P.V.GEORGE Vs. KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) It is against the dismissal of the complaint in C.C. 82/08 of CDRF, Kalpatta that the present appeal is filed by the complainant calling for the interference of this Commission as to the sustainability of the order passed by the Forum below,. The complainant had approached the Forum stating that he was running a metal crusher unit and that he had taken an electric connection under industrial tariff from the opposite parties and that on 13.3.2008 the connection was dis connected for not enclosing the meter equipments in a metallic enclosure and that on complying the directions, the supply was restored on 18.3.2008. It is the case of the complainant that he was served with a bill for Rs. 2,72,829/- stating that an inspection was conducted by the opposite parties on 26.5.2008 and the bill issued was consequent to the detection of theft of energy by the complainant. In the complaint filed, the allegation of the opposite parties that the Y & B Phases were not functioning was denied by the complainant. Contenting that there was no justification for the issuance of the penal bill, the complainant sought for directions to the opposite parties to cancel the demand for Rs. 2,72,829/- and to reconnect the service along with payment of compensation of Rs. 1,00,000/- towards the mental agony and inconvenience caused to the complainant. Refuting the allegations, the opposite parties filed version, wherein it was submitted that the complainant had committed theft of energy which was found out in the inspection conducted on 26.5.2008 and that the penal bill was issued finding the irregularities in the consumption of energy by the complainant. It was submitted that a site mahazar was prepared at the time of inspection and it was found that there was illegal abstraction of energy by dis connecting the C.T. coils in Y and B phases. It was also submitted that for conducting an inspection, no prior notice was necessary and that the complainant was liable to pay the amount covered under the penal bill. The evidence consisted of the oral testimony of the complainant as Pw1 and Exts. A1 to A11 series on the side of the complainant. On the side of the opposite parties one Asst. Engineer was examined as Pw1 and a police constable who was present at the time of inspection was marked as Pw2. Exts. B1 to B10 were marked on the side of the opposite parties. The Commissioner?s Report was marked as Ext. C1 and the Test report was marked as Ext. C2. The C.T. Coils in (3 Nos.) were marked as M.O.1 series. Heard both sides. The learned counsel for the appellant/complainant vehemently argued before us that the forum below had dismissed the complaint without proper appreciation of the facts and circumstances of the case. It is submitted by the learned counsel that the Forum below had dismissed the complaint mainly on the finding that the consumption before and after the inspection was having high variation. It is her case that the low consumption before the inspection was due to shortage of orders and other personal inconveniences of the complainant and that the consumption after the inspection cannot be a reason to find that there was some irregularities in the consumption of energy by the complainant. She has also advanced the contention that the Forum below has lost sight to see that the consumption after some period after inspection was also on the lower side. According to her mere increase in consumption can not be of reason to dismiss the complaint by the forum below . She has also attacked the calculation for a period of 313 days for issuing the penal bill. The learned counsel advanced the further contention that it was without clinching evidence that the Forum below had come to the conclusion that there was theft of energy by the complainant. It is argued by the learned counsel that the complainant was away from the unit for many days before the alleged inspection as he was laid up with Chicken Gunia and also that when he came to the site, it was found that the unit was dis connected for the reason that there was no metal box for keeping metering equipments. She has also raised the contention that the complainant was not given an opportunity of being heard before finalizing the impugned bill. On the other hand, the learned counsel for the respondents /opposite parties strongly supported the findings and conclusions of the Forum below. It is submitted that the Test report marked as Ext. C2 would also show that the C.T. coils were faulty and that if one of the C.T. coils is not working the energy recorded would be much less and in the instant case the two C.T. coils in the Y & B phases were disconnected thereby only 1/3 of the consumption was recorded and hence the issuance of the bill was only in accordance with the law. The learned counsel has also submitted that the site mahazar was proved properly by examining the scribe of the mahazar and also the Police constable who was present at the time of inspection. Thus it is the very case of the learned counsel for the respondent/opposite parties that the appeal is a mis conceived one and is liable to be dismissed with compensatory cost. On hearing both sides and also on perusing the records, it is found that it is the admitted case of both the parties that the complainant is the consumer of the opposite parties and that the connection was given under industrial tariff and further that an inspection was conducted on 26.5.2008. The opposite parties would allege that there was theft of energy by the complainant by dis connecting the C.T. coils in the Y and B phases and also that after rectification of the defects, the consumption was on a higher side. The Forum has found that since the witness present at the time of inspection was also examined the case of the opposite parties can be believed. Though it can be presumed that the site mahazar is proved by examining a witness who was present at the time of inspection on a perusal of the deposition of O.PW2 he has only stated that he was present at the time of inspection and he did not notice the factual situation in the meter board. He has deposed: ?"Language" He has only stated that he was present at the time of inspection. The mere presence of a witness can not be a conclusive proof to show that the complainant had conducted illegal abstraction of energy. The main thrust given by the Forum below is in the fact that the consumption of energy was considerably higher after changing C.T. coils during the period from 9/08 to 4/09. All the same, the learned counsel for the appellant/complainant has argued that the consumption after 4/09 was also very much on the lower side. She has also submitted that the consumption before the inspection was less due to reasons such as the ailment of the complainant. The learned counsel has also pleaded for a remand of the matter for adducing more evidence in support of her contentions. We find that it would be just and proper to give an opportunity to the complainant to adduce further evidence in the matter to support the contentions of the complainant. It is also found that the opposite parties had not produced the register showing the subsequent consumption during which the complainant states that the consumption was on the lower side. It is also found that the complainant was not given an opportunity of being heard as per section 126(3) of the Electricity Act 2003. Taking all the above facts in to consideration it is felt that an opportunity is to be given to the appellant/complainant to give further evidence for substantiating her contentions before the Forum below. All the same, the opposite parties are also at liberty to adduce further evidence to counter the contentions of the complainant. In the result, the appeal is allowed. The order dated 31.5.2010 of CDRF, Wayanad in C.C. 82/10 is set aside. The case is remitted back to the Forum below for fresh disposal after giving opportunity to both sides to adduce further evidence to substantiate their rival contentions. The parties are directed to appear before the Forum on 19.12.2011. The office is directed to send back the LCR to the Forum below along with a copy of this order.