ASST. ENGINEER, K.S.E. BOARD vs K. ABDURAHIMANKUTTY

OPPOSITE parties in O.P. No. 144/1998 on the file of the Consumer Disputes Redressal Forum, Malappuram are the appellants.

THE complainant was served with Exbt. P1 bill alleging that he is liable to pay the charge therein as per Clause 42(b) of the Condition of Supply of Electrical Energy. On the allegation that he has drawn electricity unauthorisedly from Consumer No. 393 to a compressor motor of A 75/KW/5 HP which was installed in the nearby shed for pumping water which has detected by the inspection squad of the opposite party on 4.5.1997. THE complainant denied to his having taken extension of energy from the said meter or is having used the energy for pumping water by the said machine. THErefore, he maintained that the Exbt. P1 invoice cannot be supported. In the version by the opposite party they supported the invoice Exbt. P1 by maintaining that the inspection party when visited the premises of the complainant found the said misuse of energy and, therefore, prepared Exbt. R1 mahazar. THE material and data collected by such inspection would make the complainant liable to pay the amount claimed as per Clause 42(d) of the Condition of Supply of Electrical Energy and hence the complainant is liable to pay the same. Before the District Forum the complainant gave evidence as P.W. 1 and on behalf of the opposite party D.W. 1 was examined. Complainant produced Exbts. P1 to P4 and on behalf of the opposite party Exbts. R1 and R2 were produced. In O.P. 344/98 the District Forum cancelled the Bill No. 68322 dated 21.10.1997 without prejudice to the right of the opposite party to proceed against the consumer as per law. THE challenge in this appeal is against the relief granted to the complainant by cancelling the aforesaid bill dated 21.10.1997. It is urged by the learned Counsel for the appellant that inasmuch as the District Forum has accepted Exbt. R1, the District Forum was wrong in making the impugned direction. On the other hand the learned Counsel for the respondent while supporting the relief of cancellation of the Bill No. 68322 maintained that Exbt. R1 itself is not properly proved and a material before the District Forum was such that the meter itself was faulty. According to the learned Counsel there was no acceptable evidence to show as to what is the connected load and what is the tariff for the alleged use of the energy for pumping water. In such situation there could be no chance for application of Clause 42(d).

Though two invoices were issued on the allegation that the complainant has misused energy from Consumer No. C. 393, opposite party themselves withdrew the invoice issued for on the allegation of misuse of energy from Consumer No. C. 2869. The District Forum in Paragraph 9 of the impugned order accepted the probative value of Exbt. R1 in view of the admission of the complainant who gave evidence as PW 1. Exbt. R1 is to the effect that connection was seen to have been drawn from the consumer to 5 HP machine installed in the nearby shed for pumping water. Clause 42(d) of the Condition of Supply is referred to in para 10 of the impugned order; Rule 42(d) of Conditions of Supply of Electrical Energy reads : "If the consumer exceeds the contracted load without prior permission of the Board of energy supplied for a specific purpose under a particular tariff is used without the Board''s knowledge and approval for a different purpose not contemplated in the contract for supply and for which higher tariff is applicable coming under misuse of energy within the meaning of the I.E. Act, 1910. Misuse of energy will be billed at three times the rate applicable to the respective tariff for the previous six months from the date of detection of misuse. Unless there are convincing reasons for adopting different periods and supply disconnected without notice. The imposition of this higher rate will not relieve the consumer from any penalties imposed by law."

THE District Forum takes the view that since misuse of energy is not defined in the Condition of Supply of Electric Energy, the assumption that such extraction would amount to misuse of energy is not correct and, therefore, in the given circumstance only Clause 42(e) thereof could be applicable. Misuse of energy even if not separately defined, Clause 42(d) itself gives enough indication as to what could constitute misuse of energy for the purpose of said clause. Its states that when the consumer exceeds his connected load without prior permission of the Court or Board, and utilises the energy supplied for a specific purpose under a particular tariff for another purpose or a different purpose for which a higher tariff is prescribed that could be misuse of energy. THE content of Clause 42(d) would show, it contemplates the user of energy obtained for a particular purpose under contract, for a different purpose for which tariff is higher. If such attitude is encouraged it would mean that the consumer could consume energy of higher tariff without paying the said tariff. THE purpose and intention behind Clause 42(d) is to discourage such method of user of energy by the consumer. When such misuse of energy is detected, Condition 42(d) authorised to charge three times the tariff applicable for the said particular purpose. In the aforesaid circumstance if as a matter of fact the complainant has drawn the line from Consumer No. 393 to the compressor motor of 5 HP and such user is shown to be such that the same would fetch a higher tariff, the complainant would be liable under Clause 42(d). But in this case there is no acceptable material to show that what purpose this pump is being used. As has seen there must be material to show that such user of energy is for a purpose for which a higher tariff has to be charged. THErefore, the purpose for which the pump is used is necessary to be discovered. It is also submitted by the learned Counsel for the respondent that there is also acceptable material to show as to what is the contracted load. When such is the situation in the given circumstance we consider that the appellant has to be given an opportunity to adduce evidence on that aspect. In that view, the matter has to go back District Forum for that said purpose. THE learned Counsel for the appellant pointed out even without such evidence since if the connection is drawn from Consumer No. 393 to a 5 HP compressor motor connected load would be enhanced. We do not express anything on that; the Forum will consider the said two aspects. THE appellant will have the liberty to adduce evidence and establish the same. In the result the impugned order is set aside and the matter is remitted to the District Forum, it shall restore the complaint to file and give opportunity to the appellant to establish the aforesaid aspect, it will be open to the complainant also to give evidence in support of his case. The parties shall appear before the District Forum on 29.1.2000. There will be no order as to costs in this appeal. Appeal disposed of.