By Smt. C.S. Sulekha Beevi, President,

1. Complainant is a consumer under opposite party for electricity supply to his establishment M/s Spark Rubber Industries. Opposite party issued a bill dated, 21-6-2005 for Rs.47,841/- and another bill dated, 09-8-2005 for Rs.1,37,351/-. Both these bills were back assessment bills alleging the meter to be faulty. The bill dated, 21-6-2005 does not specify the period for which the bill is issued. In bill dated, 09-8-2005 it is stated that it is issued for the period 1/03 to 11/03 and 9/04 to 12/04 as per audit report of Accountant General. That complainant has not interfered with the meter in any manner and the meters were working properly. Complainant applied to get the meter tested. Opposite party did not take any action upon this application. The bills issued are in violation of law and also barred by limitation. Complainant moved the Kerala High Court challenging the legality of these bills. As per order dated, 02-9-2005 Hon'ble High Court directed the complainant to file objections against the bills before 1^st opposite party. Though such appeal was filed opposite party failed to set aside the bills. Hence this complaint alleging deficiency in service.

2. Opposite party filed version admitting that complainant was a consumer for electricity supply to his establishment Spark Rubber Industries. The connection has been dismantled and is not in existence at present. Opposite party submits that on 14-11-2003 on inspection of the premises was conducted by Anti Power Theft Squad and the power meter was found to be faulty. The meter was replaced. At that time no back assessment bill was issued to complainant after replacing the meter. Later on 17-6-2005 another inspection was conducted by Anti Power Theft Squad and it was found that the power meter was faulty. That the B phase of the meter was not working and so the meter was not recording 1/3^rd of the consumption. A site mahazar was prepared and a copy of the same was served to complainant. The meter was replaced. On 21-6-2005 a back assessment bill was issued to the complainant for Rs.47,841/-. Complainant has remitted this amount although challenged in this complaint. On 02-8-2005 as per audit inspection report it was stated that complainant was not issued back assessment bill for the period 01/03 till 11/03 prior to the replacement of the meter on 17-11-2003. Therefore direction was issued to issue back assessment bill basing upon average current charges for three months period after replacement of the meter. That the bills issued are proper and legal. As per the order of High Court in WPCC 2573/05 opposite party conducted hearing. In the said proceedings it was ordered that complainant is liable to pay the amount as per both the bills. That complainant is not entitled to any reliefs.

3. Evidence consists of the affidavit filed by complainant and Exts.A1 to A7 marked for him. Opposite party filed counter affidavit and Exts.B1 to B8 marked for opposite party. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite parties have committed any deficiency in service.

(ii) If so, reliefs and costs.

5. Point (i):-

Complainant is aggrieved by the issuance of two bills by opposite party viz.:-

(i) Bill dated, 21-6-2005 for Rs.47,841/- (Ext.A2)

(ii) Bill dated, 09-8-2005 for Rs.1,37,351/- (Ext.A4)

6. Complainant has already paid Ext.A2 bill. He seeks to set aside both these bills contending that they are not correct, without any legal basis and that he is not liable to pay the same.

7. Opposite party admits issuing the above bills, which are back assessment bills. It is not disputed by opposite party that meter readings were taken regularly and that complainant used to pay the regular bills issued to him.

8. Opposite party contended Ext.A2 and Ext.A4 bills to be legal and proper. It is the case of opposite party that an inspection by Anti Power Theft Squad was conducted in the premises on 17-6-2005. A mahazar was prepared which is Ext.A1. It is the case of opposite party that at the time of inspection the meter seals were found in tact. But one phase (B) of the meter was not working and therefore this phase was not recording energy consumption. The meter was replaced and Ext.A2 bill dated, 21-6-2005 for Rs.47,841/- was issued to the complainant as per instructions of Anti Power Theft Squad. It is also submitted that in Ext.A2 bill the back assessment is made for six months period. This was issued because the meter being faulty due to the non-working of one phase, was not recording 1/3^rd consumption. That the back assessment bill intended to recover the charges of energy that escaped unrecorded in the meter due to the meter being faulty.

9. Complainant has disputed defect to the meter. After remitting the amount demanded as per Ext.A2 bill complainant lodged Ext.A3 complaint before Electrical Inspectorate on 23-8-2005. In Ext.A3 complainant has requested to refer the matter to the Electrical Inspectorate to test/examine the meter. It is stated in Ext.A3 that as soon as complainant received a copy of Ext.A1 mahazar stating that meter is faulty he had requested by a letter to opposite party to refer the matter to Electrical Inspector. Counsel for complainant relied upon Sec.26(6) of Indian Electricity Act, 1910 and submitted that when the correctness of the meter is disputed opposite party is bound to refer the matter to Electrical Inspector who alone can decide the dispute after checking the meter. Counsel for complainant supported his arguments by relying upon the decision rendered by Hon'ble High Court of Kerala in George Joseph Vs. KSEB 2008 (4) KLT 610 decided on 14-10-2008. It is held in this decision that “if the Board wants to raise a bill on the plea that it is a defective meter, Board has to resort to Section 26(6) and refer the dispute to Electrical Inspector.” “The Board has unilaterally come to the conclusion that one phase of the meter was snot recording consumption purported to have corrected the meter themselves, without first referring the matter to the Electrical Inspector and raised demand for additional electricity charges from the petitioner on that ground. The Board has no case that the petitioner has tampered with the meter. Their case is that the meter was not recording the actual consumption since one phase of the meter was not working. That essentially means the meter was not running correctly and the same was running slow.”

10. Though the facts of the present case correlate with the facts of the case in the above said decision the provision of law applied (Sec.26(6) ) is no longer in force. After the commencement of Indian Electricity Act, 2003 the provisions of this new Act is applicable to the facts of this case. Hence we are unable to apply the ratio of the said decision to this case in toto.

11. Regulation 42 of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 speaks about Accuracy of Meters.

Regulation 42(1) reads as under:-

“Should the consumer dispute the accuracy of the meter installed in his premises, he may send a written application to the Assistant Engineer and pay the prescribed fee for the test. On receipt of the application and testing fee, the Assistant Engineer shall have the meter specially tested by the Board or Electrical Inspector to Government and where the meter is found to be beyond the limits of accuracy as prescribed in the Indian Electricity Rules, in force from time to time, the testing fee shall be returned to the consumer and the consumer's bill adjusted in accordance with the result of the test taken with respect to the meter reading of six months prior to the month in which the dispute has arisen, due regard being paid to conditions of occupancy during the month. The faulty meter will be replaced by another one in good working order of the same will be repaired and reinstalled. If the error is found to be within the limits allowed by the Indian Electricity Rules, the testing fee shall be forfeited to the Board and the consumer's bill shall be confirmed.”

Regulation 42(3) provides as follows:-

“The consumer may report any complaint regarding meter to the concerned Electrical Section. The inspection of the meter will be carried out using the standard reference meter (Single phase)/Three phase) available in the Section office which is tested calibrated and sealed by the Electrical Inspectorate. If meter is found faulty such meters shall be replaced immdiately at the expense of the Board.”

12. In our opinion these regulations are intended to safeguard the interests of consumers against the unilateral and arbitrary actions of the Board. When the consumer has disputed the correctness of the meter opposite party was duty bound to have the meter specially tested by Board or Electrical Inspector to Government. In the present case the Anti Power Theft Squad has conducted an inspection, prepared a mahazar stating that meter is faulty and back assessed the consumer by issuing Ext.A2 bill without sending the meter for any test report. Admittedly opposite party has no case that the meter was tampered. Opposite party has no case that regular meter readings were not taken. Complainant herein has preferred a written application disputing the meter to be not faulty. In such a case opposite party ought to have send the meter for testing or tested the meter with a parallel meter. Only after such test report or after referring to the Electrical Inspector can the opposite party issue any bill for re-assessment or back assessment. Opposite party has replaced the meter without sending it for testing. Except the unilateral actions on the part of opposite party there is no reliable evidence to prove that the meter was faulty. In our view, the bill issued without the meter being tested is vitiated by non-compliance of the Regulation. Further in Ext.A2 the details of back assessment are absent. The bill does not speak anything regarding the period of the bill, calculation and assessment of charges. Regulation 21 of the Kerala Electricity Supply Code 2005 provides for the contents of bill. The bill issued to consumer without sufficient details obviously puts the consumer into hardships and also speaks of the lack of transparency on the part of opposite party. Even in the version opposite party has not come forward with the details of calculation of the assessment. The period for which Ext.A2 is issued is not candidly stated by opposite party. For the foregoing reasons we conclude that Ext.A2 bill is not legal, proper and has to be set aside.

13. On 09-8-2005 opposite party has issued another bill (Ext.A4) for Rs.1,37,351/- which is the second bill challenged by complainant. According to opposite party audit inspection was conducted on 02-8-2005. Ext.B3 is the photocopy of the audit report. It is the case of opposite party that previously on 14-11-2003 Anti Power Theft Squad had conducted an inspection and found that the power meter was faulty. The meter was replaced on 17-11-2003. It is submitted that though the meter was replaced no bill for back assessment was issued to the complainant at that time. Later as per Ext.B3 audit report this lapse was detected and opposite party was directed to issue back assessment bill for the period 01/03 to 11/03 taking into consideration the monthly average consumption for subsequent three months. Thus opposite party has issued Ext.A4 bill for Rs.1,37,351/- on 09-8-2005. In Ext.B4 the period of assessment is shown as from 01/03 to 11/03 and from 9/04 till 12/04.

14. Counsel for complainant challenged Ext.A4 bill as barred by limitation and also that it has no legal basis since the meter was not faulty.

15. Opposite party has not produced any mahazar prepared during the inspection conducted by Anti Power Theft Squad on 14-11-2003. It is not stated anywhere as to what was the defect of the power meter and why it was replaced on 17-11-2003. Opposite party relied upon Ext.B5 meter reading register. In Ext.B5 it is noted that the power meter is changed on 17-11-2003 being found to be faulty during Anti Power Theft Squad inspection. But the details of defect are not stated. Undisputedly the meter was not send for any testing. After a lapse of more than two years opposite party issued Ext.A4 bill for a huge amount. Opposite party has produced meter readings after 1/03 only and contends that the consumption prior to changing the meter from 1/03 till 17-11-2003 is very low when compared with the consumption after changing the meter. Opposite party has assumed that the meter was faulty from 1/03 onwards and has back assessed the consumer from 1/03 till changing of meter (11/03). As per Sec. 56(2) of Indian Electricity Act the sum due from any consumer shall not be recoverable after a period of two years, from the date when such sum became due, unless such sum has been shown continuously as recoverable as arrear of charges. Here the bill is not for arrears of charges. It is fresh bill for back assessment issued after two years of replacing the meter. As per Ext.A4 bill back assessment is made for the period between 9/04 till 12/04 also. Opposite party does not specifically plead or affirm as to the grounds for back assessment during this period. It is stated in Ext.B3 audit report that the meter became faulty on 9/04 onwards and the consumption recorded fell sharply. There is absolutely no evidence adduced by opposite party to show that the power meter was faulty on 9/04. Merely assuming that the power meter was faulty opposite party has back assessed the complainant for the period 9/04 to 12/04 which is highly illegal.

16. Regulation 19 of Kerala Electricity Supply Code 2005 provides for Meter reading--

Regulation 19(2) reads as under:

“If Licensee is unable to base a bill on meter reading due to its non-recording or malfunctioning, the Licensee shall issue a bill based on the previous six months average consumption. In such cases the meter shall be replaced within one month.”

Regulation 19(3) reads as under:

“The bill shall be issued within 7 days from meter reading date and the bill date shall not be more than 4 days from meter reading date. In the case of spot, billing, the meter reading date and bill date shall be the same.”

17. These provisions make it clear that opposite party has to issue bills within specified time. Even after paying regular bills, the complainant herein has been asked to pay repeated back assessment bills. There should be finality to the charges demanded for the service rendered to the consumer Sec.56(2) intends to bring this finality to the demand for payment of electricity charges. The payment of electricity charges should not hang like a Democle's Sword upon the consumer; when paid regularly and properly he has to be relieved of hardships of belated and surprising back assessment and re-assessment bills. Opposite party has no case that consumer has misused the supply or tampered with the meter. Opposite party has failed to adduce any reliable evidence that the meter was faulty on 17-11-2003 and 9/04. From the above discussion we hold that Ext.A4 bill is issued without any legal basis and has therefore to be set aside. Complainant is liable to pay only for the actual energy consumed by him. This he has already paid by the regular bills issued to him. Issuance of bills which are not correct and legal amounts to deficiency in service. We find opposite parties are deficient in service.

18. Point (ii):-

As already discussed above the prayer of the complainant to set aside Ext.A2 and Ext.A4 bills is only to be allowed. The act of opposite party in issuing bills without proper contents and details of assessment causes much inconvenience to consumers. Whatever is the reason for demand, or amount demanded has to be made clear to the consumer to avoid unnecessary doubts and to make the service rendered by opposite party more transparent. It is high time opposite parties issued bills in the form contemplated under Regulation 21 of the Kerala Supply Code, 2005. We are of the view that a direction has to be issued to set right this practice which in our opinion is unfair trade practice. Adequate and necessary information is concealed from the consumer by the issuance of incomplete bills. We hold that cancellation of the above two bills would be adequate relief to the complainant.

19. In the result, we allow the complaint and order the following:-

(i) Ext.A2 bill dated, 21-6-2005 for Rs.47,841/- (Rupees Forty seven thousand, eight hundred and forty one only) and Ext.A4 bill dated, 09-8-2005 for Rs.1,37,351/-(Rupees One lakh, thirty seven thousand, three hundred and fifty one only) are cancelled.

(ii) Opposite parties shall jointly and severally refund to the complainant the amount paid by him towards these bills within a period of two months from the date of receipt of copy of this order. Complainant if necessary can avail the option of adjusting this amount to the future bills of any other electricity consumer connection he owns by making an application to opposite party who shall then act accordingly.

(iii) We direct the Secretary, Kerala State Electricity Board to issue necessary directions to all officers concerned to issue bills hereafter furnishing all necessary and complete details of assessment/demand to consumers. Copy of this order shall be send to Secretary, Kerala State Electricity Board, Thiruvananthapuram for due compliance.

(iv) The time limit for compliance of this order is fixed as two months from the date of receipt of copy of this order. We make no order as to costs.

Dated this 21^st day of March, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A7

Ext.A1 : Photo copy of mahazar dated, 17-6-2005 prepared by K.K. Venugopalan,

Sub Engineer, KSEB., Valluvambrum.

Ext.A2 : Photo copy of the Demand cum Disconnection notice dated, 21-6-2005

for Rs.47,841/- issued by opposite party to complainant.

Ext.A3 : Photo copy of the complaint dated, 23-8-2005 submitted by complainant

before Electrical Inspectorate, Malappuram.

Ext.A4 : Photo copy of the Demand cum Disconnection notice dated, 09-8-2005

for Rs.1,37,351/- issued by opposite party to complainant.

Ext.A5 : Photo copy of the WP(C) No.25736 of 2005 dated, 28-8-2005 submitted by complainant before High Court of Kerala, Ernakulam.

Ext.A6 : Photo copy of the Judgment dated, 02-9-2005 in WP(C) No.25736 of 2005

pronounced by High Court of Kerala, Ernakulam.

Ext.A7 : Photo copy of the Letter dated, 15-12-2007 by 1^st opposite party to

complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B8

Ext.B1 : Photo copy of the Request dated, 22-01-2007 submitted by

complainant to first opposite party.

Ext.B2 : Photo copy of mahazar dated, 17-6-2005 prepared by K.K. Venugopalan,

Sub Engineer, KSEB., Valluvambrum.

Ext.B3 : Photo copy of the Audit Enquiry No.28 dated, 02-8-2005 from Senior

Audit Officer, C.A. Party XXII, KSEB., Camp.Electrical Section,

Valluvambrum to first opposite party.

Ext.B4 : Photo copy of the Demand cum Disconnection notice dated, 09-8-2005

for Rs.1,37,351/- issued by opposite party to complainant.

Ext.B5 (series) : Photo copy of the concerned page of meter reading register(3 Nos.)

Ext.B6 : Photo copy of the Judgment dated, 02-9-2005 in WP(C) No.25736 of 2005

pronounced by High Court of Kerala, Ernakulam.

Ext.B7 : Photo copy of the Hearing conducted by first opposite party

to complainant dated, 14-12-2005.

Ext.B8 : Photo copy of the Demand cum Disconnection notice dated, 21-6-2005

for Rs.47,841/- issued by opposite party to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER