IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P. BHAVADASAN TUESDAY, THE 18TH OCTOBER 2011 / 26TH ASWINA 1933 AS.No. 46 of 1997(C) OS.231/1993 of PRL.SUB COURT,KOTTAYAM .................... APPELLANT/PLAINTIFF: 1. RAJU K. JESUS, S/O. REV. FR. JESUS K.K., (DIED) RESIDING AT KADIYANTHURUTHIL HOUSE, THRIKKOTHAMANGALAM P.O., VAKATHANAM, PROPRIETOR, M/S. PRIYA RUBBER INDUSTRY, THRIKKOTHAMANGALAM P.O., VAKATHANAM. ADDL. APPELLANTS 2 TO 5 IMPLEADED 2. SUSI GEORGE, AGED 50, W/O. LATE SRI. RAJU. K. JESUS, KADIYANTHURUTHIL HOUSE, THRIKKOTHAMANGALAM, PUTHUPPALLY, KOTTAYAM. 3. RAHUL GEORGE, AGED 26, S/O. LATE SRI. RAJU K. JESUS, - DO - - DO- 4. KULEENA GEORGE, AGED 23, D/O. LATE RAJU K. JESUS, - DO - - DO- 5. PAVAN GEORGE, AGED 19, S/O. LATE RAJU K. JESUS, - DO - - DO- (LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 5 AS PER ORDER DATED 10.06.2010 IN I.A. NO.342 OF 2010.) BY ADV. SRI.N.SUKUMARAN SRI.S.ANANTHASUBRAMANIAN SRI.S.SHYAM SMT.R.S.ASHA RESPONDENTS/DEFENDANTS: 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVANAM, THIRUVANANTHAPURAM. 2. THE ASSISTANT ENGINEER, ELECTRICAL SECTION, VAKATHANAM. ADV. SRI. P. SANTHALINGAM, SC, KSEB. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 18.10.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. ====================== A.S. No. 46 of 1997 ====================== Dated, this the 18th day of October, 2011. JUDGMENT The plaintiff in O.S. No. 231 of 1993 who was non-suited by the trail court is the appellant. 2. The plaintiff claimed to be the proprietor of a Small Scale Industrial Unit by name Priya Rubber Industries. His consumer number is 2745. He claimed that he promptly paid the bills. It is alleged that the officers of the Electricity Board inspected the premises and took away the consumer premises card. Then the plaintiff was informed that he would be given a new card in January, 1993. But, no such card was given. It is alleged that on 13.02.1993, the officers of the defendant Electricity Board came to the plaintiff's factory and installed a new meter and took away the old one. On 14.02.1993, the plaintiff was served with a bill for ` 6,680/-. Subsequently, he was issued another bill for `11,484/- claiming arrears for the period from August, 1992 to December, 1992. When the plaintiff objected the same, he was threatened that if the amount were not paid, the supply would be disconnected. The amount has been remitted by the plaintiff. Later, the plaintiff came to know A.S.. No. 46/1997 -:2:- that the acts committed by the officers were with ulterior motive. The plaintiff could not have consumed the quantum of energy for which he has been charged. Claiming that he is not liable to pay the amount, the suit has been filed. 3. The defendants resisted the suit. They pointed out that periodical inspections were conducted and the defect of the meter installed in the unit was noticed on 15.01.1993. It was found that only one of the phases was working and other two phases were not functioning. The meter recorded only 1/3 of the consumption. According to them, the plaintiff had tampered with the meter. They would say that the defects were rectified on 13.02.1993 and necessary equipments were installed. Subsequent bills, according to them, were issued and drawn up in tune with the meter recording. There was nothing wrong with the readings made by the department. On the basis of the above contentions, they payed for a dismissal of the suit. 4. On the basis of the pleadings, issues were framed by the trial court. The evidence consisted of the testimony of PW1 and Exts. A1 to A8 were marked on the side of the plaintiff. On the side of the defendants, DW1 was examined and Exts.B1 to B3 were marked. The trial court after an evaluation of the evidence A.S.. No. 46/1997 -:3:- in the case, dismissed the suit giving certain directions. It is the said judgment and decree that is assailed in this appeal. 5. The question that arises for consideration is whether the judgment and decree passed by the trial court call for any interference. 6. The learned counsel for the appellant pointed out that the court below has erred in law and disposing of the suit in the manner it did. It ought to have found that if no relief could be granted in this suit since the issues related to the correctness of the meter at any rate, the plaintiff should have been relegated to avail of the statutory remedies. In fact, the court below has in two places in the judgment, observed that the meter was defective and in the light of those findings, the decree now passed cannot be sustained. 7. The learned counsel for the respondents, on the other hand, pointed out that the court below has considered all the matters and no interference is called for in the judgment and decree. 8. After hearing both sides and after having perused the documents, I am of the view that there is some substance in the complaint raised by the appellant. The court below has also A.S.. No. 46/1997 -:4:- noticed that the plaintiff and the defendants have a case that the meter was defective. The lower court has chosen to accept that complaint. If that be so, the proper course for the plaintiff is to avail of the remedy provided under Section 26 of the Indian Electricity Act, 1910. He has to approach the Electrical Inspector under Section 26(6) of the said Act. The court below ought to have granted an opportunity to the plaintiff to avail of that remedy. That would have been a proper thing to do. 9. In the result, the impugned judgment and decree are set aside and the plaintiff is given an opportunity to raise the grievance before the Electrical Inspector as contemplated under Section 26(6) of the Act within 30 days of the date of this judgment. The Electrical Inspector concerned after hearing the appellant shall dispose of the complaint in accordance with law. Till the disposal of the matter by the Electrical Inspector, recovery of the amount shall be kept in abeyance. This appeal is disposed of as above. sd/- P. BHAVADASAN, JUDGE. rv /True Copy/ P.A to Judge. A.S.. No. 46/1997 -:5:- P. BHAVADASAN, J. ----------------------------------------------------------- A.S.No. 46 of 1997 ------------------------------------------------------------- Dated this the 18th day of October, 2011. JUDGMENT