ASSISTANT EXECUTIVE ENGINEER, KEB vs K.SUBBEGOWDA

THIS appeal is by original opponents in Complaint No. 189/92-93 before the District Forum, Mysore, challenging the order dated 3.4.1998 directing them to refund a sum of Rs. 19,552.60 with interest @ 12% p.a. from November, 1992 till payment and to pay a compensation of Rs. 1,000/- within a period of 4 weeks failing which the awarded amount to fetch interest at 18% p.a. till realisation.

THE brief facts of the case are as follows : THE complainant is running a Rice Mill as a Proprietor of Sri Beereshwara Rice Mill. THE Karnataka Electricity Board serviced the installation of the complainant on 11.2.1991 having a sanctioned load of 75 HP under LT-5 tariff. THE meter was MNR from the date of service due to counter trouble in the meter. On a complaint, the KEB replaced it with a good meter on 16.5.1991. THE Board issued a bill for a sum of Rs. 7,163/- in March, 1991 and for Rs. 39,632/- in May, 1991. THEn the complainant preferred an appeal to the Superintending Engineer, who is appellant-2, in this appeal by paying 25% of the demand bill dated 12.6.1991. THE said bill was pending before the 2nd appellant for nearly one year. THE complainant was informed that the meter was not recording for three months and three days from the date of service, i.e. 11.2.1991 till the date of replacement, i.e. 16.5.1991 and he had to be billed as per Regulation No. 29.03 of ESR, 1981. Since the 2nd appellant had not passed an order, the complainant filed Writ Petition No. 28707/92 and the Hon''ble High Court directed the complainant to pay a sum of Rs. 15,000/- in order to restore power supply and directed the 2nd appellant to re-determine the back billing charges and pass appropriate orders after giving an opportunity to the complainant. THE second appellant allowed the appeal and ordered to issue revised bill taking average of 12 months readings after fixing a good meter and directed the complainant for payment within 15 days the said amount as per ESR 29.04. Since the opposite party had submitted a wrong billing, the present complaint was filed before the District Forum. On receipt of the notice, the opposite parties raised several contentions regarding maintainability of the complaint as it was for commercial purpose. It has also submitted that the meter was tested prior to installation and it was found to be correct. Since later it was found by KEB on the complaint made by the complainant that the meter was not recording, the opposite party issued a revised bill under Regulation 29.03 ESR and, therefore, the claim made by the opposite party was legal and valid and requested the District Forum to dismiss the complaint.

On the basis of the materials placed by both the parties, the District Forum has come to the conclusion that there was deficiency on the part of the opposite party as alleged by the complainant and accordingly passed the impugned order.

WE heard the learned Advocate Mr. Jaya Vittal Rao Kolar on behalf of the appellants and Mr. N.P. Kumar, on behalf of the respondent. Mr. N.P. Kumar also submitted his written argument. The main contention of the learned Advocate for the appellants was that the District Forum was not justified in entertaining the complaint when the complainant had already challenged the order by filing a statutory appeal before the Superintending Engineer, KEB, Mysore (2nd appellant) and the said order has become final and after availing the said remedy, the complainant could not be allowed to override the statutory bar by raising consumer dispute. He has further submitted that the District Forum had no jurisdiction to sit in judgment over the order of the Appellate Authority. In this connection, the learned Advocate has placed reliance on the decision of the National Commission reported in II (1999) CPJ 52 (NC)=(1999) NCJ 317 (NC), Girish Kumar Balubhai Choksi v. State of Gujarat. This is what the National Commission has held in paragraph-9 of the said deision : "The complainant has already availed of the statutory remedy and has got a refund for the period of 6 months. The complainant now cannot be allowed to override the statutory bar by raising a consumer dispute. Every statute imposing duty or tax contains a machinery for refund of excess collection of tax. It also lays down the period of limitation for that purpose. These provisions cannot be bypassed by proceeding under the Consumer Protection Act or some other Act."

WE heard the learned Advocate Mr. N.P. Kumar on this point. He submitted that the opposite party has not raised this contention in their version nor it was canvassed before the District Forum and for the first time the appellants'' Counsel has taken up this contention in this appeal. According to the learned Advocate, had this contention been taken up at the earliest point of time, after giving an opportunity to the complainant, he would have had an opportunity to meet this contention. He futher submitted that the order passed by the District Forum does not go against the order of the 2nd appellant and hence the District Forum was justified in passing the order. We have been taken through the order of the District Forum. The District Forum has observed that the complainant had filed an appeal before the Superintending Engineer, KEB, which came to be allowed and an amount of Rs. 19,552.60 was ordered to be refunded as per the letter dated 26.2.1998. In the said appeal, the second appellant has found that an amount of Rs. 19,552.60 belonging to the complainant was with KEB and he directed that the said amount should be adjusted towards the future bills. However, the District Forum has directed that the said amount should be refunded to the complainant. Since the amount was with the KEB from November, 1992, he ordered for interest at 12% p.a. The compensation for mental agony and loss due to illegal acts of the opposite party could not have been granted by the 2nd appellant in the statutory appeal. Hence Mr. Kolar cannot derive much assistance from the decision of the National Commission since the facts of the present case are different.

WE considered the arguments of both the sides in the light of the judgment of the District Forum and on the basis of the materials available on record. WE see no error in the judgment of0the District Forum. This appeal, which has no merit, shall stand dismissed. No costs. Appeal dismissed.