KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

              VAZHUTHACAUD THIRUVANANTHAPURAM

                                        APPEAL NO.887/06

                             JUDGMENT DATED 23.4.200

PRESENT

SRI.M.V.VISWANATHAN                         --  JUDICIAL MEMBER

SRI.S.CHANDRAMOHAN NAIR                   --  MEMBER

1.       Asst.Executive Engineer,

Electrical Major Section Office KSEB

Chovva, Kannur – 6.

2.       The Deputy Chief Engineer                 --  APPELLANTS

Electrical Circle,

          Vaidyuthibhavan, Kannur.

3.       The Secretary, KSEB

          Vaidyuthibhavan, Thiruvananthapuram.

             (By Adv.V.S.Vineethkumar)

                             Vs.

Vijayan Kaliyath,

‘Chaithanyam’                                             --  RESPONDENT

Mundayadu P.O, Kannur.

   (By Adv.S.Ajith )  

                                           JUDGMENT

SRI.M.V.VISWANATHAN,JUDICIAL MEMBER

          The above appeal is directed against the order dated 31^st August 2006 passed by CDRF, Kannur in OP.No.240/04.  The complaint in the said OP.No.240/04 was filed by the respondent herein as complainant against the appellants/opposite parties alleging deficiency in service on the part of the opposite parties  due their failure to replace the defective meter and also for collecting electricity charges for the period from 23.1.01 at the rate of more than 150 units per month.   Thus, the complainant prayed for getting the alleged defective meter installed in his premises replaced and to get refund of the excess amount collected by the opposite parties from 23.1.2001 onwards till replacement of the defective meter and to direct the opposite parties to pay compensation of Rs.5000/- for the mental and physical sufferings of the complainant.

          2. The opposite parties entered appearance and contended that there was no deficiency in service on their part and the present meter existing in the premises of the complainant is not defective and they prayed for dismissal of the complaint.

          3. Before the forum below, the complainant was examined as PW1 and the Asst. Executive Engineer of KSEB was examined as DW1.  Exts. A1 to A11 documents were also marked on the side of the complainant.  On an appreciation of the evidence on record, the forum below passed the impugned order directing the opposite parties to adjust the excess amount realized based on the consumption recorded by the defective meter  from 2001 till 2003 and  that to inspect the present meter to verify as to whether it is defective or not.  Aggrieved by the said order dated 31.8.06 the present appeal is filed by the opposite parties therein.

          4. We heard both sides.  The learned counsel for the appellants/opposite parties submitted his argument based on the grounds urged in the memorandum of the present appeal.  He argued for the position that there is no materials or evidence available on record  to substantiate the case of the complainant that the present meter existing in the premises of the complainant is defective and that the order passed by the forum below directing adjustment of the excess  amount is un-sustainable.  It is further submitted that the opposite party/KSEB has not collected any excess amount from the complainant/consumer.     Thus, the appellants prayed for setting aside the impugned order passed by the forum below in OP.240/04.  On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the forum below.  He also relied on Ext.A9 copy of the judgment in OP.48/01 passed by CDRF, Kannur and submitted that from 23.1.01 onwards the meter installed in the premises of the complainant was defective and it has been recording excess consumption than the actual consumption of energy and that the opposite parties have collected excess energy charges from the complainant.  Thus, the respondent/complainant prayed for dismissal of the present appeal.

5. The points that arise for consideration are:-

1. Whether the complainant in OP.240/04 has succeeded in establishing his case  that the energy meter installed in his premises was defective  and it has been recording excess consumption of energy than the actual  consumption of energy and that the complainant has been remitting excess energy charges from 23.1.01 onwards?  

2. Whether the forum below can be justified in passing the impugned order dated 31.8.06 in OP.240/04 directing the opposite parties therein to adjust the excess amount realized for the period   from 2001  till 2003?

3. Is there any sustainable ground to interfere with the impugned order passed by the Forum below in OP.240/04?

6. POINS 1 TO 3:-

For the sake o convenience, the parties to this appeal will be referred to according to their rank and status before the forum below in OP.240/04.

7. There is no dispute  that the complainant is a consumer under the opposite party/KSEB with Consumer No.4122/Chovva and the said connection is within the jurisdiction of the first opposite party/Asst. Executive Engineer, Electrical Major Section, Chovva, Kannur.  The complainant had preferred an earlier complaint before the forum below as OP.48/01 alleging deficiency in service on the part of the opposite parties in collecting the meter charge of Rs.4452/- and also in collecting excess amount from the complainant/consumer for the period from 10.1.2000 to 23.12.2000.  Ext.A9 is   copy of the judgment passed by CDRF, Kannur in the said OP.48/01.  The said complaint was allowed and thereby the opposite parties were directed to refund the charge of the energy meter amounting to Rs.4452/- and also to refund the excess amount collected from the complainant.    The contention of KSEB in the said OP.48/01 was that the  complainant tampered with the energy meter and thereby the meter was burned due to the negligence of the complainant.  It is on the basis of the said contention  the opposite parties collected cost of the meter   amounting to Rs.4452/-.  The definite case of the complainant was that he was innocent in the said incident and he had not interfered with the energy meter, but it was burned.   The Forum below accepted the case of the complainant and thereby the opposite parties were directed to refund the cost of the meter which was collected from the complainant.  It was also found that the energy meter was defective and so the excess amount collected was  refunded/adjusted.

8. The present complaint of the complainant in OP.240/04 is that the energy meter now existing in the premises of the complainant is also defective and the said meter is not recording the actual consumption of energy but it has recorded excess consumption of energy.  The complainant has also got a case that  he has been consuming energy less than 150 units per month.  The complainant himself has admitted that the opposite parties replaced the defective meter on 13.11.02 and on 21.3.03  as when the meter was found defective or not recording the consumption properly.  The present case of the opposite parties is that the energy meter installed on 21.3.03 is a defect free meter and it has been recording the energy consumption properly.  The complainant who was examined as PW1 was also cross examined  on that point with a definite suggestion that the energy meter installed on 21.3.03 is not defective and the same is functioning properly and recording the consumption of energy correctly.  Of course, PW1  has denied the said suggestion.  But it is to be noted that PW1was examined before the Forum below on 26.10.05.  There is no evidence available on record  other than the interested testimony of PW1 to show that the energy meter installed at the premises of the complainant on 21.3.03 was a defective one and it was not recording the energy consumption   correctly.  It is for the complainant to prove his case that the meter existing in his premises is a defective one and it has been recording the excess consumption of energy then the actual consumption.  Especially, in the light of the contention of the opposite parties that the said meter was defect free and it had been recording the consumption correctly.  But, unfortunately the complainant has not succeeded in establishing his case regarding the defective nature of the meter which was installed on 21.3.03.

9. DW1, the Asst. Ex. Engineer  of the Electrical Major Section, Chovva has deposed about the earlier OP.48/01 filed by the complainant and the subsequent change of energy meters as and when the meter was found defective.  He categorically deposed that the  meter was subsequently changed on 13.11.02  and on 21.3.03.  He also deposed that  the meter was changed on 13.11.02 because of the complaint that the said meter was giving electric shock and that the meter was again replaced on 21.3.03 because of the defective nature of the energy meter.     Unless there is acceptable evidence to show the defective nature of the meter, it cannot be held that the meter installed on 21.3.03 was also defective.  There is no reason or ground to doubt   the testimony of DW1 regarding the working of the meter which was installed on 21.3.03.

10. Another important aspect to be noted at this juncture is the issuance of lawyer notice (A1) by the complainant to the opposite parties stating that the meter installed on 21.3.03 is also defective and it is recording excess consumption.    The first opposite party issued A5 reply dated 5.4.04 stating that there is no defect to the meter as alleged in A1 lawyer notice and the said meter which was installed on 21.3.03 has been recording the consumption correctly.  It is further submitted that the energy charges collected are based on the consumption recorded by the energy meter.  It was categorically stated in A5 notice that the electric meter installed on 21.3.03 is showing the consumption of electrical energy correctly and the said meter is at present working in the complainant’s premises.  The case of the complainant  that his consumption is only 150 units per month was also disputed by the first opposite party.  The consumption of energy by the complainant for period from February 2002 till February 2004 was also narrated in A5 reply notice.  Another important aspect to be taken note  of are the recitals in A5 reply requesting the complainant  to get the meter  tested by the Electrical Inspector and for taking necessary steps to get the dispute settled by the Electrical Inspector.  Thus, the case of the complainant that the meter installed on 21.3.03 was also defective and was recording excess consumption of energy cannot be believed or accepted without any cogent and acceptable evidence.

11. The complainant issued A6 letter dated 15.6.04 to the Electrical Inspector requesting the Electrical Inspector to test the meter installed in the complainant’s premises.  A7 postal receipt and A8 acknowledgement card would show that the original of A6 registered lawyer notice was served on the Electrical Inspector.  According to the complainant, even after  getting  A6 lawyer notice, the Electrical Inspector did not test the energy meter to ascertain as to whether the said energy meter is defective or not.  It is to be noted that the complainant has to submit the application with necessary fees to get the energy meter tested by the Electrical Inspector.  The method adopted by the complainant by issuing registered lawyer notice to the Electrical Inspector cannot be appreciated.  The complainant has not adopted the proper procedure to get the energy meter tested by the Electrical Inspector.     So, there was failure on the part of the complainant to get the energy meter tested.  The case of the complainant   that the energy meter was defective cannot be believed or accepted.  The burden is upon the complainant to substantiate his case that the said energy meter was defective and it was recording excess consumption of energy.

12. The complainant has also got a case that his monthly consumption of energy is below 150 units.  But, there is no acceptable evidence to substantiate the aforesaid case of the complainant.  On the other hand, the material evidence available on record would show that the complainant was having more than 150 units of energy consumption per month.  In Ext.A5 reply, the first opposite party has given a clear picture about the consumption of energy by the complainant.  The case of the complainant  that the consumption  of energy was below 150 units  per moth  cannot be accepted without supporting cogent evidences.

13. The Forum below  passed the impugned order without ascertaining the case of the complainant as to whether the meter installed on 21.3.03 was defective meter or not.  So, the forum below cannot be justified in directing the opposite parties to adjust the alleged excess amount realized as per the alleged defective meter.    There is also no material available on record to show that from 2001 till 2003 the energy meters installed at the premises of the complainant were always defective.  The mere fact that the energy meter went wrong on some occasion and the said defective meter was replaced at the relevant time cannot be taken as a ground to hold that through out the period the energy meter was defective.  It is to be noted that the dispute regarding the consumption of energy up to 23.12.2000 was adjudicated and settled by the order dated 18.8.03 passed by CDRF, Kannur in OP.48/01 (Ext.A9).  The present case of the complainant that he has been remitting excess energy charges from 23.1.01 onwards cannot be accepted without any supporting evidence.  The further case of the complainant that his consumption from 23.1.01 onwards was below 150 units per month is also not proved.  More over, the complainant has  approached the Forum below to get the excess amount collected refunded.  The present complaint in OP.240/04 was filed in September 2004.  So, the claim for refund of the alleged  excess amount from 23.1.01 is clearly barred by limitation.   The Forum below had no jurisdiction to entertain the said claim for refund of the alleged excess amount collected from 23.1.01, as the said claim is barred under Section 24 (A) of the Consumer Protection Act, 1986.  The issuance of A1 lawyer notice dated 13.2.04 will not save the bar of limitation.  Thus, in all resects, the Forum below cannot be justified in ordering refund of the alleged excess amount collected from the complainant.   

          14. The appellants had also produced   attested copy of the meter reading statement of the complainant with respect to consumer No.4122/chovva, for the period from April 2003 to December 2005.   That meter reading statement was produced during the pendency of this appeal.  Along with the said statement, the appellant has also produced copy of a notice dated 20.10.06 issued by the Asst.Engineer, Electrical Section, Chovva to the complainant Sri.Vijayan Kaliyath.  In the said letter the option of the complainant has also been sought for in the matter of getting the energy meter installed in the premises of the complainant   as the said meter is found defective from August 2006 onwards.  Thus, no purpose will be served by  sending the old meter for testing, as the same has been found defective from August 2006 onwards.    In all respects, the complaint in OP.240/04 is liable to be dismissed.  The complainant/consumer is not entitled  to get any relief in the said OP.240/04  because of the fact that the complainant miserably failed in  establishing the allegations contained therein.  The impugned order dated 31.8.06 passed by CDRF, Kannur is liable to be quashed.  Hence we do so.  These points are answered accordingly.

          In the result, the appeal is allowed.  The impugned order dated 31^st August 2006 passed by CDRF, Kannur in OP.240/04 is set aside.  The parties to this appeal are directed to suffer their respective costs through out.  

 M.V.VISWANATHAN  --  JUDICIAL MEMBER

 S.CHANDRAMOHAN NAIR --  MEMBER