KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 582/2009

                                 JUDGMENT DATED:06..01..2011.

PRESENT

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

1.         The Assistant Engineer,

KSEB, Changaramkulam,

Malappuram.

                                                                        : APPELLANTS

2.         The Secretary, KSEB,

Vydhyuthi Bhavan,

Pattom, Trivandrum.

(By Adv.Sri.S.Balachandran)

            Vs.

P.Bhaskaran Nambiyar,

S/o M.Kunjan Nair,

Ushus, Mookkuthala.P.O,                        : RESPONDENT

Malappuram District.

(By Adv.Sri.G.S.Kalkura)                                     

                                             JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

The appellants were the opposite parties and respondent was the complainant in OP.275/03 on the file of CDRF, Malappuram.  The complaint therein was filed alleging deficiency of service on the part of the opposite parties in issuing A2 bill dated:6/10/03 for Rs.15,084/- and A3 bill dated:6/10/2003 for Rs.1,800/- and also in disconnecting the electricity supply to consumer No.5831 and failure to restore the electricity connection to the aforesaid consumer No.5831 for agricultural purposes.  The complainant requested for getting restoration of the disconnected agricultural electricity supply connection and to get the impugned bills for Rs.15,084/- and Rs.1,800/- cancelled.  The complainant has also claimed compensation of Rs.25,000/- and also for compensation at the rate of Rs.50/- per day from the date of disconnection till restoration.

2.      The opposite parties entered appearance and filed written version denying the alleged deficiency of service.  They contended that the electricity connection to consumer No.5831 was disconnected on 5/8/2003 because the said connection was in a dangerous condition and so the disconnection was effected under the provisions of Regulation 44 (b) of the Conditions of Supply of Electrical energy, 1990.  The impugned bill for Rs.15,084/- was issued for misuse of energy as the complainant/consumer misused the electricity supplied for agricultural purpose by using the same for domestic purpose and that the impugned bill for Rs.1,800/- was issued for unauthorized connected load by exceeding the sanctioned load of 3.160 KWs.  Thus, the opposite parties prayed for dismissal of the complaint.

3.      Before the Forum below, Exts.A1 to A4 and B1 to B5 documents were marked from the side of the parties to the complaint in OP.275/03.  On an appreciation of the facts, circumstances and documentary evidence available on record, the Forum below passed the impugned order dated:20/3/2009 cancelling A2 and A3 bills and directing the opposite parties to pay punitive damages of Rs.25,000/- to the complainant.  The KSEB was given the liberty to realize the compensation amount of Rs.25,000/- from the erring official of KSEB viz, the then Assistant Engineer, KSEB, Changaramkulam.  The opposite parties were also directed to pay cost of Rs.2500/- to the complainant.  Hence the present appeal.

4.      We heard the learned counsel for the appellants/opposite parties and respondent/complainant.  The learned standing counsel for the KSEB submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He much relied on B3 site mahazar dated:2/9/2003 and argued for the position that there was misuse of energy by the complainant/consumer and the sanctioned load was exceeded by connecting load of 6 KW.  It is submitted that no prejudice or inconvenience was caused to the complainant/consumer because of the delay in restoring the agriculture connection which was disconnected on 5/8/2003 by invoking the provisions, clause 44 (b) of the Conditions of Supply of Electrical Energy.  Thus, the appellants prayed for setting aside the impugned order passed by the Forum below.  On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below.  He pointed out the fact that the disconnected electricity connection to Consumer No.5831 was restored by the interim order dated:21-1-2004 passed by the Forum below on I.A.24/04 in OP.275/03.  It is further submitted that no reliance can be placed on B3 site mahazar as the opposite parties failed to prove the same.  It is also submitted that the impugned bills were issued by the 1^st opposite party, Assistant Engineer, KSEB, Changaramkulam because of his vengeance against the complainant in sending A1 complaint dated 19/8/2003 to the Executive Engineer, KSEB, Ponnani Division.  Thus, the respondent prayed for dismissal of the present appeal.

5.                Points that arise for consideration are:-

1.                           Is there occurred any deficiency of service on the part of the 1^st opposite party as alleged by the complainant in OP.275/03?

2.                           Whether the appellants/opposite parties can be justified in issuing A2 and A3 bills dated:6/10/2003 for Rs.15,084/- and Rs.1,800/- respectively.

3.                           Whether the appellants/opposite parties have succeeded in establishing the alleged misuse of energy and unauthorized connected load?

4.                           Is there any sustainable ground to interfere with the impugned order dated:20/3/2009 passed by CDRF, Malappuram in OP.275/03?

6.      Point Nos.1 to 4:-

There is no dispute that the respondent/complainant is a consumer of electricity under KSEB and that he is having the electricity connection for agriculture purpose with consumer No.5831 and a domestic connection with consumer No.4250.  The respondent/complainant will come under the jurisdiction of the 1^st opposite party, the Assistant Engineer, KSEB, Changaramkulam.  Admittedly, the agricultural connection to the premises of the respondent/complainant was disconnected on 5/8/2003.  The reason for disconnection is stated as one under clause 44(b) of Conditions of Supply of Electrical energy, 1990.  But, there is nothing on record, to show that the service wire was in a dangerous condition, so as to attract clause 44 (b) of the of Conditions of Supply of Electrical energy 1990.  The case of the 1^st opposite party is that the Sub Engineer, Electrical Section, Changaramkulam, viz, Sri.Rajesh found the service wire to the agricultural connection (consumer No.5831) in a dangerous condition and so with the permission and approval of the 1^st opposite party, the said agricultural connection was disconnected on 5/8/2003.  But the aforesaid Sub Engineer, Sri.Rajesh was not examined in this case.  He has not come forward to file affidavit to that effect.  There is nothing on record that any such report regarding the dangerous condition of the service line was given by the Sub Engineer, Sri.Rajesh and that the 1^st opposite party/Assistant Engineer, KSEB, Changaramkulam approved and sanctioned disconnection of the agricultural connection to the premises of the complainant.  It is to be noted that the 1^st opposite party, Assistant Engineer can disconnect the supply line only in accordance with law.  He is not expected to discharge his duty in an arbitrary manner.  It is pertinent to note that disconnecting supply of electricity to a consumer will adversely affect the valuable right of a consumer.  It is true that to avoid dangerous situation the supply connection can be disconnected by invoking the provisions of clause 44 (b) of the of Conditions of Supply of Electrical energy 1990.  But while exercising the aforesaid discretion it must be performed and discharged without any arbitrariness.  It cannot be exercised at the whims and fancies of the concerned official of KSEB.  The Forum below analysed the entire factual situation available in the case and has come to a just and proper conclusion that the disconnection of electricity connection to consumer No.5831 was made under a mistaken notion.

7.      Whatever may be the reason or ground for disconnecting the electricity supply to consumer No.5831, the 1^st opposite party was bound to restore the same without causing much delay.  It is the admitted case of the opposite parties that the dangerous condition of the service line to consumer No.5831 was rectified.  Even thereafter, the 1^st opposite party failed to restore the electricity connection to consumer No.5831.  No reasonable and acceptable explanation is forthcoming from the side of the 1^st appellant/1^st opposite party for the inordinate delay in restoring the electricity connection to consumer No.5831.

8.      It is to be noted that it was the bounden duty of the 1^st appellant/1^st opposite party to rectify the defect and the dangerous condition to the service line to the consumer No.5831.  There is no case for the appellants/opposite parties that the dangerous condition of the service line was rectified at the instance of the 1^st appellant/1^st opposite party.  According to the appellants/opposite parties the complainant/ consumer rectified the defects in the service line.  The appellants/opposite parties are not expected to permit the consumer to repair he service line.  Even after getting the service line repaired, there occurred considerable delay in restoring the electricity connection to consumer No.5831.  It is pertinent to note that the said electricity connection was restored only after getting the order passed by the Forum below on I.A.24/04 in OP.275/03.  The aforesaid delay in restoring the connection to consumer No.5831 would amount to deficiency of service on the part of the 1^st appellant/1^st opposite party.

9.      The Forum below rightly held that the 1^st appellant/1^st opposite party, Assistant Engineer, KSEB, Changaramkulam developed unnecessary vengeance against the respondent/complainant (consumer) due to the fact that the complainant approached the executive Engineer by preferring A1 complaint dated:19/8/2003.

10.    The reasons stated by the 1^st appellant/1^st opposite party for causing the delay in restoring the electricity connection to consumer No.5831 cannot be believed or accepted.  It is to be noted that the electricity connection was disconnected on 5/8/2003.  It was restored only in January 2004.  It is too much to say that from August 2003 to January 2004 the consumer was not in need of water for watering his coconut, areaconut and plantain cultivation.  There is nothing on record to show that from August to January there was enough rain for avoiding watering.  It can very safely be concluded that the 1^st appellant/1^st opposite party deliberately with malafide intention of harassing the respondent/complainant caused delay in restoring the electricity connection to consumer No.5831.  Thus, this commission have no hesitation in finding deficiency of service on the part of the 1^st appellant/1^st opposite party, the Assistant Engineer, KSEB, Changaramkulam.

11.    The appellants/opposite parties much relied on B3 site mahazar prepared by Sub Engineer, Noushad Ali.  The said mehazar is dated 2/9/2003.  As per B3 site mehazar, the domestic connection to consumer No.4250 was inspected and it is found that the terminal cover of the energy meter is not seen and the meter reading on that day was 16,420 and they could find the connected load of light -35 numbers, fan - 6 numbers, plug point - 12 numbers with the electrical equipments, motor - 1 number, fridge - 1 number, water heater - 1 number, power plug - 3 numbers.  But it is not stated whether there is any tampering of the energy meter installed for consumer No.4250.  It is also not clear whether the terminal cover of the meter was replaced by the consumer or there was no terminal cover for the said energy meter.  It is pertinent to note that the total connected load has not been assessed in B3 mahazar.  It is stated in B3 mehazar that the inspection team inspected the agricultural connection given to consumer No.5831 and they could find 3 fuse units near the meter board.  It is to be noted that the consumption shown by the said meter at 5831 is not entered in the mahazar; but the place for recording the meter reading is kept blank.  This would give an indication that there was no actual inspection of of the meter installed for the consumer No.5831.  It would in turn give an indication that B3 mahazar was not prepared at the site, but it was prepared subsequently.  This circumstance would strengthen the case of the respondent/complainant, (consumer) that no such inspection was conducted on 2/9/2003.  Another important aspect to be noted at this juncture is the absence of any independent witness to B3 mahazar.  So, there is genuine ground to doubt the genuineness and correctness of B3 site mehazar.

12.    Admittedly nobody has been examined to prove B3 mehazar.  The person who prepared the mehazar viz, the Sub Engineer,Noushad Ali.M. has not even filed an affidavit to support the case of the opposite parties 1 and 2.  Thus, the Forum below is perfectly justified in not relying on B3 site mehazar.

13.    Ext.B4 is copy of the letter dated:15/9/2003 issued by the 1^st opposite party, Assistant Engineer, Electrical Section, Changaramkulam to the complainant/consumer.  It is stated in B4 letter that the inspection was conducted on 2/9/2003 by the Assistant Executive Engineer, Edappal.  It is further stated that the 1^st opposite party came to the conclusion that there was misuse of energy by consuming the electricity supplied for agriculture purpose by using the same for domestic purpose.  But there is no finding that there was actual detection of misuse of energy.  Ext.B3 site mahazar is silent about the misuse of energy by the consumer.  Thus, B3 and B4 documents would not give any indication that the respondent/complainant being consumer of electric connection with consumer No.4250 and 5831 misused the energy supplied for the aforesaid 2 electricity connections.

14.    The appellants/opposite parties have got a case that after disconnecting the agricultural connection with consumer No.5831 there was increase in the consumption of energy for domestic purpose.  Ext.B5 is the meter reading registers relating to consumer Nos.4250 and 5831.  The Forum below considered the aforesaid case of the opposite parties by evaluating the consumption of energy for domestic purpose.  Paragraph 13 of the impugned order deals with the consumption of energy by the complainant/consumer for domestic purpose.  The Forum below has rightly held that there was no such increase of the consumption of energy after 5/8/2003.  Thus, the available materials and circumstances would negative the aforesaid case of the appellants/opposite parties.  The Forum below has rightly discarded the case of the appellants/opposite parties regarding misuse of energy and unauthorized connected load for the domestic connection with consumer No.4250.  If that be so, the Forum below has rightly cancelled the impugned A2 and A3 bills dated:6/10/2003.  The finding and conclusion of the Forum below that A2 and A3 bills were issued by the 1^st opposite party to wreck vengeance against the respondent/complainant, (consumer) are well founded.  So, we have no hesitation to endorse upon the said findings of the Forum below.

15.    The Forum below considered the arbitrariness on the part of the 1^st appellant/1^st opposite party, Assistant Engineer,
Electrical Section, Changaramkulam in issuing A2 and A3 bills and also in causing delay to restore the electricity supply which was disconnected at the instance of the 1^st appellant/1^st opposite party.  The Forum below has rightly considered the evidence on record in its correct perspective.  The evidence available on record would make it clear that the 1^st appellant/1^st opposite party, Assistant Engineer, Electrical Section, Changaramkulam misused his official authority and position and thereby caused inconvenience and financial loss to the respondent/complainant (consumer).  The aforesaid action of the 1^st appellant/1^st opposite party can be considered as an unauthorized and high handed action.  An official of KSEB like the 1^st appellant/1^st opposite party, Assistant Engineer, Electrical Section, Changaramkulam was not expected to behave in such a fashion so as to harass the consumer.  He, infact, has forgotten the principle that the customer/consumer deserves honourable treatment.  An official like the 1^st appellant/1^st opposite party was bound to redress the genuine grievance of a consumer like the complainant.  But in fact, the 1^st appellant/1^st opposite party acted in an irresponsible way and caused much inconvenience and financial loss to the respondent/complainant, (consumer).  So, 1^st appellant/1^st opposite party is to be punished for his high handed and unauthorized action.

16.    The Forum below considered the dictum laid down by the Hon’ble Supreme Court in Lucknow Development authority Vs. M.K.Guptha and has rightly ordered punitive damages of Rs.25,000/- to the complainant.  It was also directed to recover the aforesaid amount of Rs.25,000/- from the pocket of the erring officer viz, the then Assistant Engineer, KSEB Electrical Section, Changaramkulam.  We do not find any ground warranting interference with the impugned order dated:20/3/2009 passed by CDRF, Malappuram.  The present appeal deserves, nothing but dismissal.  These points are answered accordingly. 

          In the result the appeal is dismissed.  The impugned order dated:20/3/2009 passed by CDRF, Malappuram in OP.275/03 is confirmed.  The appellants are directed to pay cost of Rs.1000/- to the respondent/complainant.

M.V. VISWANATHAN : JUDICIAL MEMBER