State Consumer Disputes Redressal Commission
Vishwanath Chandrakaprasad Gupta vs M/S Spanco Ltd on 16 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/14/145 (Arisen out of Order Dated 05/06/2012 in Case No. cc/12/375 of District Nagpur) 1. Vishwanath Chandrakaprasad Gupta Centril Avanue road Nagpur Nagpur MS ...........Appellant(s) Versus 1. M/s Spanco Ltd 5 th floor Narang Tower Civil lines Nagpur Nagpur ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MR. S B SAWARKAR MEMBER For the Appellant: Advocate MrDharamkar For the Respondent: Advocate Mr P S Khare Dated : 16 Mar 2017 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. This appeal is filed by the original complainant against the order dtd.05.06.2012, passed by District Consumer Forum in consumer complaint bearing No.375/2012, by which the complaint has been disposed of on the ground that the complainant obtained electric connection from the opposite party purely for commercial purpose and hence he does not fall within the definition of "Consumer" given under Consumer Protection Act, 1986 and thus the complaint is not maintainable before it.
2. The facts, which are not disputed, in brief are as under.
The complainant runs one restaurant under name and title as "Shivraj Restaurant" and one lodging & boarding named as Shivraj Bhojanalay". He obtained two separate electric connection from the opposite party to the aforesaid restaurant and Bhojanalay. He regularly paid electricity bills. However, the opposite party through their officials inspected both the meters of the complainant on 30.05.2012 and made false allegation that the complainant tampered with both the meters and thereby committed theft of electricity. They issued two separate bills with compounding charges with the said false allegation of theft of electrical energy. The complainant denied that he tampered with the meters and thereby committed theft of electricity. Thus, alleging unfair trade practice on the part of the opposite party, the complainant filed the complaint bearing No.CC/375/2012 against the opposite party, challenging one of the disputed bill issued for Rs.6,03,916.77 and compounding charges of Rs.2.20 Lacs for commission of theft of electricity by tampering meter of Bhojanalay. The complainant prayed in the said complaint that the said bill be declared as illegal and opposite party be directed to restore electricity of Bhojanalay, which has been disconnected for non-payment of that bill and to pay him compensation of Rs.1.00 Lac for physical & mental harassment and to pay him further compensation of Rs.1.00 Lac towards loss sustained by him and also to pay cost of Rs.15,000/-.
3. The opposite party appeared before the Forum and filed an objection in writing about non-maintainability of the complaint. The opposite party had alleged that as the disputed bill was issued on account of theft of electricity, the complaint is not maintainable before the Forum. The opposite party through its advocate had also alleged before the Forum below that the complainant does not fall within the definition of "Consumer" as he consumed electricity purely for commercial purpose.
4. The Forum below after hearing both parties disposed of the complaint on the ground that the complaint is not maintainable as the electric connection was taken for commercial purpose.
Thus, this appeal is filed by the original complaint against that disposal of the complaint.
5. We have heard advocate Mr Dharamkar appearing for the appellant and advocate Mr P S Khare appearing for the respondent. We have also perused the material placed before us by both parties. The learned advocate of the appellant, in support of his submission about maintainability of the complaint, relied on the decisions in following cases.
i. Executive Engineer, Southern Electricity Supply Co. of Orissa Ltd., Vs. Sri Seetaram Rice Mill, 2012 (3) Mh.L.J. 536.
In that case, it is observed that provisions of Sec.126 of Electricity Act are distinct and operate in different fields and have no common premise in law.
U. P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, III(2013) CPJ 1(SC) In that case, it is observed that complaint before the Forum is maintainable only when it contains allegations of unfair trade practice or restrictive trade practice, or there is defective goods or there is deficiency in service, hazardous services or a price in excess of price fixed by or under any law, etc. iii. Sapna Photostat Vs. Excell Marketing Corpn. & Anr., 2011 (2) CPR 35 (NC) In that case, it is observed that if person indulges in a commercial activity for the purposes of earning his livelihood by means of self-employment then he continues to be a consumer.
iv. C E S C Ltd. Vs. Mangilal Parekh, I(2003) CPJ 549 In that case, it is observed that for illegal action, CESC is liable to restore supply and to pay compensation when no material was produced to substantiate the theft of electricity.
6. The learned advocate of the appellant also submitted that the electric consumption prior to alleged raid and after that alleged raid was the same as seen from the various electricity bills filed on record and specified in detail in the appeal memo. Thus, according to him had there been Commission of theft of electricity, the subsequent bills would have shown more consumption than before the raid. Therefore, according to him, there was no theft of electricity and the respondent has come with a false case about the same and the Forum below erred in not considering properly the evidence brought on record. He further submitted that the electric connection was obtained from the respondent for maintaining his livelihood & livelihood of his family members and therefore the Forum erred in holding that the complainant is not a "Consumer". He, therefore, requested that the impugned order may be set aside and complaint may be allowed.
7. On the other hand, the learned advocate of the respondent supported impugned order and he also relied on the decision of Hon'ble Supreme Court in the case of U. P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, in Civil Appeal No.5466 of 2012, which is also relied on by the learned advocate of the appellant. He submitted that the disputed bill was issued on the ground of theft of electricity and the Hon'ble Supreme Court in the said case laid down the law that such bill cannot be challenged by filing consumer complaint under Consumer Protection Act, 1986. He also submitted that there was no evidence before the Forum to show that electric connection was taken by the complainant to run his lodging & boarding by way of self-employment to earn his livelihood & livelihood of his family members. He has invited our attention to the admission of the appellant in the complaint that there are 25 rooms in the Lodging & Boarding of the appellant and that many persons are engaged by the appellant in his Lodging & Boarding, which proves that the connection was used purely for commercial purpose to earn money. He, therefore, requested that the appeal deserves to be dismissed.
8. After considering the evidence brought on record, we find substance in the submission of the learned advocate of the respondent / original complainant. The Hon'ble Supreme Court in the aforesaid well-known case of U. P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, (2013) SCCR 751, has very specifically laid down the law that the complaint against assessment made by assessing officer under Section 126 or against offences committed under Sections 135 to 140 of Electricity Act, 2003, is not maintainable before the Forum. In the instant case, offence under section 135 of Electricity Act, 2003 is registered against the complainant / appellant herein for commission of theft of electricity regarding which bill in dispute is issued. Thus, we find that complaint against assessment based on theft of electricity as filed before the Forum, is not maintainable in view of the aforesaid settled law.
9. Moreover, it is also seen that the original complainant / appellant in the complaint itself admitted that there are in all 25 rooms in his Lodging & Boarding (Bhojanalay) and he also engaged service of some workers for working there to serve his various customers. The complainant in complaint has not stated that he is running the said Lodging & Boarding (Bhojanalay) in the name of "Shivraj Bhojanalay" to earn livelihood for himself and for his family members, by way of self-employment. Hence, it can be safely presumed that complainant hired services of opposite party for purely commercial purpose.
10. Therefore, considering all these facts & circumstances, we are of the view that the complainant does not fall within the definition of "Consumer" given under Consumer Protection Act, 1986 as the said definition excludes hiring of services purely for commercial purpose.
11. Therefore, we find that the impugned order is legal, correct and proper and needs no interference. The aforesaid decisions relied on by the learned advocate of the appellant are of no assistance to the appellant in these facts & circumstances of the present. Hence, following order is passed.
ORDER i. The appeal is dismissed. ii. No order as to costs in this appeal. iii. The complainant / appellant herein is at liberty to approach the appropriate authority under Electricity Act, 2003 for seeking redressal of his grievance against the disputed bill. iv. Copy of the order be furnished to both parties free of cost. v. The original record & proceedings of the complaint bearing No.375/2012 be returned to District Consumer Forum, Nagpur forthwith. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MR. S B SAWARKAR] MEMBER