State Consumer Disputes Redressal Commission
Assistant Secretary. vs The Dharmodhayam Company, on 11 January, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/438 (Arisen out of Order Dated 21/10/2012 in Case No. CC/05/689 of District Trissur) 1. ASST.SECRETARY,THRISSUR CORPORATION ELECTRICITY DEPARTMENT THRISSUR KERALA ...........Appellant(s) Versus 1. Trustees,THE DHARMODHYAM COMPANY TRUSTEES THRISSUR KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.438/12
JUDGMENT DAED 11.01.2013
(Appeal filed against the order in CC. No.689/05 on the file of CDRF, Thrissur dated 21.10.2010)
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
SMT.A.RADHA -- MEMBER
1. Assistant Secretary.
Electricity Department, -- APPELLANTS
Thrissur Corporation.
2. Thrissur Corporation
Reptd. by Secretary.
(By Adv.Shihabudeen Kariyath)
Vs.
The Dharmodhayam Company,
Thrissur reptd. by Trustees -- RESPONDENT
CA.Joseph & C.P.Sunny.
(By R.S.kalkura)
JUDGMENT
SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER The appellants were the opposite parties in CC.689/05 in the CDRF, Thrissur. The respondent was the sole complainant. He was a consumer of electricity supplied by the opposite party. It was alleged in the complaint that the complainant was a charitable institution. Electricity supplied to their premises was disconnected from January 2005 onwards. The disconnection was made without any notice. There was no electricity charge pending to be paid. A statement of arrears was issued to the complainant regarding the electricity charges due and the balance amount as on 30.11.04 was stated to be Rs.1,67,949/-. Out of the said amount Rs.1,06,716.48 related to the period before 31.3.01. Actually no electricity charges is pending to be paid to the opposite parties. The opposite parties have not given details or readings in respect of the arrears. The claim is also time barred. The complainant is not liable to pay the amount demanded. Hence he approached to the forum for a direction to restore the electricity connection and to cancel the bill issued to him demanding Rs.1,67,949/-. He also claimed a compensation of Rs.10,000/-.
2. The opposite parties filed version and contended before the forum that electricity connection was given to the complainant under commercial tariff. The premises of the complainant is being used for commercial purpose hence the complainant does not come within the purview of the Consumer Protection Act. The amount claimed is not time barred and the opposite parties were entitled to collect the amount demanded in the notice. Said amount was demanded for the electricity actually consumed by the complainant. Hence the complaint was liable to be dismissed.
3. Before the forum, the complainant produced 2 documents and got it marked as Exts.P1 & P2. No other evidence was adduced on either side. The forum held that the respondents did not substantiate their contentions and hence allowed the complaint set aside Ext.P1 demand notice and directed the opposite parties to return Rs.30,000/- paid by the complainant. Aggrieved by the said order, the opposite parties have preferred this appeal.
4. The only question that arise for consideration is whether the findings of the forum can be sustained.
5. At the outset it may be mentioned that a complaint can be maintained before a Consumer Disputes Redressal Forum only when service is availed by a person for consideration. In this case the appellants were the service providers and the complainant was the person who availed the service for consideration. The point is that deficiency in service on the part of the appellants can be imputed only when there was deficiency in the supply of electricity and other related matters. Once the complainant had received the supply it was his duty to pay the consideration. In paying the consideration there is limited scope for imputing deficiency in service. So a consumer Forum should be slow in imputing deficiency of service when the matter comes to payment of consideration that is the electricity charges. A Forum cannot go to any extent and find that the bill issued was incorrect. The appellant is a statutory authority and matters like readings taken by its employees will have to be accepted on the face value and the Forum cannot question the correctness of the readings etc. taken. What is expected from the Forum is not settlement of accounts.
6. It is in the above background the correctness of the order of the forum will have to be viewed. The complainant has a contention that the complainant Dharmodhayam Company, Thrissur represented by two trustees is a charitable institution. The contention of the opposite parties is that the complainant is a commercial enterprise. Ext.P2 is the memorandum of association and articles of association of the complainant which is registered under the Cochin Companies Regulation. So, it is essentially a company and the articles of association of the company reveals that the main object was to raise funds by conducting kuries with the company as the foreman. Other objects like receiving donations and subscriptions are mentioned. It is true that certain charitable purposes are mentioned among the objects of the company. But there is absolutely no evidence to show that the company is engaged in charitable activity. There is nothing to show that the complainant is engaged any other activity than chitty transactions. The forum thought that once the contention that the complainant is a charitable institution is raised it is for the opposite parties to prove otherwise. But there is no such obligation on the part of the opposite parties. On the very allegations and proof submitted by the complainant itself it is evident that the complainant is not engaged in any charitable activity. Even otherwise it is not for the complainant to decide which tariff applies. He is bound to pay consideration determined by the service provider as per the accepted Rules and Regulations and no deficiency in service can be lightly imputed.
7. Another contention of the complainant is that the claim as per Ext.P1 bill is barred by limitation. It is quite obvious from the allegations itself that not the entire claim would be barred again contentions like bar of limitation is something that can be raised only in difference and no defense in service can be attributed merely because a barred claim is made particularly because it relates to the consideration to be paid by the complainant for the service he availed. The forum observed that it is rather pity to say that no serious action has been taken to collect such a huge amount. But the failure to collect the amount was to the advantage of the complainant. The only disadvantage was that demand was made in lump. But again the complainant had an obligation to pay the consideration for the service he had availed. The order of the forum shows that actually the complainant had remitted Rs.30,000/- towards the amount demanded by the opposite parties/appellants. This was part of the consideration to be paid by the complainant and as such even if the amount was barred by limitation it cannot be directed to be refunded as the amount came into hands of the appellants lawfully and nothing prevents them from retaining that amount. The complainant has a contention that no amount is due to the opposite parties. This claim directly contradicts the contention that the claim is barred by limitation. Not only that if only the complainant had paid the electricity charges the claim that no amount is due from him can be correct. There is no receipt or evidence produced to show that the complainant has paid electricity charges during the relevant period. It is for the complainant to primafacie establish his claim that there was deficiency in service on the part of the appellants. As this was not done the forum eared in allowing the complaint. The complaint was totally devoid of merit. Hence the appeal is liable to be allowed.
In the result, the appeal is allowed. The order of CDRF, Thrissur in CC.689/05 dated 21.10.2010 is set aside, the complaint is dismissed. Considering the facts of the case, the parties are directed to bear their costs in the appeal.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER A.RADHA -- MEMBER SL [HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER