SMT. G. VASANTHAKUMARI, PRESIDENT
The complainant’s case is, that the complainant is the proprietor of a Jewellery shop which is being run by him as his means of livelihood, that the complainant is a consumer of electricity under Electrical Section, Punalur vide consumer No.18168, that on 7.11.2006 at about 11 a.m., a team of the Kerala State Electricity Board office rushed into and made a check up into the premises including the electric meter and the party noted down something which the complainant’s party could not understand as they were not shown, that the service was disconnected immediately on a charge of tampering the meter, that though the complainant was unaware of the alleged tampering and appealed to that effect, the officers disconnected the service immediately and it remained so for the following 3 days that a penal bill for Rs.1,60,561/- dated 7.11.2006 of the Asst. Engineer, Electrical Section, Punalur was issued to the complainant, that the complainant took up the matter with a petition to the Deputy Chief Engineer, APTS [H.Q] and he made certain changes and reduced the bill for Rs.1,18,704/- for reasons only known of him, and hence a revised and reduced bill for Rs.1,18,704/- dated 9.11.2006 was issued by the Asst. Engineer, Punalur, that instalments were allowed with surcharge and the complainant remitted the first instalment Rs.39,630/- instantly, that the contents of the noted facts were not divulged to the complainant inspite of request, that if the authorities had prepared a site mahazar truthfully, a copy of it would have been delivered to the consumer immediately , but that was not done without assigning any reasons, that the complainant had never tampered or caused any damage to the meter, that the meter would have been damaged due to the heavy lightening which is common at Punalur area during the monsoon season or due to other technical reasons beyond the control of the complainant, that the cost of Rs.2,263/- of the alleged damaged meter was also included in the penal bill, that subsequently the complainant obtained a copy of mahazar from the opp.parties, that from the alleged mahazar the opp.parties made the complainant later to know that in the 3 phase connection only 2 phases were working and the first phase did not read the consumption of energy and this is termed as theft of energy by the complainant, that the complainant never tampered the meter and if one of the 3 phase did not work it was none of the fault of the complainant, but considering the previous 6 months consumption with penal charge and surcharge is assessed and imposed, that this is illogical because the meter readers of the opp.parties used to take meter readings at bi-monthly, that if ever an anomaly had existed they could have found out and pointed out then and there, but nothing of the sort happened in this case, that further the alleged non- reading of 1 phase by the meter is an inherent defect of the meter which is beyond the control and knowledge of the complainant, that the so called faulty meter was never sent to the office of the Chief Electrical Inspector and obtained a report about the nature and extent of alleged fault or tampering, if any, that only after getting such a report the opp.parties ought to have issued the impugned bill to the complainant, that the KSEB staff in the name of APTS surprisingly rushed into, created a havoc in the premises unilaterally and without observing the norms of checking issued a bill of huge amount arbitrarily alleging tampering of meter/theft of energy, that on petition sizeable amount was reduced from the imposed penal bill, that the officers immediately created an additional 4 KW connected load as against the sanctioned 8 KW with a view to harass and extract money from the consumer, that this is deficiency in service and unfair trade practice on the part of the opp.parties and hence the consumer is aggrieved and insulted of unknown things and facts and therefore the embarrassed and aggrieved complainant petitioned to the Lok Ayukta, Thiruvananthapuram on 7..12..2006 to get immediately relief with a petition to stay the proceedings including the disconnection of supply, that the Honourable Lok Ayukta on 24..1..2007 stayed the proceedings on condition that the complainant would remit the half of the remaining alleged due amount within one week, and accordingly one half of the disputed bill was remitted, that before proceeding any further the honourable Lokayuktha urged the complainant to petition before the appropriate Forum where it has got jurisdiction to adjudicate the matter and accordingly as per the petition of the complainant’s counsel the Honourable Lok Ayukta allowed to withdraw the complaint with liberty to pursue his remedies in appropriate proceedings before the appropriate Forum vide order dated 26..5..2008 and hence the complainant approached the Forum for relief to the above mentioned matter in the complaint praying to setaside the disputed bill for Rs.1,18,704/- and to refund the amount already remitted by the complainant and also to get compensation of Rs.25,000/-.
The opp.parties filed version contending that the complaint is not maintainable either under law or on facts, that the complaint is barred by limitation and the Section 14 of the Limitation Act is not having any application under Consumer Protection Act, that the complainant is a 3 phase consumer under Electrical Section, Punalur with consumer No18168 under LT VII A tariff with a connected load of 8KW, engaged in the business of sale of Jewellery and as the registered connected load was below 10 KW he was billed bi-monthly, that on 7.11.2006 the APTS, Thiruvananthapuram made an inspection in the premises and found that the MRT seals of the energy meter were tampered, that on further investigation, it was found that one phase of the pressure coil of the meter was cut and removed intentionally for not recording the consumption, that according to Section 135 of Electricity Act, 2003 and Section 52 of conditions of supply 2005, this comes under theft of energy, that in addition to this an unauthorized additional load of 4 KW was also found, that the consumer was also using energy for functioning a bank by the name Vijayakrishna Bank along with the Jewellery shop, that a site mahazar was prepared and the copy of the same was read and signed and accepted by Ganeshkumar, the Manager of the firm, that as there was theft of electricity, the supply was disconnected on 7..11.2006 itself, that as per the inspection report of the APTS, Thiruvananthapuram the provisional assessment of theft of energy was billed for Rs.1,60,561/- under LT VIC, tariff as a bank was also functioning along with the Jewellery shop, that the statement the complainant was unaware of the alleged tampering is false, that tampering of meter is not possible without the knowledge of the complainant as the meter is situated inside the premises of the consumer, that the complainant took up the matter with the Deputy Chief Engineer, APTS, Thiruvananthapuram and as per the order No.APTS/AV/1137/2006/Tvpm/690 dated 8.11.2006 instruction was given by the Deputy Chief Engineer to revise the bill on LT VIIA tariff applicable to jewellery and the complainant was allowed 3 instalments and accordingly the bill was revised Rs.1,18,704/- and first instalment of Rs.39,630/- was remitted on 9..11.2006 and the supply was reconnected immediately after replacing the damaged meter, that the 2nd instalment of Rs.41,182 was also remitted on 13..12..2006, that para 5 of the complaint is a concocted story for the sake of the complaint, that a site mahazar was prepared and the complainant’s party was convinced of the fact and has signed the site mahazar as a token of acceptance, that on investigation by the APTS, it was found that one phase of pressure coil of the meter was cut and removed, that this cannot be attributed to natural calamities like lightening etc, that the statement that the complainant has not tampered or caused any damage to the meter is false as the tampering of meter mentioned above cannot take place without the knowledge of the complainant as the meter is situated inside the premises of the complainant, that the cost of the damaged meter was also realized from the complainant, since it is the responsibility of the consumer to ensure safe custody of meter installed in his premises, that by assessing for a period of 6 months from 11/2005 to 4/2006 the complainant actually was benefited instead of being over charged, that no deficiency of service or unfair trade practice took place from the part of KSEB staff , that the 2 insatalment was remitted by the consumer after approaching the Lokayukta Thiruvananthapurm on 7.12.2006, that the case filed before the Lokayukta was dismissed since it was not maintainable, that the withdrawal of the complaint with the permission of the authority to seek remedy before the appropriate Forum will not entitle the complainant to file this petition, that Section 14 of the Limitation Act is applicable in civil proceedings only, that the provisional bill issued for theft of energy in accordance with Section 126 Clause [1] of the Electricity Act 2003 and the complainant is bound to remit the entire amount without fail and part payment of the penal amount received from the consumer in 2 instalments cannot be refunded as the amount is due to the KSEB and since there is no deficiency in service on the part of opp.party, the complaint is only to be dismissed with cost of KSEB and with the direction to the complainant to remit the balance amount with surcharge due as per bill issued.
Points that would arise for consideration are:
1. Whether the complaint is barred by limitation?
2. Whether there is any theft of energy by the complainant as alleged by the opp.parties?
3. Whether the bill issued by Anti Power Theft Squad of the KSEB is legally sustainable?
4. Whether the complainant is entitled to get refund of the amount covered by Ext.P1 bill and damages?
5. Reliefs and cost?
For the complainant PW.1 was examined and marked Exts.P1 to P6
For the opp.parties DW.1 was examined and marked Exts. D1 to D4
POINT:1
The main contention raised by the opp.party is that the complaint is barred by limitation and Sec. 14 of the Limitation Act has no application in this case. It is the admitted case of both parties that the APTS of the opp.party conducted inspection on 7..11..2006 and disconnected the power supply and issued Ext.D3 bill. Exactly after one month ie. on 7.12.2006 the complainant filed complaint before the Hon’ble Lok Ayukta, Thiruvananthapuram under Sec. 7 [2] of the Kerala Lok Ayukta Act. Ext.P5 is the copy of the complaint filed by the complainant before the Lok Ayukta, Thiruvananthapuram. Ext.P3 is interim order dated 19..12..2006 in I.A.No.710/2006 in the above complaint by which opp.party is directed not to disconnect the Power Supply to the premises of the complainant, if the complainant remit one half of the amount alleged to be due from the complainant within a week from 19..12..2006 Accordingly complainant remitted Rs.41,182/- and supply was restored. Ext.P4 would show that the counsel for the complainant submitted that the complainant may be permitted to withdraw the complaint before the Lokayuktha “with liberty to pursue his remedies in appropriate proceedings before appropriate Forum” and the prayer is allowed and complaint is allowed as withdrawn. After that on 26..11.2009 complainant has approached before this Forum. As per Sec.14 of the Limitation Act if the party has been prosecuting the case diligently before the court without jurisdiction, the period during which the party has been prosecuting the proceedings before the Court of first instance shall be excluded for computing the period of limitation.
Our Hon’ble State Consumer Disputes Redressal Commission in the decision of Manager, State Bank of Travancore Evening Branch V/s. M. Yousuf [2010 [4] CPR 298] it has been held that Sec. 14 of the Limitation Act is applicable if the case is filed before a wrong Forum.
Here, in the case on hand also as we have already mentioned the complaint was filed before the Lok Ayukta on 7..12..2006 which is just one month after the cause of action. Subsequently Lok Ayukta has allowed to withdraw the case on 26.5.2008 as per Ext.P4 order. After that on 26..11..2009 this case has been filed before this Forum. Hence the period from 7.12.2006 to 26..5..2008 is to be excluded for computing the period of limitation. Since the present complaint is filed within 18 months from the date of withdrawal from the Lok Ayukta , this complaint is perfectly maintainable and not hit by limitation. Point found accordingly
POINT: 2
It is the definite case of the opp.party that the APTS team visited the shop of the complainant on 7..11.2006, inspected the meter and found theft of energy. Ext. D1 is the site mahazar prepared by the said APTS on 7.11.2006. According to the learned of counsel appearing for the complainant though Ext.D1 is produced before the Forum it is not properly proved by examining the person who prepared Ext.D1 or any of the signatories therein . DW.1 is the Asst. Engineer, KSEB Mr. Nazarudheen. He is neither a signatory nor a witness to the Ext. D1 site mahazar. In Ext. D1 it is stated that the mahazar is prepared in the presence of Asst. Engineer, Punalur Section, Mr. Ajayakumar. It was prepared by N. Rajeev, Asst. Engineer, APTS. None of them were examined before the Forum to prove the authenticity of the documents. It is true that both of them should have been examined in this case especially in view of the contention of the opp.party that there is theft of energy. No reason is attributed by the opp.party for not examining the above witnesses. On going through Ext. D1 site mahazar we can see that the description and present condition of the security seal is mentioned as“out of the 4 security seals only 3 are sealed”. The specific case of the complainant is that the meter cannot be tampered and opened without breaking all 4 seals and if the seals are broken there would not have been 3 seals. In the site mahazar it is stated that the security seals attached to the screws fitted on the cover base on the meter. It is argued by the learned counsel appearing for the complainant that if 3 seals are present at the time of examination by the APTS the meter was ought to have considered not tampered or opened and hence the theft of energy as alleged by the opp.party is not proved beyond doubt. In the absence of examination of the concerned witnesses, including the person who has prepared Ext. D1 before this Forum the above argument cannot be brushed aside. Ext.P6 is demand statement containing the split up details of his connection. It shows the consumption of units from 17.5.06 t o 12..7...07. The APTS has conducted the inspection of the complainant’s premises on 7.11.2006. From Ext.P6 it can be seen that the consumption for the period ending 15..11…2006 was 2640 units , The subsequent consumption for the period ending 16.1.2007 was 1171 units, for the period ending 16.3.2007 was 1261 units, for the period ending 10..5..2007 was 2186 units, for the period ending 12.7.2007 was 1500 units. Hence it can be seen that the bimonthly consumption of the complainant subsequent to the change of meter by the APTS was always much less than 2640 units which was the then consumption in the month of November 2006. By high lighting the above statement also the learned counsel appearing for the complainant argued that there was no theft of energy by the complainant during and before the inspection by the APTS. It is true that if there was really theft of energy by tampering the meter there should have been considerable increase in the bimonthly consumption of units after the installation of new meter. In view of the above discussion we have no hesitation to safely conclude that there is no theft of energy by the complainant as alleged by the opp.party. Point found accordingly.
POINT :III
It is argued by the learned counsel appearing for the complainant that even assuming that the meter is tampered by some one and the same is detected by the KSEB, the meter has to be taken into custody and seal the same and sent to the Electrical Inspector for testing. It is true that the inspection of such meter by the Electrical Inspector is mandatory not only for the purpose of confirming the tampering of the meter , but for the purpose of assessing the extent of damage and consequential reading loss sustained to the meter. Here admittedly the alleged tampered meter was not sent to the Electrical Inspector. In this case it is for the opp.party to send the meter to the Electrical Inspector, get his report and to make assessment accordingly. In the Secretary, KSEB V/s Ummer K.H., our State Consumer Disputes Redressal Commission held that “Where theft of Electrical Energy has not been established, the bill raised on that count would not be payable by the complainant.” In the above case it was also found that “the meter must be sent for testing by the Electrical Inspector”
In the case on hand also the Electric meter ceased was not sent for testing by the Electrical Inspectorate. When any theft of energy is detected by means of tampering it has to be testified by the Electrical Inspector who has to report upon the extent of non reading or non consumption of the energy through the meter. Admittedly no such report is present in this case. Ext. D3 is a provisional assessment made by the opp.party on the basis of Ext. D2 report and Ext.D1 mahazar of the APTS. In Ext. D2 there is a direction by the APTS to assess 4796 units at 1½ [one and half] times of the normal rates for 6 months prior to date of inspection. Whereas in Ext. D3 bill apart from 1.5 times it is again multiplied with 3 times of the consumed unit. So Ext.P1 bill is charged for total 4.5 times of the consumed energy 4796 units. Admittedly this is patently wrong. Even though it is argued by the learned counsel appearing for the opp.party that the bills were issued as per rules nothing was brought out while DW.1 was in box to substantiate the above argument. So we have no hesitation to safely conclude that Ext.P1 issued by APTS is not sustainable. Point found accordingly.
POINT IV:
Admittedly the APTS disconnected the supply of energy on
7..11..2006 itself and issued a provisional bill for Rs.1,60,561/- and the
complainant immediately filed petition before the Deputy Chief Engineer, APTS, Thiruvananthapuram and after hearing the complainant a revised bill for Rs. 1,18,706/- was issued by the opp.party vide Ext.P1 and allowed 3 instalments at the rate of Rs.39,600/-. The complainant remitted the first instalment instantly and remitted the 2nd instalment of Rs.41,182/- on 13.12.2006. Since it is found that the bill issued by the APTS is not sustainable the complainant is entitled to get refund of the amount already remitted. The complainant is also to get Rs.2,000/- towards compensation for his mental agony and tension and Rs.1,000/- towards cost of the proceedings.
Point: 5
In the result, the consumer case is allowed in part setting aside the bill
for Rs.1,18,704/- dated 9.11.2006 and directing the opp.parties to refund the amount already remitted by the complainant upon the disputed bill and also directing the opp.party to pay a compensation of Rs.2,000/- and cost
Rs.1,000/-. The order is to be complied with within one month from the date of this order and in default it will carry interest at the rate of 7.5% per annum from the date of order
Dated this the 24th day of January, 2012
I N D E X
List of witnesses for the complainant
PW.1. – Rajendran
List of documents for the complainant
P1. – Bill dated 9..11.2006
P2. - Receipt of 1st instalment
P3. – Interim order dt. 19..12..2006
P4. - Order dt. 26..5..2008
P5. – Office copy of complaint filed before Lok Ayukta
P6. – Demand statement
List of witnesses for the opp.party
DW.1. – Nazarudeen
List of documents for the opp.party
D1. – Site Mahazar
D2. – Report dt. 7.11.2006
D3. – Provisional assessment bill dt. 7.11.2006
D4. – Revised bill dt. 9..11.2006
D5. – Proceedings of the AE., Punalur
