Date of Filing : 16.12.2011

  Date of Order : 10.04.2012

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

Dated 10^th APRIL 2012

PRESENT

Sri. H.V. RAMACHANDRA RAO, B.Sc., BL,   …….                PRESIDENT

Sri. T.NAGARAJA, B.Sc., LLB.                        ……..     MEMBER

Smt. K.G.SHANTALA, B.A., LLB.                    ……..     MEMBER

CC No. 226 / 2011

Sri. N. Gopalakrishna,

S/o. Late Nanjundappa, Aged about 46 years,

R/at: Jannagatta Village, Sugutur Hobli,

Kolar Taluk.

(By Sri. A.V. Ananda, Adv.)                                  ……. Complainant

V/s.

1. The Section Officer,

    BESCOM, Kembodi Section,

    Kolar Taluk.

2. The Asst. Executive Engineer,

    BESCOM, Bangalore Road,

    Kolar.

3. The Executive Engineer,

    BESCOM, Bangalore Road,

    Kolar.

4. The Superintendent Engineer,

    BESCOM, Kolar Circle, Bangalore Road,

    Kolar.

    (By Smt. B.S. Vijayakumari, Adv.)                      …… Opposite Parties

ORDER

By Sri. H.V. RAMACHANDRA RAO, PRESIDENT

The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the OPs not to disconnect the power, not to demand the amount of Rs.2,79,024/- as per Demand Notice dtd. 05.12.2011 and to pay to the Complainant cost of Rs.20,976/-  are necessary:

Complainant established Poultry Farm in his agricultural land in September 2007 and approached OP1 for power and obtained the same on 28.09.2007 and brand new meter was put in service.  Complainant did not commence the Farm work for two months after obtaining the power and did not consume power then.  As such, no power was consumed during the said months.  During third month, Complainant brought baby chicks and in the first month he consumed about 114 units and subsequently as per the Meter reading he was paying the amount to the Ops. Poultry was being run by lessees for some time and between 04.10.2008 & 04.11.2009 this Complainant kept the Farm idle and it was informed to the OP that there was no power consumption during the said period.  On 03.09.2011, officials of the OPs visited the Poultry Farm and told that in the Meter there is some fault which has to be replaced and as per their directions he wrote to OP2 to replace the Meter if there is any defect and requested OP2 not to disturb the power of the Farm as there are valuable chicks in his Farm and if the power is disconnected  it will affect the Farm and the Complainant will be put to huge loss.  OP2 did not take any action in the matter.  The officials of OP1 Sri. Girish & Sri. Hanumanthappa on 28.11.2011 over Phone No. 9900170166 asked the Complainant to pay Rs.25,000/- as bribe so that they will erect new Meter without any trouble to the Complainant.  This was informed to OP4 and asked them to replace the Meter in case it is not working properly.  They have also not taken any action in the matter.  After this, to harass the Complainant, OP1 with OP2 issued notice on 05.12.2011 stating that the Meter erected on 28.09.20007 is defective one and demanded the Complainant to pay back-billing amount of Rs.2,79,024/- failing which they will disconnect the power.  Meter was replaced.  Even then, new Meter is recording the same reading as that of earlier Meter.  The units consumed earlier and now is same, there is no difference.  This clearly goes to show that there was no defect in the meter. Hence the Complaint.

2.       In brief the version of the Ops are:-

Back-billing charges do not attract Consumer Protection Act.  Regarding back-billing, there is separate provision of Law.  Obtaining of the power by the Complainant is admitted.  Back-billing is in accordance with Law.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases, parties had filed their respective affidavits.  Ops have filed written arguments.  Arguments were heard.

4.       The points that arise for our consideration are:

POINTS

          (A)     Whether there is deficiency in service ?

          (B)     What order ?

5.       Our findings are:

          (A)     Positive

          (B)     As per detailed order for the following reasons

REASONS

6.       Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the Complainant had applied for Power to his Poultry Farm and Ops had granted power vide RR No. KBP 373 on 28.09.2007.   Complainant did not use the power for two months and from third month he started using the power and the   consumption was only 114 units. As and when the power was used, Ops have issued the Bills and as per Bills, amounts were paid by the Complainant.  It was a new Meter that was installed in the Farm house of the Complainant on 28.09.2007, it is not an old Meter.  It is only after checking the Meter, new Meter was installed.  That means new Meter that was installed was perfectly alright.   It is further admitted that between 04.10.2008 & 04.11.2009 Complainant never used any power since he had kept the Poultry farm vacant.  Minimum charges that should have been payable is paid by him. 

7.       Ops in their version at Para Nos. 3 stated thus:

“The Complainant is regularly paying the Bills for the power consumed and issued by the respondents.”

At Para-4 have stated thus:-

“This Complainant is running the farm on his own from last three months and is paying the power charges regularly.”

At Para-6 have stated thus:-

This Complainant immediately on the same day gave request letter to 2^nd respondent by informing about the visit of their officials and their advise to replace meter and asked the 2^nd respondent to replace the meter, if the same is defective and asked the 2^nd respondent not to disturb power to this complainants farm as there is valuable chicks in his farm, if power is disconnected the said farm will effect and this complainant will incur huge loss.  The first respondent not took any action on my said letter.

At Para-7 have stated thus:-

“This complainant by requesting the respondents 2 to 4 replaced the existing meter, the said new meter is also recording the same reading as that of the earlier meter, the units consumed earlier and now are same, there is no difference, this clearly go to show that there is no defect in the earlier meter, further even such a mistake or defect if any is there, the respondents ought to have replaced the meter on their own immediately, the respondents not noticed the defect in the meter from last four years, now they raised the said issue just to give trouble to this complainant, there by thee is deficiency in rendering service by the respondents to this complainant for the power connection KBP 373 connected to this complainant and there is no such defect in the meter, the first respondent and his officials with an intention to grab bribe from this complainant plited to issued the said demand notice dated 05-12-2011, which is false, created and is liable tobe quashed.

          Hence, there is audit short claim find out.”

At Para-8 have stated thus:-

“The defect in meter as contending by the respondents is a created story, they ought to have sent the said meter to an expert for opinion before passing any order or before issuing any such demand notice, the respondents have no independent power to take such a decision.”

These statements made by the OPs clearly go to show that the Complainant has paid bill amount for the power consumed by him regularly.  On 03.09.2011, Complainant wrote to OP2 informing about visit of their officials and their advice to replace the Meter and told OP2 to replace the Meter if there is any defect and also told not to disturb the power to the complainant and if it is done it will cause him great difficulty. OP2 replaced the old Meter with new Meter.  Even then, it is not showing any difference in the Meter reading and there is no defect in the meter.  Only because of the Auditors claim, Complainant was asked by the OPs that there is defect in the meter is a created story.  The statement made by the Ops is not prefixed with comma, but it is full sentence.  This fact is to be seen. That means, Ops have admitted that there was no defect in the Meter, still they are demanding money from the Complainant.  This is nothing but unfair trade practice and deficiency in service. 

8.       It is further seen that on 03.09.2011 officials of the OP visited the Complainant’s Farm house and stated that there is some defect in the meter.  In that regard, as per their advice, Complainant told that he does not find any defect in the Meter and in case of any defect in the meter on examination, he is going to bear the expenses of that meter be replaced.  This statement of the Complainant is fully corroborated by the Letter dtd. 03.09.2011 written to the Ops. The said letter reads thus:

     “«µÀAiÀÄB DgïDgï ¸ÀASÉå PÉ©¦ 373gÀ §UÉÎ

ªÉÄîÌAqÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü¹zÀAvÉ  RR No. 373 KBP  «zÀÄåvï ¸ÁܪÀgÀªÀÅ £Á£ÀÄ ¥ÀqÉ¢zÀÄÝ ªÀiÁ¥ÀPÀ ¥Àj«ÃPÀëPÀ «¨sÁUÀzÀªÀgÀÄ F ªÀiÁ¥ÀPÀzÀ°è zÉÆõÀ«gÀĪÀÅzÁV w½¹gÀÄvÁÛgÉ.  zÉÆõÀªÉãÉA§ÄzÀÄ £À£ÀUÉ UÉÆwÛgÀĪÀÅ¢®è.  DzÀPÁgÀt vÀªÀÄä E¯ÁSÉAiÀÄ ªÀw¬ÄAzÀ zÉÆõÀªÀ£ÀÄß ¥Àj²Ã°¹ ºÁ° EgÀĪÀ ªÀiÁ¥À£ÀªÀ£ÀÄß ¥Àj²Ã°¹ zÉÆõÀ«zÀÝ°è ºÉƸÀ ªÀiÁ¥À£ÀªÀ£ÀÄß §zÀ¯Á¬Ä¹PÉÆlÄÖ ªÀiÁ¥À£À §zÀ¯Á¬Ä¸ÀĪÀ RZÀð£ÀÄß £Á£ÀÄ ¥ÁªÀw¸À®Ä £Á£ÀÄ ¹zÀÞ«gÀÄvÉÛãÉ.  £À£Àß ¸ÁܪÀgÀPÉÌ «zÀÄåvï ¸ÀA¥ÀPÀðªÀ£ÀÄß vÉÆAzÀgÉAiÀiÁUÀzÀAvÉ ¸Àj¥Àr¹PÉÆqÀ¨ÉÃPÉAzÀÄ vÀªÀÄä°è PÉÆÃgÀÄvÉÛãɔ

That means, the visit of the Ops to the Farm house of the Complainant is admitted by the Complainant.  The allegation of defect in the Meter is disputed by the Complainant and he wanted it to be checked.  To this Letter dtd. 03.09.2011 it has not been replied by the Ops, but they have not got the meter checked anywhere and not even got checked by competent authorities.  When it was new meter installed, how can there be defect in the meter?  There is no answer.

9.       Anyway, Complainant has stated at Para 5 thus:

The first respondent official Sri. Girish and senior assistant in his office by name Hanumappa on 28.11.2011 through their phone No. 9900170166 asked the complainant to pay Rs.25,000/- as bribe so that they will erect new meter without any trouble to this complainant.  This complainant on the same day informed to the 4^th respondent about the demand made by the first respondent and his assistant and asked the 4^th respondent to replace the existing meter, if the same is not working properly, inspite of the same the said respondents have not taken any action to replace the meter, further they started threatening to disconnect my power connection

That means to say on 28.11.2011 officials of OP1 by name Girish & Hanumappa through their Phone No. 9900170166 contacted the Complainant over phone and demanded Rs.25,000/- as bribe and if it is not paid he will be put to loss.  This was informed by the Complainant to OP4.  Complainant has written letter to Ops on 29.11.2011.   The relevant portion reads thus:

“F ªÉÄîÌAqÀ £Á£ÀÄ vÀªÀÄä°è «£ÀAw¹PÉƼÀÄîªÀÅzÉãÉAzÀgÉ PÉA¨ÉÆÃr ¸ÉPÀë£ïUÉ ¸ÀA§AzsÀ¥ÀlÖAvÉ DgïDgï ¸ÀASÉå PÉ©¦ 373 «zÀÄåvï ¸ÁܪÀgÀ ¥ÀqÉ¢zÀÄÝ E¯ÁSÉ ªÀw¬ÄAzÀ «ÄÃlgï C¼ÀªÀr¹zÁV¤AzÀ E°èAiÀĪÀgÉ«UÉ CAzÀgÉ ¢£ÁAPÀ 16-10-2011gÀ vÀ£ÀPÀ vÀªÀÄä E¯ÁSÉAiÀĪÀgÀÄ ¤ÃrgÀĪÀ ©°è£ÀAvÉ £Á£ÀÄ ¥Àæw wAUÀ¼ÀÄ ºÀt ¥ÁªÀw¹gÀÄvÉÛãÉ.  MAzÀÄ wAUÀ¼ÀÆ ¸ÀºÀ ¨ÁQ EgÀĪÀÅ¢®è. DzÀgÉ PÉA¨ÉÆÃr ¸ÉPÀë£ï D¦üøÀgï VjÃ±ï ªÀÄvÀÄÛ E¯ÁSÉAiÀÄ°ègÀĪÀ ¹Ã¤AiÀÄgï C¹¸ÉÖAmï ºÀ£ÀĪÀÄ¥Àà EªÀgÀÄUÀ½§âgÀÆ 9900170166 F £ÀA§j¤AzÀ ¥sÉÆÃ£ï ªÀiÁr ¤ªÀÄUÉ C¼ÀªÀr¹gÀĪÀ «ÄÃlgï£À°è zÉÆõÀ«zÉ ¨ÉÃgÉ «ÄÃlgï C¼ÀªÀr¸À¨ÉÃPÀÄ EzÀÄ EzÀÄ ¸Àj¥Àr¸À®Ä £ÀªÀÄUÉ RZÀÄð 25 ¸Á«gÀ ¤ÃqÀ¨ÉÃPÀÄ E®èªÁzÀgÉ £ÀªÀÄä E¯ÁSÉAiÀÄ AiÀiÁªÀÅzÉà C¢üPÁjUÀ¼À ºÀwÛgÀ ºÉÆÃzÀgÀÆ ¸ÀºÀ ¤Ã£ÀÄ vÀ¦à¹PÉƼÀî¯ÁUÀzÀAvÉ ¤£ÀUÉ ©¯ï ºÉaÑUÉ §gÀĪÀ ºÁUÉ ªÀiÁqÀÄvÉÛÃ£É JAzÀÄ JzÀÄj¹zÀgÀÄ.  £Á£ÀÄ vÀPÀët 3-9-2011gÀAzÀÄ E¯ÁSÉUÉ °TvÀ ªÀÄÆ®PÀ Cfð ¤ÃrgÀÄvÉÛãÉ.  FUÀ CªÀgÀÄ ºÉýzÀ ºÁUÉ 10£Éà wAUÀ¼À ©°è£À°è ¸ÀgÁ¸Àj 2 ¸Á«gÀ gÀÆ.UÀ¼ÀÄ §gÀĪÀ ©®è£ÀÄß 32 ¸Á«gÀ gÀÆ.UÀ½UÉ ©®Äè ¤ÃrgÀÄvÁÛgÉ.

DzÀÝjAzÀ ¸Áé«Ä vÁªÁzÀgÀÆ £À£ÀUÉ «ÄÃlgÀÄ C¼ÀªÀr¹gÀĪÀ ¸ÀܼÀPÉÌ RÄzÀÄÝ ¥Àj²Ã®£É ªÀiÁr £À£ÀUÉ ºÉZÀÄѪÀjAiÀiÁV ¤ÃrgÀĪÀ ©®è£ÀÄß ¸Àj¥Àr¹ E£ÀÄß ªÀÄÄAzÉ vÀªÀÄä E¯ÁSÉAiÀÄ C¢üPÁjUÀ½AzÀ vÉÆAzÀgÉAiÀiÁUÀzÀAvÉ ªÀÄvÀÄÛ «zÀÄåvï ¸ÀA¥ÀPÀð PÀrvÀ ªÀiÁqÀzÀAvÉ £À£ÀUÉ £ÁåAiÀÄ PÉÆr¸ÀĪÀÅzÁV vÀªÀÄä°è ¨ÉÃqÀÄvÉÛãÉ.  CfðAiÉÆA¢UÉ E¯ÁSÉUÉ ¤ÃrgÀĪÀ Cfð, »AzÉ ¤ÃrzÀ ©®Äè, FV£À ©®Äè ¤ÃrgÀÄvÉÛãÉ.  vÁªÀÅ C£ÀĪÀÄw ¤ÃrzÀgÉ vÀªÀÄä ªÀÄÄAzÉ RÄzÀÄÝ J¯Áè zÁR¯ÉUÀ¼ÉÆA¢UÉ ºÁdgÁUÀÄvÉÛÃ£É ¸Áé«Ä.”

That means to say Complainant was demanded bribe of Rs.25,000/- from the Ops and if it is not paid they will prepare Bill so that the Complainant cannot escape.  Only on that OP has issued letter with Bill for higher amount.  If this were to be false, Sri Hanumappa & Mr. Girish would have filed their affidavits denying the same, at least they would have given written reply to this letter dtd. 28.11.2011, but it has not been done.  This clearly goes to show in the guise of defect in the meter though there is no defect in the meter, Ops have demanded bribe, when demand is not met, they have issued back-billing, this is nothing but deficiency in service and unfair trade practice as rightly contended.  Further, it is also an admitted fact that subsequently meter was replaced and even the replaced meter is not showing any difference in the reading.  That means, there was no defect in the meter.  Further, it is seen that Ops have written to the Complainant on 05.12.2011 demanding Rs.2,79,024/- as back billing .  When the meter itself  was not checked by the competent authorities to show that it was defective in nature, subsequent changing the matter also shows that there is no change in the meter reading, the conduct of the OPs demanding Rs.25,000/- bribe and when it is not paid, giving back billing, clearly shows that though there is no defect in the meter, only to suit their convenience, back-billing has been made and the Complainant was asked to pay heavy amount as back-billing charges.  It is nothing but deficiency in service and unfair trade practice as rightly contended. 

10.     In this case, on 16.12.2011 itself this Forum had directed the Ops not to disconnect the power to the Complainant.  That Order has to be made absolute.  That order has not been challenged or set aside.  This requires serious consideration by the competent authorities instituted for this purpose i.e., Hon’ble Upalokayuktha, Karnataka.  Hence, copy of this order has to be sent to Hon’ble Upalokayuktha for taking appropriate action if need be under the circumstances under the Prevention of Corruption Act or as under Lokayuktha Act.

11.     As back-billing is done because of non payment of bribe and it is not owing to any defect in the meter, hence action of the Ops amounts to not only deficiency in service, but also unfair trade practice.  Hence, under these circumstances, certain direction is to be issued to the Ops, certain amount has to be paid to the Complainant.  Ops may recover it from OP1 and from Hanumappa & Girish for which this order will not come in the way.  Even with respect to back-billing charges Complainant is not liable to pay.  If the Ops are interested or entitled to, they may recover it from OP1 and Hanumappa & Girish for which this order will not come in the way.  Hence, we hold the point accordingly and pass the following order:

ORDER

01.     Complaint is allowed in part.

02.     Complainant is not bound to pay any amount to the Ops as per their demand notice dtd. 05.12.2011 to any extent in any manner whatsoever.

03.     Ops are directed not to disconnect the power to the Complainant’s Meter No. KBP 373.

04.     Ops are directed to pay Rs.20,000/- (Rupees Twenty Thousand only)  as compensation to the Complainant. 

05.     OPs are also directed to pay Rs.2,000/- (Rupees Two Thousand only) as costs of this litigation to the Complainant.

06.     Ops are directed to send the amounts to the Complainant as ordered at (4) & (5) above by Demand Draft through RPAD and submit to this Forum the compliance report with necessary documents with respect to everything as ordered within 45 days.

07.     Ops are restrained from enforcing the notice dtd. 05.12.2011 against Complainant to any extent in any manner whatsoever.

08.     Send copy of the Order to the parties concerned free of cost.

09.     Submit a copy of this Order to Hon’ble “Upalokayuktha”, M.S. Building, Dr. Ambedkar Veedhi, Bangalore – 560 001 for needful.

10.     Return extra sets to the parties concerned under Regulation 20(3) of Consumer Protection Regulations 2005.

(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 10^th day of April 2012)

T. NAGARAJA          K.G.SHANTALA           H.V.RAMACHANDRA RAO

    Member                         Member                                       President

SSS