KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NOS.499/10, 500/10 & 563/10
COMMON JUDGMENT DATED 26.2.2011
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
APPEAL NO.499/10
Asst.Engineer
Electrical Section -- APPELLANT
Thirunavaya.
(By Adv. B.Sakthidharan Nair)
Vs.
Puthankott Kunhan Kutty,
S/0 Saidalavi Haji, -- RESPONDENT
Puthankott House, Naduvattom Post,
Kutippuram Via, Tirur Taluk,
Malappuram Dist.
APPEAL NO. 500/10
Asst.Engineer
Electrical Section -- APPELLANT
Thirunavaya.
(By Adv. B.Sakthidharan Nair)
Vs.
Puthankott Kunhan Kutty,
S/0 Saidalavi Haji, -- RESPONDENT
Puthankott House, Naduvattom Post,
Kutippuram Via, Tirur Taluk,
Malappuram Dist.
(By Adv.Abdul Shukkur Arakkal)
APPEAL NO.563/10
Puthankott Kunhan Kutty,
S/0 Saidalavi Haji, -- APPELLANT
Puthankott House, Naduvattom Post,
Kutippuram Via, Tirur Taluk,
Malappuram Dist.
(By Adv.Abdul Shukkur Arakkal
Vs.
Asst.Engineer
Electrical Section -- RESPONDENT
Thirunavaya.
(By Adv. B.Sakthidharan Nair)
COMMON JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
The above 3 appeals are preferred from the common order dated 26.7.10 passed by CDRF, Malappuram in OP.No.230/03 and OP.69/05. The Appeal 499/10 is filed by the opposite party in OP.No.69/05 and the Appeal 500/10 is filed by the opposite party in OP.No.230/03. The first Appeal No.563/10 is filed by the complainant in OP.Nos.230/03 and 69/05. By the appeal 563/10 the complainant in those complaints has challenged that portion of the common order dated 26.7.10 which stands against him.
2. The complaint in OP.230/03 was filed by the complainant therein against the opposite party, Asst.Engineer, Electrical Section, KSEB, Thirunavaya challenging the penal bill dated 12.3.03 for Rs.2,46,147 and also disputing the correctness of the demand notice dated 15.5.03 for arrears of current charges from 6/02 to 4/03 and also A13 demand notice dated 5.9.03 for arrears of current charges from 6/02 to 8/03 for Rs.1,50,982/- and also the penal bill amount of Rs.2,46,147/-. The complaint in OP.69/03 was filed by the very same complainant Puthankott Kunhan kutty challenging the correctness of the regular bills for the period from 9/03 to 5/05 and also the penal bill for Rs.1,86,030/-.
3. The opposite party entered appearance and filed separate written version in both the above complaints denying the alleged deficiency in service in issuing the aforesaid electricity bills and penal bills. The opposite party contended that the penal bills for Rs.2,46,147/- and for Rs.1,86,030/- were issued based on the surprise inspection conducted by Anti Power Theft Squad on 12.3.03 and 19.5.05. Thus, the opposite party justified the action on the part of the KSEB in issuing the aforesaid 2 penal bills. He also justified his action in issuing the regular bills for electricity charges for the period from 6/02 to 8/03 and also for the period from 9/03 to 5/05. Thus, the opposite party prayed for dismissal of both the complaints in OP.230/03 and 69/05.
4. Before the Forum below, Exts.A1 to A13 and B1 to B16 documents were marked on the side of the parties to the complaint in OP.230/03. The complainant in OP.69/05 filed Exts. A1 to A10 documents and from the side of the opposite party B1 to B14 documents. No witness was examined from either side. The complainant in both cases filed proof affidavit in support of his case. The opposite party had also filed counter affidavit in OP.230/03. But no counter affidavit was filed from the side of the opposite party in OP.69/05.
5. On an appreciation of the facts, circumstances and the entire evidence on record, the Forum below passed the impugned common order dated 26.7.10 allowing the complaints in OP.230/03 and 69/05 in part and thereby the penal bill dated 12.3.03 for Rs.2,46,147/- and the penal bill dated 19.5.05 for Rs.1,86,030/- were cancelled. The complainant was directed to pay the revised bills for the period from 8/02 to 1/03 along with surcharges from 4.5.07. The complainant was also directed to pay the regular bills issued to him after 2/03 till 5/05 and the fixed charges along with meter rent till the date of dismantling. The opposite party/Asst.Engineer, Electrical Section, KSEB, Thirunavaya was directed to waive the surcharge upon these regular bills during the pendency of the OP.230/03 and 69/05. The opposite party was given the liberty to collect surcharges upon the regular bills one month after the date of the common order till realization. The Forum below has also given the details of the revised bills ranging from 8/02 to 1/06. The date of dismantling of the electricity connection is held as 8/06. The opposite party is also given the liberty to collect penal interest upon the above bill amounts after one month from the date of the order if the amounts are not paid. The opposite party is further directed to adjust the amounts if any already paid by the complainant. No order is passed as to costs. Aggrieved by the aforesaid impugned common order, the present appeals are filed by the complainant and the opposite party therein.
6. We heard both sides in all the above 3 appeals. The learned counsel for the appellant/opposite party in A.499 & 500/10 submitted his arguments based on the grounds urged in the appeal Nos.499 & 500/10. He relied on B6 site Mahazer prepared by the Asst. Engineer, Anti Power Theft Squad and produced in OP.230/03 and also B7 FIR in Crime No.47/03 of the Kuttipuram Police Station and argued for the position that the complainant/consumer committed theft of electricity by tampering the energy meter installed at his premises. Thus, the appellant/opposite party justified his action in issuing the penal bills for theft of electricity. It is also submitted that the complainant/consumer was a chronic defaulter in paying the current charges and he challenged the correctness of the electricity bills by alleging defect in the energy meter. It is further submitted that the Forum below was convinced about the practice adopted by the complainant/consumer to avoid payment of the current charges by falsely stating that the energy meter is defective. Thus, the appellant/opposite party in A.No.499 & 500/10 prayed for setting aside the impugned common order passed by the forum below and for dismissal of the complaint in OP.230/03 and OP.69/05. On the other hand, the learned counsel for the appellant/complainant in A.563/10 supported the impugned order passé by the Forum below in cancelling the penal bills dated 12.3.03 and 19.5.05. But, the appellant/complainant challenged the impugned order passed by the Forum below directing payment of the amounts covered by the revised bills and the regular bills for the period from 2/03 till 5/05. Thus, the appellant in A.563/10 prayed for allowing the complaint in OP.230/03 and OP.69/05 in its entirely and also for dismissal of the A.Nos.499/10 & 500/10.
7. For the sake of convenience and for avoiding confusion, the parties to these appeals will be referred to according to their status before the Forum below in OP.Nos.230/03 and 69/05.
8. The complainant was a consumer under KSEB. He availed the services of the opposite party/KSEB for getting electricity supply to his industrial unit. He filed the complaint in OP.230/03 alleging deficiency in service on the part of the opposite party, the Asst. Engineer, Electrical Section, KSEB, Thirunavaya, Malappuram District. He challenged the issuance of penal bill dated 12.3.03 for Rs.2,46,147/- and also issuance of demand notice dated 15.5.03 claiming arrears of electricity charges for the period from 6/02 to 4/03. Subsequently, the opposite party issued another demand notice dated 5.9.03 demanding a total of Rs.3,52,129/-. It would take in the current charges of Rs.1,50,982/- for the period from 6/02 to 8/03 and the penal bill amount of Rs.2,46,147/- covered by the penal bill dated 12.3.03. Thus, the complainant/consumer prayed for cancellation of the aforesaid penal bill and the demand notice for arrears of electricity charges for the period from 6/02 to 8/03.
9. The opposite party denied the alleged deficiency in service in issuing the aforesaid penal bill and arrear bills. He contended that theft of electricity was detected by the anti power theft squad by the surprise inspection conducted on 12.3.03. It is based on the aforesaid surprise inspection, the penal bill for Rs.2,46,147/- was issued. The opposite party relied on B6 site mahazer prepared by the Asst. Engineer, anti power theft squad. B6 is copy of the original site mahazer prepared by V.P.Sundaran, APTS; Asst. Engineer. It is dated 12.3.03. As per B6 site mahazer, the anti power theft squad detected tampering of the energy meter installed at the premises of the complainant/consumer (Con.No.KLP3506) and found that the energy meter was tampered with for the purpose of committing theft of electricity.
10. B6 site mahazer has not been proved by the author of that site mahazer. It is the definite case of the opposite party that the B6 site mahazer was prepared by the Asst.Engineer of APTS. But, the author of the B6 site mahazer has not been examined before the Forum below. He has not even filed an affidavit in support of B6 site mahazer. A perusal of B6 site mahazer would show that two other witnesses had also affixed their signatures to the original of B6 site mahazer. But no one was examined to prove the preparation of B6 site mahazer. It is pertinent to note that the complainant/consumer emphatically denied the alleged tampering of the energy meter and the alleged theft of electricity. In such a circumstance it was incumbent upon the opposite party to prove B6 site mahazer. No acceptable evidence is forthcoming from the side of the opposite party to substantiate their case that the complainant/consumer was involved in tampering with the meter at his premises. There is no cogent evidence other than B6 site mahazer to support the case of the opposite party regarding theft of electricity by the complainant/consumer. The mere fact that copy of the mahazer is filed by the opposite party cannot be taken as a ground to hold that there was tampering of the energy meter for the purpose of facilitating theft of electricity. In effect, the opposite party miserably failed in establishing his case regarding the tampering of the energy meter and the alleged theft of electricity by the complainant/consumer.
11. The opposite party has also relied on B7 FIR lodged by the Police in Crime No.47, Kuttippuram Police Station. But, there is no material available on record to show that an investigation was conducted based on B7 FIR. Nothing is also forthcoming about the filing of final report based on B7 FIR. The opposite party, Asst. Engineer, Electrical Section, KSEB Thirunavaya was not in a position to say about the criminal case lodged by the Police for the alleged theft of electricity. B7 would give an indication that the aforesaid FIR was filed before the Judicial First Class Magistrate Court for theft of electricity under Section 39 of the electricity Act, 1910 and also for the offence punishable under Section 379 of IPC. But, nothing is heard about the progress of the aforesaid FIR filed by the Police. So, the complainant/consumer cannot be found guilty of theft of electricity on the basis of B7 FIR.
12. The Forum below has also considered the circumstance leading to the alleged theft of electricity. The Forum below has rightly noted the fact that the alleged tampering of the energy meter was detected by the Anti Power Theft Squad on 12.3.03. The details of the alleged tampering of energy meter given in B6 site mahazer would given an indication that the said energy meter was in dire need of replacement on 12.3.03 itself. Admittedly, the aforesaid energy meter was not replaced. On the other hand, the same meter was there recording the consumption of energy and based on the metering done by that meter, the opposite party KSEB issued electricity bills to the complainant/consumer. The aforesaid circumstance would give an indication that the alleged tampering of the energy meter cannot be believed or accepted. It would in turn negative the case of the opposite party that the complainant/consumer committed theft of electricity. The Forum below is perfectly justified in cancelling the penal bill dated 12.3.03 for Rs.2,46,147/-. The aforesaid finding and conclusion made by the Forum below is to be accepted.
13. The complainant in OP.230/03 has also disputed the correctness of the arrears of electricity bills issued by the opposite party vide A7 & A13 demand notices. It is to be noted that the aforesaid arrears of electricity bills were issued based on the readings recorded by the energy meter. The complainant/consumer challenged the correctness of the aforesaid arrear bills for the period from 6/02 to 8/03 on the ground that the energy meter was defective and the consumption recorded by the defective meter cannot be taken for issuance of electricity bills. The aforesaid case of the complainant/consumer is to be accepted.
14. Admittedly, the disputed meter was replaced by another meter on 4.6.03. The aforesaid meter was tested by the Electrical Inspector as provided under Section 26 (6) of the Electricity Act, 1910. Ext.A11 is the test report issued by the Electrical Inspector after testing the disputed energy meter, which was installed at the premises of the complainant. It was categorically reported that there was error more than the permissible limit when the meter is connected with CT. Thus, the meter was found incorrect and the opposite party was directed to revise electricity bills based on average consumption. The Chief Electrical Inspector passed Ext.B3 order dated 10.8.05 directing the opposite party to issue revised bills for the disputed period from 8/02 to 1/03 by taking the average consumption of electricity for the months of September 2003, October 2003 and November 2003. It is also come out in evidence that the opposite party revised the bills based on the aforesaid order passed by the Chief Electrical Inspector. The Forum below is also justified in directing the complainant/consumer to pay the arrears of electricity charges as per the revised bills for the period from 8/02 to 1/03 along with surcharge from 4.5.07. So, the impugned order passed by the Forum below in OP.230/03 warrants confirmation. We do not find any acceptable reason or ground to interfere with the impugned order passed by the Forum below in OP.230/03.
15. The complainant filed OP.69/05 alleging deficiency in service on the part of the opposite party in issuing regular bills for the period from 9/03 to 5/05 and also for issuance of penal bill for Rs.1,86,030/-. The complainant vehemently challenged the correctness and genuineness of the penal bill for Rs.1,86,030/- which was issued based on the inspection conducted by the anti power theft squad on 19.5.05. It is the case of the opposite party that the complainant/consumer tampered with the energy meter and committed theft of electricity. But the alleged tampering of the energy meter and the resultant committing of theft of electricity cannot be believed or accepted. The opposite party has not produced any scrap of paper to substantiate his case regarding the alleged tampering of the energy meter and the consequent theft of electricity. There is nothing on record to show that theft of electricity was detected by the anti power theft squad on 19.5.05. No mahazer is seen produced from the side of the opposite party, to prove the alleged tampering of the energy meter and the consequent theft of electricity.
16. It is pertinent to note at this juncture that the complainant/consumer has got a definite case that the alleged theft of electricity has been leveled against the complainant as a result of vengeance. A Series of litigations were pending between the complainant and the opposite party (KSEB). The complainant had preferred a number of writ petitions before the Hon. High Court. He had also filed consumer complaints before the forum below alleging deficiency in service. He had also moved Civil Court for getting his grievances redressed. Thus, it can be seen that the relationship between the complainant (consumer) and the opposite party service provider was not cordial. This circumstance would support the case of the complainant that theft of electricity is alleged on account of vengeance.
17. The opposite party has also not produced any document to support the contention regarding tampering of energy meter and theft of electricity. The definite case of the opposite party is that the theft of electricity was detected by anti power theft squad by the surprise inspection conducted on 19.5.05. But nothing is stated about the aforesaid theft of electricity detected on surprise inspection. The Forum below has rightly negatived the case of the opposite party regarding tampering of energy meter and the consequent theft of electricity. So, the Forum below is to be justified in cancelling the penal bill dated 19.5.05 for Rs.1,86,030/-.
18. The complainant/consumer challenged the correctness of the regular bills issued by the opposite party for the period from 9/03 to 5/05. Those arrear bills were disputed by the complainant on the sole ground that the energy meter installed at the premises of the complainant was defective. It is to be noted that the said meter was installed at the premises of the complainant on 4.6.03. There is no dispute that the defective meter was replaced by a new meter and the aforesaid replacement of the defective meter was done for 4.6.03. The definite case of the complainant/consumer is that the new meter installed on 4.6.03 was also defective. But, the complainant has not succeeded in establishing his case regarding the defective nature of the energy meter which was installed on 4.6.03. It is further to be noted that the complainant/consumer failed to take necessary steps to get the said meter tested by the Electrical Inspector. The aforesaid failure on the part of the complainant would give a clear indication that the meter which was installed on 4.6.03 was a defect free meter. If that be so, the consumption recorded by that energy meter is to be accepted. The opposite party can be justified in issuing arrear bills for the period from September 2003 to May 2005 based on the consumption recorded by the meter which was installed on 4.6.03. The aforesaid finding of the Forum below deserves acceptance. There is no valid reason available on record to interfere with the aforesaid finding of the Forum below. Thus, the impugned order passed by the forum below in OP.69/05 is upheld.
19. A perusal of the impugned common order dated 26.7.10 passed by CDRF, Malappuram in OP.No.230/03 and 69/05 would make it clear that the Forum below considered all the relevant aspects of the case and meticulously appreciated the evidence available on record and rightly come to a just and proper conclusion. The Forum below took pain to have the disputes involved in the aforesaid consumer complaints settled by pronouncing a just, proper and well reasoned order. The Forum below deserves appreciation in passing the detailed order considering all the relevant aspects of the disputes involved in the aforesaid 2 consumer complaints.
In the result, the above three appeals are dismissed. The impugned common order dated 26.7.10 passed by CDRF, Malappuram in OP.Nos.230/03 and 69/05 is confirmed. The parties to these appeals are directed to suffer their respective costs throughout.
M.V.VISWANATHAN -- JUDICIAL MEMBER
VALSALA SARANGADHARAN -- MEMBER
