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deficiency in service = According to the complainants, the contents of the Mahazar were not disclosed to them. But later on the complainants came to know that the Mahazar was prepared with an allegation that the house was being used as a guest house. On 28.09.2001, the OPs changed the electric meter without complying formalities. =the OPs failed to prove the two allegations, namely, running of the house as guest house and hence the use of energy being done unauthorisedly for commercial purposes and the non-functioning of two of the three phases of the meter thereby resulting in recording only 1/3 of the consumption. In view of this, the present case would not attract the ratio laid down in the case M/s. Swastic Industries (supra).

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

REVISION PETITION  NO. 4607 OF 2010

(From the order dated 06.08.2010 in Appeal No. 554/2005

of Kerala State Consumer Disputes Redressal Commission)

1.  The Kerala State Electricity Board,

Rep. by its Secretary,

Vydhuthi Bhavan

Pattom,

Thiruvananthapuram.

 

2.  The Asstt. Executive Engineer,

K.S.E.B.

Ponkunnam

 

3.  The Asstt. Engineer,

K.S.E.B.

Ponkunnam                                               …      Petitioner(s)

 

Versus

 

1.  Dominic Joseph

Kuruvinakunnel,

Madukkakunnu Estate,

Madukkakunnu P.O.,

Kottayam.

 

2.  Michael Dominic @ Sidharth

Kuruvinakunnel,

Madukkakunnu Estate,

Madukkakunnu P.O.,

Kottayam                                                   …      Respondent(s)

 

BEFORE

HON’BLE MR. JUSTICE V.B.GUPTA,

PRESIDING MEMBER

HON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioners : Mr. M.T. George, Advocate
For the Respondent : Mr. M.P. Vinod, Advocate
     

PRONOUNCED ON :    5th JANUARY, 2012

 

O R D E R

 

PER SURESH CHANDRA, MEMBER

 

Petitioners herein were opposite parties order before the District Forum and the respondents were the complainants.  According to the complainants they were having electricity connection in their house with consumer number 3770 of Electrical Major Section, Ponkunnam.  The connection is a domestic connection.  The complainants are doing business at Ernakulam and they used to reside in the said house occasionally.  The Estate Supervisor, however, is residing in the house.  The charges of electricity were being paid regularly.  On 27.09.2001, KSEB officials visited the house.  They prepared a Mahazar and obtained the signature of the complainant no. 2 and the Estate Supervisor, namely, K. J. Thomas.  According to the complainants, the contents of the Mahazar were not disclosed to them.  But later on the complainants came to know that the Mahazar was prepared with an allegation that the house was being used as a guest house.  On 28.09.2001, the OPs changed the electric meter without complying formalities. On 4.10.2001, the OPs issued invoice dated 3.10.2001, demanding Rs.1,22,679/-.  The complainants sent a representation to the OPs in this regard to the effect that they were not bound to pay the said amount.  They came to know that the OPs have issued the bill calculating higher tariff rate for commercial establishments on the assumption that the house is being used as a guest house.  They also came to know that the assessment was made on the assumption that two of the three phases of the meter were not working.  In view of these two aspects, the OPs had issued bill in question for the previous six months.  Treating this action on the part of the OPs as illegal and arbitrary, the complainants preferred an appeal before the Dy. Chief Engineer, APTS.  But no action had been taken.  Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainants filed a consumer complaint before the District Forum with a request to direct the OPs not to disconnect the electricity supply to the complainant’s premises and to declare the bill for Rs.1,22,679/- as illegal and also for payment of compensation and cost.

 

2.      On being noticed, the OPs resisted the complaint by filing written reply.  It was submitted by the OPs that the complainants had filed an appeal before the appellate authority and the same was pending for disposal.  However, the complainants had wilfully concealed this fact from the District Forum and as such the complainant was pre-mature and was liable to be dismissed.  They also submitted that the bill in question had been raised based on the assessment in the light of the surprise inspection carried out by the inspection team of the OPs in which it was found that the building was being used as a guest house and the electricity energy supplied to the complainants under domestic tariff was seen as being used for commercial purposes.

 

3.      On appraisal of the issues and the evidence adduced before it, the District Forum held that since the appeal before the appellate authority had been withdrawn by the complainants, the complaint before the District Forum was maintainable.  The District Forum further held that the other allegation based on which the bill in question had been issued to the complainants were not tenable, the District Forum quashed and set aside the bill issued by the OPs amounting to Rs.1,22,679/- and hence the complainants were not liable to pay the said amount.  Since the OPs stated that they had not disconnected the electric connection, no compensation was awarded by the District Forum because no loss or injury was proved.  However, the District Forum directed the OPs to pay cost of Rs.750/- which was to be adjusted in the future bill to be issued to the complainants or could be paid directly.  The District Forum in its detailed order dated 15.04.2005 has recorded the following reasons in support of its order:-

“6. This original petition is filed alleging deficiency in service on the part of the opposite parties in issuing Ext.A3 bill for Rs.122679. This penal assessment bill is issued according to the opposite parties, on the basis of surprise inspection conduct by ATPS Ernakulam Region on 27.9.2001 in the premises of the petitioners. Ext.A2 letter was sent by the second opposite party to the first petitioner. In this letter, it is stated  that’s Anti Power Theft Squad (ATPS) Ernakulam Regional Unit conducted inspection in the premises of the petitioners on 27.9.2001 and it was revealed that electric energy supplied to them under LT IA Tariff was being used by them in a manner for which higher tariff was chargeable. Hence under Clause 42(d) of the conditions of supply of electrical energy invoice was being issued. The calculation statement is also attached with Ext.A2. But the inspection report of the ATPS has been produced or marked. As the opposite parties have a case that’s Ext.A3 penal  assessment bill  was issued on the basis of the inspection report of the ATPS, their report becomes important. But opposite parties have not produced the said report. There are two allegations against the petitioners. The first is electricity was being used for conducting a guest house. The petitioners have denies this. Apart from making an omni bus statement inExt.B1 that the house was being used as guest house for tourists, there is absolutely nothing in evidence to substantiate their contention. Opposite parties have no case that they had seen any tourists in the house at the time of inspection of the ATPS. They have also no case that’s any arrangements were seen in the house to use it as a guest house for tourists. In Ext.B1, it is stated that three water heaters were seen in the house and one in outhouse. Merely because of this, it cannot be concluded that the house was being used as guest house for tourists. Second opposite part has filed an affidavit in which it is averred that the guest house was being run in the premises with approval of Ministry of Tourist, Government of India. It is further averred that the approval order has been issued by Regional Director of Tourism, Ministry of Tourism, Government of India 154,Anna Road, Chennai. He has filed a petition to call for the approval letter from the said office which was allowed. But no document has been produced. Opposite parties have not taken any coercive steps for production of documents by the authority. Thus the opposite parties have failed to prove their case that house was being used as a guest house. In such circumstances, we are of the opinion that issue of Ext.A3 penal bill under clouse  42(d)  of the Condition of Supply of Electrical Energy is deficiency in service.

 

7.  The Second allegation against the petitioners is that two of the three phases of the meter not working as a result of which only 1/3 of the consumption was being recorded. In Ext.B1 Mahazar prepared by Dennis Joseph, Assistant Engineer, Electrical Major Section Ponkunnam, it is stated that when they checked the phases by giving loads, it was found that two of the three phases were not working.  The first petitioner has filed counter affidavit in which it is averred that the averments in the affidavit of the Assistant Engineer are false. The signature of the second petitioner obtained in the Mahazar by false representation.  He had his studies abroad and he cannot read Malaylam.  After getting the signatures of the second petitioner, they obtained the signature of the supervisor by showing the signature of the 2nd petitioner.  According to the first petitioner, the opposite parties changed the meter on the next day.  But they did not send the meter for testing by Electrical Inspector.  As a result of the fact that they had taken away the meter, the petitioners had lost an opportunity to get the meter tested by Electrical Inspector.  As such, according to the petitioners the claim of the opposite parties that the meter was recording only 1/3 of the electricity consumed cannot be accepted. Under Clouse 31(c0 of the conditions of supply of Electricity Energy, in the event of any meter being found incorrect, and where the actual errors on reading cannot be ascertained the meter will declared faulty and quantity of energy shall be determined by taking average consumption for the previous three months and if it  is  not possible, average consumption for the succeeding three months is to be taken. Where any difference or dispute arises as to the correctness of the meter, the matter shall be decided upon by the Electrical Inspector upon the application of either the Board or the Consumer. In this case, according to the petitioners, they had lost an opportunity to challenge the finding of the opposite parties that only 1/3 of the consumption was being recorded because they had taken away the meter on the next day. Opposite parties have no case that they had prepared a Mahazar or packed the meter and affix the seal on the packet at the time of changing the meter.  Admittedly after that the meter was with the opposite parties.  The failure of the opposite parties to prepare a Mahazar at the time of dismantling the meter and failure to pack the meter and seal show that the petitioners have lost an opportunity to get the meter tested.  By the act of the opposite parties, petitioners lost their valuable rights to get the meter tested by the Electrical Inspector.  The failure to do so also is deficiency in service. 

 

4.      Aggrieved by the aforesaid order of the District Forum, the OPs / petitioners herein filed an appeal before the Kerala State Consumer Disputes Redressal Commission (State Commission for short) challenging the same.  The State Commission dismissed the appeal and upheld the order passed by the District Forum, vide its impugned order dated 06.08.2010.  It is against this order that the present revision petition has been filed by the OPs / Petitioners.

 

5.      We have heard Mr. M.T. George, Advocate for the petitioners and Mr. M.P. Vinod, Advocate for the respondents.

 

6.      Besides reiterating that the bill in question for the past six months had to be raised against the respondents because of the unauthorised use of energy for non-domestic purposes, which came to the knowledge of the petitioner Board during the surprise inspection, learned counsel for the petitioners relied on the judgement of the Apex court in the case of “M/s. Swastic Industries Vs. Maharashtra State Electricity Board [1997 (9) SCC 465]” and submitted that raising supplementary demand for escaped energy charges cannot be regarded as deficiency in service.  In the present case, since the misuse of the energy was proved during the surprise inspection, it warranted imposition of penalty and the same was perfectly in order.  Fora below, therefore, committed grave error in holding it to be a deficiency in service and setting aside the bill, in question.  On the other hand, learned counsel for the respondents submitted that as rightly held by the District Forum, the OPs failed to prove that the house was being used as guest house.  This conclusion which has been duly upheld by the State Commission is based on fact that no inspection report of the APTS was produced by the OPs before the District Forum.  Apart from this, the OPs also failed to substantiate their contention by other evidence.  Another contention of the counsel for the respondents was that the signature of complainant no. 2 was obtained in the Mahazar by false representation.  Since he could not read Malyalam, this raises serious doubts about the Mahazar drawn by the OPs and this fact has been duly noted by the District Forum in its order.

 

7.      We have carefully considered the contentions of the parties and also perused the record before us.  As noted above, the District Forum has dealt with both the allegations levelled by the OPs against the complainants based on which they had issued the bill in question. Since none of them could be proved for the reasons recorded (supra) by the District Forum, the District Forum has set aside the bill in question.  The State Commission has rightly upheld this order of the District Forum by its impugned order while dismissing the appeal of the OPs.  We agree with the view taken by the Fora below.  The reliance placed by learned counsel for the petitioners on the ruling in the case of M/s. Swastic Industries (supra) is mis-placed, because the issue involved in the present case is different from that in the case of M/s. Swastic Industries (supra).  In the present case, the Fora below held OPs guilty of deficiency in service because the OPs failed to prove the two allegations, namely, running of the house as guest house and hence the use of energy being done unauthorisedly for commercial purposes and the non-functioning of two of the three phases of the meter thereby resulting in recording only 1/3 of the consumption.  In view of this, the present case would not attract the ratio laid down in the case M/s. Swastic Industries (supra).  In the circumstances, we do not see any merit in the revision petition and hence no interference is called for with the order of the District Forum or the impugned order passed by the State Commission.  Revision petition, therefore, is liable for dismissal and is dismissed accordingly but with no order as to costs.

 

..……………………………

(V.B. GUPTA, J.)

PRESIDING MEMBER

 

 

..……………………………

(SURESH CHANDRA)

MEMBER

rs/

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