State Consumer Disputes Redressal Commission
C.G.State Power Distribution Co.Ltd. & ... vs Sanjay Singhi on 6 March, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2515)
Appeal No.234/2011
Instituted on : 15/04/2011
1. C.G. State Power Distribution Company Limited,
Through : Executive Engineer (O & M),
Rajnandgaon (C.G.)
2. C.G. State Power Distribution Company Limited,
Through : Junior Engineer, Ghumka,
Tehsil & District : Rajnandgaon (C.G.) .... Appellants.
Vs.
Sanjay Singhi, S/o Dr. Tarachand Singhi,
R/o : Vardhmaan Nagar,
Rajnandgaon (C.G.) .... Respondent.
PRESENT :
HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri R.K. Bhawnani, for appellants.
Shri Sanjay Tiwari, for respondent.
ORDER
DATED : 06/03/2012 PER :- HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT This appeal has arisen out of the order, dated 18.03.2011 of District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (hereinafter called "District Forum" for short), passed in Complaint Case No.36/2010,whereby the appellants herein, have been directed to pay Rs.60,000/- to the complainant, along with interest @ 9% p.a. from the date of its recovery till date of payment and also to pay a sum of // 2 // Rs.2,000/- as cost of litigation and also not to enforce the demand bill of Rs.1,81,101/- issued by Electricity Supply Company to the complainant/respondent as additional bill.
2. The case of the complainant/respondent before District Forum was that an industry was being run by him after seeking financial assistance from Khadi Gramodyog Board, under the category of Small Industry and thereafter the electricity supply connection was sought from the appellants herein, which was provided after execution of documents between the parties containing terms and conditions of the supply of electricity. It has been averred that the complainant/respondent, was paying electricity bill as per demand made by the appellants and business concern of the complainant/respondent, was not a commercial organization, but was an industry, as per categories fixed by the Electricity Supply Company, but even then the officers of the Electricity Supply Company mistakenly presumed the concern of the complainant/respondent as a business concern and a bill of Rs.1,81,101/- for past supply was issued pertaining to years 2002 to 2006. Issuance of such bill comes in the category of deficiency in service. The Electricity Supply Company was insisting to pay the amount of bill, otherwise was threatening to disconnect the supply and so, under protest an amount of Rs.60,000/- was deposited with the Electricity Supply Company and then consumer complaint was // 3 // filed before District Forum seeking prohibitory order against the Electricity Supply Company for recovery of the amount billed. It has further been stated by the complainant in the complaint that in the unit of the complainant, metal is to be mixed with hot tar coal and it is a hot mixed unit which prepare hot mixed metal with tar, which is used for the purpose of road construction and to other places also, thus, it was an industry and not a commercial unit.
3. The appellants herein, in written version have averred that in the unit of the complainant, there is no finished products of some goods, but simply hot mix of metal and tar for the purpose of construction of road, so the unit was not an industry, but was a commercial organization, and therefore, demand was raised treating the electricity supply connection of the complainant as commercial supply and not as industrial supply and in doing so, the appellants have not committed any deficiency in service, because the bill was issued on the basis of Report of the Auditor following the rules and regulations.
4. Learned District Forum, after having considered the material placed before it by both parties allowed the complaint in terms stated herein before.
5. We have heard the arguments advanced by both parties and perused the record of the District Forum.
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6. The first question for consideration arises before us is whether the complainant/respondent comes in the category of "consumer" as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter called "Act" for short) and whether the complaint filed by the complainant before District Forum was maintainable under the provisions of the Act.
7. The definition of the "consumer" under Section 2(1)(d) of the Act, is as under :-
"(d) "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 of 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
(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 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;"
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8. In the aforesaid definition under Section 2(1)(d)(ii) of the Act, the words "but does not include a person who avails of such services for any commercial purpose", have been inserted by amending Act 62 of 2002 w.e.f. 15-3-2003. Thus, prior to the insertion of the aforesaid words in the definition, if there is a case of availing services or hiring services on consideration, and if there is some deficiency in service, then everyone who avails such services or hire such services on payment comes in the category of "consumer", but after insertion of the aforesaid words in the description, if the services are hired or availed for any commercial purpose, then such person, who avails or hire services for commercial purpose, is excluded from the aforesaid definition. Of course, the explanation, which was also added by the same amending Act 62 of 2002, w.e.f. 15-3-2003 further provides that if any person avails services exclusively for the purpose of earning livelihood by self employment, then the words "commercial purpose"
will not include such person for the purpose of the aforesaid clause.
9. A combined reading of Explanation as well as definition of "consumer" makes it very clear that as and when services are hired or availed by any person on payment for commercial purpose, then unless such services are hired or availed by such person, for the purpose of earning livelihood by self employment, such person does not come in the category of "consumer".
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10. Learned counsel for the complainant/respondent has placed very heavy reliance upon a pronouncement of Hon'ble Supreme Court in the case of Karnataka Power Transmission Corpn. & Anr. Vs. Ashok Iron Works Pvt. Ltd., III (2009) 5 (SC), and submitted that in that case, though services were hired by a business concern for supply of electricity, but even then, the complainant was treated as "consumer".
11. We have gone through the aforesaid reported case.
12. From the facts narrated in paragraph No.2 of the aforesaid judgment, it is clear that in that case in the month of February, 1991, an amount of Rs.8,40,000/- was deposited with Karnataka Power Transmission Corpn. for supply of electricity, but the supply was not commenced and then the respondent company approached Karnataka High Court. The actual supply of the power was commenced in the month of November, 1992 and then the company filed a complaint under the Act for claiming damages. Thus, it is clear that the cause of action and the incident in the aforesaid case was of a period prior to the date of insertion of the words "commercial purpose" in the definition of "consumer" under Section 2(1)(d) and prior to the insertion of the explanation in the definition, whereas in the facts of the present case, the story is quite different. The disputed bill has been issued by the Electricity Supply Company much after the // 7 // insertion of the aforesaid words in the definition of the "consumer" and so no benefit can be derived by the complainant/respondent from whatever has been held by Hon'ble Apex Court in the aforesaid case.
13. In the same case of Karnataka Power Transmission Corpn. & Anr. (supra), Hon'ble Apex Court in paragraph No.22 has further held that supply of electricity by Karnataka Power Transmission Corporation to a consumer is not sale or purchase of goods within the meaning of Section 2(1)(d)(i) of the Act. It has been observed in paragraph No.24 that expression 'supply' is not synonym for 'sale' . It has been reiterated what has been stated by the Court in Southern Petrochemical Industries Co. Ltd. (supra) that supply does not include a person who avails of such services for any commercial purpose inserted in Section 2(1)(d)(ii) by the Act 62 of 2002 is not applicable in the facts and circumstances of that case since the controversy relates to the period prior to amendment.
14. Thus, the ratio of the aforesaid case is that supply of electricity is not sale and purchase of something, but it is a service and that question of controversy of that case were of dates prior to date of amendment in the definition of "consumer", so the ratio of that case does not apply in the facts of the present case.
15. Earlier in the case of Cholamandalam DBS Finance Ltd. & Anr. Vs. Jogender Singh, I (2011) CPJ 225, this Commission has // 8 // considered the similar questions and while considering the definition of "consumer" and considering the law laid down by Hon'ble Supreme Court and Hon'ble National Commission in many cases, it was held that as complainant of that case had purchased two vehicles by obtaining finance, so purchase was not for the purpose of earning his livelihood by means of self employment, but was for earning more profit and so was for commercial purpose.
16. Hon'ble National Commission recently in case of Kiran Rai Khatri Vs. Dakshin Haryana Bijli Vitran Nigam Ltd., 2011 (2) CPR 194 (NC), has held that if the electricity supply connection has been obtained for the purpose of running a Poultry Farm, then it is a connection obtained for commercial purpose and so the complainant was not a "consumer" within the meaning of Section 2(1)(d)(ii) of the Act, 1986.
17. In the facts of the present case, the complainant/respondent is running a hot mix plant of metal and tar. The documents which have been filed by the complainant/respondent, along with complaint shows that some land was obtained from the Government for the purpose of installation of Pragati Hot Mix Plant. Some land was also obtained for mining activities to extract metal and then to mix the same with tar with the help of some machine.
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18. In the whole of the complaint, nothing has been stated by the complainant/respondent as to whether this so called industry is being run by him by self employment for the purpose of earning his livelihood. Only it has been stated that industry was established by him as a small scale industry namely Hot Mix Plant Industry and loan was availed from Khadi Gramodyog Board. Whether under the definition of Electricity Supply Code, the concerning unit comes in the category of industry or commercial unit is not a question to be decided at present because in both the cases, it remains a commercial establishment for the purpose of earning more profit and when there is no pleading to the effect that it has been established by the complainant/respondent for earning his livelihood by self employment, then it cannot be said that his case comes under the purview of Explanation added in the definition of "consumer" under Section 2(1)(d)(ii) of the Act, 1986 and so it remains a commercial industry and the availment of electricity from the Electricity Supply Company remains for the purpose of commercial use and so the complainant of the present case is excluded from the definition of "consumer" as defined in Section 2(1)(d)(ii) of the Act, 1986.
19. Learned counsel for the complainant/respondent has placed very heavy reliance upon the report of Hon'ble Supreme Court in the // 10 // case of Trupti K. Patel and Another Vs. M/s. Rocklines Constructions and Another, 2009 (I) C.L.C.C. 154.
20. The facts of that case are not available in the copy of the report as produced by counsel for the complainant/respondent. Paragraph Nos.3 & 4 of the report are as under :-
"3. By the impugned order, the National Consumer Disputes Redressal Commission (hereinafter referred to as 'the National Commission') dismissed the original complaints as, in its opinion, the complainants were not "consumer" within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short, 'the Act') and Respondent No.1 was not a "service provider" within the meaning of Section 2(1)(o) of the Act. The point raised in this case is concluded by the judgment of this case in Faqir Chand Gulati Vs.Uppal Agencies Private Limited and Another [JT 2008 (7) SC 552; 2008 (10) SCC 345] in which this Court dealt with a case similar to that of the appellants and held that complaint is maintainable.
4. In view of this, the appeals are allowed, impugned order is set aside and the matter is remitted to the National Commission for disposal of the complaints in accordance with law after giving opportunity of hearing to the parties."
21. Thus, it is clear that in that case, the complaint was dismissed by Hon'ble National Commission on the ground that complainant does not come in the category of "consumer" and order of Hon'ble National Commission has been reversed by Hon'ble Supreme Court on the basis of some earlier pronouncement. Whether the case of complainant of that case was pertaining to a period prior to the date of insertion of amendment in definition of "consumer" as per Section 2(1)(d) of the Act or not has not been stated clearly by counsel for the // 11 // complainant/respondent, but from paragraph No. 5 of the report, a hint is available to the effect that complaint cases were filed in the years 1998 and 1999 before Consumer Fora and so it can well be concluded that, that was a case filed before amendment in the definition of "consumer" as per Section 2(1)(d)(ii) of the Act and so the ratio laid down in that case, is not applicable in the facts of the present case.
22. So, we are of the considered view that the complainant of the present complaint case, which was filed before District Forum, was not a "consumer" as per Section 2(1)(d)(ii) of the Act and so his complaint was not required to be entertained by the District Forum in the present form and the District Forum has erred in entertaining and allowing the complaint.
23. The next question for consideration is as to whether the Electricity Supply Company has committed any deficiency in issuing a bill to the complainant/respondent. The decision of this question requires elaborate consideration of the definition of industry, industrial connection and commercial connection and also requires to understand the nature of the work performed in the Unit by the complainant/respondent. No cogent evidence has been led by the complainant/respondent in that regard. The Auditor of the Electricity Supply Company, who is supposed to be an expert, appointed by the // 12 // Electricity Supply Company, has recorded a finding that Unit run by the complainant/respondent was not an "industry" as no finished product was produced by it. It is simply a commercial organization to mix metal with tar and so it is only a commercial organization comes in the category of business concern, so the bill was issued to that effect. We do not find any fault in any such interpretation, unless some cogent evidence is led by the complainant to conclude something contrary to the findings recorded by the Auditor of the Electricity Supply Company.
24. This question has also been projected by learned counsel for the complainant/respondent that bills for the demand of past years were not required to be issued after a period beyond a period of two years, but as we have hereinabove held that the complainant/respondent is not "consumer" within the definition of Section 2(1)(d)(ii) of the Act, so it will be of no use to dwell further into this question and to decide as to whether provisions of Section 56(2) of the Electricity Act, 2003 which prohibits disconnection after period of two years, unless demand is made continuously in the bill, are applicable in the facts of the present case or not and whether the date of issuance of the bill will be the relevant date or that of the consumption of electricity will be relevant date. We leave the decision of these questions to the appropriate Forum.
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25. In view of aforesaid, the appeal succeeds and is allowed. The order recorded by the District Forum is set aside. The complaint filed by the complainant/respondent before District Forum, is dismissed on the ground that complainant/respondent does not come in the category of "consumer" as defined in Section 2(1)(d)(ii) of the Act and so his complaint was not maintainable before District Forum. No order as to the cost of this appeal.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/03/2012 /03/2012