A. SHAMSUDDIN vs ASSISTANT EXECUTIVE ENGINEER, KERALA WATER AUTHORITY

THIS appeal is directed against the order of the District Forum, Kollam in OP (Q) 225/92 dismissing the complaint. The appellant herein is the complainant before the District Forum.

SHORTLY stated facts of the case are as follows. On 9.5.88 the complainant took water connection from the opposite party. From the very beginning itself the complainant was not getting the required quantity of water which was due to pumping fault. Since his house was located at an elevated place, there was difficulty in getting sufficient supply of water. The water supply was frequently obstructed due to pumping defects and finally from July 1991, the water supply was completely stopped. The matter was brought to the notice of the opposite party several times but, there was no response. So he filed a complaint before the District Forum, Kollam, alleging that the opposite party had collected water charges from him at the rate of Rs. 10/- per month, without supplying water. Therefore the complainant prayed for the refund of the excess money collected from him as water charges from the month of July 1991. The complainant had to arrange water by spending Rs. 5/- per day. Therefore he claimed Rs. 500/- towards damages. The opposite party filed its version contending that the water supply to Kilikolloor Panchayat area in which the house of the complainant is situated is being arranged by pumping water from the Tube Well at 3 places. The well at Moonamkutty was damaged and the pumping was discontinued. This has affected the water supply at the complainant''s house. His house is at an elevated place. Construction of a tube well was delayed due to lack of funds. Until a new tube well is constructed water authority is not in a position to supply water to the complainant. Charge paid for the period for which he did not get water can be adjusted in the future bill. He is not eligible for damages.

The District Forum found that there is no negligence on the part of the opposite party and on the basis of that finding the complaint was dismissed. Aggrieved by that order, this appeal has been preferred by the complainant.

THE important contentions raised in the appeal are as follows. THE District Forum ought to have found that the consumer is penalised for the inaction of Kerala Water Authority in giving water connection knowing fully well that the consumer is residing at an elevated place and there is difficulty in arranging water at such place. THE order of the District Forum regarding the payment of water charges for the periods when there was no water supply is against common law and facts. THE finding of the District Forum that the non-supply of water to the Consumer is not due to the negligence on the part of the Water Authority is wrong and unfounded and is contrary to the evidence in the case. THE finding of the District Forum regarding the payment of application fee and disconnection fee is wrong since it is a double penalty on a consumer for taking water connection from the appellant. Though the Assistant Executive Engineer, Water Authority, in its statement admitted the case of the appellant and stated their willingness to refund the excess money remitted by the complainant for the period for which he has not received water, the District Forum not only rejected the proposal made by the Water Authority but also penalised the consumer by ordering him to pay water charges till disconnection. The respondent filed a statement before us contending that now a new tube well has been commissioned and the complainant is getting enough water through his water supply connection.

WE feel that there is substance in the contentions raised by the appellant. WE are unable to agree with the finding of the District Forum that no negligence on the part of the Water Authority, that the complainant had to pay water charges even if there is no water supply in the connection and that if he wants a disconnection he has to pay application fee of Rs. 15/- and disconnection fee of Rs. 50/-. Exbt. A 1 established the story of the complainant that he was given water from May 1988 to July 1991 and thereafter he was not getting water till January 1993. It has been admitted by the opposite party that the complainant is not getting water, because the tube well at Moonamkutty from which water is supplied to the complainant is damaged and pumping was discontinued and that until a new tube well is constructed the opposite party is not in a position to supply water to the complainant. We have no doubt that the inability on the part of the opposite party to provide water to the complainant for the periods for which the opposit party had collected water charges amounts to deficiency in service. Hence we are of the view that the opposite party is liable to refund the water charges collected from the complainant from the month of July 1991 onwards. We direct the opposite party to refund the same within a period of one month from the date of receipt of this order. The complainant had obtained the water connection by paying the necessary charges to the opposite party. By giving water connection the opposite party had undertaken the obligation to provide unterrupted supply of reasonable quantity of water to the consumer. In the instant case though the opposite party could not supply water to the complainant from July 1991, they promptly collected water charges every month at a rate Rs. 10/- per month. Only because the complainant had taken a water connection from the opposite party, he had to pay monthly the water charges even though there is not water in the line. In such a situation it is better for the complainant to get the disconnection of water supply in order to avoid further payment of water charges without getting any water. In such a context, the disconnection if demanded, by the complainant is because of the inability on the part of the opposite party to provide water to him. We have already observed that the inability on the part of the opposite party to provide water to the complainant amounts to deficiency in service. For the laches of the opposite party the complainant should not suffer. Hence we hold that the opposite party is bound to give disconnection if, demand by the complainant at the expense of the opposite party.

AS per the statement filed by the respondent a new tube well has been commissioned. In the circumstances, the respondent is able to supply enough water to the appellant. Hence we direct the respondent/opposite party to give sufficient supply of water to the appellant within a period of one month from the date of receipt of this order.

THUS, we direct the opposite party/ respondent (a) to refund water charges collected from the complainant from the month of July, 1991 onwards. (b) to give reasonable supply of water to the complainant.

The opposite parties are directed not to collect water charges from the complainant till reasonable supply of water is provided after reconnection. The opposite party shall comply with this order within a period of one month from the date of receipt of this order. In the result, we set aside the order of the District Forum and allow the appeal. The parties shall bear their respective costs. Appeal allowed.