State Consumer Disputes Redressal Commission
1. Gayatri Deepak Supekar vs 1. The Executive Engineer, M.S.E. ... on 14 February, 2013
F.A.No.: 177-08
1
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION, MUMBAI.
CIRCUIT BENCH AT AURANGABAD.
First Appeal No. FA/08/177
(Arisen out of Order Dated 07/01/2008 in Case No. 247/2007 of District Forum,
Osmanabad)
1. Gayatri Deepak Supekar
R/o near pandurang darbar main road ,Osamanabad.
.....Appellant
Versus
1. The Executive Engineer, M.S.E. Distribution Co. Ltd.
Near Tajmahal Talkies, Osmanabad.
2. Mahadeo s/o. vishwanath Musale
R/o. Umbaregalli, Osmanabad, Dist. Osmanabad.
.....Respondents
BEFORE:
HON'ABLE MR. B.A.SHAIKH PRESIDING MEMBER
HON'ABLE MR. K.B.GAWALI MEMBER
PRESENT: Adv. B. S. Shinde, Advocate for the Appellant.
Adv. V. B. Deshmukh, for Respondent No.1.
Adv. S. A. Wakure, for Respondent No.2.
ORDER
PER HON'ABLE MR. B.A.SHAIKH PRESIDING MEMBER
1. This appeal is directed against the order dated 07.01.2008 passed by District Forum, Osmanabad in C.C.No. 247/2007, whereby the complaint has been dismissed.
2. The case of the complainant in brief is that, he obtained on rent a shop from its owner Shri. Dattatray Laxmanrao Maidarkar (Bhumkar) on 25.11.2005 for five years on monthly rent of Rs.500/-. He paid deposit of Rs.25,000/- to the owner of the shop. He is running Beauty Parlour in that shop. Electric connection F.A.No.: 177-08 2 is taken to that shop from the opponent No.1. He has paid bills of that connection regularly to the opponent No.1. However, Opponent No.1 & 2 in collusion with each other disconnected that electric supply in the month of June, 2007. The said connection was not restored in spite of making repeated requests by complainant to the opponent No.1. Therefore the complainant prayed that the direction be given opponent No.1 to restore electric supply to his shop and not to disconnect it without any reason. He further prayed that both the opponents be directed to pay him Rs.40,000/- towards loss sustained by him due to disconnection of electric supply, Rs.2000/- towards cost of litigation and Rs.5000/- towards mental harassment.
3. The opponent No.1 denied the case of the complainant by filing written version. It submitted that the complainant is not its consumer and that owner of the shop Mr. Dattatraya Laxmanrao Maindarkar had made an application to it to disconnect the electric supply of that shop as its premises were in dilapidated condition and during rainy season it had become dangerous, and therefore the electric supply has been disconnected to avoid mishap. It therefore submitted that complaint may be dismissed.
4. The opponent No.2 also denied the case of the complainant and submitted that Shri. Dattatraya Maindarkar sold the shop to him on 24.08.2006 and therefore complainant is not his tenant. He further submitted that the original owner had given the shop to the complainant only for storing his articles on temporary basis, and that the said premise has become dangerous as it is very old and dilapidated condition. He further submitted that on 08.08.2006 Shri. Dattatrya Maindarkar had made an application to the opponent No.1 for disconnection and after due inspection of the premises, disconnection has been made by the opponent No.1. He therefore requested that complaint may be F.A.No.: 177-08 3 dismissed.
5. The District Forum below after considering evidence brought on record and hearing both sides came to the conclusion that, the complainant does not fall within the meaning of definition of consumer as defined under section 2 (1) (d)
(ii) of Consumer Protection Act as he has produced no document showing the opponent No.2 has given consent to him for enjoying electric power connection. It also found that the electric connection given is not in the name of the complainant. It therefore dismissed the complaint.
6. It is submitted by Shri. B. S. Shinde, the learned Advocate appearing for the complainant that during pendancy of the complaint as per interim direction given by the District Forum, electric connection was restored to the said shop and the complainant also paid electric charges regularly. He further submitted that in the separate civil suit No. 203/2006 filed by the complainant against Dattatray Laxmanrao Maindarkar and his father Baburao Dattatraya Maindarkar, the Civil Court has granted injunction restraining them from interfering in possession of the complainant over that shop. He produced copy of that judgment and order passed by the Civil Court in said Civil suit No.203/2006. He therefore argued that the relationship in between the complainant and Dattatraya Laxmanrao Maindarkar as tenant and landlord is established in the aforesaid civil suit and hence consent of landlord is not necessary for filing the complaint. He relied upon observations made in the following cases:
i. Secretary, Thirumurugan Co-operative Agricultural Credit Society Vs. M. Lalitha (dead) through LR's & Ors, 2003 DGLS (soft) 86.
The Hon'ble Supreme Court observed that, the Consumer Court has power to decide the complaint in which the direction was sought to the society with either F.A.No.: 177-08 4 release paddy boxes or pay market value with interest and compensation. It is observed that, the cause of action is a consumer dispute and tobe decided by Consumer Forum.
i) Shri. Bhavani Prasad Banerjee Vs. Shri. Arabinda Thakur, II (1993) CPJ 968 (W.B. State Commission, Calcutta).
In that case the electricity of tenant was disconnected. The consent was not given for new meter by the landlord. The landlord filed a suit claiming unpaid rents and electricity charges. Therefore the Hon'ble West Bengal State Commission held that, the respondent (original complainant) is not debarred from getting electricity as sought for.
7. It is therefore submitted by the learned Advocate of the appellant that, the District Forum below has not considered the facts and the law properly and erroneously dismissed the complaint. He therefore requested that the impugned judgment and order may be set aside and complaint may be allowed.
8. On the other hand, Shri. V. B. Deshmukh, the learned Advocate appearing for the Respondent No.1 supported the impugned judgment and order and submitted that, the complainant is not a beneficiary as contemplated under section 2(1) (d) (ii) of Consumer Protection Act and he has no right to file complaint before District Forum.
9. Shri. S. A. Wakure, the learned Advocate appearing for Respondent No.2 also made submission that, the District Forum below has rightly dismissed the complaint. He also submitted that, the previous owner of the shop Mr. Dattatraya Maindarkar was necessary party to the complaint and he is not joined to the complaint, no relief can be granted to the complainant. The learned Advocate of the Respondent No.2 has relied upon the observations made in two cases in support of his submission that two parallel proceeding, one in District F.A.No.: 177-08 5 Forum and another in Civil Court can not be sustained under law. The said two cases will be discussed in the later course of this judgment.
10. It is not disputed that, the complaint filed before the District Forum is maintainable only when the complainant falls within the definition of the consumer as given under section- 2 (1) (d) of the Consumer Protection Act. The plain reading of the said provisions inter alia shows that in order to fall within the definition of consumer, a person either himself should hire or avail of services of another or he should obtain approval of the person who has hired or availed services of another for enjoying same. In the instant case admittedly services of the original opponent No.1 have been availed of by the Dattatraya Laxmanrao Maindarker who was the previous owner of the shop. It is not the case of the complainant that said Dattatraya Laxmanrao Maindarkar has given consent or approval to him for enjoying electric connection of that shop. On the contrary, it is specific case of the respondent that the said Dattatraya Laxmanrao Maindarkar had given application to the Respondent No.1 for disconnection of the said electric supply as it had become dangerous due to dilapidated condition of the premises of that shop. On the basis of that application the said electric connection has been disconnected. Therefore we hold that as the complainant has not proved that he was enjoying electric connection with the prior approval or consent of Dattatraya Maindarkar, it can not be said that he is beneficiary of the services of the electric connection availed by said Dattatraya Laxmanrao Maindarkar. Hence the complainant does not fall within the definition of the 'consumer' given under section 2 (1) (d) (ii) of the Consumer Protection Act. The District Forum below has rightly dismissed the complaint on this ground.
11. It is also not disputed that the complainant had also filed a parallel civil suit bearing No.203/2006 against Dattatraya Laxmanrao Maindarkar and his father Baburao Dattatraya Maindarkar. One of the prayers made in that suit was F.A.No.: 177-08 6 that the said defendants be directed not to disconnect the electric supply. The copy of the judgment and order passed by Civil Court in that suit is produced in their appeal. It shows that the Civil Court has declined to grant injunction against both the aforesaid defendants. In this regard the learned Advocate of the respondent No.2 has relied upon following decisions in following cases :
ii) Syndicate Bank & Another Vs. Supreme Medical Agencies, I (2001) CPJ 123. (Punjab State Commission)
iii) State Bank of India Vs. Shilender Chaudhary, IV (2010) CPJ 234 (Haryana State Commission) The ratio laid down in decision of both these cases is that parallel proceeding before the District Forum and the Civil Court for the same cause of action can not be sustained under law.
12. In the instant case also as seen above the parallel proceedings by filing complaint in District Forum and by filing civil suit in Civil Court were initiated by the complainant. In our view, when the Civil Court has declined to issue injunction to the complainant in the aforesaid civil suit in respect of same cause of action, no complaint for the same relief can be granted by the District Forum. Therefore on this ground also we hold that, the complainant is not entitled to relief sought for. Thus we find that, the decision in the aforesaid cases (mentioned in para No.6 above) relied upon by the learned Advocate of the appellant are of no assistance to the appellant since facts of the present case are totally different from those of the said case. Thus for the foregoing reasons we proceed to dismiss the appeal.
-:: ORDER ::-
1. The appeal is dismissed.
F.A.No.: 177-08 7
2. Both the parties shall bear their own cost.
Pronounced on 14th February, 2013 [HON'ABLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'ABLE MR. K.B.GAWALI] MEMBER Kalyankar