IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 809 of 2003()
1. NATIONAL INSURANCE COMPANY LTD.
... Petitioner
Vs
1. SARASU D/O. PALLIPADY,
... Respondent
2. M.Y.BABY, MANJEERAN HOUSE,
3. SURAJ K.S. S/O. SREEDHARAN, KADAYATH
For Petitioner :SRI.RAJAN P.KALIYATH
For Respondent :SRI.M.V.SABU
SHRI K.J.THOMAS STANLEY(RETD.ADDL.DIST.JUDGE)
Dated :18/06/2009
O R D E R
SRI.M.R.RAJENDRAN NAIR
(SENIOR ADVOCATE, HIGH COURT OF KERALA)
&
SRI.M.T.BALAN
(RETD. DISTRICT JUDGE)
=================================
M.A.C.A.No.809 of 2003
=================================
Dated this the 18th day of June, 2009
AWARD
Appellant - Insurance Company and counsel are present. 1st
respondent and counsel are also present. Both parties agreed that out
of the Award amount of Rs.1,19,500/-(Rupees one lakh nineteen
thousand and five hundred only) a sum of Rs.15,000/-(Rupees fifteen
thousand only) can be reduced and the Award can be limited to
Rs.1,04,500/-(Rupees one lakh four thousand and five hundred only)
together with interest at the rate of 9% per annum from the date of
petition till realisation.
Award accordingly modified by consent. The balance amount
with interest can be withdrawn by the claimant.
M.R.RAJENDRAN NAIR
(SENIOR ADVOCATE, HIGH COURT OF KERALA)
M.T.BALAN
(RETD. DISTRICT JUDGE)
dvs
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+OP.No. 7109 of 2003(U)
#1. M/S. HI-TECH ELECTOTHERMICS (P) LTD.,
... Petitioner
Vs
$1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. KERALA STATE ELECTRICITY BOARD,
3. SPECIAL OFFICER (REVENUE)
4. EXECUTIVE ENGINEER, KERALA STATE
! For Petitioner :SRI.J.JULIAN XAVIER
^ For Respondent :SRI.P.SANTHALINGAM, SC, KSEB
*Coram
The Hon'ble MR. Justice V.K.MOHANAN
% Dated :15/06/2009
: O R D E R
V.K.MOHANAN, J.
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O.P.No. 7109 of 2003 – U
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Dated this the 15th day of June, 2009
J U D G M E N T
The petitioner is a consumer of electrical energy
under H.T.Tariff with consumer No.19/2030. He challenges
Exts.P5, P6, P8 and P9 orders. Admittedly, the meters
installed in the petitioner’s premises were defective and the
same was intimated to the consumer vide Ext.P1. In Ext.P1,
it is stated that the meter was to be replaced within one month
after testing at T.M.R. Division, Pallom. It is beyond dispute
that as per the rules and procedures, only the Board officials
can remove the meter and accordingly, the meter was
removed only on 12.4.2002 even though Ext.P1 is dated
4.4.2002. According to the petitioner, after curing the defect,
he handed over the same to fourth respondent on 2.5.2002
for calibration, but according to the Board, it was handed over
only on 4.5.2002. However, according to the petitioner, after
calibrating the repaired meter, the same was given back to
the petitioner only on 29.5.2002. Hence, with a covering letter
dated 30.5.2002, the petitioner again entrusted the same with
the Board authorities for installation, but finally, the meter was
OP NO.7109 OF 2003
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reinstalled only on 3.6.2002. In the mean while, Ext.P2 bill was
issued for the electrical energy used by the petitioner for the
month of April,2002 and the same was remitted in time.
According to the petitioner, even in Ext.P2, by way of remark as
warning was given to the petitioner that 50% extra would be
charged in the next bill if the rectification of meter is not made
before the issue of next bill. Ext.P2 is dated 10.5.2002 and
therefore, the next bill means, bill dated at least 10.6.2002. Thus,
according to the petitioner, the meter was installed on 3.6.2002
and therefore, the meter was installed within one month even
from the date of Ext.P2 that is, 10.5.2002. Therefore, it is the
contention of the petitioner that the Board has no authority to
realise the penal charge from the petitioner.
2. The Board has filed a detailed counter affidavit
justifying Exts.P5,P6,P8 and P9. According to the learned
counsel for the Board, the consumer is liable to pay the penal
charge if there is laches or default on his part in installing the
meter after curing the defect, if once the defect is brought to his
notice. Learned counsel also very much relied upon the
provisions of the Kerala State Electricity Board Extra High
Tension Tariff Revision Order (for short ‘the Tariff Revision
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Order) , 2002.
3. I have heard both counsel for the petitioner as well
as the respondents.
4. Learned counsel for the petitioner submits that one
month’s time is incorporated in the Tariff Revision Order 2002
which came into force with effect from 1.10.2002 whereas Ext.P1
is dated 4.4.2002 and the meter was re-installed after curing the
defect on 3.6.2002. Therefore, the provisions of Tariff Revision
Order 2002 would not be applicable in the present case. Learned
counsel also invited my attention to Tariff Revision Order, 2001
which was relied on by the Board while filing the counter affidavit.
There is no provision in the Tariff Revision Order,2001 fixing the
time limit for reinstalling the meter after curing the defect. If that
be so, absolutely there is no provision enabling the Board to
realise the penal charge from the consumer. In the present case,
it is relevant to note that though Ext.P1 is dated 4.4.2002, the
Board officials removed the defective meter only on 12.4.2002
and handed over the same to the petitioner on that date.
Thereafter, the petitioner, after curing the defect, again entrusted
the meter with the fourth respondent for calibrating the meters, on
4.5.2002. But the said meter was returned to the petitioner only
OP NO.7109 OF 2003
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on 29.5.2002 and there is a delay of 25 days from the part of the
Board authorities in returning the meter to the petitioner. Again
with a covering letter dated 30.5.2002, the Board Officials were
requested to install the meter, but the same was done only on
3.6.2002. There is no material or evidence to show that the
petitioner was requested or intimated regarding the completion of
the work relating to the calibration of the meter before 29.5.2002.
Therefore, it cannot be said that there is any failure or lapse on
the part of the petitioner. As there is no time limit in the Tariff
Revision Order, 2001 and the meter has already been installed
on 3.6.2002, there is no justification for realising the penal charge
from the petitioner.
5. When Ext.P6 was issued, the petitioner approached
this Court by filing O.P.No.20648 of 2002 , which was disposed of
directing the Board authorities to reconsider the matter and thus,
the petitioner had preferred Ext.P7 before the second respondent
and he issued Ext.P8 order. As per Ext.P8, it is seen that he had
asked the Special Officer (Revenue), K.S.E.B,
Thiruvananthapuram to revise Ext.P6 bill and to effect
proportionate reduction in the penal charges for the period from
4.5.2002 to 15.5.2002 (11 days) in the penal bill for
OP NO.7109 OF 2003
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Rs.3,45,438/-. Thus, Ext.P9 was issued for an amount of
Rs.1,60,814/-, which is not in accordance with rules and
regulations which were in force during the relevant time.
6. In the light of the above discussion, it can be seen
that the Board is not entitled to realise penal charges from the
petitioner in the given facts and circumstances of the present
case and therefore, Exts.P5,P6,P8 and P9 are legally and
factually not sustainable and the same are liable to be quashed.
In the result, Exts.P5,P6,P8 and P9 are quashed and
the Original Petition is allowed.
V.K.Mohanan,
Judge
MBS/
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V.K.MOHANAN, J.
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O.P.NO. 7109 OF 2003
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J U D G M E N T
DATED: 15-6-2009
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