State Consumer Disputes Redressal Commission
Kseb, Rep. By Its Secretary, Vydhuthi ... vs George M. Thomas, S/O Advocate M.D. ... on 23 February, 2011
Daily Order
First Appeal No. A/09/496 (Arisen out of Order Dated 05/05/2009 in Case No. CC 84/08 of District Malappuram) Scecretary, KSEB Vs. George M Thomas BEFORE: SRI.S.CHANDRAMOHAN NAIR PRESIDING MEMBER PRESENT: Dated : 23 Feb 2011 ORDER Disposed as Allowed in part
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 496/2009
JUDGMENT DATED: 23-02-2011
PRESENT:
JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER
APPELLANTS
1. KSEB, Rep. by its Secretary, Vydhuthi Bhavan,
Pattom, Thiruvananthapuram.
2. Assistant Engineer, KSEB,
Manjeri North (Electrical Section).
3. K.V. Rama Prakash, Assistant Engineer,
Regional Unit, APTS, KSEB, Palakkad.
4. E. Srinivas, Sub Engineer,
Electrical Section, Manjeri North.
5. Senior Assistant in Charge,
Electrical Section, KSEB, Manjeri North.
(Rep. by Adv. Sri. S. Balachandran)
Vs
RESPONDENT
George M. Thomas, S/o Advocate M.D. Thomas (late),
G. Tech Rubber Products, FIE, Payyanad, Manjeri,
Malappuram District.
JUDGMENT
SHRI.S. CHANDRA MOHAN NAIR : MEMBER The order dated 05-05-2009 of CDRF, Malappuram in CC No. 84/2008 is being assailed in this appeal by the opposite parties who are under directions to cancel Ext.A3 bill for Rs. 1,25,944/- and to refund the amounts paid by the complainant towards the impugned bill within two months from the date of receipt of the order.
2. The case of the complainant before the Forum was that he was a consumer of the opposite parties and that he was running a small scale industrial unit named as G.Tech Rubbers and was paying the monthly bills regularly and on 11-04-2008 he was served with a bill for Rs. 1,25,944/- alleging to be the excess energy consumed by him. It is stated by him he had not consumed so much of energy calling for the issuance of the bill and that the same was issued without any legal basis.
3. The opposite parties resisted the complaint by filing version stating that on 09-04-2008 the APTS of the opposite parties visited the premises of the complainant along with the Sub Engineer of the second opposite party and found that the meter installed in the premises was showing only one third of the total consumption due to the nonfunctioning of the two phases of the power meter. The opposite parties submitted that only one third of the actual consumption was recorded in the meter and taking the fact that the consumption pattern from October 2007 onwards was on a lower side, the short assessment bill was issued which the complainant was liable to pay. It was also submitted that there was no deficiency on their part.
4. The evidence consisted of the affidavit filed by the complainant and Exts. A1 to A5. On the side of the opposite parties the second opposite party filed proof affidavit and Exts. B1 and B2 were marked on their part.
5. Heard both sides.
6. The learned Counsel for the appellants vehemently argued before us that the order of the Forum below is passed without any advertence to the submissions and evidence adduced by the opposite parties. It is his very case that the Forum below had ignored the factual positions and has passed the order on presumptions and assumptions. The learned Counsel submitted that the complainant cannot be treated as a consumer as the supply taken by him was for commercial purposes. Inviting our attention to Ext.B2 the learned Counsel submitted that the consumption for the period from 10/2007 was on a lower side and the added fact that the two phases were not working will justify the issuance of the bill. He has also advanced the contention that the site mahazar was singed by the complainant as well as an employee of the G. Tech Rubber Industries. Thus, it is his very case that the order of the Forum below is liable to be set aside.
7. On the other hand, the findings and conclusions of the Forum below were supported by the learned Counsel who appeared for the respondent. It is submitted by him that the complainant was regularly paying the bills issued to him and the fall in consumption from October 2007 was due to shortage of orders received by the complainant and it cannot be a basis for justifying the bill issued by the opposite parties. It is also his case that the complainant is running the factory for earning his livelihood and opposite parties have not adduced any evidence to show that the complainant was running the firm for making profit. Canvassing the observation contained in the site mahazar the learned Counsel invited our attention and argued that the meter box was opened by the APTS and they had no case that the complainant had tampered the meter or that he had done anything to arrest the supply to the two terminal of the meter. Inviting our attention to Clause 33 of the Terms and Conditions of the Supply 2005, the learned Counsel advanced the contention that if at all the meter was found to be faulty the opposite parties could have taken the average consumption for the succeeding three months after the replacement of the meter as the meter was replaced on 29-04-2008 and the same was in use for a considerable period.
8. On hearing the Counsel for both sides and also on perusing the records, we find that the opposite parties had issued the impugned bill for Rs. 1,25,944/- on the basis that the APTS of the opposite parties have conducted a surprise inspection on 09-04-2008 in the premises of the complainant and found that the two phases of the power meter were found nonfunctioning and that the consumption for the past six months was on the lower side when compared with the still earlier consumption made by the complainant. It is also found that the scribe of the site mahazar has stated that they have opened the meter box and found that two phases of the power meter were not having the connection and only one phase was recording the consumption. However, it is also found that apart from the preparation of the site mahazar the opposite parties have not adduced any evidence to show that the meter was nonfunctioning and it is based on the presumption that the complainant was having the consumption on the lower side from October 2007 onwards that the bill was issued. It is to be noted that mere preparation of a site mahazar will not 'ipso facto' prove the case of the opposite parties that there was non recording of the consumption. The opposite parties ought to have sent the meter for testing and obtained a report regarding the functioning of the meter. We have also gone through Regulation 33 of the terms and conditions of supply 2005 issued by the opposite parties. Regulation 33 reads as follows:
Regulation 33(2) "If the Board is unable to raise a bill on meter reading due to its non-recording or malfunctioning, the Board shall issue a bill based on the previous six months average consumption. In such cases the meter shall be replaced within on month. If the average consumption for the previous six months cannot be taken due to the meter ceasing to record the consumption or any other reason, the consumption will be determined based on the meter reading in the succeeding three months after replacement of meter".
9. On a careful reading of the above, we find that if the reading cannot be ascertained due to non recording or malfunctioning of the meter the same has to be replaced and the average consumption for the previous six months has to be taken for issuing a reassessment bill. In the instant case we find that the APTS has inspected the premises on 09-04-2008. They themselves say that the meter has been replaced on 29-04-2008. It is also their case that the consumption for the previous six months from the date of inspection could not be taken as a ground for issuing the bill as the consumption during those months was on the lower side. We find that the meter has been replaced on 29-04-2008 and as per the Regulation if the previous average cannot be considered the consumption recorded after replacement of the meter for three months can be considered for issuing the bill. Hence it is our considered view that the opposite parties are liable to issue a bill based on the average consumption recorded in the meter after the replacement of the meter.
10. The Forum below has cancelled the bill issued as per Ext.A3. On a perusal of Ext.B2 it is also found that consumption from October 2007 is on a lower side. It is also seen that the meter is replaced after the inspection. In such a situation the only course available to the opposite parties for issuing a reassessment bill can be based on the average consumption recorded in the meter for a period of three months after replacement of the meter. The opposite parties are entitled to issue such a bill and the complainant is liable to pay the said bill.
In the result, the appeal is allowed in part with the modifications indicated above. Thereby the order directing to cancel Ext.A3 bill is upheld and the opposite parties are at liberty to issue a fresh bill based on the average consumption recorded in the meter after replacement of the meter on 29-04-2008. In the facts and circumstances of the present appeal, the parties are directed to suffer their respective costs.
S. CHANDRA MOHAN NAIR: MEMBER JUSTICE K.R. UDAYABHANU : PRESIDENT Sr. [ SRI.S.CHANDRAMOHAN NAIR] PRESIDING MEMBER