a perusal of meter reading as available on records, there are abnormalities in the meter reading, which need to be explained by the opposite parties by cogent and clinching evidence. Further meter status is seen 'non-working' after 1/2004. At any stretch of imagination, it is impossible to presume that a party who was directed to remit monthly amount at the rate of Rs.102/-, would take such a high consumption of water, especially 5732kl within 18 months (from 17/4/2001 to 22/10/2002). In view of the aforesaid discussions and in the light of available evidence on records we are of the considered opinion that justice will be well met if complainant is directed to remit water charge at the rate of Rs.102/- as stated in Ext.P4 Provisional Invoice Card upto 10/3/2004, and thereafter on the basis of average actual meter reading for three months on the new meter to be installed in the said premises.
In the result, complaint is allowed. The cut off notice dated 10/3/2004 and subsequent bills issued thereafter by opposite parties to the complainant are hereby quashed. Complainant shall remit water charge at the rate of Rs.102/- per month from 3/01 to 3/04 within one month from the date of receipt of this order, after adjusting Rs.1,000/- already remitted vide receipt No.1037085 dated 7/10/2004. On receipt of the said amount opposite parties shall permit the complainant to replace the faulty water meter with a new meter. Complainant shall install the new meter at complainant's own cost. Opposite parties shall raise fresh bill on the basis of average actual meter reading for three months for the whole period retrospectively from 11/3/2004 onwards. There will be no compensation in facts and circumstances of the case. Parties are left to bear and suffer their own costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of September, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI. A : MEMBER
S.K. SREELA : MEMBER ad.
O.P.No.52/2004 APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : Notice (original) No.222/138 dated 10/3/04 to the con.No.TMA-10342(N) P2 : Provisional Invoice Card of con.No.TMA- spl/1279. P3(series) Consumer bill No.310 dated 22/7/2004 " 178 dated 21/1/04 " 356 dated 17/8/04
P4 : Provisional Invoice Card of con.No.TMA-10342- N. P5(series) Receipts dated 23/4/98, 11/9/98, 17/4/99, 16/7/99, 8/12/99, 6/9/00. P6 : Consumer Bill No.36 dated 24/7/03 " 81 dated 19/9/03 " 132 dated 24/11/03
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of consumer ledger dated 29/1/2004.
PRESIDENT.
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P. No. 52/2004 Filed on 28/01/2004 Dated: 15..09..2009
Complainant: General Manager, Karamana Co-operative Urban Bank Ltd.No.1761,Nedunkadu,Karamana-P.O., Thiruvananthapuram, Branch Office at Thirumala, Thiruvananthapuram.
(By Adv. P. Ramachandran Nair)
Opposite parties: Managing Director, Kerala Water Authority, Vellayambalam, Thiruvananthapuram. Assistant Executive Engineer, Kerala Water Authority, East Sub Division, Thiruvananthapuram.
(By Adv. Santhamma Thomas)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 02/01/2006, the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 30..08..2009, the Forum on 15..09..2009 delivered the following: ORDER
SHRI.G. SIVAPRASAD, PRESIDENT: The case of the complainant is that, complainant is a consumer of opposite parties vide temporary consumer No. TMA/SPL/1257 and permanent consumer No. TMA/10342/N, that complainant obtained a temporary water connection in the year 1998 on deposit of Rs.3,000/-, that complainant had remitted water charges for the water used by the complainant, that on April 2001 the said water connection was converted to permanent connection and monthly charge was fixed as Rs.102/- per month and complainant was included in the non-domestic category. Complainant had to remit Rs.102/- per month from April 2001 onwards, and that 2nd opposite party issued bills dated 24/7/2003, 19/9/2003 and 23/11/2003 demanding to remit Rs.102/- per month and as per the last bill opposite parties demanded Rs.204/-. On 30/12/2003 complainant approached the 2nd opposite party and offered the water charge for the period from March 2001 to December 2003, but the opposite party told the complainant that an amount of Rs.70,000/- is to be remitted as outstanding dues and directed the complainant to remit the same, and that the 2nd opposite party refused to accept the water charges offered by the complainant. On 17/1/2004, 2nd opposite party issued a notice to the complainant for Rs. 84,703/- towards water charges. In the said notice it was stated that 'if the complainant fails to remit the said amount within 7 days from the date of receipt of notice the water connection will be disconnected'. Opposite parties attempted to extract huge amount as water charge from the complainant. There is deficiency of service on the part of the opposite parties. Hence this complaint to direct opposite parties to withdraw the proceedings initiated against the complainant vide notice dated 17/1/2004 and to pay a compensation of Rs. 25,000/- along with a cost of Rs.2,000/- to the complainant. 2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts, that water connection was taken in the year 1998 for construction purpose of the building, that after completion of the building tariff was converted to non-domestic category, that the consumer had remitted amount for special connection and Provisional Invoice Card was issued to the complainant for payment of monthly water charges to the permanent connection and that since complainant had not remitted any amount after 4/2001, towards water charges, a notice was issued to the complainant on 17/1/2004 for remitting, the amount within 7 days. Adjustment bills were given to the complainant on 7/03, 9/03 and 11/03, but no amount was remitted by the complainant. Complainan has used excess quantity of water and he is bound to pay amounts as per bills. Hence opposite parties prayed for dismissal of the complaint.
The points that arise for consideration are:
Whether the complainant is liable to pay water charge vide notice dated 10/3/2004 and subsequent bills? Whether there has been deficiency in service on the part of opposite parties? Whether complainant is entitled to get compensation and cost, If so, at what amount?
3. In support of the complaint, complainant has filed affidavit in lieu of examination in chief, and Exts. P1 to P4 were marked. Complainant has not been cross examined by the opposite parties. In rebuttal, 2nd opposite party has filed affidavit and Ext.D1 was marked. 2nd opposite party did not appear for cross examination inspite of specific direction to appear for cross examination. 4. Points (i) to (iii): Admittedly, complainant is the consumer of opposite parties vide temporary consumer No. TMA/SPL/1257 and permanent consumer No. TMA/10342/N. It has been the case of the complainant that complainant had obtained a temporary water connection in the year 1998 on deposit of Rs.3,000/-, that complainant had remitted a sum of Rs.685/- vide receipt No.A-077964 dated 23/4/1998, Rs.820/- on 11/9/1999, vide receipt No.A-086266, Rs.855/- on 16/7/1999 vide receipt No.A-100239, Rs.1,505/- vide receipt No.A-105725 dated 16/7/1999, Rs.645/- vide receipt No.A-113836 dated 8/12/1999 and Rs.1505 vide receipt dated 6/9/2000. Ext.P1 is the notice dated 10/3/2004 issued to the complainant by the opposite parties informing him that complainant has not paid Rs.93,602/- towards water charges upto 2/2004 as per bill and Provisional Invoice Card issued to him within time allowed. In the said notice it is seen informed that the supply of water will be cut off from the said premises after 7 days of the said notice served upon him. Ext.P2 is the Provisional Invoice Card wherein it is seen recorded 'connection category domestic', and consumer No.TMA/SPL/1297. The aforesaid payment is seen recorded on payment schedule overleaf of Ext.P2 Provisional Invoice Card. Ext.P4 is the Provisional Invoice Card wherein the consumer Number recorded is TMA/10342, consumption category is under non-domestic. It is further recorded in Ext.P4 that TMA/SPL/1297 is converted and monthly amount to be remitted is Rs.102/-. It is pertinent to note that no arrear is mentioned in the said Ext.P4, though there is provision for mentioning arrears if any till the issuance of Ext.P4. Ext.P3 series include three consumer bills dated 21/1/2004, 22/7/2004 and 17/8/2004. As per consumer bill dated 21/1/2004, it is seen recorded previous reading 5828kl on 29/9/2003 and present reading 5844kl on 28/11/2003 and average consumption would come to 8.1kl and monthly charge is Rs.100/- plus service charge Rs.2/-. As per consumer bill dated 22/7/2004, no meter reading is recorded in the relevant columns, but average consumption recorded is 95.5kl and meter status is 'not working'. As per consumer bill dated 17/8/2004 meter reading not recorded, and meter status is 'not working'. Ext.P6 series include prior bills dated 24/7/2003, 19/9/2003 and 24/11/2003. A perusal of the said bill would reveal that as per bill dated 24/7/2003, from 5/4/2003 to 22/10/2003, average consumption would come to 9.8kl, that as per bill dated 19/9/2003, from 31/7/2003 to 5/4/2003, average consumption would come to 7.3kl and as per consumer bill dated 24/11/2003 the average consumption would come to 7.6kl. Ext.P5 series include receipts issued by the opposite parties. As per Ext.P1, Provisional Invoice Card, the amount indicated for monthly payment is only provisional. The actual amount due will be ascertained on reading the meter and necessary adjustment bill showing amounts due to will be sent to consumer once in six months. It is contended in the version filed by the opposite parties that on 17/4/2001, meter reading was '0' which rose to 2661kl on 22/11/2001 and average consumption per month was 369.6kl and amount per month was Rs.3758/-. On 19/3/2002 meter reading rose to 4955kl, and average consumption rose to 596.4kl per month and monthly amount rose to Rs.6,162/-, thereafter on 22/10/2002, meter reading rose to 5732kl and average consumption fell to 108.9 kl per month and monthly amount fell to Rs.994/-. From 5/4/2003 to 17/1/2004, average consumption had continuously fallen from 108.9kl to 95.5kl. Ext.D1 is the consumer ledger copy. At this juncture it is to be highlighted Provision 13 of the Water Supply Regulation. As per the Provision 13(d), an adjustment bill shall be issued once in every six months to consumer indicating the excess or short remitted by the consumer. In this context it is to be pointed out that no due is seen recorded in Ext.P1. It is argued by opposite parties that the water connection was converted to non-domestic on 17/4/2001. As per Ext.P2, PIC, complainant had remitted upto 2/2001. If there were any arrears due it would definitely mention in Ext.P4 PIC or issue arrear bill along with Ext.P4. In this case, no arrear bill is seen issued along with the issuance of Ext.P4. Further in Ext.P4 the monthly amount to be remitted is recorded as Rs.102/-. The said amount might be assessed by the opposite parties on the basis of previous consumption. It is further to be noted that as per Ext.P2 prior PIC, no arrear amount was due upto 3/1997. On a perusal of the pattern of meter reading, and average monthly consumption as stated in the version as well as Ext.D1 consumer ledger, from 17/4/2001 to 22/11/2001 the meter reading rose from '0' to 2661kl, which rose to 4955kl on 19/3/2002 and to 5732 on 22/10/2002. Thereafter meter reading varied from 5813kl to 6001kl on 17/1/2004. Average monthly consumption varied from 369.6kl to 95.5kl during the said period. Meter status is seen recorded as 'non-working' from 17/1/2004 onwards. The onus of explaining such a high meter reading from '0' to 5732 from 17/4/2001 to 22/10/2002 would rest on the opposite parties. In this context it is to be noted, that complainant had filed an application for cross examination of the opposite parties which was allowed by this Forum and opposite parties were directed to appear for cross examination vide order dated 28/4/2005, that even after repeated summons opposite parties did not appear for cross examination, as such the affidavit filed by the opposite parties to substantiate version is liable to be rejected. If a party who filed version did not appear in box and offer himself to be cross examined by the other party, the only course open to the Forum would be to draw adverse inference. It is further to be pointed out that on a perusal of meter reading as available on records, there are abnormalities in the meter reading, which need to be explained by the opposite parties by cogent and clinching evidence. Further meter status is seen 'non-working' after 1/2004. At any stretch of imagination, it is impossible to presume that a party who was directed to remit monthly amount at the rate of Rs.102/-, would take such a high consumption of water, especially 5732kl within 18 months (from 17/4/2001 to 22/10/2002). In view of the aforesaid discussions and in the light of available evidence on records we are of the considered opinion that justice will be well met if complainant is directed to remit water charge at the rate of Rs.102/- as stated in Ext.P4 Provisional Invoice Card upto 10/3/2004, and thereafter on the basis of average actual meter reading for three months on the new meter to be installed in the said premises.
In the result, complaint is allowed. The cut off notice dated 10/3/2004 and subsequent bills issued thereafter by opposite parties to the complainant are hereby quashed. Complainant shall remit water charge at the rate of Rs.102/- per month from 3/01 to 3/04 within one month from the date of receipt of this order, after adjusting Rs.1,000/- already remitted vide receipt No.1037085 dated 7/10/2004. On receipt of the said amount opposite parties shall permit the complainant to replace the faulty water meter with a new meter. Complainant shall install the new meter at complainant's own cost. Opposite parties shall raise fresh bill on the basis of average actual meter reading for three months for the whole period retrospectively from 11/3/2004 onwards. There will be no compensation in facts and circumstances of the case. Parties are left to bear and suffer their own costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of September, 2009.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI. A : MEMBER
S.K. SREELA : MEMBER ad.
O.P.No.52/2004 APPENDIX I. Complainant's witness: NIL II. Complainant's documents: P1 : Notice (original) No.222/138 dated 10/3/04 to the con.No.TMA-10342(N) P2 : Provisional Invoice Card of con.No.TMA- spl/1279. P3(series) Consumer bill No.310 dated 22/7/2004 " 178 dated 21/1/04 " 356 dated 17/8/04
P4 : Provisional Invoice Card of con.No.TMA-10342- N. P5(series) Receipts dated 23/4/98, 11/9/98, 17/4/99, 16/7/99, 8/12/99, 6/9/00. P6 : Consumer Bill No.36 dated 24/7/03 " 81 dated 19/9/03 " 132 dated 24/11/03
III. Opposite parties' witness : NIL
IV. Opposite parties' documents:
D1 : Photocopy of consumer ledger dated 29/1/2004.
PRESIDENT.
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
