KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.483/05 JUDGMENT DATED 9.11.09 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SHRI.S.CHANDRAMOHAN NAIR -- MEMBER 1. The Asst.Engineer, Electrical Section Office, Kilikolloor, Kollam. 2. The Asst.Ex.Engineer, Electrical Sub Division Office, -- APPELLANTS Perinadu, Kollam. 3. The Board Secretary, KSEB, Vaiduthi Bhavan, Pattom, Trivandrum.
(By Adv.B.Sakthidharan Nair) Vs. Nazeema Kabeer, (Nazeema Beevi) W/0 Kabeer Nadiyas, 150-Mangalam Nagar,
Mangadu.P.O,Kollam. 2. K.A.Kabeer, -- RESPONDENTS Nadiyas, 150 – Mangalam Nagar, Mangadu.P.O, Kollam. (by Adv.A.A.Narayanan) JUDGMENT SRI.S.CHANDRAMONAN NAIR,MEMBER This appeal is preferred against the order dated 28th February 2005 in OP.475/03 of the CDRF, Kollam wherein and whereby the opposite parties are under directions to cancel Ext.P3 bill dated 5.11.03 and pay compensation of Rs.2000/- and cost of Rs.500/-. 2. The complainants had approached the Forum below alleging that the bill issued for Rs.17356/- dated 5.11.03 was against the principle of natural justice and also against legal basis. It is his case that he was served with a bill for Rs.7883/- alleged to be the additional bill for the period from 5/98 to 3/99 in the month of June 1999 and he had paid that amount. It is also his case that he was regularly paying the bills for the past period of 26 months from 3/96 to 4/98 the bill was issued to him without any basis and that the said bill was illegal, unsustainable and hence liable to be quashed. 3. The opposite parties entered appearance and filed version contending that the impugned bill was issued consequent to a direction of the Senior Audit Officer of the KSE Board and it was the bill for the earlier period from 3/96 to 4/98 during which period the meter was faulty. It was submitted by the opposite parties that though the complainant had remitted the additional bill for the subsequent period they were entitled to realize the charges for an earlier period also under Clause 31 (c ) of the conditions of supply of electrical energy. It is the very case of the opposite parties that the arrear bill was legal and hence the complainant was to pay the said amount contending that there was no deficiency in service the opposite parties prayed for the dismissal of the complaint with costs. 4. Evidence consisted of the oral testimony of the second complainant as PW1 and Exts.P1 to P7 marked on the side of the complainant. The second opposite party was examined as DW1 and Exts.D1 and D2 were marked on the side of the opposite parties. 5. Heard both sides. 6. The learned counsel for the appellants vehemently argued before us that the order of the Forum below is against the facts and legal principles. It is his very case that the Board has every right to issue a bill for an earlier period. There is no limitation applicable in such bills. He has also argues that the impugned bill was issued consequent to the audit report of he Senior Audit Officer of the KSE Board where it was found that though a bill for the period from 9/98 to 3/99 was issued and paid by the complainant, a bill ought to have been issued for the earlier period of 26 months during which time the meter was faulty. He has also relied on the decision of the Hon. National Commission in BSES Rajdhani Power Ltd; Vs. Sri.P.C.Kapoor (2008 (3) CPR 252 NC). Where it is held that limitation is not applicable in raising supplementary demand and in the instant case also the same principle is applicable and he prayed for allowing the appeal thereby dismissing the complaint. 7. On the other hand, the learned counsel for the respondent supported the findings and conclusions of the forum below and argued that the appellants had already issued a bill for Rs.7883/- which the complainant had remitted. It is also his case that the opposite parties had willfully tried to extract more money from the complainant on the guise of audit report. He has also submitted before us that the opposite parties have not produced any evidence to show that the meter was faulty during the said period from 3/96 to 4/98. It is also his case that if the opposite parties were convinced of the fact that the meter was faulty, they would have issued a bill then and there for the period from 3/96 to 3/99 instead of issued a bill for the period from 5/98 to 3/99. It is also argued by the learned counsel that the impugned bill was issued much latter in 11/03 for the period from 3/96 to 4/98 though a bill was issued for the subsequent period from 5/98 to 3/99 in 1999 itself. Thus, he canvassed for the position that the appellants were harassing and creating troubles to the complainant by issuing the impugned bill. 8. On hearing the learned counsel for the appellants and the respondents and also on perusing the records, we find that it is the admitted case of the both parties that the impugned bill dated 5.11.03 was issued alleging to be the charges for the faulty period from 3/96 to 4/98. It is also seen that on a earlier occasion a bill for Rs.7883/- was issued on 9.6.99 allegingto be the consumption for the period from 5/98 to 3/99. But on a perusal of Ext.P2, the bill for Rs.7883/- it is observed that the bill is issued on 9.6.99 after replacement of the meter. The appellants would say that the meter was faulty for the period from 5/98 to 3/99 and the same was issued and the complainant was liable to pay additional bills if issued for the earlier periods also by Clause 31 (c ) of the supply conditions of supply of Electrical Energy and also based on the decision of the Hon. National Commission in BSES Rajdhani Power Ltd. Vs. P.C.Kapoor (citation supra). 9. On going through the report of the Audit Officer marked as Ext.D1, we find that the said report is based on certain presumptions and assumptions. It is found that the bill for the period from 5/98 to 3/99 was issued based on the average consumption after the replacement of the faulty meter. But, on a perusal of Ext.P3 which is for the period from 3/96 to 4/98 we find no reliable supporting evidence to show that the meter was faulty during the above period. The meter is not tested and there is no report showing that the meter was faulty during the said period. It is true, that the meter is seen replaced on certain occasions. But it does not mean that the meter was faulty and the complainant is liable to pay charges at the average consumption after replacement of the meter. The learned counsel for the respondent has relied on a decision of the Hon. High Court of Kerala in Nirmala Metal Industries Vs. KSEB (2006(3)KLT 465) where it is held that if the Board wants to raise demand on the plea that it is a defective meter, it is for the Board to take the meter from the premises of the complainant and to raise a bill in accordance with Section 26 of the Electricity Act after testing the meter. In the instant case no such action is taken by the opposite parties and it is also observed that the bill is issued after a long period of 5 years. Though, it can be held that there is no limitation applicable in raising the additional demands the same can be only on a reasonable and justifiable circumstance. In this case there are no convincing reasons to hold that the opposite parties are justified in issuing the bill after a period of 5 years. More over, the opposite parties havealso failed in establishing their case that the meter was faulty during the above period. In the above said circumstances, we find that the forum below was right in holding that the opposite parties were not justified in issuing the impugned bill. 10. The Forum has also awarded compensation of Rs.2000/- and cost of Rs.500/- to the complainant. It is evident that the complainant has not suffered any loss or damage in the issue of the bill. The only defect, if any, that can be attributed against the opposite parties is that no cogent evidence has been adduced to support their contentions. In the said circumstances, award of compensation cannot be justified and the same is liable to be set aside. Hence we do so. The cost of Rs.500/- ordered is sustained. In the result, the appeal is allowed in part with the modifications as indicated above. Thereby, the order directing the opposite parties to cancel the bill for Rs.17356/- (Ext.P3) is up-held and the direction to pay compensation of Rs.2000/- is set aside. The cost of Rs.500/- awarded by the forum below is to be paid by the opposite parties/appellants. However, in the nature and circumstances of the present case, there is no order as to costs. S.CHANDRAMOHAN NAIR -- MEMBER VALSALA SARANGADHARAN -- MEMBER M.V.VISWANATHAN -- JUDICIAL MEMBER | 
