IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 RSA.No. 60 of 2011() -------------------- AS.274/2007 of ADDL.DISTRICT COURT,KOTTAYAM OS.458/2004 of ADDL.MUNSIFF COURT,KOTTAYAM .................... APPELLANTS/APPELLANTS/DEFENDANTS ---------------------------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, PUTHUPALLY, NOW ELECTRICAL SUB DIVISION, MANARCADU. BY SRI. .PULIKOOL ABUBACKER, SC, KSEB RESPONDENT(S): RESPONDENTS 2 TO 4/PLAINTIFFS 2 TO 4 ------------------------------------------------------------------------------------ 1. M.M.ZACHARIA, S/O.MATHEW, MANJATHURUTHEL, GOOD SHEPHERD ROAD, KOTTAYAM-1. 2. FR.E.K.GEORGE, INCHEKATTU HOUSE, VELLOOR KARA PO, PAMPADY, KOTTAYAM, (FORMER SECRETARY, PARETT MAR IVANIOS HOSPITAL PUTHUPPALLY, KOTTAYAM).690 527 3. H.H.BASELIOUS MARTHOMA DIDINOS-1, CATHOLICS OF THE EAST AND MALANKARA, METROPOLITIAN CATHOLICATE PALACE, DEVALOKAM, MUTTAMBALAM VILLAGE.686 004 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. No. 60 OF 2011 =========================== Dated this the 10th day of October,2011 JUDGMENT Defendants in O.S.458/2004 on the file of Additional Munsiff Court, Kottayam are the appellants. Respondents are the plaintiffs. Respondents contended that Paret Mar Evanios Hospital, Puthuppally belonged to Malankara Orthodox Syrian Church and the hospital is being managed by the Committee and second respondent is its Secretary who is managing the affairs of the hospital and third respondent was the former Secretary. The hospital consumes electricity vide consumer Nos.3500 and 4542 of Electrical Major Section, Puthupally. For December 1996, appellants issued a bill for Rs.48,989/- for consumer No.3500 and Rs.1952 for consumer No.4542. Respondents filed O.S.138/1997. The suit was decreed allowing RSA 60/2011 2 the claim of the respondents. Appellants were directed to issue a revised bill for the period of 2/1996 to 8/1997. Ext.A1 bill was issued demanding Rs.99602/-. It was contended that the hospital had consumed only 5485 units in consumer No.3500 in excess of the allotted quota for the period of February to August,1997. But it was claimed by the appellants that there is an excess consumption of energy to the extent of 19359 units and if at all the appellants are only entitled to claim double the amount and not thrice the normal tariff. It was contended that the appellants are not entitled to take steps to realise the excess amount claimed. Therefore a decree for permanent prohibitory injunction was sought restraining appellants from claiming the excess amount. Appellants resisted the suit contending that notice was issued to the consumer fixing quota as per the provisions of the Board orders dated 11.1.1996 and 5.2.1996 and it was conveyed to the consumer that service would be disconnected, if the quota is exceeded and reconnection would be given only after adjusting RSA 60/2011 3 the excess consumption and the excess consumption would be charged double the rate of tariff and appellants acted only in accordance with law and the amount claimed under Ext.A1 bill is in accordance with the provisions of the relevant Government Orders and Board Orders. It was contended that the invoice dated 1.10.1999 for Rs.99,602/- for the period from February, 1996 to August, 1997 is issued to the consumers as per the provisions of the Board Order No.1921/1997 dated 3.9.1997 and circular No.2920/96 dated 16.11.1998 of the Chief Engineer Thermal and Commercial, KSEB and respondents are not entitled to the decree sought for. 2. Learned Munsiff on the evidence found that the dispute is with regard to the multiplier used. When the respondents contended that the charges for the excess units consumed by the respondents could not exceed double the normal tariff, appellants are claiming that it should be thrice the normal charges. Learned Munsiff found that the claim for thrice the normal tariff was based on Ext.B5 order RSA 60/2011 4 dated 25.7.1997. Though the said order, which came into force on 24.7.1997, enables the Board to claim thrice the normal tariff for the excess units consumed, it is not applicable to the consumption energy prior to 24.7.1997. Therefore the multiplier could only be 2 and not 3. Learned Munsiff in the light of the findings found that respondents are not liable to pay the amount claimed in Ext.A1 bill. The suit was decreed directing the appellants to issue a revised bill adopting the correct principles for the consumption of energy by consumer No.3500 for the period February 1996 to August, 1997 and restrained the appellants from realising the amount claimed under Ext.A1 bill. Appellants challenged the decree and judgment before Additional District Court, Kottayam in A.S.274/2007. Learned Additional District Judge on reappreciation of evidence found that findings of the trial court that the amount claimed in Ext.A1 bill is against the provisions of the relevant orders and the direction issued to the appellants to claim the actual amount by RSA 60/2011 5 issuing a revised bill is perfectly correct. Therefore confirming the decree of the trial court, the appeal was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for the appellants was heard. 4. The argument of the learned counsel is that courts below did not properly appreciate the evidence and when Ext.A5 enables the Board to claim thrice the normal tariff for the excess units of energy consumed, findings of the courts below that respondents are not liable to pay the amount claimed under Ext.A1 bill is not sustainable and therefore the decree is to be set aside. 5. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. 6. Though under Ext.A1 bill, appellants claimed Rs.99,602 being the charges payable for the excess units consumed by the respondents for the period January, 1996 to August, 1997, courts below found that though under Ext.B5 order of the Board RSA 60/2011 6 appellants are entitled to claim thrice the normal tariff for the excess units consumed, the order came into effect only on 24.7.1997 and therefore Board is only entitled to get double the normal tariff for the excess units consumed prior to 24.7.1997 and therefore Ext.A1 bill, whereunder claim is based on Ext.B5 order, namely thrice the normal tariff is unsustainable. That factual finding entered by the courts below is perfectly in accordance with Ext.B5 order. In such circumstances, appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006