KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 154/2008 JUDGMENT DATED:8-10-2010 PRESENT SMT. VALSALA SARANGADHARAN : MEMBER SRI. M.V. VISWANATHAN : JUDICIAL MEMBER SRI.M.K.ABDULLA SONA : MEMBER C.P.Dhamodaran (President), Prathyaksha Reksha Daiva Sabha (PRDS), Sreekumar Nagar, Eraviperoor, : APPELLANT Thiruvalla. (By Adv.Sri.G.Sudhakaran Nair) Vs. 1. The Secretary, KSEB, Vaidhudhi Bhavan, Pattom, Thiruvananthapuram. 2. The Executive Engineer, Electrical Major Section, KSEC, Thiruvalla. : RESPONDENTS 3. The Assistant Executive Engineer, Electrical Major Section, KSEB office, Vennikulam. (By Adv:Sri.B.Sakthidharan Nair) JUDGMENT SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated:29th March 2001 passed by CDRF, Pathanamthitta in OP.131/99. The above complaint was filed alleging deficiency of service on the part of the opposite parties (KSEB) in issuing bills for excess current charges for a sum of Rs.1,53,507/- for the period from 2/95 to 2/97 and also for Rs.1,25,565/- towards excess electricity charges for the period from 2/97 to1/99. It was also alleged that the opposite parties have committed deficiency of service by revising the monthly rate of the current charge at Rs.6,574/- and demanding the same from February 1999. It was alleged that the complainant is a religious and charitable institution entitled for concessional rate for the electrical energy which is being consumed. The complainant has also prayed for directing the opposite parties not to disconnect the electric connection to the premises of the complainant. 2. The opposite parties entered appearance and filed written version denying the alleged deficiency of service. They contended that the additional bills for Rs.1,25,238/- for the period from February 1995 to February 1997 and for Rs.1,25,565/- for the period from February 1997 to February 1999 were issued based on the consumption of electrical energy by the complainant; that the complainant is not entitled to get the benefit of religious and charitable institution; that the complainant has been consuming energy on an average rate of 1200 units per month and so the provisional invoice card was revised based on the average consumption of the complainant. Thus, the opposite parties prayed for dismissal of the complaint. 3. Before the Forum below the complainant was examined as PW1 and Ext.P1 to P5 documents were marked on the side of the complainant. From the side of opposite parties DWs 1 to 3 were examined and R1 and R2 documents were also marked. Ext.C1 copy of the test report submitted by Deputy Electrical Inspector, Electrical Meter Testing Laboratory, Thiruvananthapuram, Ext.C2 mahazar and rough sketch prepared by Electrical Inspector, Pathanamthitta and Ext.C3 letter dated:17/4/2000 issued by the Electrical Inspector, Pathanamthitta to the CDRF, Pathanamthitta were also marked as Court Exhibits. Based on the evidence on record, the Forum below (CDRF, Pathanamthitta) passed the impugned order dated:29th March 2001 dismissing the complaint in OP.131/99. 4. After the pronouncement of the order dated:29th March 2001, the complainant therein filed a review petition dated:28th May 2001 before the Forum below and the Forum below passed the order dated:28th November 2001 allowing the review petition and thereby the impugned order dated:29/3/2001 was reviewed. As per the said review order P2 additional bill for Rs.1,25,238/- and P4 revised additional invoice card for Rs.6,574/- were set aside and that the opposite parties were directed to issue a revised current charge bill by taking into account of the average monthly consumption for 6 months after installing the new meter in the petitioner’s premises. It was further directed to issue current charge bills to the complainant at the rate applicable to religious and charitable institutions with a further direction to adjust the excess amount paid towards current charges. 5. Against the aforesaid order dated:28th November 2001, the opposite parties preferred Appeal No.574/04 with a petition to condone the delay in preferring the aforesaid Appeal No..574/04. This State Commission dismissed the petition filed for condonation of delay and consequently the aforesaid appeal was also dismissed. Against the aforesaid order passed by this commission, the opposite parties preferred Revision Petition-415/04 before the Hon’ble National Commission. The order dated:28-11-2001 passed by the District Forum on the review petition was also challenged. Thereby the impugned order dated:29-3-01was restored with liberty to the complainant to prefer an appeal from the said order dated:29/3/2001 passed by CDRF, Pathanamthitta in OP.131/99. In the light of the aforesaid order passed by the Hon’ble National Commission in Revision petition No.415/04, the present appeal is preferred by the complainant in OP.131/99. Thus, the present appeal has a chequered carrer. 6. We heard the learned counsel for the appellant/complainant and respondents/opposite parties. The appellant/complainant has also filed I.A.1473/09 to accept additional documents at this appellate stage. As per the said I.A. the appellant/complainant has produced 3 documents namely, 1. Government order, G.O.MS.No.65/2006/RD dtd:1/3/2006 of the Revenue(N)Department. 2. copy of the prodceedings of the Revenue Divisional Officer, Kottayam, No.SMC 67/81/TLB/Changanassery datd:2/8/2006 and 3. Copy of the letter No.AEE/SD/VKM/case/2004-2005/54, 11/1/04 issued by the assistant Executive Engineer, Electrical Sub Division, KSEB, Mallappally addressed to the President, Prathyaksha Raksha Daiva Sabha, Sree Kumar Nagar, Eraviperoor 6722/(the complainant). The opposite parties have filed objection to the said I.A.1473/09 contending that the petition to accept additional documents is not maintainable either in law or on facts. It is further contended that the documents sought to be received as additional evidence is the alleged order dated:1/3/2006 and the said order has no retrospective effect; but the additional bills were issued for electricity consumed for the period from February 1995 to January 1999. Thus, the opposite parties prayed for dismissal of the I.A.1473/09. 7. The counsel for the appellant/complainant argued for the position that the impugned additional bills were issued without any basis and the revised provisional invoice card was also issued without considering the actual average consumption of the complainant. It is also pointed out that the energy meters installed at the premises of the complainant were defective meters and the electrical inspector has also reported the defective nature of the meter. It is further contended that the complainant is a religious and charitable institution entitled to get the tariff under LT-VI-(A). Thus, the appellant prayed for setting aside the impugned order dated:29/3/2001 passed by the CDRF, Pathanamthitta in OP.131/99. On the other hand, the learned counsel for the respondents/opposite parties supported the impugned order dated:29/3/2001 passed by CDRF, Pathanamthitta. He argued for the position that the additional bills were issued based on the consumption of electrical energy by the complainant and that the revised provisional invoice card was issued based on the average consumption at the rate of 1200 units per month. It is further submitted that there is no acceptable evidence on record to substantiate the case of the appellant/complainant to get the benefit available to religious and charitable institutions and thereby the claim for billing the consumption under LT-VI- (A) was denied by the respondents/ opposite parties. 8. The appellant/complainant is the President of Prathyaksha Reksha Daiva Sabha, Sree Kumar Nagar, Ernakulam. Admittedly complainant is a consumer of electrical energy under the electrical major section, Vennikkulam, Thiruvalla. The consumer number of the complainant is 722. He has been treated as a consumer under LT VII-A (commercial connected load exceeding 1000 watts). The fact that the appellant/complainant (consumer) was paying the current charges at the rate of Rs.344/-is not in dispute. The aforesaid monthly current charges were paid promptly by the complainant/consumer based on P1 provisional invoice card. There is no dispute regarding Ext.P1 invoice card issued by the respondent/opposite party (KSEB). There is also no dispute that the appellant being the consumer (consumer No.722) has been remitting the current charges at the rate of 344/- per month based on Ext.P1 provisional invoice card. 9. The respondents/opposite parties issued Ext.P4 revised provisional invoice card refixing the monthly current charge at Rs.6574/-. The aforesaid revised provisional invoice card was issued in December 2009 with effect from February 1999. According to the respondents/opposite parties Ext.P4 revised provisional invoice card was issued based on the average monthly consumption at 1200 units. But the respondents/opposite parties have not produced any document evidencing the average monthly consumption of electrical energy at 1200 units. It is to be noted that as per Ext.P1 original provisional invoice card the monthly consumption was fixed at 100 units. Thus, there is a drastic change in the average consumption of electrical energy. There is no case for the respondents/opposite parties that P4 revised provisional invoice card fixing the average consumption at 1200 units was issued after hearing the appellant/complainant (consumer). The principles of natural justice would demand that the revision of the average consumption ought to have been made after giving an opportunity to the consumer to submit his case regarding average consumption of energy. So, it can be concluded that P4 revised invoice card was issued refixing the average consumption at 1200 units without following the principles of natural justice. 10. The respondents/opposite parties have got a definite case in their written version that the average monthly consumption was 1200 units and the aforesaid average monthly consumption was fixed based on the readings recorded by the energy meter installed at the premises of the complainant/consumer. But the opposite parties have not produced the aforesaid meter reading register to substantiate their case that the average monthly consumption was 1200 units. 11. More over, the opposite parties in their written version has categorically contended that the energy meter installed at the premises of the complainant became repeatedly defective and those defective meters were replaced. The complainant/consumer has pleaded that the meter happened to be defective on many occasions and the opposite party/KSEB failed to replace the defective energy meter promptly and there occurred considerable delay in replacing the defective meter. DW1, the then Assistant Engineer, electrical major section, Vennikkulam has categorically admitted the defective nature of the energy meter on many occasions. It is to be noted that DW1 is not in a position to give the exact date or month on which the meter became defective. The evidence of DW1 would show that the energy meter installed at the premises of the complainant/consumer happened to be repeatedly defective and there occurred considerable delay in replacing the defective meter. It that be so, it was rather impossible for the officials of KSEB to assess the actual consumption of energy. It was practically impossible for them to assess the average monthly consumption during the relevant period, ie from February 1995 to February 1999. The opposite parties in their written version (page 2) have stated that the meter was recording correctly during the period from February 1997 to August 1997. It is further contended that the meter was recording correctly from February 1995 beyond August 1997. But the opposite parties miserably failed in producing the readings recorded during the aforesaid periods. We are totally ignorant about the consumption of electrical energy recorded by the energy meters during the aforesaid periods. At the same time, the opposite parties have admitted the fact that the energy meter was changed on 16/2/1995 and 14/2/1998. It became defective again in February 1999. It is further stated that on 14/2/1998 the meter was changed with initial reading as zero and the meter recorded the reading at 7114 in July 1998 and the reading was 12052 in January 1999. No document or material is available on record to substantiate the aforesaid case of the opposite parties regarding readings recorded by the energy meters. Thus, in effect the respondents/opposite parties failed to substantiate their contention that the complainant has been consuming electrical energy on an average of 1200 units per month. 12. The evidence of DW2, the Deputy Electrical, meter testing laboratory, Thiruvananthapuram and that of DW3 the electrical Inspector, Pathanamthitta would show the defective nature of the energy meter installed at the premises of the complainant/consumer. Ext.C1 test report submitted by DW2 and the C2 mahazar prepared by DW3 ad C3 letter issued by DW3 would make it clear that the energy meter was defective. DW1, the assistant Engineer, Electrical Major Section, Vennikkulam deposed that he does not know the date on which or the month in which the energy meter became defective. It would also give a clear indication that the officials of KSEB were not interested in replacing defective meter then and there. On the other hand, the defective energy meters were replaced after a considerable delay. Thus, it can very safely be concluded that there was no material available on record to assess the actual and correct consumption of electrical energy by the complainant/consumer. Ext.P4 revised invoice card was issued based on some assumptions and presumptions. It was issued without any acceptable data or basis. The opposite parties relied on some surmises and conjuctures for assessing the monthly consumption at 1200 units. The opposite parties cannot be justified in issuing P4 revised provisional invoice card fixing the monthly current charge at Rs.6574/-. The materials on record would show that the aforesaid provisional invoice card ought to have been set aside. 13. As per Ext.P2 additional bill the respondents/opposite parties (KSEB) demanded a sum of Rs.1,25,565/- towards the excess energy charges for the period from February 1997 to January 1999. P2 additional bill is dated:1/3/1999. As per P3 additional bill the complainant/consumer is directed to remit Rs.1,25,238/- towards the excess energy consumed for the period from February 1995 to February 1997. It is the definite case of the opposite parties that the P2 additional bill is for the period from February 1997 to January 1999. It is true that meter readings are shown in P2 and P3 additional bills. But the opposite parties have not produced the meter reading register or any other document to show that the readings shown in P2 and P3 additional bills are the correct readings. But, the evidence available on record would show that the energy meter installed at the premises of the complainant/consumer happened to be defective on many occasions and there occurred long delay in replacing those energy meters. If that be so, the aforesaid readings recorded by the defective energy meters cannot be taken as the basis for assessing the actual consumption of energy by the complainant/consumer. We have already considered those aspects regarding the defective nature of the energy meters installed at the premises of the complainant/consumer. So, the additional bills issued (P2 and P3) based on the readings recorded by defective energy meters cannot be accepted. Thus, Ext.P2 and P3 additional bills are also liable to be set aside. The Forum below has not considered those relevant aspects regarding defective nature of the energy meter installed at the premises of the complainant/consumer and also the fact that the energy meter happened to be defective repeatedly and there occurred considerable delay in replacing the defective energy meters. So, the impugned order passed by the Forum below without considering those aspects is liable to be set aside. The parties to the complaint are to be given one more opportunity to adduce acceptable evidence in support of their respective pleadings. 14. The appellant/complainant has got a case that the complainant is entitled for getting concessional rate ie the tariff under LT VI (A). The tariff order dated:24/10/2002 with effect from 1/10/2002 and the tariff order dated:16/1/2006 with effect from 1/1/2006 would show that the consumers under tariff LT VI A are temples, churches, mosques, monasteries etc. The aforesaid tariff order would give the description of the consumers who will come under LT VI A – temples, churches mosques, monasteries, premises of religious worship, convents, private hospitals, registered under cultural, scientific and charitable societies Act and exempted from payment of income tax, government or private educational institutions, libraries/reading rooms affiliated to universities or run by government or private, government hospitals, X-ray units, libraries, mortuaries attached to government hospitals. 15. The aforesaid description of the consumers coming under LT-VI-A would show that premises of religious worship or private educational institutions would also come under LT VI A. The President of the Prathyaksha Reksha Daiva Sabha, Sree Kumar Nagar, Eravipuram has deposed that the complainant (Daiva Sabha) is a religious and charitable institution established for improving the people belonging to lowest strata of the community especially people coming under scheduled casts and scheduled tribes. It is further deposed that the institution is running training centre to impart training to the people and thereby rendering free services to improve the living condition of the down trodden people in the community. It is further deposed that the institution is also a religious institution imparting religious education. But, the Forum below failed to appreciate the evidence of the complainant as PW1. On the other hand, the Forum below simply rejected the said plea of the complainant by stating that there is no concrete evidence to prove that the petitioner is a religious and charitable institution. The Forum below has also failed to appreciate the provisions of LT-VI-A of the tariff order. It is further to be noted that the evidence of PW1 regarding the religious and charitable nature of the institution has not been challenged or questioned in his cross-examination by the counsel for the opposite parties. Thus, the fact that the complainant’s institution is a religious and charitable institution imparting training to the general public belonging to the lowest strata of the community is not disputed. It would further show that the headquarters of the complainant/institution is also being used as a place of worship. So, the matter is to be remitted back to the Forum below to consider the aforesaid issue afresh. 16. The appellant/complainant filed the petition, I.A.1473/09 to accept additional documents. The additional documents viz. Letter dated:11/1/2004 issued by the Assistant Executive Engineer, KSEB to the complainant would show that the KSEB has considered the case of the complainant and thereby the complainant/institution is considered as an institution coming under the tariff LT VI A. It is to be noted that the aforesaid letter dated:11/1/2004 was issued by the 3rd opposite party, the Assistant Executive Engineer, KSEB, by considering the pendency of the complaint in OP.131/99 and the appeal preferred as Appeal-574/02. So, the aforesaid letter issued by the 3rd opposite party is to be treated as a necessary and valid document required consideration in this case. The other documents produced by the appellant/complainant would also give an indication that the complainant/institution viz. Prathyaksha Reksha Daiva Sabha, Thiruvalla, has been treated or considered by the Government of Kerala as an institution of public nature for religious and charitable purpose entitled for exemption under the Kerala Land Reforms Act ie; under Sec.98(A) of the KLR Act, 1963. Order dated:2/8/2006 passed by the Revenue Divisional Officer, Kottayam would make it clear that the complainant/institution has been given the exemption from land ceiling by treating the complainant/institution as an institution of public nature for religious purpose as envisaged under 98(A) of KLR Act, 1963. So, the aforesaid documents being public documents are to be considered as relevant documents as far as the present case is concerned. The Forum below is directed to consider those documents produced by the appellant/complainant at this appellate stage. Thus, in all respects, the matter involved in this case is liable to be remanded to the Forum below for fresh consideration and disposal. Both the parties to the complaint in OP.131/99 will be at liberty to adduce further evidence in support of their respective contentions. In the result the appeal is allowed to the extent that the matter is remanded to the Forum below for fresh consideration and disposal. The impugned order dated:29/3/2001 passed by CDRF, Pathanamthitta in OP.131/99 is set aside to the extent as indicated above. It is made clear that the parties will be at liberty to adduce further evidence in support of their respective pleadings. The parties are directed to suffer their respective costs. The parties shall appear before the Forum below on 19/11/2004. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN: MEMBER M.K.ABDULLA SONA: MEMBER VL. | 
