State Consumer Disputes Redressal Commission
Dy. Executive Engineer, vs Shri. Kisan S/O. Sonnappa Bhandari on 20 December, 2013
1 F.A. No. 213-08
MAHARASHTRA STATE CONSUMER DISPUTE
REDRESSALCOMMISSION,MUMBAI, CIRCUIT BENCH AT
AURANGABAD.
Date of filing: 29.02.1008
Date of Order: 20.12.2013
FIRST APPEAL NO.:213 OF 2008
IN COMPLAINT CASE NO.:68 OF 2007
DISTRICT CONSUMER FORUM: BEED.
Dy. Executive Engineer,
Maharashtra State Electricity
Distribution Company Ltd.
Urban Sub-Division Beed,
Tq. & Dist. Beed. ... Appellant
VERSUS
Shri. Kisan s/o. Sonnappa Bhandari
R/o. MIDC Beed, Tq. & Dist. Beed. ... Respondent
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Mrs. Uma S.Bora, Hon`ble Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. S. N. Tandale for appellant.
None for the respondent.
- :: ORAL JUDGMENT :: -
(Delivered on 20th December, 2013) Per Shri. K. B. Gawali, Hon'ble Member.
1. This appeal is an exception to the judgment and order dated 12.12.2007 passed by District Consumer Forum, Beed in consumer complaint No.68/2007 whereby complaint is allowed. The appellant is the original opponent and representative of the Maharashtra State Electricity Distribution Company Limited, whereas respondent is the original complainant.
2. The facts of this appeal in a nutshell are that, the respondent herein is the proprietor of Chondeshwari Textile Industry situated in the MIDC Beed. That, he had obtained electric power connection in the year 1988. He had contended that 2 prior to the year 2004 the electric charges were made on the basis of contract system and not on the basis of meter reading in all the textile industries in the Maharashtra state. However, the appellant used to issue heavy bills on the basis of meter reading and deprived complainant from the benefits of the said Government Scheme. He had therefore filed a civil suit bearing No.383/2008 against the appellant and challenged the bill dated July,2001, amounting to Rs.95,550/-, which was decided in his favour by cancelling the said bill and the appellant was directed not to disconnect the electric connection. It was further contended that although the copy of decision was submitted to the appellant, it did not correct the bill. It was also contended that he was issued electric bills for the period from July,2001 to Sept.2004 including the "electric charges" although they have been exempted by the Government vide their circular dated 07.10.2005. It was further averred that the appellant though corrected the bill dated 02.03.2007 the earlier amount of Rs.95,550/- was not deducted from the said bill. Thus on all these grounds he had alleged that the appellant had provided deficient service and hence he filed a consumer complaint before the District Forum seeking direction to correct the bill of March,2007 by deducting there from the amount of Rs.95,550/- which has already been cancelled by the Civil Court and also to pay him Rs.5000/- towards mental agony and the cost of the proceeding.
3. The appellant appeared before the District Forum and denied the averments made by the complainant in his complaint. It was contended that although the appellant had issued the bills to the complainant for the period from August,2001 to November,2003 on the basis of meter reading, but subsequently they were corrected and were issued as per fixed amount. It was also contended that as per the decision given by the Civil Court, electrical bill of the respondent was corrected in the month of August, 2004 and revised bill for the amount of Rs.1,31,105/- was issued. The said amount was also further corrected in the month of Novembver,2006 by deducting the total amount of Rs.1,24,332/- and revised bill for the amount of Rs.58,006/- was issued by the 3 F.A. No. 213-08 end of April, 2007 which has also not been deposited by the respondent/complainant. As regards the exemption of electrical charges it was contended by the appellant/opponent that the respondent had to approach to the Electrical Inspector, Aurangabad and accordingly it was also communicated to him. Thus the appellant contended that there was no deficiency in service on the part of the appellant.
4. The District Forum after going through the record and hearing the parties allowed the complaint and directed the appellant/opponent to cancel all the bills issued to the respondent/complainant in the month of March,2007. It was further directed to issue the bills on the basis of the contract system i.e. fixed charges and also to submit the proposal of exemption in the electrical charges with the Electrical Inspector, Aurangabad and to adjust the said exempted amount against the outstanding bills of the complainant. It was also directed to pay Rs.5000/- as compensation for mental harassment and cost of proceeding.
5. Aggrieved by the said judgment and order the present appeal is filed in this Commission by the original opponent. This appeal came to be finally heard on 18.10.2013. Adv. Shri. S. N. Tandale was present for the appellant and also submitted his written notes of arguments. None was present for the respondent.
However, proxy Adv. Shri. Pahelwan appeared for the respondent on behalf of Adv. M.P. Kulkarni who is the counsel on record for the respondent, but he did not file his argument. We heard the counsel present for the rival parties and the appeal was adjourned for judgment and order. The learned counsel Shri. S. N. Tandale, appeared for the appellant submitted that the respondent/complainant is running power looms industry which is a commercial activity and therefore he cannot fall within the ambit of "consumer" as defined under section- 2 (1) (d) (ii) of Consumer Protection Act, and therefore on this sole ground the complaint ought to have been dismissed by the District Forum. It was further contended that on the basis of the decision given by the Civil Court his electric bill has been corrected and Rs.1,24,332.05 has been deducted from the outstanding bill and the effect to the said corrected bill has also given in the CPL for the month of 4 November,2006. He further contended that the bill for the month of March,2007 has been issued on the basis of earlier corrected bills and therefore there is no deficiency in service on the part of appellant. However, the District Forum without appreciating the evidence led by the appellant before it and has wrongly passed the impugned judgment and order which needs to be quashed and set aside.
6. We have carefully gone through the material placed before us and also the written notes of arguments as submitted by the learned counsel Shri. S. N. Tandale. In support of his above said contention he relied on following two authorities:
i. The judgment and order dated 04.04.1995 passed in C.A. 49/95 by Hon'ble Supreme Court in case of Laxmi Engineering Works Vs. PSG Industrial Institute.
ii. The judgment and order dated 03.05.2012 passed by this Bench of State Commission in F.A. No.702/2007 in case of Asst. Engineer MSEDCL Vs. Shekharchand Nemichand Ajmera.
7. At the very outset we have to consider whether the complaint falls within the ambit of definition of the word "consumer" as provided u/s. 2 (1)(d)(ii) of Consumer Protection Act. Admittedly, the respondent/complainant is engaged in the activity of power loom industry situated in the MIDC Area Beed. That, the explanation given to the definition of the "consumer" provides that the goods bought and services availed by a person for commercial purpose can be treated as consumer provided such goods and services are availed by him exclusively for the purpose of earning his livelihood by means of self-employment. Thus in this explanation there are two ingredients i.e. i) the services of the appellant availed should be for "earning his livelihood" and secondly, through "self-employment". In the present case, the respondent has nowhere pleaded in the complaint that he is running the said industry to earn his livelihood for his family by means of self- employment. Even otherwise also the power loom industry cannot be imagined 5 F.A. No. 213-08 to be run by the complainant alone i.e. through self employment and also to earn only the livelihood of the complainant. It is obvious that the said industry is being run to earn profit and also through the employees. Therefore the respondent cannot be treated as a "consumer" under the provisions of the Consumer Protection Act and hence the complaint itself is not maintainable. Therefore, the District Forum ought to have dismissed the same. The ratio laid down by the Hon'ble Apex Court in case of Laxmi Engineering Works Vs. P.S.G. Industrial Institute (Supra) as referred by the appellant is quite applicable to the present case. Hence, on the ground of maintainability itself the complaint of the complainant deserves to be dismissed.
8. For abundant care we have also dealt with the case on the point of merit. We have perused the available documents i.e. complaint of complainant, written version filed by the appellant, written notes of arguments as submitted by learned counsel Shri. Tandale for the appellant etc. The main grievance of the complainant appears to be as under:
i) The electric bills for the period from July,2001 to Sept.2004 should be corrected on the basis of fixed charges instead of as per the meter reading.
ii) To deduct the amount of Rs.95,550/- from the bill pertaining to the March,2007 as per the decision of the Civil Court in R.C.S. No.303/2001,
iii) To give the benefits of exemption in electric charges.
9. It is observed that the appellant has already given relief in respect of his grievances at serial No. 1 & 2 above, as it could be seen from the CPL for the month of July,2004 the amount of Rs.1,31,105/- has been deducted from the outstanding bill. Further it is observed that considering the decision of the Civil Court the appellant has further corrected the bill for the month of November,2006, whereby the amount of Rs.1,31,332.05 is reduced from the outstanding bills and revised bill of Rs.58,006/- was issued by the end of 6 April,2007. However as contended by the appellant that the revised bill has also not been paid by the complainant.
10. As regards his 3rd grievance the appellant has already suggested to the complainant i.e. respondent herein to submit the proposal for the said exemption to the concern authority i.e. Electrical Inspector whose office is situated at Aurangabad. We thus find that the appellant has already taken action to satisfy the grievance of the complainant and hence the appellant cannot be held guilty of deficiency in service.
11. In view of our aforesaid observations and also the facts on record we find that the District Forum has without appreciating these facts has erroneously passed the impugned judgment and order which requires to be set aside. We therefore pass the following order.
O R D E R
1. The appeal is allowed.
2. The judgment and order passed by the District Forum is hereby quashed and set aside.
3. The complaint stands dismissed.
4. No order as to cost.
(K. B. Gawali) (Mrs. Uma S. Bora) (S.M. Shembole)
Member Member Presiding Judicial Member
Kalyankar