KERALA STATE ELECTRICITY BOARD vs ASSISTANT EXECUTIVE ENGINEER

THE affidavit of service has been filed by the petitioners, which shows that the notice stands served upon the respondent on 28 -01 -2015. No one has appeared for the respondent despite service of notice in the aforesaid manner. We have, therefore, proceeded to hear the revision petition on merit.

THE complainant/respondent was a consumer of the petitioner Kerala State Electricity Board, he having taken an electricity connection from the said board. An inspection of the premises of the complainant was carried out on 09 -08 -2000 and during the said inspection it was found that though the seals of the meter were proper and the meter was also working, the second phase of the meter was not working. Based upon the said inspection, a bill of Rs.55,395/ - was raised by the petitioners on the ground that part consumption had escaped billing on account of non -working of one phase of the CT meter. The bill pertained to the period from Feb.2000 to Aug.2000. The aforesaid bill was challenged by the complainant before Kerala High Court, by way of writ petition. The writ petition was disposed of by granting liberty to the complainant to prefer an appeal before the Executive Engineer, against the demand raised by the board. In the meanwhile, another inspection of the premises of the complainant was carried out on 27 -07 -2001. At that time, it was found that one lead of the CT meter had been pulled from the terminal, as a result of which the electricity consumed through that phase of the meter was not getting recorded. The complainant then approached the concerned Executive Engineer for redressal of his grievance. He directed the concerned Assistant Executive Engineer to issue a bill for the unbilled period from 09 -08 -2000 to 14 -05 -2001. A bill of Rs.87,556/ - was accordingly issued by the Assistant Executive Engineer to the complainant. Claiming deficiency in the service on the part of the Board and its officials, the complainant approached the concerned District Forum by way of a complaint, seeking cancellation of all the three bills issued to him and refund of the amount of Rs.20,000/ - which he had deposited with the Board.

THE complaint was resisted by the Board inter alia on the ground that during inspection on 09 -08 -2000 they had found that one phase of the CT meter was not recording actual consumption for which a bill of Rs.55,395/ - was raised by them in accordance with law. It was further stated in the reply that during a subsequent inspection carried out on 27 -07 -2001 they found that lead wire of the CT fitted with the meter had been pulled out from the energy meter. Finding a case of theft of energy they disconnected the supply and made assessment for theft of electricity. The said assessment resulted in issue of a bill of Rs.26,281/ -. It was further stated in the reply that the final bill of Rs.87,556/ - was issued by them consequent to the directions of the concerned Executive Engineer, given while disposing of the appeal filed by the complainant in terms of the direction given by the High Court. The District Forum vide its order dated 12 -11 -2004 upheld the bill of Rs.55,395/ - but cancelled the remaining two bills. The petitioners were also directed to pay Rs.1,000/ - as cost of the complaint.

THE order passed by the District Forum was challenged by the complainant as well as by the petitioners by filing separate appeals. Vide impugned order dated 30 -01 -2010 the concerned State Commission upheld the demand of Rs.26,281/ - but rejected the bill of Rs.55,395/ - as well as final bill of Rs.87,556/ -. Being aggrieved from the order passed by the State Commission the petitioners are before us by way of this revision petition.

THE State Commission rejected the first bill raised by the petitioners primarily on the ground that the inspection report dated 09 -08 -2000 had not been filed in original and had not been otherwise proved by the petitioners. On a perusal of the record we find that not only the photocopy but also a carbon copy of the aforesaid, inspection report was filed by the petitioners. The expression ''primary evidence'' has been defined in Section 62 of the Evidence Act and means the document which is produced for the inspection of the Court. The second explanation below Section 62, however provides that where a number of documents are made by one uniform process as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest. Since the original as well as carbon copy of a document are made, by one uniform act, at the same time both of them would be deemed to be primary evidence within the meaning of Section 62 of the Evidence Act. In any case, considering that the original document had been filed before the Kerala High Court, filing of a photocopy coupled with a carbon copy in our view was sufficient considering that that consumer forum is not bound by the strict rules of evidence. More importantly, as per the inspection report dated 09 -08 -2000 the inspection was carried out in the presence of Mr. Aji Palakalath Pariyaram Puthuppally an employee of the complainant. The copy of the inspection report having filed before the District Forum, the complainant knew the case of the petitioners as regards the inspection carried out on 09 -08 -2000. However, this was not the case of the complainant either in the complaint or in the evidence brought by him that he had not employed any person namely Aji Palakalath Pariyaram Puthuppally. The inference, therefore, would be that a person by this name was actually employed with the complainant on 09 -08 -2000 when the inspection was carried out. The complainant did not produce Mr. Aji Palakalath Pariyaram Puthuppally before the consumer forum to prove that the inspection dated 09 -08 -2000 was not carried out in his presence and that he had not signed the said document. Therefore, in our opinion the first inspection dated 09 -08 -2000 was duly proved by the petitioners.

SINCE the officials of the petitioner Board found at the time of inspection carried out on 09 -08 -2000 that the second phase of the meter was not working, the petitioners were justified in raising the bill of Rs.55,395/ - based upon the connected load which was found to be 60 HP along with a water pump of 2HP. Moreover, this is not the case of the complainant that the amount payable by him, on the basis of the aforesaid connected load would be less than the amount demanded by the petitioner Board, his case being that no inspection at all was carried on 09 -08 -2000. Therefore, in our view the demand of Rs.55,395/ - was fully justified.

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COMING to the second inspection, a perusal of the report prepared on that date would show that at the time of inspection it was found that seal of the terminal cover had been tampered and the wire of third CT on the right side had been pulled out. As a result, though the meter was running, it was not recording the consumption through the third phase of the meter. The extraction of energy in the aforesaid manner would constitute ''unauthorized use of electricity'' as defined in the explanation below Section 126 (6) of the Electricity Act, which inter alia provides that unauthorized use of electricity means usage of electricity by means not authorized by the concerned person or authority or licencee or through tampered meter. If the seal of the terminal cover is tampered and the wire of the third CT is pulled out, it would constitute tampering with the meter and, therefore, amounts to unauthorized use of electricity. In such a case the board is entitled to make assessment in terms of Section 126 of the Electricity Act.

IN UP Power Corporation Ltd. and Ors. Vs. Anis Ahmed, 2013 9 Scale 334, the Supreme Court inter alia held that a consumer forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act as acts of indulging in unauthorized use of electricity as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of ''complaint'' as defined in Section 2(1)(d) of the Consumer Protection Act. Therefore, as far as the second bill is concerned the consumer forum had no jurisdiction to entertain a complaint with respect to that bill.

THE final bill which the petitioners raised pursuant to the direction given by the Executive Engineer in the appeal filed by the complainant was for the entire period from 09 -08 -2000 to 14 -05 -2001 when the meter was eventually set right. Thus, the demand raised by the petitioner came to be crystalized in two parts, first being bill of Rs.55,395/ - for a period of six months prior to August 2000 and the second the bill of Rs.26,281/ - for one month followed by the bill of Rs.87,556/ - for the period from 09 -08 -2000 to 14 -05 -2001. The first part cannot be disputed on merits, since the inspection report dated 09 -08 -2000 in our view was duly proved whereas the second part could not have been challenged before the consumer forum.

FOR the reasons stated hereinabove we are of the view that the impugned order passed by the State Commission on 30 -01 -2010 cannot be sustained. The said order is accordingly set aside and the complaint is dismissed. No order as to costs.