IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 37099 of 2007(N) ---------------------------------------- PETITIONER(S): ------------------------ M/S. KARTHIKA MARINE INDUSTRIES PVT LTD., THOPPUMPADY, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR ANWAR SAIT. BY ADV. SRI.KKM.SHERIF SRI.P.M.KUNJIMOIDEENKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.SHEENA SAMUEL RESPONDENT(S): --------------------------- 1. KERALA STATE ELECTRICITY BOARD, VYDHUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE DEPUTY ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL CIRCLE, ERNAKULAM. 3. THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, THOPPUMPADI, ERNAKULAM. BY ADV. SMT.P.K.RADHIKA,SC, KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.37099/2007 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE MAHAZER DATED 20/10/05. P2 COPY OF THE DEMAND NOTICE DATED 25/10/05 ALONG WITH CALCULATION STATEMENT. P2(A) COPY OF THE INVOICE DATED 25/10/05. P3 COPY OF THE RECEIPT DATED 18/11/05. P4 COPY OF THE ORDER DATED 23/11/07 P5 COPY OF THE COMMUNICATION DATED 28/11/07 P5(A) COPY OF THE INVOICE DATED 25/10/05 P6 COPY OF THE STATEMENT OF REGARDING RECORDED IN THE METER. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 37099 of 2007 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 15th day of November, 2011. J U D G M E N T The petitioner is a private limited company registered under the Companies Act, engaged in the business of dealing in frozen marine products. It is an industrial consumer of electricity under LT-IV industrial tariff. On 20.10.2005, the Anti Power Theft Squad conducted an inspection of the electrical installation of the petitioner and Ext.P1 mahazar was prepared, in which it was found that one phase of the meter installed in the premises of the petitioner was not functioning. On the basis of Ext.P1 mahazar, Ext.P2 demand was issued for an amount of Rs. 93,728/- stated to be the differential charges payable by the petitioner on account of the non-recording of electricity in one phase of the meter. The petitioner paid part of the amount and filed an appeal. The 2nd respondent passed Ext.P4 order dismissing the appeal. On the basis of Ext.P4 order, the petitioner has now been directed to pay an amount of Rs. 62,455/-, which is the balance amount due from the petitioner in respect of the alleged short recording of electricity consumption.. The petitioner is challenging the same. 2. According to the petitioner, the method adopted by the 3rd respondent for calculating the differential charges is wrong. He submits that the provision applicable is Regulation 19(2) of the Kerala Electricity Supply Code, 2005 read with Clause 33(2) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 as per which, when there is non-recording or W.P(C) No. 37099 of 2007 -: 2 :- malfunctioning, the meter has to be replaced and if the average of previous six months cannot be taken, then the average of succeeding three months after replacement of the meter has to be taken for the purpose of deciding the differential amount payable by the consumer. In this case, the 3rd respondent has simply made a mathematical calculation and decided that the meter was short recording 50% of the actual recorded consumption and on an assumption that the meter was so mal-functioning for the last more than 6 months, the petitioner has been directed to pay the arrears of six months' electricity charges on that basis. The petitioner submits that the course adopted by the 3rd respondent is totally illogical and against the provisions of the Kerala Electricity Supply Code. The petitioner has produced as Ext.P6, the meter readings and consumption for the period from 13.9.2004 to 16.6.2007 to support his contentions. He would point out that after the inspection on 20.10.2005, and consequent change of meter, the consumption steadily declined at least till 15.5.2006. Therefore, all what the 3rd respondent could have done is to take the average of the three months' consumption subsequent to 20.10.2005 and demand the difference for the month of October, 2005 alone. 3. A counter affidavit has been filed on behalf of the respondents supporting the demand on the ground that the assessment is made on the presumption that one phase of the current transformer was faulty for the past six months from the date of inspection. They would contend that the defective CT was changed on 1.2.2006. They would submit W.P(C) No. 37099 of 2007 -: 3 :- that Regulation 19(2) and Clause 33(2) are not applicable in this case since this is not a case of malfunctioning of the meter. According to them, here, the meter was correct and only one phase of the CT was defective, as a result of which there was short recording of consumption in the meter. Therefore, they would submit that the course adopted by the Board is the proper method for assessing the actual consumption and therefore there is no merit in this writ petition. 4. I have considered the rival contentions in detail. 5. Of course, the petitioner does not dispute the fact that one phase was not recording consumption of electricity as found in Ext.P1 mahazar and the petitioner's only contention is against the method of calculating the actual consumption. According to them, this is a clear case of non- recording, which is covered by Regulation 19(2) of the Kerala Electricity Supply Code, 2005 and Clause 33(2) of the Kerala State Electricity Board Terms and Conditions of Supply, 2005. Regulation 19(2) of the Kerala Electricity Supply Code, 2005 reads thus: “19. Meter Reading: (1) xx xx xx (2) If Licensee is unable to base a bill on meter reading due to its non-recording or malfunctioning, that Licensee shall issue a bill based on the previous six months average consumption. In such cases the meter shall be replaced within one month. xx xx xx” W.P(C) No. 37099 of 2007 -: 4 :- Clause 33(2) of the Kerala State Electricity Board Terms and Conditions of Electricity Supply reads thus: “33. Reading of Meter and Preparation of Invoice:- xx xx xx (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 one 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.” xx xx xx” The pattern of consumption of electricity by the petitioner for the period from 13.9.2004 to 16.6.2007 has been produced as Ext.P6 by the petitioner. The respondents do not dispute the recordings and consumption noted therein. The same reads as follows: Statement of Meter Reading and Energy Consumption as per Bills of Consumer No.7983, Karthika Fisheries Bill date Previous Reading Present Reading Consumption X 40 Remarks 13.09.2004 2807 3139 13280 15.10.2004 3139 3469 13200 18.11.2004 3469 3823 14160 15.12.2004 3823 4173 14000 15.1.2005 4173 4484 12440 15.2.2005 4484 4779 11800 15.3.2005 4779 5022 9720 15.4.2005 5022 5336 12560 15.5.2005 5336 5500 6560 W.P(C) No. 37099 of 2007 -: 5 :- 15.06.2005 5500 5668 6720 15.07.2005 5668 5827 6360 15.08.2005 5827 6001 6960 13.09.2005 6001 6365 14560 15.10.2005 6365 6665 12000 APTS inspected on 20.10.2005 15.11.2005 6665 6830 + 88 10400 15.12.2005 88 295 8280 16.01.2006 295 454 6360 15.02.2006 454 660 8240 15.03.2006 660 824 6560 15.04.2006 824 900 1520 15.05.2006 900 909 180 15.06.2006 15.07.2006 1148 1769 12420 Multiplication factor 20 16.08.2006 1769 2396 12540 15.09.2006 2396 3268 17440 16.10.2006 3268 3785 10340 16.11.2006 3785 4410 5121 16.12.2006 4410 5121 14060 15.01.07 5121 5562 8820 15.02.2007 5562 5984 8440 15.03.2007 5984 6355 7420 16.04.2007 6355 6796 8820 16.05.2007 6796 7220 8280 16.06.2007 7210 7597 7740 Strangely, the pattern as found in Ext.P6 does not support the contentions of the respondents. Of course, between 15.5.20205 and 15.8.2005, there is considerable fall in consumption, which, according to the counsel for the petitioner, is because of the ban on trawling during June and July and therefore the business would be dull. But, again on 13.9.2005, the consumption is the maximum for all times, viz. 14560 units. On 15.10.2005, when the APTS W.P(C) No. 37099 of 2007 -: 6 :- inspected the meter, the consumption was 12000 units. I am at a loss to understand as to why after finding on 20.10.2005 that the CT was not functioning properly, the respondents waited till 1.2.2006 to change the CT. Interestingly, after 1.2.2006, the meter reading for subsequent three months is 8240, 6560 and 1520. As such, the consumption pattern in Ext.P6 does not in any way support the contentions of the respondents. I am at a further loss to understand how the respondents have come to the conclusion that the CT was faulty for more than 6 months. The consumption pattern in Ext.P6 does not suggest any such thing. I am of opinion that the provision applicable in this case is Regulation 19(2) of the Kerala Electricity Supply Code, 2005 and Clause 33(2) of the Kerala State Electricity Board Terms and Conditions of Electricity Supply, insofar as this is clearly a case of non- recording of the actual consumption. If that be so, the course open to the Electricity Board is to take average of previous six months, which pre-supposes that the fault is only for the month in which the inspection was done. If the meter was not recording correctly for more than the previous six months then taking of the average of the consumption for the previous six months is illogical. That was taking average of six months' faulty recording, which is illogical. Then the only other alternative is to take the three months' average for the period subsequent to the change of the meter. It is settled law that it is the duty of the licensee to see that the meter in the premises of the consumer works properly. In fact, every month, the Electricity Board W.P(C) No. 37099 of 2007 -: 7 :- charges inspection fee from consumers, which supposes that every month, the meter is inspected by a competent technician to find out whether the meter is working properly. The Electricity Board has not been able to put forward any reasonable explanation as to how they came to the conclusion that the meter was faulty for six months prior to the inspection and more. When the consumption pattern does not suggest the same, in the absence of any other rule pointed out by the Electricity Board to support their conclusion, I am not inclined to accept the same. In the above circumstances, I am not inclined to permit the Electricity Board to recover arrears of charges for six months prior to the date of inspection. Insofar as the petitioner does not dispute the fact that one phase of the meter was not recording on the date of inspection, I am inclined to hold that as on 20.10.2005, there is some non- recording in the meter. But, I am unable to extend it to six months prior to the date of inspection. Therefore, the only plausible view is that the petitioner is liable to pay arrears, if any, for the month in which the inspection was conducted, especially since it was the duty of the Electricity Board to see that the meter functions properly at all times. Then what the Electricity Board can do is only to recover the arrears, if any, for the months of September, October, November and December at the average of three months' consumption subsequent to the change of the meter, which is on 1.2.2006, in accordance with Clause 33(2) of the Kerala State Electricity Board Terms and Conditions of Electricity Supply. Going by Ext.P6, if the same is done, it W.P(C) No. 37099 of 2007 -: 8 :- would be less than the consumption actually recorded on 15.10.2005. 6. In view of my above findings, I am unable to enter any specific finding either in favour of the petitioner or in favour of the Electricity Board. Insofar as the petitioner does not dispute the fact that one phase of the meter was not working as on 15.10.2005, I am inclined to permit the Electricity Board to recover the arrears of charges for the month of October, 2005 at the rate computed by them. In other words, the demand shall be confined to one month instead of six months. 7. Accordingly, Exts. P2, P2(a), P4 and P5 are quashed. The 3rd respondent is directed to issue a fresh bill for one month based on their calculation as done in Ext.P2. Excess amount, if paid by the petitioner, shall be either refunded to the petitioner within one month or adjusted against future bills. Sd/- S. Siri Jagan, Judge. Tds/