judgment for testing a KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:594/2005 JUDGMENT DATED:5..12..2007 PRESENT SRI.M.V.. VISWANATHAN : JUDICIAL MEMBER SMT.VALSALA SARANGADHARAN : MEMBER SRI.S. CHANDRAMOHAN NAIR : MEMBER 1.The Asst. Executive Engineer, Kerala Water Authority, P.H. Division, Kollam. : APPELLANTS 2.The Managing Director, Kerala Water Authority, Vellayambalam, Trivandrum (By Adv:Sri.C.Sasidharan Pillai) V. Suseelan.A, Valayazhikathu Veedu, : RESPONDENT Mylapoor, Umayanalloor.P.O, Kollam. (By Adv: Sri. Dinesh Sajan) JUDGMENT SHRI. M.V. VISWANATHAN: JUDICIAL MEMBER The above appeal is preferred from the order dated:9th November 2004 of the CDRF, Kollam in OP:544/03. The complaint in the said OP:544/03 was filed by the respondent as complainant against the appellant as opposite parties seeking for cancellation of the bills dated:13..8..2003 and 14..10..2003 issued by the opposite parties and also for getting compensation of Rs.2500/- towards mental agony and loss of reputation with a cost of Rs.500/-. The opposite parties filed written statement disputing the allegations placed by the complainant and contended that the aforesaid bills were issued on the basis of the readings taken in March 1996 and based on the revised tariff notified by the Kerala Water Authority. But the lower forum accepted the case of the complainant and thereby passed the impugned order quashing the bills dated:13..8..2003 and 14..10..2003 issued by the opposite parties with a direction to pay a sum of Rs.1000/- as compensation. Aggrieved by the said order the present appeal is preferred by the opposite parties therein. 2. We heard the counsel for the appellants and the respondent. The learned counsel for the appellants argued on the basis of the grounds urged in the Memorandum of the Appeal. It is submitted that there was no deficiency of service on the part of the opposite parties in issuing the bills on the basis of the meter reading recorded in the water meter installed at the premises of the respondent/complainant. Thus, the appellants prayed for settingaside the impugned order passed by the lower forum. On the otherhand the learned counsel for the respondent supported the findings and conclusions of the lower forum. It is argued that the disputed bills were issued without any basis. It is further submitted that there was failure on the part of the appellants/opposite parties in supplying water to the area where the complainant’s premises is located. He also pointed out the irregularity and the mistakes crept into the disputed bills. Thus, the respondent/complainant prayed for dismissal of the present appeal. 3. The points that arise for consideration are:- 1. Whether the appellants/opposite parties can be justified in issuing the bills dated:13..8..2003 and 14..10..2003? 2. Is there any legally sustainable ground to interfere with the impugned order passed by the lower forum in OP:544/03. POINTS 1 AND 2 We will refer the parties to this appeal according to their status before the lower forum in OP:544/03. 5. There is no dispute that the complainant (respondent) is a consumer under the opposite parties. The complainant has been provided with a provisional invoice card which has been marked as Ext.P2 before the lower forum. It is to be noted that the water connection to the premises of the complainant was given in the month of June 1986. Ext.P1 is photocopy of the consumer’s meter card issued to the complainant as consumer with consumer No:N.T.V.T.863. Ext.P1 would also show that the meter reading was taken in the month of August 2003 and the recorded meter reading was 1706 kilo litres. The previous meter reading was taken in October 1992 with the reading 1111.kilo litres. As per Ext.P2 provisional invoice card (PIC) the complainant as the consumer is bound to pay Rs.39/- per month towards the cost of the water. Ext.P2 PIC would show that a sum of Rs.449/- was remitted by the complainant on 23..7..93 and thereafter no remittance is recorded in P2 PIC. Ext.P3 is the demand notice dated:29..8..2003 issued by the Kerala Water Authority PH Sub division, Kollam demanding a sum of Rs.6643/- towards the cost of the water consumed for the period from April 1999 to July 2003. The aforesaid sum of Rs.6693/- is inclusive of fine. After the issuance of Ext.P3 demand notice the complainant was served with Ext.P4 consumer bill dated:13..8..2003 showing the amount as Rs.6693/-. Thus, Ext.P4 bill is issued after the issuance of P3 demand notice. A perusal of P4 bill would show that the meter was not working during the said period and the complainant as consumer has been directed to pay the aforesaid amount at the rate of Rs.58/- per month. The aforesaid bill is with respect to the period from 1..4..1999 up to July 2003. It is also an admitted fact that there after the complainant was served with a demand notice dated:5..11..2003 issued by the Assistant Executive Engineer, PH Sub division, Kollam demanding a sum of Rs.6819/- towards the water charges for the period from April 1999 to September 2003. Ext.P5 is the aforesaid demand notice dated:5..11..2003. Thereafter the complainant received Ext.p6 consumer bill dated:14..10..2003 for a sum of Rs.6819/- representing the water charges at the rate of Rs.58/- per month for the period from 1..4..99 up to September 2003. In Ext.P6 bill it is noted that the meter “not working”. The complainant has sought for the relief of cancellation of Ext.P4 and P6 bills issued by the opposite parties. 6. It is the definite case of the complainant that he paid the water charges for a decade from 1986. This would show that the complainant has paid the water charges as per Ext.P2 PIC up to 1996. The complainant as PW1 has categorically admitted that up to July 1993 he had remitted the minimum water charges and there after he did not pay any amount towards the water charges “1993 7-)o ATH^ E[C AU<UA^ /TM1a1a !3/bUCWkW& 8W3Mka /TM1a1a !3/bUeUDc There may be no doubt about the fact that as long as the complainant being a consumer is bound to make the payment due to Kerala Water Authority as per the Ext.P2 provisional invoice card. As per PIC the complainant is bound to pay at the rate of Rs.39/- per month. It is further to be noted that the amount is only provisionally assessed and that the consumer is bound to make the payment towards the cost of the water actually consumed and the same is recorded by the water meter. So the failure on the part of the complainant to pay the amount due under P2 PIC would give an indication that the complainant defaulted to make the payment due to the Kerala Water Athority. 7. The complainant has got a case that there was no supply of water to his premises from the year 1995-96 and that the officials of Kerala Water Authority directed him that he need not pay the water charges until the water supply is resumed. But there is nothing on record to substantiate the said case of the complainant that such an instruction or direction was given by the officials of the Kerala Water Authority. So, the aforesaid case of the complainant cannot be accepted. Thus, the only possible conclusion that can be arrived at is that there was failure on the part of the complainant as a consumer to pay the amounts due to the Kerala Water Authority, as per Ext. P2 PIC. 8. Opposite parties in their written statement have categorically contended that the average consumption was fixed at 22.kilo litres per month and thereby the complainant was to make payment at the rate of Rs.39/- per month. It is specifically contended that the aforesaid tariff was revised. Thereby Rs.39/- per month was revised as Rs.45/- per month and the aforesaid tariff was prevalent up to October 1995. Thereafter tariff was revised to Rs.47/- and it continued up to March 1999 and thereafter tariff was fixed at Rs.58/- (56 + 2). The aforesaid contention taken by the opposite parties regarding the revision of the tariff by the Kerala Water Authority has not been challenged or disputed. As per Section.31 of the Kerala Water and Sewerage Act, 1986 the authority is empowered to fix the cost of the water. The aforesaid section-31 reads as follows:- COST OF WATER “The authority shall, by notification in the Gazette, fix the cost of water to be supplied by it according to volume and also the minimum cost to be charged in respect of each connection. Sub section-2 The authority may in lieu of charging the cost of water according to volume accept a fixed sum for a specified period on the basis of the expected consumption of water during that period.” 9. So, the Kerala Water Authority is empowered to revise the tariff. The demand for water charges at the rate of Rs.58/- per month from April 1999 up to September 2003 as the minimum charge can only be justified. It is to be noted that P4 and P6 bills are issued with a monthly charge at the rate of Rs.58/-. So, the opposite parties can be justified in enhancing the amount in the provisional invoice card from Rs.39/- to Rs.58/- and the demand for the arrears of the said amount at the rate of Rs.58/- from April 1999 to September 2003 can also be justified. It is also to be noted that the complainant has no case that he paid the minimum water charge for the said period that is from April 1999 to September 2003. So the aforesaid claim or demand made by Kerala Water Authority can only be justified. 10. The complainant has got another case in the complaint that there was no supply of water from the year 1995-96. The complainant as PW1 has deposed that there was no supply of water from the year 1993 onwards “1993-da \FG^ [Em^ D@_ADcTf8W[*TtT7a =7^ !3BadT8UCWk8a& The fact that there was failure or disruption of supply of water to Kakkattuvayal area where the complainant’s premises is located is an admitted fact. The opposite parties at paragraph 4 of their written statement has admitted that for sometime there was failure to effect supply of water due to the failure of Kakkattuayal tube well. But it is also contended that the failure of Kakkattuvayal tube well was immediately resumed “for sometimes due to the failure of Kakkattuvayal tube well, the water supply interrupted in the area and it was immediately resumed”. Ext.P7 series of documents would give an indication that there was failure in the working of tube well at Kakkattuvayal. Ext.P7 series are copies of resolutions passed by the Thrikkovilvattom Grama Panchayath and P7 series are issued by the Secretary, Thrikkovilvattom Grama Panchayath. As per the said resolution the Thrikkovilvattom Grama Panchayath requested the Kerala Water Authority to make tube well functioning. The aforesaid resolution is dated:27..12..1995. So this would make it clear that during the year 1995-96 there was disruption of supply of water in Kakkattuvayal area because of the failure of the tube well at Kakkattuvayal. But there is nothing on record that the aforesaid interruption of water supply continued for a long period. The complainant could not establish the fact that there was continuous interruption of supply of water to his premises. The mere fact that there occurred failure in the working of the tube well of the Kakkattuvayal for a short period cannot be taken as a ground to hold that there was total interruption of supply of water to that area for the entire period. So, the reasons stated by the complainant for not paying the minimum water charge as per the provisional invoice card cannot be accepted. 11. The next question for consideration is whether the opposite parties can be justified in demanding a payment of Rs.6819/- towards the minimum water charge for the period from 1..4..1999 up to September 2003. It is to be noted that P6 consumer bill will take in the period and the amount covered by P4 consumer bill also. The opposite parties have no case that the complainant is bound to pay the amount covered by P6 bill and the amount covered by P4 bill. The mere fact that P6 bill was issued covering the period covered by the P4 bill cannot be taken as a ground to hold that there was deficiency of service. The complainant has only to pay the subsequent bill namely, P6 bill dated:14..10-..2003 for the water charges at the rate of Rs.58/- with respect to the period from 1..4..1999 up to September 2003. But on a calculation of the period from April 1999 up to September 2003 there will be 54 months. The amount claimed is at the rate of Rs.58/- per month. If that be so, the total amount at the rate of 58 for the period from April 1999 up to September 2003 can only be Rs.3132/-. But as per P6 bill a sum of Rs.6819/- has been claimed by the opposite parties. No explanation is given for the said amount of Rs.6819/-. It is true that the Kerala Water Authority can levy penalty or fine for late payment. Ext.P4 and P6 bills are silent about the amount claimed by way of penalty or fine. It is true that in P3 and P5 demand notices it is stated that inclusive of fine/penalty. But it is not specified, what is the amount claimed by way of fine or penalty. It is further to be noted that no evidence has been adduced from the side of the opposite parties. No explanation is given for issuing P4 or P6 bill for such amount. So, the lower forum can be justified in canceling the aforesaid bills. But the lower forum cannot be justified in ordering compensation of Rs.1000/- to be paid to the complainant. It is strange enough to note that the lower forum directed the opposite parties to pay a sum of Rs.1000/- as compensation to the complainant who is admittedly a defaulter in making payments towards the water charges. There is no justification in ordering compensation of Rs.1000/- to be paid to the complainant. We have no hesitation to setaside that portion of the order regarding payment of compensation. But the lower forum can be justified in canceling the bills dated:13..8..03 and 14..10..03. 12. The lower forum has gone wrong in canceling the bills on the ground that the bills are with respect to the period exceeding 6 months. It is true that as per Ext.P2 invoice the complainant as a consumer is bound to pay the additional cost of the water on the basis of the meter reading which is to be taken once in every 6 months. But the stipulation regarding taking of water meter reading as shown in P2 invoice card is as follows. $] $N\ETBaH card- O \C+[g3WfUBUeWm8W* 8T8dTDU*^ AT`8AT7a& B9TMrfUO %=\BT,UdWk [EmfU[NL EUD #La ATHfUO )CUBadO AVpM LV5U^,a "3Wfa \C+[g3WfU !5a1Hapa[ANLa ?UO !BBadWk8T7a& The aforesaid stipulation incorporated in P2 PIC would not prevent the complainant as a consumer in making payment of minimum charges of Rs.39/- or at the revised tariff rate due under provisional invoice card. It is to be noted that P4 and P6 bills are issued not on the basis of the meter reading; but on the basis of the minimum charge fixed by the Kerala Water Authority. There can be no doubt about the fact that the complainant as a consumer is bound to pay the minimum water charges at the rate of Rs.58/- per month from April 1999 onwards. 13. Another aspect to be noted at this juncture is the admitted case of the complainant that he did not remit any payment after 1993. P1 meter card would also support that case. The reasons stated by the lower forum for canceling the aforesaid two bills cannot be accepted; but those bills can be cancelled on the ground that no details are given as to how the opposite parties arrived at the amounts shown in those bills. It is made clear that the mere fact that those bills are cancelled will not absolve the complainant as a consumer to pay the arrears of the minimum water charges due to the Kerala Water Authority. These points are answered accordingly. In the result the appeal is allowed partly. The impugned order passed by the lower forum is modified to the extent as indicated above. Thereby the bills dated 13..8..2003 and 14.10..03 issued by the Kerala Water Authority are cancelled. The order passed by the lower forum directing the opposite parties to pay a sum of Rs.1000/- as compensation is setaside. In the circumstances of the case there will be no order as to cost. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER S. CHANDRAMOHAN NAIR : MEMBER VL. | 
