State Consumer Disputes Redressal Commission
Punjab State Power Corporation Limited vs Arun Oswal Son Of Shri Joginder Kumar ... on 18 October, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 641 of 2012
Date of institution: 21.5.2012
Date of decision : 18.10.2012
1. Punjab State Power Corporation Limited through its XEN, City
West Division, Near Fountain Chowk, Opposite SBI Main Branch,
Ludhiana.
2. Punjab State Power Corporation Limited through its SDO
Commercial, Sub Division under City West Division, Fountain
Chowk, Ludhiana.
.....Appellants
Versus
Arun Oswal son of Shri Joginder Kumar Jain, owner of M/s Arun Oswal
Yarn, Bahadurke Road, Ludhiana.
.....Respondent
First Appeal against the order dated 27.3.2012
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Shri. Piare Lal Garg, Presiding Member
Shri. Jasbir Singh Gill, Member Present:-
For the appellant : Sh. B.S. Taunque, Advocate
For the respondent : Sh. J.K. Jain, Representative
PIARE LAL GARG, PRESIDING MEMBER
M.A. No. 1009 of 2012
This appeal was filed after delay of 13 days. An application for condonation of delay has been filed. Respondent has filed the reply to the application.
We have gone through the application as well as reply filed by the respondent counsel. Reason given in the application justifies the delay in First Appeal No. 641 of 2012 2 filing the appeal, which is supported by an affidavit. As such, in the interest of justice, the delay of 13 days in filing the appeal is condoned.
Misc. Application stands disposed of.
Main Case This is an appeal filed by the appellant-Punjab State Power Corporation Ltd.(hereinafter called 'the appellant') against the order dated 27.3.2012 of the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter called the 'District Forum') by which the complaint of the respondent/complainant(hereinafter called 'the respondent') was accepted by the District Forum.
2. Brief facts of the case are that the respondent was having MS electric connection bearing A/c No.W42CN060195M with sanctioned load of 41.8 KW, which was extended upto 67 KW by depositing the requisite security amount by the respondent with the appellant. Lateron the said load was again extended upto 91 KW in the year 2003 by depositing additional security of Rs.24000/-. It was pleaded that the interest on security amount is admissible since long and adjustable in the month of May every year in the electricity bill as per the instructions of the appellants. The grouse of the respondent was that till date not a single rupee was adjusted by the appellant in his bill inspite of number of requests. Government by issuing latest Gazette Notification directed its staff to implement the instructions pertaining to interest of security deposit under supply code of July 2007 as per Regulation No. 17 and Sub-paras 17.1 to 17.4 of the Gazette Notification. This action of the appellant amounts to unfair trade practice and deficiency in service on its part and the complaint was filed with the prayer that the appellant may be directed to adjust amount of Rs.80,000/- approximately in his account, pay interest on the said amount and also prayed for compensation on account of harassment, financial loss and litigation expenses etc. First Appeal No. 641 of 2012 3
3. Upon notice the appellant replied by taking preliminary objection that the respondent has not come to the District Forum with clean hands and with malafide intention filed only two pages of the Gazette Notification dated 27.7.2007. On merits, it was admitted that the respondent was using the electric connection. It was also admitted that as per Regulation No.17 of the instructions, the respondent was entitled for interest on security amount deposited by him but Regulation No.15.1 states as under:
"Consumers will maintain with the Licensee an amount equivalent to consumption charges (ie., fixed charges and variable charges as applicable) for three months where bi-monthly billing is applicable and two months in case of monthly billing as security during the period of agreement for supply of electricity. Consumption charges will be worked out on the basis of average monthly consumption of an existing consumer over a period of twelve months immediately before coming into force of these regulations".
4. In this case, the average consumption of the meter installed in the premises of the respondent comes to Rs.19,02,926/- for twelve months, so the security for two months comes to Rs.3,17,154/- on which interest amounting to Rs.59,457/- is payable to the respondent, as such, the amount of Rs.2,57,697/- is due from the consumer. Whereas, regulation No.17.1 reads as under:
"The Licensee will pay interest on Security (consumption) at the SBI's Long Term PLR prevalent on first of April of the relevant year, provided that the Commission may at any time by notification in official Gazettee of the State specify a higher rate of interest".
It was pleaded that the supply code has however not been implemented by the Corporation. Moreover, as per Gazettee Notification, they are ready to pay/adjust the amount of interest in the account of the respondent/consumer. All other allegations were denied and dismissal of the complaint was prayed.
First Appeal No. 641 of 2012 4
5. Learned District Forum after hearing the learned counsel for the parties and going through the record, allowed the complaint and the appellant was directed to pay the interest on security since its deposit and in accordance with law (as per aforesaid provision 17.1), and also directed to re-examine the security deposit and adjust amount of Rs. 80,000/-, if it was found to be adjustable within 30 days from the receipt of the copy of the order.
6. Hence, the appeal.
7. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. The present appeal is filed on the grounds that the amount in dispute was not deposited as security by the respondent but it was deposited as Advance Consumption Deposit(A.C.D) and in Petition No. 1317 of 1990 filed by "M/s Punjab Con-Cost Pvt. Ltd. Vs. PSEB" the Hon'ble Supreme has held that there was no liability on the State Electricity Board to pay any interest on the A.C.D. which is mainly to secure prompt payment and intended for appropriation and even prior to the publication of the Electricity Code, 2007 no liability was fastened on the appellants to pay any interest to any of its consumer on the deposit of the amount as A.C.D./Security with the appellants. The Electricity Supply Code, 2007 was come into force w.e.f. 1.1.2008 and applicable prospectively, as such, the order of the District Forum for the payment from 2003 is against the Electricity Supply Code, 2007.
9. The respondent was using the electricity connection for 'commercial purpose' as such, he does not fall under the definition of 'consumer' and the complaint of the respondent was liable to be dismissed on this score only.
First Appeal No. 641 of 2012 5
10. We have perused the complaint which is annexed as Annexure A-9 with the appeal. It is pleaded in the complaint that the respondent was a consumer of the appellants as having MS connection of 91 KW load but nowhere in the complaint it is pleaded by the respondent that he had obtained the MS connection of 91 KW load to run the business to earn his livelihood. The Section 2(1)(d)(ii) deals with the definition of consumer, which is reproduced:-
"consumer" means any person who---
(ii) [hires or avails of] any services 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 services other than the person who [hires or avails of] the services for consideration paid or promised, or partly 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 services for any commercial purpose];
(Explanation - For the purposes of this clause, "commercial purpose"
does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment].
11. The word "commercial purpose" has not been defined in the Act and the Hon'ble Supreme Court way back in case "Laxmi Engineering Works Vs P.S.G. Industrial Institute", II (1995) CPJ-1(SC), interpreted the same and observed in Para-10 (relevant portion) as follows:-
"The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment", make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we First Appeal No. 641 of 2012 6 say. A person who purchases an auto-rickshaw and ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
12. In a recent judgment in case "Birla Technologies Ltd. Vs Neutral Glass and Allied Industries Ltd.", Civil Appeal No.10650 of 2010 (Arising out SLP (C) No.9526 of 2010) decided on 15.12.2010, the Hon'ble Supreme Court observed in Para-9 as follows:-
"In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounts to 'goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 01.08.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1) (d)
(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the explanation which was introduced on the same day i.e. on 15.03.2003 by way of amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto".First Appeal No. 641 of 2012 7
13. In view of the above discussion and proposition of law, it is clear that the respondent does not fall under the definition of 'consumer' as such, the complaint filed by the respondent was not maintainable and the order of the District Forum is against Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
14. Accordingly, the appeal is accepted and the order under appeal is set-aside. Consequently, the complaint filed by the complainant is dismissed being not maintainable.
15. The arguments in this appeal were heard on 10.10.2012 and the order was reserved. Now the order be communicated to the parties.
16. The appellants had deposited an amount of Rs. 19,155/- with this Commission at the time of filing the appeal. This amount of Rs. 19,155/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 2 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
October 18, 2012. (Jasbir Singh Gill)
as Member