Kerala High Court
Nandakumar P S vs Secretary on 27 July, 2022
Author: Amit Rawal
Bench: Amit Rawal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
WP(C) NO. 22832 OF 2022
PETITIONER/S:
NANDAKUMAR P S
AGED 79 YEARS
S/O SUBRAMANIAM, KOMARLA HATCHERIES (ELECTRICAL CONSUMER
NO 1155583001222), REP. BY HIS POWER OF ATTORNEY HOLDER
MR. JOY JERALD, BRANCH MANAGER, KOMARLA HATCHERIES,
MANALIMUKKU, SIVAGIRI ROAD, NAD P.O., ALUVA 683563.
BY ADVS.
P.M.GIRIJAVALLABHAN
ROY P.R
SUNIL C
CIBI C.CHEERAN
RESPONDENT/S:
1 SECRETARY
KERALA STATE ELECTRICITY BOARD, VIDHYUTHY BHAVAN, PATTAM,
THIRUVANANTHAPURAM - 690005.
2 ASSISTANT ENGINEER,
ELECTRICAL SECTION, KSEBL,THEVAKKAL- 682021.
3 ASSISTANT EXECUTIVE ENGINEER
ELECTRICAL SUB DIVISION ,K S EB LIMITED, KALAMASSERY,
ERANAKULAM DISTRICT -682021.
4 HONOURABLE OMBUDSMAN
CHARANGAT BHAVAN, BUILDING NUMBER 38/2829, MAMANGALAM
ANCHUMANA ROAD, EDAPPALLY, KOCHI- 682024.
OTHER PRESENT:
SRI B PREMOD SC KSEB
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
27.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 22832 OF 2022
2
JUDGMENT
Order dated 29.4.2022 of the Electricity Ombudsman, Ext.P12 partly allowing the appeal of the petitioner by reducing the demand of 38% to 33% and the notice calling upon the petitioner to pay a sum of Rs.7,16,516/- dated 17.5.2022, Ext.P15 are under challenge on behalf of the petitioner.
2. Petitioner is a registered commercial consumer of respondent under low tension tariff (LT 4A) with a connected load of 54200 Watts, running hatchery at the address given in the memo of parties. On 14.2.2019, an Anit-power Theft Squad of the KSEB carried out a surprise inspection of the premises of the petitioner and found that the R-phase of the current transformer (CT) installed in the meter was not recording the consumption of the current. Resultantly, a site Mahazar, Ext.P1 was prepared and it was mentioned that the seals were found to be intact but the R-phase of the CT was not receiving the full phase and therefore assessed the amount of arrears. Accordingly, a provisional assessment order was issued to the petitioner Ext.P2 dated 14.2.2019 demanding a sum of Rs.17,03,371/-. An objection to the aforementioned provisional/short assessment was submitted by the petitioner on 25.3.2019, Ext.P3 and thereafter the respondents reduced the demand by issuing a final bill of Rs.8,60,423/-, Ext.P4 on 20.6.2019 which was also objected by the petitioner vide Ext.P5. Petitioner challenged the WP(C) NO. 22832 OF 2022 3 aforementioned proceedings at the first instance before the Consumer Grievance Redressal Forum. The Forum dismissed the petition entailing into preference of an appeal before the Ombudsman. Ombudsman modified the order of the Redressal Forum to the extent that the assessment ought to have been taken by taking 33.33% of the actual consumption instead of 38% taken by the respondents and directed the respondent electricity board to issue a fresh bill within a period of 15 days, which shall be issued vide Ext.P15 dated 17.5.2022 amounting to Rs.7,16,516/-.
3. Learned counsel appearing on behalf of the petitioner submitted that there was no unauthorized use of the electricity as the site mahazar reflected that the seals were found to be intact. As per the definition of the meter it means a device suitable for measuring, indicating, recording consumption of electricity or any other quantity related with electrical system and shall also include, wherever applicable, other equipment such as current Transformer (CT) (in question), Voltage Transformer (CVT) necessary for such purpose. As per Site Mahazar, the current in R phase is 69A and Y phase is 54A and B phase is 70A and voltage in R phase is 234 V and Y Phase is 237V and B phase is 233V. There was no variation or deviation in the voltage of any of the phases. The meter was required to be tested in laboratory instead of at the site in view of the provisions of Section 150 of the Kerala Electricity Supply Code and only thereafter a revision of the bill on the basis of the test WP(C) NO. 22832 OF 2022 4 report was required to be issued for a maximum period of six months from the date of the last testing which has not been followed in the present case. The officers inspected the premises were not acquainted with the entire material which is available in the laboratory to arrive at a just and equitable findings of deductions. Electricity Board has failed to discharge the onus as to whether the meter was their own or purchased by the petitioner and they are required to do so as per the Kerala Electricity Supply Code as well as Central Electricity Authority (Installation and Operation of meters) Regulation 2006. It is a case of a consumer that a meter is used for accounting and billing of the electricity supplied to the consumer excluding the inter phase meters. Regulation 6(2) dealing with the consumer meter provides that consumer meter shall generally be owned by licencee. It was a prime duty of the licencee as per Section 113 to satisfy the accuracy of the meter before its installation and to test the same in the accredited or approved laboratory. Even there has been a whisper as to whether the licencee conducted the periodical inspection or testing or both the calibration of the meters as specified in the regulation 2006 amended from time to time. The procedure prescribed for testing of the meter as per Section 115 envisages in a laboratory approved by the commission with an advance notice of three days to the consumer which has not been followed. Thus both the CGRF and Ombudsman have abdicated in not noticing the provisions and hence the petitioner cannot be fastened with such liability. WP(C) NO. 22832 OF 2022 5
4. On the other hand, Mr.Pramod learned counsel appearing on behalf of the KSEB supported the findings of the Ombudsman by raising the following submissions:
The consumption in the premises was of varying in nature. KSEB could collect the meter data for 12 months; only prior to the date of inspection. It was the duty of the licencee to rectify the defect of the metering system if it is found to be defective or faulty, after informing the consumer. The assessment of Rs.17,03,371/- was on account of non recording of energy due to defects of R-phase CT for the period from 03/2017 to 02/2019 by taking the lost energy as 38% of the actual energy to be recorded. The CT's at the premises were replaced on 6.8.2019 but the subsequent readings did not show any increase. Later on, in the inspection of the premises by the Assistant Executive Engineer, it was revealed that the new CTs were in the rating of 150/5 instead of 100/5 with MF of '30'. There was a marked increase in the consumption against the demand of 17 lakhs, licencee revised the demand to 8,60,423/-. and again raised the demand to Rs.17,03,371/-. Though CGRF ordered the licencee to revise the bill limiting the assessment of 24 months to 12 months, Ombudsman had also limited it to 12 months and reduced the percentage from 38 to 33.33%. thus, urge this court for dismissal of the writ petition.
5. For arriving at a just and equitable findings while pondering the submissions of the respective counsel, it would be appropriate to WP(C) NO. 22832 OF 2022 6 extract the relevant provisions of Section 110, 113, 115 of the Kerala Electricity Supply Code 2015 the Kerala Electricity Supply Code and Central Electricity Authority (Installation an Operation of Meters) Regulations 2006.
6. Relevant provisions of Kerala Electricity Supply Code 2015 as follows:-
110. Reading of meters.- (1) The meter shall regularly be read once in every billing cycle and on special reading occasions.
(2) The consumer shall extend all facilities to read the meter, to the licensee or his employee or to the person duly authorised by the licensee for the purpose.
(3) The meter shall be read only by an employee of the licensee or by the person duly authorised by the licensee for this purpose.
(4) The licensee shall issue proper photo identity cards to the employee or the person duly authorised by the licensee for reading the meter and he shall carry the photo identity card during the course of meter reading.
(5) The employee of the licensee or the person duly authorised by the licensee for reading the meter, may use hand held instruments, meter reading instrument (MRI) or wireless equipment for recording meter readings and for generation of bills on the spot.
(6) If bills are prepared on the basis of MRI downloads or if meter reading is taken on the basis of remote meter reading and the consumer wishes to have a record of the reading taken, he shall be given such details by the licensee. (7) It shall be the duty of the employee of the licensee or the person duly authorised by the licensee for reading the meter, to check the condition of light emitting devices (LED) on electronic meters.
(8) In case the LED indicator for earth leakage provided in the electronic meters is found to be 'ON', he shall inform the consumer that there is leakage in the premises and advise the consumer to get the wiring checked and leakage removed.
(9) The employee of the licensee or the person duly authorised by the licensee for reading the meter shall also WP(C) NO. 22832 OF 2022 7 inform the concerned officials of the licensee about the leakage.
(10) Status of the meter or its seal or both along with the meter reading details for the last six billing cycles of each consumer shall be made available on the website of the licensee.
(11) In case, for any reason, the meter is not read during a billing cycle, the licensee shall prepare a provisional bill based on the average consumption of previous three billing cycles when readings were taken.
(12) Such provisional billing shall not continue for more than two billing cycles at a stretch, and the licensee shall not generate more than two provisional bills for a consumer during one financial year.
(13) The amount paid as per the provisional bill shall be adjusted against the bill raised on the basis of actual meter reading during subsequent billing cycles.
113. Testing of meter.- (1) It shall be the responsibility of the licensee to satisfy itself regarding the accuracy of the meter before it is installed and the licensee shall test them or get them tested in an accredited laboratory or in an approved laboratory.
(2)The licensee shall also conduct periodical inspection or testing or both and calibration of the meters, as specified in the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006, as amended from time to time. (3) The periodical testing of consumer meters shall normally be done at site.
(4) The licensee may, instead of testing the meter at site, remove the meter to be tested,replace the same with a correct meter and test the removed meter in an accredited laboratory or in an approved laboratory.
(5) When the consumer opts to purchase the meter, the licensee shall receive it and test the same in an accredited laboratory or in an approved laboratory and install it as per the following time schedule:- LT meters within a maximum of fifteen days HT or EHT meters within a maximum of twenty days (6) The licensee shall conduct periodical inspection or testing or both of the meters as per the following schedule:-single phase meters once in every five years LT 3-phase meters once in every three years HT or EHT meters including maximum dem and indicator(MDI)once in every year (7) Wherever applicable, Current Transformer (CT) and WP(C) NO. 22832 OF 2022 8 Potential Transformer(PT) and the wiring connections shall also be tested along with meters.
115. Procedure for testing of meter.- (1) The meter shall normally be tested in the laboratory of the licensee, approved by the Commission.
(2) In case the licensee does not have a testing facility approved by the Commission,or if so desired by the consumer, the meter shall be tested at any other laboratory accredited by the National Accreditation Board for Testing and Calibration Laboratories(NABL).
(3) The list of the accredited laboratories and approved laboratories for testing of meters shall be made available on the website of the licensee.
(4) In the case of testing on the request of the consumer, he shall have to pay the testing fee as per the Schedule of Miscellaneous Charges given in schedule1 of the Code:
Provided that if the meter is found to be recording incorrectly or defective or damaged due to technical reasons such as voltage fluctuation or transients, attributable to the licensee, the testing fee shall be refunded to the consumer by the licensee by adjustment in the subsequent bill. (5) Before testing a meter of the consumer, the licensee shall give an advance notice of three days, intimating the date, time and place of testings that the consumer or his authorised representative can, at his option, be present at the testing. (6) The testing shall be done within a maximum period of thirty days from the receipt of the application.
(7) The consumer or his authorised representative and the representative of the licensee present during testing shall affix their signature on the test report issued by the authorised officer of the laboratory as a token of having witnessed the testing:Provided that the licensee and the consumer shall be eligible to get a copy of the test report which shall be despatched to them within two working days of the date of testing, if not delivered in person at the time of affixing their signature.
(8) If a consumer disputes the result of testing at the laboratory of the licensee, the meter shall be got tested at a laboratory selected by the consumer from among the laboratories accredited by the National Accreditation Board for Testing and Calibration Laboratories(NABL).
(9) In case the meter is found to be faulty, revision of bill on the basis of the test report shall be done for a maximum period WP(C) NO. 22832 OF 2022 9 of six months or from the date of last testing, whichever is shorter and the excess or deficit charges on account of such revision shall be adjusted in the two subsequent bills.
7. Relevant provisions of the CEA (Installation and Operation of Meters) Regulations, 2006 as follows:-
6. Ownership of meters:- (1) Interface meters xxxxx (2) Consumer meters, - (a) Consumer meters shall generally be owned by the licensee:
[(b) If any consumer elects to purchase a meter, the same may be purchased by him. Meter purchased by the consumer shall be tested, installed and sealed by the licensee. The consumer shall claim the meter purchased by him as his asset only after it is permanently removed from the system of the licensee.
(c) All consumer meters shall bear BIS mark, meet the requirements of these regulations and have additional features as approved by the Appropriate Commission or pursuant to the reforms programme of the Appropriate Government. To facilitate this, the licensee shall provide a list of makes and models of the meters.
15. Meter failure or discrepancies. - (1) Interface meters. -
xxxxx (2) Consumer meters. - In case the consumer reports to the licensee about consumer meter readings not commensurate with his consumption of electricity, stoppage of meter, damage to the seal, burning or damage of the meter, the licensee shall take necessary steps as per the procedures given in the Electricity Supply Code of the Appropriate Commission read with the notified conditions of supply of electricity.
17. Quality assurance of meters. - (1) The distribution licensee shall put in place a system of quality assurance and testing of meters with the approval of Appropriate Commission. [(2) (a) The licensee shall set up appropriate number of accredited testing laboratories or utilise the services of other accredited testing laboratories. The licensee shall take immediate action to get the accreditations for their existing meter testing laboratories from NABL, if not already done. WP(C) NO. 22832 OF 2022 10
18. Calibration and periodical testing of meters:
1. Interface meter (2) Consumer meters.- The testing of consumer meters shall be done at site at least once in five years. The licensee may instead of testing the meter at site can remove the meter and replace the same by a tested meter duly tested in an accredited test laboratory. In addition, meters installed in the circuit shall be tested if study of consumption pattern changes drastically from the similar months or season of the previous years or if there is consumer's complaint pertaining to a meter. The standard reference meter of better accuracy class than the meter under test shall be used for site testing of consumer meters up to 650 volts. The testing for consumers meters above 650 volts should cover the entire metering system including CTs, VTS. Testing may be carried out through NABL accredited mobile laboratory using secondary injection kit, measuring unit and phantom loading or at any accredited test laboratory and re calibrated if required at manufacturer's works.
8. A detailed procedure has been prescribed in Regulations (supra) regarding the ownership of the meters which generally is owned by the licensee. It is only when the consumer alleged to have purchased the meter, the same have to be tested, installed and sealed by the licencee, which shall bear BIS mark and meet the requirements of the regulations and have additional features approved by the appropriate commission. The distribution licence shall put in place a system of quality assurance and testing of the meters with the approval of the appropriate commission and shall set up appropriate number of accredited testing laboratories or utilize the services of other accredited testing laboratories. Licencees also enjoy an obligation to take immediate action to get the accreditations of their existing meters, testing laboratories, National WP(C) NO. 22832 OF 2022 11 Accreditation Board for Testing and Calibration Laboratories (NABL) if not already done and also required to ensure all type, routine and acceptance tests are carried out by the manufacturer complying with the requirements of relevant IS, BS or IES as the case may be. Regulation 2 of 2018 provides the testing of the consumer meters to be done at least once in five years. Licencee is at liberty to test the meter either at site or can remove the meter by replacing the same by a tested meter for testing it in an accredited test laboratory and the meters installed in the circuit shall be tested if study of the consumption pattern drastically changes from similar months or a season of previous years or on account of the complaint of the consumer with regard to the meter. Since the present meter was above 650 volts including the CTs and VTs, the testing as per the aforementioned provision was to be carried out through NABL accredited mobile laboratory using second injection Kit, measuring unit and phantom loading or at any accredited test laboratory and re calibrated if required for manufacturer's work. Since in the instant case, the testing was required to be done either through the mobile laboratory using secondary injection Kit and/or the procedure prescribed in sub Regulation 2 of Regulation 18, but none of the contention of the KSEB before Consumer Grievance Redressal Forum or before the Ombudsman reveals that any such exercise was followed to arrive at a just and fair conclusion by raising a provisional bill. Since majority of the meters are owned by the licencee, the licencee as per the regulation 115 is required WP(C) NO. 22832 OF 2022 12 to test the meter in the laboratory of the licencee approved by the Commission. Before testing advance notice of three days is required, neither such exercise has been done nor a whisper of having undertaken such exercise. It is also not the case of the licencee that they have radically conducted the inspection or tested and calibrated the meters as per the Regulation. It is not ascertained as to who was responsible, whether the manufacturer or otherwise, much less even the age of the meter has also not come forth. It is incorrigible for this Court to uphold the order of the Ombudsman as there is abdication to examine the aforementioned provisions for the purpose of adjudication of the statutory appeal.
9. Section 101 to 110 of the Indian Evidence Act envisage a procedure for discharging the burden. KSEB did not follow the procedures as noticed above in fastening the liability on the licencee. It rather adopted a very cavalier approach in fastening the liability by raising a exponential demand without any rhyme and basis. For the reasons aforementioned, the order of the Electricity Ombudsman dated 29.4.2022, Ext.P12 and the demand raised by the Electricity Board, Ext.P15 are quashed.
Writ petition stands allowed.
Sd/-
sab AMIT RAWAL
JUDGE
WP(C) NO. 22832 OF 2022
13
APPENDIX OF WP(C) 22832/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE SITE MAHAZAR PREPARED BY
THE RESPONDENT DATED 14/2/2019.
Exhibit P1(a) TRUE TRANSLATION OF THE SITE MAHAZAR
PREPARED BY THE RESPONDENT DATED
14/2/2019.
Exhibit P2 TRUE COPY OF THE BILL ISSUED BY THE
RESPONDENT DATED 14.2.2019.
Exhibit P3 TRUE COPY OF THE OBJECTION PREFERRED
BEFORE THE 2ND RESPONDENT DATED 25.3.2019.
Exhibit P4 TRUE COPY OF THE REDUCED ASSESSMENT BILL
DATED 20.6.2019.
Exhibit P5 TRUE COPY OF THE OBJECTION DATED 4/7/2019
PREFERRED BEFORE THE THIRD RESPONDENT.
Exhibit P6 TRUE COPY OF THE ENERGY ASSUMED BILL OF
THE RESPONDENT FOR THE MONTH OF FEBRUARY
2019 AND MARCH 2019 BEFORE AND AFTER APTS
INSPECTION DATED 1.3.2019.
Exhibit P7 TRUE COPY OF THE ENERGY CHARGE FOR THE
MONTH OF APRIL 2019 DATED 2.5.2019.
Exhibit P8 TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT DATED 24.5.2021.
Exhibit P9 TRUE COPY OF THE CALIBERATION CERTIFICATE
REVEALING THE APPLICABLE AMPERE RATIO
150/5 DATED 14.6.2019.
Exhibit P10 TRUE COPY OF THE READY RECKONER CHART
REGARDING CONSUMPTION AND PAID AMOUNT
ACCORDING TO THE GENERATED BILLS ARE
PREPARED BY THE PETITIONER.
WP(C) NO. 22832 OF 2022
14
Exhibit P11 TRUE COPY OF THE STATEMENT OF FACTS FILED
BY THE 3RD RESPONDENT IN REPRESENTATION
NO. P 010/2022 DATED 22.2.2022
Exhibit P12 TRUE COPY OF THE ORDER OF THE HONOURABLE
OMBUDSMAN DATED 29/4/2022 IN APPEAL
PETITION NO. P/010/2022 DATED 29.4.2022.
Exhibit P13 TRUE COPY OF THE BILL FOR THE MONTH
JANUARY 2019 GIVEN BY THE RESPONDENT IS
PRODUCED TO ASCERTAIN THE THEN SITUATION
OF THE ENERGY RECORDING METER DATED
1.2.2019.
Exhibit P14 TRUE COPY OF THE SEPARATE CONSUMPTION
PATTERN OF THE PETITIONER.
Exhibit P15 TRUE COPY OF THE SHORT ASSESSMENT BILL
SERVED UPON THE PETITIONER DATED 18/5/2022
FOR THE PERIOD FROM 3/2018 TO 2/2019 DATED
17.5.2022.