IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM THURSDAY, THE 10TH DAY OF NOVEMBER 2011/19TH KARTHIKA 1933 WPC.No. 17285 of 2011 (I) ------------------------- PETITIONER(S): ----------------------- S.A.WAHAB,AGED 73 YEARS,S/O.SHEIK YUSEFF SAHIB, MANAGING PARTNER,MEHABOOB THEATRE COMPLEX, K.P.R.RAO ROAD,KASARAGOD. BY ADVS.SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR RESPONDENT(S): -------------------------- 1. THE ASSISTANT ENGINEER,ELECTRICAL SUB DIVISION,KERALA STATE ELECTRICITY BOARD, KASARAGOD-671 531. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL SUB DIVISION,KERALA STATE ELECTRICITY BOARD,KASARAGOD-671 531. 3. THE ELECTRICAL INSPECTOR,INSPECTORATE, KASARAGOD-671 531. BY ADV. SMT.P.K.RADHIKA-KSEB THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10-11-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts WP(C)NO.17285/2011 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE CALIBRATION CERTIFICATE OF ENERGY METERS ISSUED BY THE ASST. EXECUTIVE ENGINEER(METER),TMR, SHORNUR DATED 21/4/2003. P2 COPY OF THE BILL FOR ELECTRICITY CHARGES FOR THE MONTH OF DECEMBER, 2003 FOR AN AMOUNT OF RS.1,01,534/-. P2(A) COPY OF THE BILL FOR ELECTRICITY CHARGES FOR THE MONTH OF JANUARY, 2004, FOR AN AMOUNT OF RS.1,19,641/- P2(B) COPY OF THE BILL FOR ELECTRICITY CHARGES FOR THE MONTH OF FEBRUARY, 2004, FOR AN AMOUNT OF RS.1,62,281/- P2(C) COPY OF THE BILL FOR ELECTRICITY CHARGES FOR THE MONTH OF MARCH, 2004, FOR AN AMOUNT OF RS.1,08,543/-. P3 COPY OF THE COMPLAINT DATED 20/3/2004 SENT BY THE PETITIONER TO THE 1ST RESPONDENT. P4 COPY OF THE COMPLAINT DATED 23/3/2004 SENT BY THE PETITIONER TO THE EXECUTIVE ENGINEER. P5 COPY OF THE CALIBRATION CERTIFICATE OF ENERGY METERS ISSUED BY THE SHORNUR DATED 31/3/2004. P6 COPY OF THE BILL FOR RS.1,08,543/- FOR THE MONTH OF APRIL, 2004. P6(A) COPY OF THE BILL FOR RS.87,554/- FOR THE MONTH OF MAY, 2004. P6(B) COPY OF THE BILL FOR RS.64,178/- FOR THE MONTH OF JUNE, 2004. P6(C) COPY OF THE BILL FOR RS.48,965/- FOR THE MONTH OF JULY, 2004. P6(D) COPY OF THE BILL FOR RS.66,709/- FOR THE MONTH OF AUGUST, 2004. P7 COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 6/7/2004. P8 COPY OF THE REMINDER SENT BY THE PETITIONER TO THE 2ND RESPONDENT DATED 14/9/2004. P8(A) COPY OF THE ACKNOWLEDGEMENT DATED 15/9/2004. P9 COPY OF THE LETTER DATED 23/11/2004 SENT BY THE PETITIONER TO THE 2ND RESPONDENT. P10 COPY OF THE RECEIPT DATED 24/11/2004 ISSUED BY THE 1ST RESPONDENT. sts 2/- -2- WP(C)NO.17285/2011 P11 COPY OF THE ORDER DATED 31/12/2005 ISSUED BY THE 1ST RESPONDENT P12 COPY OF THE ORDER DATED 19/6/2008 IN CC NO.10/2006 ON THE FILE OF THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD. P13 COPY OF THE ORDER DATED 15/6/2010 IN APPEAL NO.40/2009 ON THE FILE OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,THIRUVANANTHAPURAM. P14 COPY OF THE ORDER DATED 21/3/2011 IN REVISION PETITION NO.4033/2010 ON THE FILE OF THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No.17285 OF 2011 ------------------------------------------------- DATED THIS THE 10th DAY OF NOVEMBER, 2011 J U D G M E N T Petitioner is the Managing partner of a theatre which is a consumer of Electrical Energy under respondents 1 & 2, with Consumer No.1184. It is stated that a new Energy Meter purchased by the petitioner was installed in the premises on 21-03-2002, after obtaining Ext.P1 calibration certificate from the Assistant Executive Engineer (Meter), TMR Division, Shornur. On the basis of a suspicion that the Meter in question is recording excess consumption, the petitioner submitted Ext.P3 complaint to the 1st respondent, on 20-03-2004, for testing of the Meter. Petitioner also expressed willingness to replace the Meter at their own cost. Since no action was taken on the basis of Ext.P3, a similar request was repeated in Ext.P4. Subsequently, as permitted, a new Meter was installed after obtaining Ext.P5 calibration certificate, during April 2004. It is stated that the consumption recorded after installation of the new W.P.(c) No.17285/2011 -2- Meter was substantially low. Therefore the petitioner submitted Ext.P7 request to the 2nd respondent allowing adjustment/refund of the excess payments made on the basis of consumption recorded in the faulty Meter replaced. Exhibits P7, P8 and P8 (c) representations and reminders were submitted in this regard. Ultimately through Ext.P9 a specific request was made to the 1st respondent to get the faulty meter tested by the inspecting authority for ascertaining its accuracy. The petitioner also remitted 'testing fee' as evidenced by Ext.P10. But in Ext.P11 reply the petitioner was informed that the complaint for testing of Meter cannot be entertained because the K.S.E.B has no responsibility, because the Meter in question was supplied only by the petitioner himself and no Meter rent was collected. 2. The petitioner challenged Ext.P11 before the District Consumer Forum, Kasaragod and sought refund of the alleged excess payment. The Forum ordered the respondents to make refund of a sum of Rs.2,04,010/- long W.P.(c) No.17285/2011 -3- cost amounting to Rs.2,000/-. But the order of the District Forum was reversed in appeal by the State Consumer Commission on an appeal filed by the respondents, as per Ext.P13, observing that the competent authority under the Statute empowered to determine on disputes pertaining to faulty meters is the Electrical Inspector, and that the dispute could not have been entertained by the Forum. Even though the petitioner took before the National Consumer Dispute Redressal Commission, New Delhi, the Revision was dismissed upholding the findings of the appellate authority. 3. In this writ petition the petitioner is raising challenge against Ext.P11. Inter alia the petitioner is seeking direction from this Court to sent the faulty meter for testing by the 3rd respondent and to make refund/adjustment of the excess amount. In the counter affidavit filed on behalf of respondents 1 and 2, receipt of Ext.P3 is denied. It is further contended that since the petitioner had purchased and supplied the Meter, it is the W.P.(c) No.17285/2011 -4- duty of the petitioner to get the Meter tested, if it is found faulty. Further contention is that, since Meter was purchased by the petitioner and since no hire or rental charges was levied, all responsibility of the Meter falls on the petitioner and any testing if need be conducted shall be done by the petitioner himself through the Electrical Inspector. It is also contended that, since the relevant period is 2003-04, the Kerala State Electricity Board Terms and Conditions of Supply, 2005, is not applicable in the case, and considering Regulation 31 (c) and 35 of the 'Conditions of Supply Electrical Energy' as well as Clause 58 (v) (a) of Kerala State Electricity Board Terms and Conditions of Supply, 2005 the petitioner has to arrange testing of the Meter. It is also denied that the replaced Meter is in the custody of the respondents. 4. While considering the disputed questions, learned counsel for the petitioner had drawn my attention to Clause 58 of the Kerala State Electricity Board Terms and Conditions of Supply, 2005 (hereinafter referred to as W.P.(c) No.17285/2011 -5- 'terms of supply'). By virtue of the said clause the LT consumers were permitted to purchase and install Electronic Meter at their own cost and in such cases the consumer is exempted from payment of 'Meter Rental Charges'. It stipulates that on replacement of the Board's Meter by the newly purchased Meter, the Board shall take back its Meter. Clause 58 (iv) says that if the existing Meter is found to be faulty at the time of installation of the Meter purchased by the consumer, then the bills for the period during the which the Meter was faulty shall be revised on the basis of the reading as per new Meter. Clause 42 of the terms of supply deals with accuracy of Meters. It says that when the consumer disputes accuracy of the Meter installed in his premises, he should send a written application to the Assistant Engineer and should pay the prescribed fee for the testing. On receipt of the application and testing fee, the Assistant Engineer should get the meter tested by the Board or the Electrical Inspector to Government, and in case where the Meter is found beyond the limit of accuracy W.P.(c) No.17285/2011 -6- prescribed, the testing fee shall be returned to the consumer and the consumer's bills should be adjusted in accordance with the result of the test for a period of 6 months prior to the month the dispute. 5. In the case at hand it is evident that the consumer had raised dispute regarding correctness of the Meter and requested for testing, through Ext.P3 as early as on 20-03- 2004. Even though receipt of Ext.P3 letter was disputed in the counter affidavit, it is evident that Ext.P11 letter refers to Ext.P3, and the reply was given only on the basis of Ext.P3. Therefore, it is evident that a request regarding testing of the Meter was submitted by the petitioner as early as on 20-03-2004. 6. Questions to be decided is as to whether the respondent that they are not responsible for testing of the Meter, is sustainable or not. According to respondents 1 and 2 Regulation 31 (c) and 35 of the 'Conditions of Supply of Electrical Energy' which was in force during the relevant period is applicable in this case. Regulation 31 (c) provides W.P.(c) No.17285/2011 -7- method for adjusting energy charges if the Meter is found incorrect. It further provides that if any dispute arises with respect to correctness of the Meter the matter shall be decided by the Government or the Electrical Inspector, either on the request of the Board or the consumer. It further provides about correction of the bill and adjustment to be made on the basis of the testing. Clause 42 of the terms and conditions deals with accuracy of Meters. It says that when the consumer disputes accuracy of the Meter installed in his premises, he may send a written application to the Assistant Engineer and pay the prescribed fee for the test. On receipt of the application and testing fee, the Assistant Engineer shall have the meter specially tested by the Board or the Electrical Inspector to Government, and in case the meter is beyond the limit of accuracy as prescribed the testing fee shall be returned to the consumer and the consumer's bills shall be adjusted in accordance with result of the test. 7. Going by provisions contained in the old or new W.P.(c) No.17285/2011 -8- regulations, I do not find any merit to accept contentions of the respondents 1 and 2 that, it is the duty of the petitioner to get Meter tested by himself. On the other hand, going by the Regulation 35 of the Conditions of Supply or going by Clause 42 of the Terms of Supply, it is the bounden duty of the Assistant Engineer to get the Meter in question tested by the Board or by the Electrical Inspector, and to take necessary adjustments/refunds if it is found that the accuracy of the Meter is beyond the prescribed limit. Therefore, I am of the considered opinion the stand taken in this case by the respondents is not sustainable. 8. Yet another contention which needs consideration is, regarding non-availability of the Meter in the custody of the respondents. Learned Standing Counsel Smt.P.K. Radhika raised vehement contentions to the effect that respondents are not duty to keep the replaced Meter, since it is was purchased only by the consumer. But she is not in a position to point out any specific provision or authority to show that the Board's liability to keep such replaced Meters W.P.(c) No.17285/2011 -9- in custody. Going by provisions quoted above, it is evident that it is the duty of the authorities of the Board to get the Meter tested. Therefore, it cannot be held that respondents 1 and 2 are not duty bound in keeping the replaced Meter in custody. But a fact situation may arise when the Meter in question is not traceable from the custody of the respondents. In such a case the respondents can resort to adjustment of bills as contemplated under Clause 58 (iv) of the Terms and Conditions of Supply which corresponds with Regulation 31 (c) of the Conditions of Supply. 9. Under the above mentioned circumstances the writ petition is disposed of directing respondents 1 and 2 to take necessary steps to get the replaced Meter of the consumer tested either by the Board or the Electrical Inspector, as requested under Ext.P9, at the earliest and to take consequential steps for refund/adjustment of the excess amount if any collected. The needful in this regard shall be done at the earliest at any rate within 2 months from the date of receipt of a copy of this judgment. W.P.(c) No.17285/2011 -10- 10. In case the Meter in question is not available in the custody of respondents 1 and 2, necessary steps for adjustment/refund if eligible under the provisions of condition 31 (c) of the Conditions of Supply shall be adopted within time, as contemplated under clause 58 (iv) of the terms of supply. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge