M/S KERALA WATER AUTHORITY V/S DR MARIAMMA A K - Consumer Court Case

Kerala

Ernakulam

CC/19/60

DR MARIAMMA A K - Complainant(s)

Versus

M/S KERALA WATER AUTHORITY - Opp.Party(s)

GEORGE CHERIAN

29 Jan 2024

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM

ERNAKULAM

Complaint Case No. CC/19/60

( Date of Filing : 01 Feb 2019 )

1. DR MARIAMMA A K

KEERTHY NAGAR CHAMPAKKARA MARADU

...........Complainant(s)

Versus

1. M/S KERALA WATER AUTHORITY

WATER SUPPLY SUB DIV.TRIPUNITHURA

............Opp.Party(s)

BEFORE:
	HON'BLE MR. D.B BINU PRESIDENT
	HON'BLE MR. RAMACHANDRAN .V MEMBER
	HON'BLE MRS. SREEVIDHIA T.N MEMBER

PRESENT:

Dated : 29 Jan 2024

Final Order / Judgement

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

Dated this the 29^th day of January 2024

Filed on: 01/022019

PRESENT

Shri.D.B.Binu President

Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member

C.C. No. 60/2019

COMPLAINANT

Dr. Mariamma A.K., aged 52 years, W/o Anil Kumar, D. No. V/445 B. Keerthi Nagar, Champakara, Maradu P.O., Pin - 682 304

(Adv. George Cherian Karipparambil, Karipparambil Associates, H.B.

48, Panampilly Nagar, Kochi 682 036)

THE OPPOSITE PARTY

The Assistant Executive Engineer, Water Supply Sub Division, Kerala Water Authority Thripunithura Ernakulam, Pin -682 306

(P.a.Augustine, Standing Counsel of the opposite party)

F I N A L O R D E R

D.B.Binu, President

A brief statement of facts of this complaint is as stated below:

The complaint is filed under Section 12 (1) of the Consumer Protection Act, 1986. The complainant, a joint owner of a property in Maradu Village, Kanayannur Taluk, with a house bearing the door number V/445 B, has filed a complaint regarding the inadequate water supply at their residence. Despite having a domestic water connection (Consumer No. MRD/12246/D) established with the Opposite Party in May 2018, the complainant has faced consistent issues with the water supply.

The complainant points out that while they have been regularly receiving and paying water bills (amounting to Rs. 244, Rs. 156, Rs. 112, and Rs. 88 on various dates from July 2018 to January 2019), the actual water supply has been insufficient. This situation is contrasted with the adequate water supply received by their neighbours from the Kerala Water Authority (KWA) line, indicating an unfair trade practice, negligence, and deficiency in service on the part of the Opposite Party.

Due to this, the complainant has suffered financial loss, mental agony, and inconvenience. Despite repeated complaints and a written complaint to the Superintending Engineer of Kerala Water Authority in September 2018, which led to an instruction to the Opposite Party to ensure water supply, the situation has not improved.

As a result, the complainant is seeking relief from this commission. They request that the commission directs the Opposite Party to ensure regular and timely water supply, compensates them with Rs. 1 Lakh for the losses and damages incurred due to the Opposite Party's actions, and covers Rs. 15,000 towards the cost of proceedings. The complainant asserts that the cause of action for this complaint falls within the jurisdiction of the commission, as the connection was established and the issue persisted within the commission's area of influence.

2) Notice

The Commission issued a notice to the Opposite Party, who in turn submitted their version to the allegations.

THE VERSION OF THE OPPOSITE PARTY

The complainant is barred by the principle of estoppel from filing the case due to a previous undertaking. Specifically, the complainant had agreed not to complain about non-supply of water due to shortages or unavailability when they applied for the water connection.

The Opposite Party acknowledges that the complainant has a water connection (Consumer No. MRD/12246/D) but denies all other allegations in the complaint. They state that the water connection was initially not sanctioned due to the complainant's residence being at the tail end of the distribution main line, which would result in insufficient water supply. The connection was eventually granted based on a special undertaking signed by the complainant and their spouse, acknowledging the water scarcity in the area and agreeing not to file complaints against the Kerala Water Authority for water supply issues.

Further, the Opposite Party explains that upon inspection following the complainant's complaint to the Superintending Engineer, they found a technical issue on the complainant's end (the inlet from the meter point to the collection sump being higher than the level of the meter) and advised the complainant to make adjustments, which they did not do.

They also note that there is an ongoing project to strengthen the distribution system in the area and that the neighbours of the complainant are facing similar water scarcity issues.

In conclusion, the Opposite Party argues that there is no deficiency of service or unfair trade practice on their part, and therefore, the complainant is not entitled to any relief. They request that the commission dismiss the complaint with costs.

4) . Evidence

The complainant had filed a proof affidavit and 17 documents that was marked as Exhibits-A-1 to A17.

Exhibit A1: Copy of the complaint dated 04.09.2018 given to the Superintending Engineer, Kerala Water Authority, Jalabhavan, Kochi-11.

Exhibit A2: Copy of the letter dated 15.09.2018 issued by the Superintending Engineer, Kerala Water Authority, Jalabhavan, Kochi-11 to the opposite party.

Exhibit A3: Copy of the bill dated 18.07.2018 for Rs. 244/- issued by the opposite party.

Exhibit A4: Copy of the bill dated 14.09.2018 for Rs. 156/- issued by the opposite party.

Exhibit A5: Copy of the bill dated 21.11.2018 for Rs. 112/- issued by the opposite party.

Exhibit A6: Copy of the bill dated 11.01.2019 for Rs. 88/- issued by the opposite party.

Exhibit A7: Copy of the bill dated 12.03.2019 for Rs. 40/- issued by the opposite party.

Exhibit A8: Copy of the bill dated 07.05.2019 for Rs. 40/- issued by the opposite party.

Exhibit A9: Copy of the bill dated 08.07.2019 for Rs. 40/- issued by the opposite party.

Exhibit A10: Copy of the bill dated 18.09.2019 for Rs. 40/- issued by the opposite party.

Exhibit A11: Copy of the bill dated 12.11.2019 for Rs. 40/- issued by the opposite party.

Exhibit A12: Copy of the bill dated 13.01.2020 for Rs. 40/- issued by the opposite party.

Exhibit A13: Copy of the bill dated 10.03.2020 for Rs. 80/- issued by the opposite party.

Exhibit A14: Copy of the bill dated 15.05.2020 for Rs. 80/- issued by the opposite party.

Exhibit A15: Copy of bill No. 593 dated 24.04.2019 for Rs. 650/- issued by Quality Water Suppliers, Kochi-21.

Exhibit A16: Copy of bill No. 504 dated 07.06.2019 for Rs. 600/- issued by Quality Water Suppliers, Kochi-21.

Exhibit A17: Copy of bill No. 788 dated 17.12.2019 for Rs. 600/- issued by Quality Water Suppliers, Kochi-21.

The opposite party did not submit a proof affidavit; instead, they presented two documents to the commission. However, these documents were not formally marked as Exhibits in accordance with the proceedings.

Special under taking
Copy of the reply dated 30.01.2019 under R.T.I Act issued by the Kerala Water Authority to the complainant.

5) The main points to be analysed in this case are as follows:

i) Whether the complaint is maintainable or not?

ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?

iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?

iv) Costs of the proceedings if any?

6) The issues mentioned above are considered together and are answered as follows:

As per Section 2 (1) (d) of the Consumer Protection Act,1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainants had produced the True copies of the bills in different dates issued by the opposite party

(Exhibits A-3 to 17). Hence, the complainant is a consumer as defined under the Consumer Protection Act, 1986. (Point No. i) goes against the opposite party.

The complainants have filed a case seeking damages and compensation from the opposite party for deficiency in service, unfair trade practices, and negligence. They have cited inadequate water supply, despite regular billing and payments, as evidence of such deficiencies

We have heard from Mr. George Cherian Karippaparambil, learned Counsel for the Complainant, has presented the argument notes in the above matter.

The complainant purchased a residential house in Maradu, Ernakulam, in November 2017 and applied for a domestic water connection from the Opposite Party in May 2018. When they appeared at the office of the Opposite Party, they were directed to sign some documents as part of the application process, which they did without hesitation due to their trust in the Kerala Water Authority, a Kerala Government-owned public undertaking.

The Complainant was then provided with a Domestic Water Connection No. MRD/12246/D. Despite assurances of water supply, the first bill dated 18/7/2018 for Rs.244/- was issued without actual water being supplied (Exhibit A3). The Complainant repeatedly informed the Opposite Party about the non-availability of water, leading to a written complaint to the Superintending Engineer, Kerala Water Authority, on 04/9/2018 (Exhibit A1). In response, the Superintending Engineer instructed the Opposite Party to ensure water supply to the Complainant (Exhibit A2).

Despite paying regular bi-monthly bills, the Complainant had to rely on tanker supplies and neighbours’ wells for water until 8/3/2020. The Complainant argues that the Opposite Party's failure to supply water while issuing bills and obtaining signatures for one-sided undertakings constitutes a deficiency in service. The undertaking mentioned is deemed illegal and akin to loan shark tactics.

The Opposite Party’s defense that the inlet from the meter point to the collection sump of the Complainant was higher than the level of the meter, leading to insufficient water, is challenged. The Complainant states that this explanation was never provided before the current proceedings and that no efforts were made to repair or re-fix the inlet.

The Complainant points out that from May 2018 to 19th January 2019, only 26 units of water were supplied over eight months, contrary to the standard requirement of 50-100 liters per day per person according to the World Health Organization (Exhibits A4 to A12).

Given the discomfort and prompt payments made by the Complainant and family, they seek compensation as previously requested. The Complainant requests the Commission to award compensation of Rupees One Lakh and pass any other order in the interest of justice.

വിവരാവകാശ നിയമം - 2005 പ്രകാരം ചോദ്യങ്ങൾക്ക് എതിർ കക്ഷി
നൽകിയ മറുപടി താഴെ ഉദ്ധരിക്കുന്നു: (Document no.1)

“ചോദ്യം ( (2) 25.01.2019 ലെ മീറ്റർ റീഡിംഗ് പ്രകാരം 26000 ലിറ്റർ വെള്ളം ഉപയോഗിച്ചിട്ടുണ്ട്.

23/7/2018 ൽ വെള്ളക്കരമായി 244/- രൂപ അടച്ചിട്ടുണ്ട്. ഇതിൽ മീറ്റർ റീഡിംഗ് പ്രകാരമുള്ള തുകയായ 88/- രൂപ കഴിച്ച് ബാക്കി 156/- രൂപ അടുത്തമാസത്തെ ബില്ലുകളിലേയ്ക്ക് വരവു വച്ചിട്ടുണ്ട്.

ചോദ്യം (3) പരാതിയുടെ പരിഹരിക്കാറുണ്ട്. സ്വഭാവമനുസരിച്ച് കഴിയുന്നതും വേഗത്തിൽ പരിഹരിക്കാറുണ്ട്.

ചോദ്യം (4) ഈ വീടിന്റെ സമീപവീടുകളിൽ വാട്ടർ മീറ്റർ താഴ്ത്തി വച്ചിരിക്കുന്നതോടൊപ്പം തന്നെ മീറ്ററിൽ നിന്നുള്ള ഔട്ട്ലറ്റും ടാങ്കിലേയ്ക്കുള്ള ഇൻലറ്റും താഴ്ത്തിയാണ് കൊടുത്തിരിക്കുന്നത്.

എന്നാൽ മേൽപ്പടി ഉപഭോക്താവിൻ്റെ വാട്ടർ മീറ്റർ താഴ്ത്തി വച്ചിട്ടുണ്ടെങ്കിലും ടാങ്കിലേയ്ക്കുള്ള ഇൻലറ്റ് മീറ്ററിൽ നിന്നും ഉയർത്തി വച്ചിരിക്കുന്നതായി കാണുന്നു. ഇതാണ് ജലദൗർലഭ്യത്തിൻ്റെ ഒരു കാരണം .

ടാങ്കിലേയ്ക്കുള്ള ഇൻലറ്റ് താഴ്ത്തി കൊടുക്കേണ്ടത് ഉപഭോക്താവിന്റെ ഉത്തരവാദിത്വമാകുന്നു.കൂടാതെ ഈ കണക്ഷനു വേണ്ടിയുള്ള ബന്ധപ്പെട്ട ഓവർസിയറുടെ സ്ഥല പരിശോധന സമയത്ത് ഈവീട് സ്ഥിതിചെയ്യുന്ന പ്രദേശത്തെ ജല ദൗർലഭ്യം ചൂണ്ടിക്കാട്ടുകയും ഈ പ്രദേശത്ത് പുതിയ ജല വിതരണക്കുഴൽ സ്ഥാപിച്ച് ജലവിതരണം മെച്ചപ്പെടുത്തിയതിനു ശേഷം മാത്രമേ കണക്ഷൻ നൽകാൻ സാധിക്കുകയുള്ളു എന്ന് അപേക്ഷകനെ ബോധ്യപ്പെടുത്തുകയും ചെയ്‌ത്‌ കണക്ഷൻ ഫയൽ തീർപ്പാക്കാതെ സൂക്ഷിച്ചിരുന്നതാണ്. എന്നാൽ പ്രത്യേക ഉറപ്പ് രേഖാ മൂലം അപേക്ഷകൻ/അപേക്ഷക നൽകിയതിനുശേഷം മാത്രമാണ് ഈ കണക്ഷൻനൽകിയിരിക്കുന്നത്.”

ആയതിനാൽ ഈ പ്രദേശത്തേയ്ക്കുള്ള ജലവിതരണം മെച്ചപ്പെടുത്തുന്ന ജോലികൾ പൂർത്തീകരിച്ചതിനുശേഷം മാത്രമേ ഈ ഉപഭോക്താവിന് കൂടിയ ശുദ്ധജലം ലഭ്യമാവുകയുള്ളൂ. എന്ന് അസി. എഞ്ചിനീയർ റിപ്പോർട്ട് ചെയ്തിട്ടുണ്ട്.”

The response to the queries under the Right to Information Act 2005 from the opposite party is as follows:

Regarding the query about water usage as per the meter reading on 25.01.2019, it is noted that 26,000 liters of water were used according to the meter reading of.
On 23/7/2018, a water charge of Rs. 244/- was paid. After deducting the amount of Rs. 88/- as per the meter reading, the remaining Rs. 156/- was carried forward to the bills of the following month.
Concerning the query about complaint resolution, it is stated that complaints are addressed as promptly and efficiently as possible.
As for the query about the water meter placement in the neighbouring houses, it is mentioned that along with lowering the water meter, both the outlet from the meter and the inlet to the tank have been lowered. However, for the consumer in question, while the water meter has been lowered, the inlet to the tank from the meter is raised, which is identified as a cause of water scarcity. The responsibility to lower the inlet to the tank lies with the consumer.

Additionally, during the site inspection by the overseeing officer for this connection, it was pointed out that the area faced water scarcity and that water distribution improved only after installing new water distribution pipes in the area. It is noted that the connection was not finalized until the applicant/applicant provided a Special under taking. (Document no.2).

The complainant, a joint owner of a property in Maradu Village, Kanayannur Taluk, with a house bearing the door number V/445 B, has filed a complaint regarding the inadequate water supply at their residence. Despite having a domestic water connection (Consumer No. MRD/12246/D) established with the Opposite Party in May 2018, the complainant has faced consistent issues with the water supply.

The Opposite Party submitted the version stated below in brief that:

The complainant is barred by the principle of estoppel from filing the case due to a previous undertaking. Specifically, the complainant had agreed not to complain about non-supply of water due to shortages or unavailability when they applied for the water connection.
The Opposite Party acknowledges that the complainant has a water connection (Consumer No. MRD/12246/D) but denies all other allegations in the complaint. They state that the water connection was initially not sanctioned due to the complainant's residence being at the tail end of the distribution main line, which would result in insufficient water supply. The connection was eventually granted based on a special undertaking signed by the complainant and their spouse, acknowledging the water scarcity in the area and agreeing not to file complaints against the Kerala Water Authority for water supply issues.
Further, the Opposite Party explains that upon inspection following the complainant's complaint to the Superintending Engineer, they found a technical issue on the complainant's end (the inlet from the meter point to the collection sump being higher than the level of the meter) and advised the complainant to make adjustments, which they did not do.
They also note that there is an ongoing project to strengthen the distribution system in the area and that the neighbors of the complainant are facing similar water scarcity issues.
In conclusion, the Opposite Party argues that there is no deficiency in service or unfair trade practice on their part, and therefore, the complainant is not entitled to any relief. They request that the commission dismiss the complaint with costs.

The Special undertaking (Document No.1) signed by the complainant and their spouse is produced by the Opposite Party extracted belove:

“SPECIAL UNDERTAKING

I am aware of the present water scarcity in the Marad Municipality area due to the increase in demand more than the available supply. The water connection given to my house / premises if only on account of compulsion from my part. I will never complaint against Kerala Water Authority for the non-supply of water due to the shortage or non - availability of water. I am ready to pay the minimum water charge as per the prevailing rules, even if no water available through this connection.”

The Special undertaking signed by the complainant and their spouse, acknowledging water scarcity in the area and agreeing not to file complaints, is a matter of concern. While the Opposite Party argues that this undertaking absolves them of responsibility, it is important to consider the fairness and legality of such an undertaking. The Commission believes that consumers should not be coerced into relinquishing their rights to seek remedies for legitimate grievances.

The primary contention revolves around the deficiency in service and negligence as defined under the Consumer Protection Act, 1986. In the landmark judgment of "Lucknow Development Authority v M.K. Gupta", the Supreme Court held that any fault, imperfection, shortcoming, or inadequacy in the quality, nature, and manner of performance in service can be considered as 'deficiency in service'.

"Indian Medical Association v V.P. Shantha", the Supreme Court expanded the definition of 'service' under the Act, emphasizing the need for proper and efficient service delivery.

In Secunderabad Cantonment Board V. Dr. Raju Srinivas Iyengar 2019(3) CPR 498 (NC) AND IV (2019) CPJ 503 (NC) held that:

“9. The Respondent was deprived of the water connection for nearly a year which was proved before the District Forum and the same was confirmed by the State Commission. The State Commission has clearly stated in its order that without providing water, Petitioners had no right or authority to collect the minimum charges, whatsoever be the reason. It was on record that the Respondent made several correspondences seeking restoration of water supply. As a result of non-supply of water, the Respondent could not occupy and enjoy his own house and instead was compelled to reside in a rented premises, as is evident from the evidence placed on record. The question of minimum charges would arise only on supply of minimum water. Without supplying any water, raising minimum charges by the Petitioners was improper.”

The Right to seek redressal encompasses the entitlement to seek compensation for damages resulting from unfair trade practices and exploitation. The amount of compensation granted is contingent on the extent of harm incurred. Consumers possess the right to have their grievances resolved in their favour when producers engage in deceitful and exploitative behavior. This is elucidated in the Consumer Protection Act of 1986.

The Special undertaking (Document No.1) is produced by the Opposite Party contains an undertaking wherein the complainant and their spouse declare that they will not file complaints against the Kerala Water Authority for non-supply of water due to shortages or unavailability. They also express willingness to pay the minimum water charge stipulated by prevailing regulations, even if water is not provided through their connection. The presentation of this special undertaking by the Opposite Party is seen as an unjust enrichment and an unfair trade practice, especially given their monopoly over water supply in the state of Kerala.

Access to clean water is a basic need and inherent to the right to life, as stipulated under Article 21 of the Indian Constitution.

Issue 1: Maintainability of the Complaint

As per Section 2 (1) (d) of the Consumer Protection Act, 1986, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised. The complainants have produced copies of water bills (Exhibits A-3 to A17), establishing that they are consumers as defined under the Consumer Protection Act, 1986. Therefore, the complaint is maintainable.

Issue 2: Deficiency in Service and Unfair Trade Practice

The complainant has alleged deficiency in service, unfair trade practices, and negligence on the part of the Opposite Party. The evidence presented, including the insufficient water supply and irregular billing, points to a significant deficiency in service. The Special undertaking signed by the complainant and their spouse, which acknowledges water scarcity and agrees not to file complaints, raises concerns about its legality and fairness.

In the case of Lucknow Development Authority v M.K. Gupta, the Honourable Supreme Court held that any fault, imperfection, shortcoming, or inadequacy in the quality, nature, and manner of performance in service can be considered as 'deficiency in service'. Additionally, the case of Indian Medical Association v V.P. Shantha expanded the definition of 'service' under the Act, emphasizing the need for proper and efficient service delivery.

Furthermore, the case of Secunderabad Cantonment Board v. Dr. Raju Srinivas Iyengar established that consumers have the right to seek redressal and compensation for damages resulting from unfair trade practices. This right is reinforced by the Consumer Protection Act of 1986.

The Special undertaking, which coerces consumers into relinquishing their rights to seek remedies for legitimate grievances, is not in line with the principles of fairness and legality.

The Opposite Party's defense that the inlet from the meter point to the collection sump of the Complainant was higher than the level of the meter is challenged by the complainant. The complainant asserts that this explanation was never provided before the current proceedings, and no efforts were made by the Opposite Party to repair or re-fix the inlet. This raises questions about the credibility of the Opposite Party's explanation.

The complainant has also provided evidence showing that only 26 units of water were supplied over eight months from May 2018 to January 2019, contrary to the standard requirement of 50-100 litters per day per person according to the World Health Organization (Exhibits A4 to A12). This evidence suggests a significant deficiency in service.

Issue 3: Relief for the Complainant

Given the discomfort, inconvenience, and prompt payments made by the complainant and their family, they are entitled to compensation for the deficiency in service and the mental agony suffered. The Commission finds that the complainant deserves compensation for the losses and damages incurred due to the Opposite Party's actions.

Issue 4: Costs of Proceedings

In light of the evidence presented and the deficiencies in the Opposite Party's service, it is appropriate to award costs to the complainant. The Opposite Party's resistance to addressing the complainant's genuine concerns necessitates this.

In conclusion, the complaint is found to be maintainable, and there is a clear deficiency in service and an instance of unfair trade practice on the part of the opposite party.

We find the issues numbered (i) to (iv) have been resolved in favour of the complainant. The judgment acknowledges that there was a significant deficiency in service on the part of the opposite party. As a result of this deficiency, the complainants experienced considerable inconvenience, mental distress, hardship, and financial loss. The decision attributes these adverse experiences directly to the negligence of the opposite party.

Hence the prayer is partly allowed as follows:

The Opposite Party is directed to ensure regular and adequate water supply to the Complainant's residence forthwith bearing consumer No.MRD/12246/D.
The Opposite Party is ordered to pay the Complainant a sum of ₹50,000 (Fifty Thousand Rupees) as compensation for the losses and mental distress resulting from the service deficiencies, and for the harm and damages incurred by the complainant due to the unfair trade practices, negligence, and service inadequacies of the Opposite Party.
The Opposite Party is further directed to pay ₹15,000 /- (Fifteen Thousand Rupees) towards the cost of proceedings.

The opposite party is liable for the above-mentioned directions. They must comply the order within 30 days from the date of receiving a copy of this order. If they fail to do so, the amounts ordered in point (ii) above will attract interest at a rate of 9% per annum from the date of the complaint (01.02.2019) until the date of realization.

Pronounced in the Open Commission on this 30^th day of January 2024.

Sd/-

D.B.Binu, President

Sd/-

V.Ramachandran, Member

Sd/-

Sreevidhia.T.N, Member

Forwarded/by Order

Assistant Registrar

Appendix