IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 3RD JULY 2009 / 12TH ASHADHA 1931 WP(C).No. 20390 of 2008(B) --------------------------------------- PETITIONER: ------------------- DR.M.S.N.BALASUBRAMANIYAN, POWER OF ATTORNEY HOLDER, REPRESENTING JAYALAKSHMI, PROPRIETORIX, M/S. JAYASREE METALS,4/169. AMBALA NAGAR, EXTN KOWDIAR ,P.O. THIRUVANANTHAPURAM -695 003. BY DR. M.S. N. BALASUBRAMANIYAN, (PARTY IN PERSON). RESPONDENTS: ------------------------ 1. SECRETARY, DEPARTMENT OF POWER, SECRETARIAT, THIRUVANANTHAPURAM 2. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, CHAIRMAN, KSEB, VAIDHYUTHI BHAVAN, PATTOM , TRIVANDRUM. 3. ASST.ENGINEER KSEB, KULATHOOR SECTION, TRIVANDRUM-22 4. CHIEF ELECTRICAL INSPECTOR, KSEB, BUILDINGS, THAMBANOOR, THIRUVANANTHAPURAM. R1 BY GOVT. PLEADER MR. K.C. SANTHOSH KUMAR, R2 TO R4 BY MR.P.P.THAJUDEEN, SC, K.S.E.B. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.20390 of 2008 --------------------------------- Dated, this the 3rd day of July, 2009 J U D G M E N T In this writ petition though the pleadings are lengthy, the main controversy is regarding the inaccuracy of Exts.P7 & P8 invoices issued by the 3rd respondent, calling upon the petitioner to remit the amount mentioned therein. 2. Facts of the case are that the petitioner is a Low Tension consumer running a small scale industry engaged in the production of Aluminum Metal Powder. It is stated that the production in the unit commenced in October, 1993 with a connected load of 47.5 KW, which was subsequently reduced to 25 KW. Since April, 1995, the petitioner has been complaining that the meter was faulty and finally the meter was replaced in February, 1997, which again went out of order in August, 1998. Complaints were repeatedly made and finally, on 02/07/1999, the meter was replaced. Again the meter went out of order and was replaced on 28/09/1999. The replaced meter again went out of order and was changed on WP(C) No.20390/2008 -2- 20/09/2000. It is stated that the same process was repeated on 13/02/2001. The controversy during the aforesaid period was resolved by the Electrical Inspector as per Ext.P1 order dated 20/06/2001, where he confirmed that the meters were faulty and that the bills issued for the period from 20/09/2000 to 13/02/2001 should be revised. 3. The second phase of the controversy starts from 09/05/2002 when the 6th replaced meter also went out of order and was replaced. This controversy was again resolved by the Electrical Inspector by Ext.P2 order, where he confirmed that the meter was faulty during the period from 13/02/2001 to 14/01/2003. It is stated that on that basis, the bills were also revised. Although the petitioner has a case that he made excess payment, these are issues requiring resolution of disputed questions of fact and have to be adjudicated in appropriate proceedings. 4. The third phase of the controversy, as already noticed, is in relation to the inaccuracy of Exts.P7 & P8 invoices. The back ground facts are that on 08/07/2004, following a tree fell on the electrical installation, as a result of which the meter went out of WP(C) No.20390/2008 -3- order, and ultimately the supply was also disconnected. It is stated that due to the fault of the meter, consumption recorded in the energy meter was incorrect. The petitioner filed Exts.P3, P5 & P6 complaints to the 3rd respondent complaining that the meter is faulty and that it should be sent to the Electrical Inspector for examination. There was no response from the Board. 5. In the meanwhile, he approached the Consumer Disputes Redressal Forum by filing OP NO.220/2004. In the said proceedings, the main claim of the petitioner was for the damages consequent on Exts.P1 & P2 proceedings. The incorrectness of the consumption recorded subsequent to 08/07/2004 was also raised. Pursuant to the orders passed by the Consumer Disputes Redressal Forum, the meter was tested by the 3rd respondent himself and Exts.R3(a) & R3(b) reports were submitted confirming that the meters were not faulty. The petitioner objected to the aforesaid test reports by filing Exts.P33 & P34. But, however, further testing was not ordered. 6. While, the proceedings were pending before the CDRF, Ext.P7 invoice dated 08/04/2008 was issued by the respondents WP(C) No.20390/2008 -4- demanding an amount of Rs.2,09,304/-. Subsequently, Ext. P8 dated 08/05/2008 was issued revising Ext.P7 and demanding a total amount of Rs.3,42,859/-. In the meantime, the CDRF dismissed the complaint as not maintainable, and Appeal No.175/2008 filed by the petitioner before the State Commission is pending. It is also stated that subsequently on 06/06/2008, the meter was replaced. 7. Therefore, the complaint of the petitioner is in relation to Exts.P7 & P8, for the period from 08/07/2004 to 06/06/2008. His case is that during the aforesaid period, he was being issued bills on the basis of a meter which was faulty. What he contends is that since the meter was faulty during the aforesaid period, the meter ought to have been verified by the Electrical Inspector in terms of Section 26(6) of the Indian Electricity Act, 1910, and he ought to have been levied charges on the basis of 6 months’ average taken for the period subsequent to 06/06/2008, when the meter was replaced. 8. The answer of the KSE Board in the counter affidavit is that the meter was not faulty, and that the said position has been WP(C) No.20390/2008 -5- confirmed in Exts.R3(a) & (b) inspection reports. 9. I heard the submissions made by both sides. The case of the petitioner is that the meter went out of order on 08/07/2004 and the position continued till 06/06/2008. As on 08/07/2004, although the Indian Electricity Act, 2003 came into force, the Terms & Conditions of Supply came into force only on 01/02/2006. Therefore, at the time when the petitioner made Exts.P3, P5 & P6 complaints, complaints ought to have been dealt with as per the Conditions of Supply of Electrical Energy framed by the Board under the provisions of Section 79(J) of the Electricity (Supply) Act, 1948. If so, the meters ought to have been sent for testing by the Electrical Inspector. In this case, that was not done, despite the repeated complaints made by the petitioner. On the other hand, the meter was tested, though on the orders of the Consumer Disputes Redressal Forum, only by the 3rd respondent. The reliability of such a certificate has been examined by a Division Bench of this Court in Nirmala Metal Industries v. K.S.E.B. (2006(3) KLT 465), where the relevant portion of which reads as follows:- “We may indicate that it is the responsibility of the Board to install trouble free meter in the premises of the consumer and see that WP(C) No.20390/2008 -6- the meter is recording correctly the energy consumed. Duty is cast on the Board to get the defective meter tested not at the testing centre of the Board but by an independent authority like the Electrical Inspector. Report obtained from the testing centre of the Board is not binding on the consumer in the case of a defective meter. The Board cannot take away the defective meter from the premises of a consumer and then raise a bill after getting it tested in its own testing centre. By removing the meter from the premises the Board is spoiling the best evidence to the advantage of the consumer.” 10. As in that case, here also, without getting the meter tested by the Electrical Inspector, the Officers of the Board have removed the meter on 06/06/2008. Therefore, there is a failure on the part of the Board in dealing with the complaint of the petitioner that the meter in question was faulty. In such situation, the only manner, in which the grievances of the petitioner can be remedied, is to revise the bills issued to the petitioner adopting the average six months’ consumption for the period subsequent to 06/06/2008 and revising Exts.P7 & P8 bills on that basis. In the circumstances, the writ petition is disposed of with the following directions:- That Exts.P7 & P8 will stand set aside. The 3rd respondent shall quantify the average of the six months’ consumption of the petitioner for the period from 06/06/2008, and on that basis, it will WP(C) No.20390/2008 -7- be open to the 3rd respondent to issue revised invoice to the petitioner for the period from 08/07/2004 to 06/06/2008, and realize the said amount from the petitioner. Once the quantification is done as above, any payment made by the petitioner during the said period will be given credit and if any further amount is due from the petitioner, it will be open to the respondents to demand the same. On the other hand, if any excess payment has been realized, that will be given credit towards the subsequent bills. 11. I place on record, my deep appreciation of the valuable assistance rendered by Shri.Julian Xavier, who was appointed as Amicus Curiae in this case. The writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg