KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUDTHIRUVANANTHAPURAM APPEAL NO.798/04 JUDGMENT DATED 15.2.2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER 1. The secetary KSEB.Pattom, Trivandrum. 2. Noha Rubbers, -- APPELLANTS Mathukutty, Thengumpallil (H) Kondattu, Kottayam. (By Adv. B.Sakthidharan Nair) Vs. For Noha Rubbers, Mathukutty Abraham, Thengumpallil, Koodadu kara Ramapuram P.O, VellilppallyVillage, -- RESPONDENT Meenachil Taluk, Kottayam Dist. (By Adv.Jose V.George) JUDGMENT SRI.S.CHANDRAMOHAN NAIR,MEMBER It is aggrieved by the directions contained in the order dated 5.8.04 of CDRF, Kottayam in OP.86/2004 that the present appeal is filed by the opposite parties calling for the interference of this Commission as to the sustainability of the order passed by the forum below. By the impugned order the opposite parties are under directions to cancel Ext. A12 the additional bill for Rs.35066/- and issue a fresh bill for the period from 1.4.02 to 5.7.02 in accordance with the norms prescribed under clause 31 ( c) of the conditions of supply of electrical energy. They are also liable to pay cost of Rs.750/- to the complainant. 2. The complainant had purchased an industrial unit from one Mr.Devasia and that due to financial difficulties he had to close down the factory from 1998 to 5.7.02. It is further submitted by him that during the year 1998, the opposite parties replaced the meter on 2 or 3 occasions and that the meters replaced were faulty. In spite of his registered notice, the opposite parties did not care to replace the meter and it was only after remittance of Rs.1000/- that a properly functioning CT meter installed. However, it is the case of the complainant that on 16.2.04 he was served with a bill for Rs.35066/- alleged to be the bill for previous 6 months based on the average consumption of 8/02 and 9/02. The complainant submitted before the forum below that the said bill is not liable to be paid by him and alleging deficiency in service, the complaint was filed praying for directions to cancel the bill with compensation and costs. 3. The opposite parties filed version where it was contended that the complaint was not maintainable and it was as per the audit report that the impugned bill was issued. It was submitted by the opposite parties that though the audit report suggested for issuing the bill from 1/2000 to 7/2003 the same was limited to 6 months as per the prevailing rules and regulations and the complaint was liable to pay the said amount submitting that there was no deficiency in service, the opposite parties argued for the dismissal of the complaint with costs. 4. The evidence adduced consisted of the proof affidavits on both sides and Exts A1 to A 20 on the side of the complainant, B1 and B2 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 in cancelling the bill issued by them is per se illegal and un-sustainable. He has submitted that the complainant is not a consumer as per Section 2 (1) (d) (ii) of the Consumer Protection Act since the complainant was running the factory on a commercial basis and that the complainant did not prove the case that he was running the factory solely for earning the livelihood. It is also argued by him that the complainant was not a registered consumer and that there was clear violation of clause 15 ( c) of the conditions of supply. It is his further case that the bill was issued consequent to the audit report and though the audit party has recommended for issuing a bill for the period from 1/2000 to 7/03, they did not do so and instead they issued the bill for a period for 6 months only as per the rules and regulations of the Electricity Board. The learned counsel argued before us that the amended provisions of the Consumer Protection Act has retrospective effect and the complainant cannot be treated as a consumer within the meaning of Section 2 (1) (b) of the Consumer Protection Act. It was also argued by him that the order of the forum below is liable to be set aside with costs. 7. On the other hand, the leaned counsel for the respondent supported the findings and conclusions of the forum below and submitted that it was highly illegal and unsustainable that the opposite parties issued a bill in 2004 stating to be the additional bill for 6 months prior to July 2002. It is also his case that the opposite parties failed in proving the case that there was actual consumption by the complainant during the above period. He has relied on Exts.A17 to A20 to show that there was no production in the factory at all. Even though the complainant has made an application to change the faulty meter to that if a properly working meter for many times, the opposite parties replaced the CT meter only on 5.7.02. He has further submitted that the amended Consumer Protection Act has no retrospective effect and that the complainant was running the factory for earning his livelihood and he was forced to close down the factory during he period from 1998 to 5.7.02. He has attacked the contention of the learned counsel for the appellants that the opposite parties can issue bills for any time if they find that they have omitted to issue a bill when there are cogent grounds to find otherwise. He has also argued that Clause 31 (c ) of the conditions of supply gives ample power to the opposite parties to consider the working conditions of the factory or the unit while issuing bills based on Clause 31 ( c ) and in the instant case it was simply based on the audit report alleged to be issued by the Accountant General that the impugned bill was issued. The learned counsel has also argued that the said audit report is not properly proved by the opposite parties by examining any one who prepared the audit report. Thus, the learned counsel for the respondent submitted before us that the appeal is liable to be dismissed with costs. 8. On hearing the learned counsel for the appellant and the respondent and also on perusing the records, we find that it is the admitted case of both the parties that a bill dated 16.2.04 for Rs.35066/- was issued by the opposite parties based on the consumption of 8/02 and 9/02. The complainant would argue that he was not liable to pay the bill. It is also found that the opposite parties have issued the bill based on an audit report which is not properly proved. The opposite parties would also contend that though the audit party has recommended for the issue of a bill for the period from 1/2000 to 7/03 they have taken a very lenient view and a bill for the period for 6 months only had been issued by them. However, we find that the complainant has a case that the factory was closed down and he had resumed the work only from 5.7.02 on which date the CT meter was replaced by the opposite parties. On a perusal of Ext.A17 to A20 which is issued by the Sales Tax Officer Palai, the total turn over is ‘nil’ which gives an impression that there was no production at all during the period from 1999 to 31.3.02. In such a circumstance we are also inclined to accept the finding of the forum below that the complainant was having no production during the above said period. More over, the officials of the opposite parties were visiting the premises of the complainant and if the consumption pattern and the working of the meter were not in consonance with each other, they could have reported the matter or they could have replaced the meter with a perfectly working meter. In the instant case, it is noted that though the complaint has made the complaints regarding the meter, the opposite parties had replaced the same only on 5.7.02. It is also to be found that though the forum below had cancelled Ext.A12, liberty was given to the opposite parties to issue a bill for the period from 1.4.02 to 5.7.02 in accordance with the norms and conditions prescribed under Clause 31 (c ) of the conditions of the supply of electrical energy. It is also found that the opposite parties have taken the average consumption for the period from 8/02 and 9/02. The opposite parties can issue a bill for the period from 1.4.02 to 5.7.02 on the basis of the average consumption made by the complainant for 8/02 and 9/02. Though Clause 31 ( c) of the conditions state that the average consumption for 3 months is to be taken for issuing a bill for a previous period, the complainant has not filed any appeal with a grievance that only the average of 2 months has been taken as the basis for issuing the bill. In such circumstances we find no cogent reasons to interfere with the direction of the forum below in taking the average consumption. However, it is also to be found that the forum below has not totally denied the case of the opposite parties. They have only limited the period and such limitation is found justifiable. Clause 31 (c ) of the conditions of supply states that the working conditions can be taken into account for back assessment. In the instant case, the complainant has proved his case by adducing cogent evidence. In the said circumstances, the directions of the forum below can only be upheld. In the result, the appeal is dismissed. The order of the Forum below in OP.8/04 is confirmed. In the facts and circumstances of the present appeal the parties are directed to suffer their respective costs. S.CHANDRAMOHAN NAIR -- MEMBER VALSALA SARANGADHARAN -- MEMBER | 
