State Consumer Disputes Redressal Commission
Punjab State Power Corporation Limited ... vs Amolak Singh on 19 January, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.55 of 2023
Date of Institution : 23.01.2023
Date of Reserve : 03.01.2024
Date of Decision : 19.01.2024
1. Punjab State Power Corporation Limited, The Mall Patiala,
through its Chairman cum Managing Director.
2. Punjab State Power Corporation Limited, through AEE Sub
Division Dera Baba Nanak Gurdaspur, Gurdaspur.
....Appellants/Opposite parties
Versus
Amolak Singh, aged about 61 years, S/o Ujjagar Singh R/o Vill.
Bhagtana Bohranwala, Tehsil Dera Baba Nanak, District
Gurdaspur.
.....Respondent/complainant
2.
First Appeal No.56 of 2023
Date of Institution : 23.01.2023
Date of Reserve : 03.01.2024
Date of Decision : 19.01.2024
1. Punjab State Power Corporation Limited, The Mall Patiala,
through its Chairman cum Managing Director.
2. Punjab State Power Corporation Limited, through AEE Sub
Division Dera Baba Nanak Gurdaspur, Gurdaspur.
....Appellants/Opposite parties
Versus
Jasbir Kaur aged about 58 years W/o Amolak Singh S/o Ujjagar
Singh R/o Vill. Bhagtana Bohranwala Tehsil Dera Baba Nanak,
District Gurdaspur.
.....Respondent/complainant
First Appeal No 55 of 2023 2
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 09.09.2022 of the District
Consumer Disputes Redressal Commission,
Gurdaspur.
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present (F.A.No.55 of 2023):-
For the appellants : Ms.Swatantar Kapoor, Advocate For the respondent : Sh.G.S.Simble, Advocate HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This order will dispose of the above noted two appeals, which have been preferred by the different appellants/opposite parties- PSPCL & Anr. against the orders dated 09.09.2022 passed by District Consumer Disputes Redressal Commission, Gurdaspur, in similar set of complaints, whereby the complaint filed by the appellant/complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') was disposed off by passing the following order:
"15. In view of the above, we are of the considered opinion that there is no fault at the level of complainant and he has been made to suffer by opposite party due to deficiency in service on their part.
So this case can be best disposed off by giving direction to both the parties to process the case of the complainant for release of his AP connection at par with other similar applicants under same policy to whom opposite party has already released the AP connection.First Appeal No 55 of 2023 3
16. Hence complainant is directed to submit the required/ relevant documents again with opposite party No.2 within 30 days of issue of orders. Further opposite parties are directed to process the case of the complainant for release of his AP connection under relevant 2.5 acre land holding policy of the Department on the receipt of document from the complainant within 120 days from date of submission of the documents by the complainant. The complaint is hereby disposed off accordingly."
Facts are taken from F.A. No.55 of 2023. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
2. Briefly stated facts of the complaint are that the complainant applied for a tubewell connection under the scheme with the opposite parties in the y ear 2012 for irrigating his land and also deposited the fees with the opposite parties. He completed all the formalities, as required under the scheme and after that in 2017, Jarnail Singh, official of the opposite parties also visited the complainant to survey his land for the purpose of installation of tubewell connection but despite that connection has not been released to the complainant, though the other persons of the locality has been granted the connection by the opposite parties, who also applied for the same under the same scheme but after the complainant. The complainant requested number of times to the opposite parties to release the electricity connection as per the scheme but despite that no tubewell connection was released to the complainant, resultantly the complainant was compelled to file First Appeal No 55 of 2023 4 the present complaint with the prayer that the tube well connection be released to the complainant and to pay Rs.2,00,000/- on account of damages and litigation expenses.
3. Upon notice, opposite parties appeared and filed their written reply taking preliminary objections that the complainant has filed this complaint on frivolous grounds just to harass the opposite parties and also concealed the material facts from the court and this complaint is not maintainable. The complaint is bad for non- joinder and mis-joinder of the parties and the complainant has no cause of action to file the present complaint. On merits, they admitted that the complainant applied for tubewell connection in general category on 16.04.2007, whereas the opposite parties has released the connection under the general category upto 01.01.1998. The connections were released under the general category to those consumers who have given the option, whereas no option was given by the complainant to the opposite parties for getting the tubewell connection in dispute. The opposite parties are still ready to release the tubewell connection to the complainant but as per his turn. No application has been given by the complainant and connection will be released only as per his turn. They further denied the other submissions as averred by the complainant in his complaint and prayed for dismissal of the complaint.
4. The parties led their evidence in support of their respective contentions before the District Commission and after hearing the First Appeal No 55 of 2023 5 contentions of the parties, the complaint was disposed off, vide impugned order dated 09.09.2022
5. Aggrieved by the said order, this appeal has been filed by the appellants/opposite parties for setting aside the impugned order dated 09.09.2022 and to allow their appeal.
6. We have heard the contentions of the parties and have carefully gone through the record as well as written arguments filed by the appellants/opposite parties. We have also given our thoughtful consideration to the same.
7. Learned counsel for the appellants/opposite parties filed the written argument and also addressed the oral contentions. The foremost contention of the learned counsel for the appellants/opposite parties is that the respondent/complainant is not a consumer as per the provisions of Consumer Protection Act because the appellants/opposite parties never issued any demand notice to the respondent/complainant and there was no connection on his name so he is not a consumer qua the appellants/opposite parties. It is further contended that whenever the AP policy is announced, the same was published in the newspapers as well as announced in the village Gurudwaras for the applicants to submit their undertaking and the same was forwarded to the concerned JE, who after inspection of the site prepares the estimate on the basis of which the demand notice is sent but the site of the respondent / complainant was never inspected as the applicant has to file the undertaking qua ownership of the land holding. First Appeal No 55 of 2023 6
8. With regard to the contention of the learned counsel for the appellants/opposite parties that the respondent/complainant was never the consumer viz-a-viz the appellants/opposite parties are concerned because no demand notice was issued. It has to be seen under the provisions of the Consumer Protection Act if the respondent/complainant fall within the four corners of the provisions of the Consumer Protection Act to seek the remedy under this law. As per the record available on the file, it proves that the respondent/complainant applied for a tube well connection with the appellants/opposite parties in the year 2012 and deposited the requisite fee of Rs.1,000/- but the appellants/opposite parties failed to provide him the electricity connection, rather he has been thrown out of the line from priority basis to general category and it is very well fall under the service. To ascertain this issue, it is relevant to mention here Section 2(7) of the Act, which is as under:
"2. Definition- In this Act, unless the context otherwise requires,-
(7) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system or deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or First Appeal No 55 of 2023 7
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation - For the purpose of this clause,-
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing."
Further, the definition of service as enshrined in the Consumer Protection Act, 2019 is reproduced hereunder:
"42. "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."First Appeal No 55 of 2023 8
9. The careful perusal of the above said provision says that any person who avail the service of the appellants/opposite parties for his own use is definitely cover under the Consumer Protection Act, qua the consumer is concerned. In this case also, the complainant, who applied for the electricity connection for his own personal use i.e. for agricultural purpose after paying the requisite fee, is fully entitled to the service to be provided by the appellants/opposite parties and by all means is a consumer. Though, learned counsel for the appellants/opposite parties has contended that since the demand notice was not issued to the respondent/complainant and as nobody visited to the site of the respondent/complainant, he is not a consumer qua the appellants/opposite parties concerned, is totally untenable because once the appellants/opposite parties launched the scheme for releasing the AP connections to the general public and collected the fee from the users/needed persons, then definitely the appellants/opposite parties became the service provider and the respondent/complainant or applicant become the consumer qua the product/service i.e. electricity of the appellants/opposite parties. The case law "U.P. Power Corp. Ltd. Vs. Anil Ahmad" reported in (2013) 8 SCC 491", as mentioned by learned counsel for the appellants/opposite parties in her written arguments, is not applicable to the facts of the present case because in that case the electricity was being used for commercial purpose and it does not bar the farmers or agriculturist to apply for the new electricity First Appeal No 55 of 2023 9 connection after making the relevant payment. Even in the end of judgment, as referred by the appellants/opposite parties, the Hon'ble Supreme Court also observed as under:
"(iii) The Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to "unfair trade practice" or a "restrictive trade practice adopted by the service provider"; or "if the consumer suffers from deficiency in service"; or "hazardous service"; or "the service provider has charged a price in excess of the price fixed by or under any law."
10. The other contention raised by learned counsel for the appellants/opposite parties is that the present complaint is badly barred by limitation, though no such objection was ever raised by the appellants/opposite parties before the District Commission. Still this is being a legal objection can be raised by the appellants/ opposite parties at this stage. Learned counsel for the appellants/ opposite parties pressed that the respondent/complainant applied for the electricity connection in the year 2012 and he instituted this complaint on 16.01.2019 i.e. after about 6 years and is badly barred by limitation. On this score, she also relied upon various authorities of the Hon'ble Supreme Court which are as under:
"1. U.P. Financial Corporation Ltd. And Naini Oxygen and Acetylene Gas, decided on 22.11.1994 (SC).First Appeal No 55 of 2023 10
2. Union of India and Anr. Vs. British India Corporation Ltd., decided on 25.03.2003 (SC).
3. Gannmani Anasuya & Ors. Vs. Parvatini Amarendra Chowdhary & Ors., decided on 17.05.2007 (SC)
4. State Bank of India Vs. M/s B.S.Agricultural Industries (I), decided on 20.03.2009 (SC)
5. Managing Director, Maharashtra State Financial Corporation & Ors. Vs. Sanjay Shankarsa Mamrde, decided on 09.07.2010 (SC).
11. No doubt, as per the provisions of Section 69 of the Consumer Protection Act, 2019, Limitation Period is specified as under:
"69. Limitation period- (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay."
12. Referring to the above mentioned provisions of the law and also relying upon the case laws, learned counsel for the appellants/ opposite parties with great eloquence contended that the present complaint is badly barred by limitation because as per the version First Appeal No 55 of 2023 11 of the respondent/complainant he applied for the electricity connection in the year 2012 and deposited the fee, whereas the complaint was filed on 16.01.2019, which is badly barred by limitation and cannot be entertained. She also referred to various authorities, mentioned in para 10 above.
13. No doubt, the law and the provisions as enshrined under the Consumer Protection Act clearly shows that the complaint is required to be filed within the period of two years from the date on which the cause of action arisen. Though, the cause of action has not been defined in the Act but it is of wide import and it would have different meaning in different context while considering the limitation. In the case in hand, the respondent/complainant applied for electricity connection and deposited the fee and this fact itself was admitted by the appellants/opposite parties and still they contended that they are ready to give him the connection as per the seniority list. This also reflects that the cause of action is still open qua the complainant is concerned as per the above version of the appellants/opposite parties.
14. In the present case, the cause of action arisen to the respondent/ complainant in the year 2012 when he applied for the electricity connection and deposited the requisite amount and it is also admitted by the appellants/opposite parties that he applied for the electricity connection in General Category in 2012 and his case is still pending and they even go further to admit the fact in their written reply and also in the grounds of appeal that they are still First Appeal No 55 of 2023 12 ready to release the connection as per his seniority list. Although, as per the facts of the case in hand, the first cause of action arises to the respondent/complainant in 2012, when he applied for the electricity connection. The cause of action has not been defined anywhere and the cause of action for which the suit was brought. The cause of action means which gives occasion for and forms the foundation of the suit. In the present case, the cause of action starts when the respondent/complainant first applied for the connection and it continue further because the case of the respondent/complainant was never rejected by the appellants/ opposite parties at any stage and he continuously waited for the action to be taken and the connection to be released to him. When the appellants/opposite parties themselves admitted that they are still ready to release the connection even now as per his turn and definitely the cause of action is continuous and it is not ended. Hence, the objection raised by the appellants/opposite parties that the complaint filed by the respondent/complainant is barred by limitation is not tenable. Even this is held by the Hon'ble Supreme Court in its judgment passed in Civil Appeal No.7033 of 2009 titled 'National Insurance Company Ltd. Vs. M/s Hareshwar Enterprises (P) Ltd. & Ors.'. The relevant para of the judgment is mentioned as under:
'8. If in the above context the fact situation herein is noticed, though the fire incident occurred on 06.11.1999, the same merely provided the cause of action for the first time to First Appeal No 55 of 2023 13 make the claim but the same did not remain static at that point. On the other hand, the process of joint survey though had concluded with its final report on 13.03.2001, the letter dated 22.06.2001 addressed by the insurer to the respondent No.1 regarding appointment of the investigator had created a fresh cause of action and kept the matter oscillating.
Thereafter, the matter did not rest at that but there was repeated action being taken by the investigators seeking for details. When the same did not conclude in an appropriate manner, the respondent No.1 (Insured) got issued a legal notice dated 05.01.2003 to which reply was issued, when in fact the repudiation was gathered and the complaint was filed. Even if the date on which the process of intimation of appointment of the investigator through the letter dated 22.06.2001, received by the respondent No.1 is taken into consideration, from that date also the complaint filed on 26.03.2003 is within time. There was no need for the NCDRC to pass any separate order at the outset to hold the claim to be within limitation and then proceed when it is clear on the fact of it. As such, the consideration of the complaint on merits by the NCDRC was justified. The contention therefore urged by Mr.Vishnu Mehra, learned counsel on that ground is accordingly rejected.'
15. Moreover, the fee deposited by the respondent/complainant with the application was never refunded to him, which keeps the First Appeal No 55 of 2023 14 case of the respondent/complainant open to file the consumer complaint and is very much within the limitation. On the other hand, the case law as referred by learned counsel for the appellants/ opposite parties is not applicable to the facts of the present case.
16. In the present case, the cause of action is continuously running from the date when the respondent/complainant applied for the electricity connection under the scheme launched by the appellants/ opposite parties, though, not a single document has been produced by the appellants/opposite parties that what are the terms and conditions of the scheme and when this scheme was launched and when it was stopped by the Government, so this scheme remain opened till date and the appellants/opposite parties are doing pick and choose policy to allot the connection to their favour ones and ignoring the other eligible persons by taking the irrelevant please of limitation and that of incomplete documentation.
17. Since the appellants/opposite parties themselves have admitted that they launched the scheme for AP connections under which the respondent/complainant applied for the same and has further alleged that they are still ready to issue the AP connection to the respondent/complainant as per the seniority list but not even a single document has been placed on record that what seniority list they have prepared and where on merits the case of the respondent/complainant stands. This shows that the appellants/ First Appeal No 55 of 2023 15 opposite parties are hiding the correct information from the District Commission and are taking the lame excuses that as per the seniority list the complainant number is not there for release of the connections and it is not possible for them to release the connection as per the directions given by the District Commission, which is not acceptable. It was the duty of the appellants/opposite parties strictly to be proved regarding any such seniority list and the connection released as per the seniority list and the turn of the respondent/complainant where he stands and in the lack of any such information, the Commission is not inclined to interfere in the findings of the District Commission for the release of the electricity connection within 120 days after receipt of the relevant documents from the respondent/complainant.
18. Sequel to the above discussions, we do not find any merit in the appeal filed by the appellants/opposite parties and the same is hereby dismissed. The order of the District Commission is upheld. First Appeal No.56 of 2023
19. This appeal has been filed by appellants/opposite parties- PSPCL & Anr. challenging the order dated 09.09.2022 passed by the District Commission, Gurdaspur on the similar grounds. The facts of the F.A. No.56 of 2023, arising out of Consumer Complaint No.162 of 2019 are almost similar to the facts of the F.A. No.55 of 2023 arising out of Consumer Complaint No.161 of 2019. First Appeal No 55 of 2023 16
20. In view of the findings recorded in F.A. No.55 of 2023 titled "PSPCL & Anr. Vs. Amolak Singh", this appeal is also dismissed and the order of the District Commission is upheld.
21. The appeals could not be decided within the statutory period due to heavy pendency of the court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER January 19th,2024 parmod