State Consumer Disputes Redressal Commission
C.G.State Power Distribution Co.Ltd. vs Fattechand Bagdi on 6 March, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2514)
Appeal No.233/2011
Instituted on : 15/04/2011
C.G. State Power Distribution Company Limited,
Through : Assistant Engineer,
Rajnandgaon (C.G.) .... Appellant.
Vs.
Fattechand Bagdi, S/o Shri Harichand Bagdi,
Lakholi Road,
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 appellant.
Shri Rajendra Prasad Sharma, 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 16.03.2011 of District Consumer Disputes Redressal Forum, Rajnandgaon (C.G.) (hereinafter called "District Forum" for short), passed in Complaint Case No.29/2010, whereby the appellant herein, has been directed not to insist upon the letter dated 22.01.2010 issued by it to the complainant/respondent and the bill of Rs.56,441/- has been quashed by the District Forum and appellant has been directed to refund the amount of 28,220/-, which was deposited under protest by the complainant, // 2 // along with amount of Rs.1,780/- as compensation for mental agony and cost of litigation, along with interest 9% p.a. w.e.f. 25.05.2010 till date of payment.
2. In nut shell, the facts of the case are that complainant/respondent was consumer of the appellant and availed services of electricity supply for the purpose of running Pramod Poha Mill, where he prepare Murra and Poha. It has been asserted in the complaint that the complainant was regularly paying the bills of demand for use of electricity, but on 22.01.2010 a letter was issued referring earlier notice dated 05.09.2005, an amount of Rs.56,441/- was demanded by the appellant from the complainant on the basis of some audit report. Then it was asked by the complainant from the appellant, as to for which year the demand is pertaining and then it was informed that the demand was pertaining to supply of electricity in the year 1995-96 and for that demand, audit was conducted in the year 2005 and then the bill was issued, which was protested, then again the bill in question, was issued as appellant was insisting on payment of bill and was threatening to disconnect the supply of electricity, so complainant paid under the protest an amount of Rs.28,220/- and then supply was restored by the appellant. In the consumer complaint, it has been alleged that conduct of the appellant comes in the category of deficiency in service and so consumer complaint was filed before the District Forum.
// 3 //
3. In reply, the appellant has averred that on the basis of Audit Report, the demand was made from the complainant/respondent, which was appropriate and no deficiency in service, has been committed by it in making such demand. It has also been averred that earlier in the year 2005, same amount was demanded from the complainant and at that time reply of demand notice was sent by the complainant, but thereafter no further steps were taken, so the appellant was under the impression that ultimately complainant will pay that amount, but when same was not paid for quite sometime, then again demand notice was sent. It has been stated that earlier in the year 1998, the load of electricity supply was increased from 40 HP to 80 HP and new meter was installed and as per rules of the Electricity Board, when load is more than 50 HP, then commercial consumption is treated as one & half times to two times and bills are issued accordingly. The matter which was installed in the premises of the complainant was having capacity of C.T.150/5 Ampere. and so multiplying factor was 1.5 and so demand was required to be raised one & half time, then the actual reading, but by mistake without applying the multiplier, the bills were issue, which were corrected later on and remaining demand was made and making such demand, no deficiency in service was committed by the appellant and so complaint was not maintainable.
4. Learned District Forum, after having considered the material placed before it by both parties allowed the complaint by the impugned // 4 // order and quashed the demand bill and directed the appellant to refund the deposited amount to the complainant, along with compensation for mental agony and cost of litigation, as described hereinabove in first paragraph.
5. We have heard the arguments advanced by both parties and perused the record of the District Forum.
6. The first question for consideration before us is whether the complainant/respondent comes in the category of "consumer" or not as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 (hereinafter called "Act" for short) and whether complaint filed by him before District Forum is maintainable.
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 // 5 // 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;"
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 definition, 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.
// 6 //
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".
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 // 7 // 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 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 // 8 // 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 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. The first paragraph of the complaint says that complainant/respondent is running Promod Poha Mill, Rajnandgaon where he used to prepare Murra and Poha and is doing business there in the name of Pramod Poha Mill. From this description, it is clear that // 9 // supply of electricity was demanded, availed and used for commercial purpose alone and in the whole of the complaint, it has not been stated anywhere that the said business concern, is being run by the complainant by self employment for the purpose of earning livelihood. In his affidavit, no such facts have been stated by him. So, from the description given in the complaint, it is clear that supply of the electricity was obtained by the complainant/respondent for the commercial purpose.
18. In the whole of the complaint, nothing has been stated by the complainant/respondent whether the 'Poha Mill' is being run by him by self employment for the purpose of earning his livelihood. 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 unit and the availment of electricity from the Electricity Supply Company remains for the purpose of commercial use and so the complainant of the present // 10 // 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 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 // 11 // 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 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 an industry, industrial connection and commercial connection and also requires to understand the nature of the work performed in the Unit by the // 12 // complainant/respondent. No cogent evidence has been led by the complainant/respondent in that regard. The supplementary bill given by Electricity Supply Company was on the basis of audit report for the year 1995-96 and since the Auditor, is supposed to be an expert, appointed by the Electricity Supply Company, has recorded a finding that Unit run by the complainant/respondent required enhanced rate of units in respect of the said 'Poha Mill'. 'Poha Mill' is a unit to process raw rice to covert the same in the form of 'Poha & Murra' for the purpose of further sale. So, it is a commercial organization and comes in the category of business concern, so the supplementary bill was issued to that effect. We do not find any fault for issuing the supplementary bill for such reason, unless some cogent evidence is led by the complainant/respondent 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 // 13 // 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.
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