State Consumer Disputes Redressal Commission
Punjab State Power Corporation Limited ... vs Arun Singla on 15 March, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.959 of 2022
Date of institution : 09.11.2022
Date of decision : 15.03.2023
1. Assistant Executive Engineer, Commercial Estate Sub-Division,
Punjab State Power Corporation Ltd., Ludhiana (Punjab).
2. Punjab State Power Corporation Ltd., Registered Office, The
Mall, Patiala, through its Authorized Signatory.
....Appellants/OPs
Versus
Arun Singla son of Raj Kumar, 1057/15, Muradpura, Vish Karmpur,
Ludhiana (Punjab).
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 13.04.2022 passed by the
District Consumer Disputes Redressal
Commission, Kapurthala (Camp Court at
Ludhiana).
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellants : Dr. Sukant Gupta, Advocate
For the respondent : Sh. Abhimanyu Kalsy, Advocate.
First Appeal No.959 of 2022 2
JUSTICE DAYA CHAUDHARY, PRESIDENT
Appellants/OPs i.e. Assistant Executive Engineer, Commercial Estate Sub-Division, Punjab State Power Corporation Ltd., Ludhiana and another have filed the present appeal under Section 41 of the Consumer Protection Act, 2019 against the order dated 13.04.2022 passed by the District Consumer Disputes Redressal Commission, Kapurthala, Camp Court at Ludhiana (in short, "the District Commission"), whereby the complaint filed by the respondent/complainant Arun Singla was partly allowed and the supplementary bill dated 07.01.2016 amounting to ₹1,01,271/- was set aside. The appellants/OPs were directed to adjust the amount deposited by the complainant with them towards future bills, which were accepted during the said period along with interest at the rate of 6% per annum from the date of its deposit till its realization. The OPs were also directed to pay an amount of ₹25,000/- as compensation for causing mental tension and agony to the complainant and ₹5,000/- towards litigation expenses. The compliance of the order was to be made within a period of one month from the date of receipt of copy of the order.
2. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
First Appeal No.959 of 2022 3
3. The complaint was initially filed before the District Commission, Ludhiana and thereafter it was transferred to the District Commission Kapurthala, to be decided at Camp Court at Ludhiana as per order dated 26.11.2021 passed on administrative side by this Commission.
4. Briefly, the facts of the case as made out by the respondent/complainant before the District Commission were that he was running a small unit of assembling of cycle parts and packing of hosiery goods for earning his livelihood by way of self-employment and to provide bread and butter to his family members. It was also mentioned that for running the said small unit, the complainant obtained NRS electricity connection of 8.900 KW from the OPs in the year 2005. Subsequently, it was enhanced to 17.9 KW in the month of April, 2012. Further it was mentioned that at the time of installation of new meter of more kilowatt, the old meter was neither packed nor sealed in a sealed cover in the presence of the complainant. It was not sent to ME Lab. It was also mentioned that the meter was not opened/checked in the ME Lab. and no ME Lab. report was supplied to the complainant. Further it was mentioned that after increase of the load, the Meter Reader of OP No.1 had been visiting regularly the premises of the complainant and used to record the reading of the meter also. Thereafter the bills used to be sent regularly. The bills used to be received by the complainant and the status of meter was First Appeal No.959 of 2022 4 shown to be 'OK'. Meaning thereby the meter was running correctly. Thereafter on 07.01.2016, the complainant was surprised to receive a supplementary bill, which was stated to be based on Audit Report dated 10.12.2015. The complainant was asked to pay an amount of ₹1,01,271/- towards arrears of the connection for the period w.e.f. May, 2013 to September, 2013. The complainant requested OP No.1 to supply certain documents relating to supplementary bill but only the Audit Report dated 10.12.2015 was supplied, wherein it was mentioned that said amount of ₹1,01,271/- was due to some old arrears for the said period as mentioned above, which was to be recovered from the complainant. Thereafter, a number of requests were made to OP No.1 to consider the issue but nothing was done. The action of the OPs was stated to be of 'deficiency in service' as well as 'unfair trade practice', which had caused great mental tension and harassment to the complainant.
5. The prayer was made in the complaint for issuance of directions to the OPs to quash the supplementary bill dated 07.01.2016 for ₹1,01,271/- and also to quash the sundry charges of said amount as reflected in the bill for the month of February, 2016 and ₹3,271/- which was illegally and unlawfully recovered from the complainant be refunded along with interest at the rate of 18% per annum. The prayer was also made for issuance of direction to the OPs First Appeal No.959 of 2022 5 to pay an amount of ₹50,000/- for causing mental tension, pain, agony and harassment and ₹35,000/- towards litigation expenses.
6. Upon issuing notice to OPs, they appeared and filed reply. Certain preliminary objections were raised in the reply stating therein that the complaint was not maintainable as the complainant was not falling under the definition of Section 2 (1) (d) of the Consumer Protection Act, 1986. On merits, it was mentioned that the unit was being run for commercial purpose and not for earning livelihood. The supplementary bill was served upon the complainant, as he was found using the electricity against the sanctioned load and the electricity was consumed during that period for commercial purpose. It was also mentioned in the reply that the new meter was installed and old meter was taken into possession by following the required procedure and the Rules and Regulations of the PSEB. Thereafter, the supplementary bill was served upon the complainant on 07.01.2016, which was based on the Audit Report dated 10.12.2015 and the same was legally correct and enforceable. Other averments made in the complaint were specifically denied and at the end, it was mentioned that the complaint was liable to be dismissed being not maintainable and having no merits therein.
7. By considering the averments made in the complaint and reply thereof filed by the OPs and also after hearing the arguments raised by both the parties, the complaint was partly allowed vide First Appeal No.959 of 2022 6 impugned order dated 13.04.2022 and the supplementary bill of ₹1,01,271/- was set aside by directing the OPs to adjust the amount so deposited by the complainant with them in the next bills which had been charged during said period along with interest at the rate of 6% per annum from the date of its actual deposit till its realization. The OPs were also directed to pay the compensation and litigation expenses, as mentioned above.
8. Said order has been challenged by the appellants/OPs by way of filing the present appeal by raising a number of arguments.
9. Dr. Sukant Gupta, learned counsel for the appellants/OPs submits that he does not want to file any written arguments and the grounds of appeal may be treated as written arguments. Learned counsel further submits that the respondent/complainant had approached the District Commission without exhausting the alternative remedy available to him as per statutory provisions. In case the complainant was aggrieved by the decision of the Audit Party, he should have approached the 'PSPCL Disputes Settlement Committee' under the 'Electricity Supply Instruction Manual' (in short, 'ESIM'). Section 42 (5) of the Electricity Act, 2005 as well as Section VIII of the ESIM provide a mechanism for redressal of the grievances of the consumers and without exhausting said alternative remedy available to the complainant, the complaint was filed by him before the District Commission, which was not maintainable. Learned counsel further First Appeal No.959 of 2022 7 submits that the respondent/complainant was not falling within the definition of consumer and he himself had stated that he was using the electricity connection for running a unit for assembling of cycle parts as well as for packing the hosiery goods, which was admittedly a commercial activity and for that purpose, the electricity connection was issued under the 'Non Residential Supply' (NRS) category. It was wrongly mentioned by the complainant that the unit was being run for earning his livelihood by way of self-employment but no evidence in support of his contentions was placed/brought on record. Learned counsel further submits that it has been held in a number of judgments that recovery of additional demand/amount after detecting a mistake does not tantamount to 'deficiency in service' and this fact has not been considered by the District Commission and the complaint was partly allowed. Learned counsel further submits that the disputed supplementary bill was based on the actual consumption of electricity based on Audit Report and an amount of ₹1,01,271/- was claimed on account of arrears for the period from May, 2013 to September, 2013 and it was rightly demanded from the complainant. Learned counsel further submits that the District Commission has failed to appreciate that there was no 'deficiency in service' on the part of the OPs and no specific finding has been recorded and the finding so recorded is without any evidence. The order passed by the District Commission is totally based on conjectures and surmises and the stand taken in the First Appeal No.959 of 2022 8 reply as well as oral arguments has not been taken into consideration. Learned counsel also submits that it is apparent from the observation made by the District Commission in Para-9 of the impugned order that none appeared on behalf of both the parties to address arguments on 04.04.2022 and the order was kept reserved. Thus, the words in Para- 9 of the impugned order itself show that the impugned order was passed without hearing the arguments.
10. Mr. Abhimanyu Kalsy, learned counsel for the respondent/ complainant has not disputed the argument raised by learned counsel for the appellants/OPs that no counsel had appeared and argued before the District Commission at the time of keeping the order reserved. Learned counsel however has opposed the submissions made by learned counsel for the appellants/OPs to the extent that it was a small unit which was being run by the complainant for the purpose of earning his livelihood and only two workers were working in the said unit, where the activities of packing of hosiery goods were carried out. Some more evidence was required to be adduced by both the parties. In absence of any such evidence, the order was passed by the District Commission. Learned counsel also submits that the case be remanded to the District Commission to consider all these aspects.
11. Heard the arguments of learned counsel for both the parties. We have also carefully perused the impugned order passed by First Appeal No.959 of 2022 9 the District Commission and all the relevant documents available on the file.
12. Facts regarding filing of the complaint by the complainant before the District Commission, reply thereto filed by the appellants/OPs, partly allowing of said complaint and thereafter filing of the present appeal by the appellants/OPs are not in dispute.
13. On perusal of the impugned order dated 13.04.2022, it is apparent that neither the parties were present nor their counsel at the time when the order was kept reserved by the District Commission. Meaning thereby the case was kept reserved at the back of both the parties and their counsel. Although oral arguments have been raised by both the parties and certain issues have been raised by both the sides, which have not been properly appreciated/discussed in the order under challenge as the matter was kept reserved and subsequently, it was pronounced. Whether the unit was being run for earning profits or livelihood is a matter of evidence. Certain other facts are also involved which are required to be considered on the basis of certain documents and evidence to be produced on record by both the parties. Simply by affirming or denial from either side is not enough for reaching to the right conclusion. Both the parties are required to adduce some additional evidence in support of their respective contentions before the District Commission. Accordingly, we deem it First Appeal No.959 of 2022 10 appropriate to remand the case to the District Commission for deciding the complaint afresh.
14. Accordingly, the appeal is allowed and the impugned order dated 13.04.2022 passed by the District Commission is set aside. The case is remanded to the District Commission with the direction to decide the complaint afresh on merits, without being influenced by the order passed earlier and after granting sufficient opportunity to both the parties to adduce evidence and to address their respective arguments. Both the parties are also at liberty to adduce/produce additional evidence in support of their respective contentions if any for reaching to the right conclusion.
15. As already mentioned above, the complaint was initially filed before the District Commission, Ludhiana and the same was transferred to District Commission, Kapurthala (to be decided by the Camp Court at Ludhiana) as per administrative order dated 26.11.2021 passed by this Commission. It has also been mentioned in the order dated 26.11.2021 that after the disposal of the case, the file shall be sent back to the original District Commission to which the case belongs. Since the case is being remanded to the District Commission, so the parties through counsel are directed to appear before the original District Commission, Ludhiana on 28.04.2023. First Appeal No.959 of 2022 11
16. Record of the case be also returned to the District Commission, Ludhiana.
17. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.
18. The appellants had deposited a sum of ₹42,920/- at the time of filing of the appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to appellant No.1 by way of a crossed cheque/demand draft after the expiry of limitation period in accordance with law.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 15, 2023.
(Gurmeet S)