State Consumer Disputes Redressal Commission
Paradise Polymers Limited vs 1. The Assistant Engineer, on 15 May, 2014
1 F.A. No. 490-08
MAHARASTHRA STATE CONSUMER DISPUTE
REDRESSAL COMMISSION,MUMBAI, CIRCUIT BENCH
AT AURANGABAD.
Date of filing: 03.05.2008
Date of Order:15.05.2014
FIRST APPEAL NO. 490 OF 2008
IN COMPLAINT CASE NO. 549 OF 2006
DISTRICT CONSUMER FORUM: JALGAON.
Paradise Polymers Limited
E-23, MIDC,Jalgaon
Through its Managing Director,
Shri. Randhirsing Dilipsing Patil
R/o. 19, Roopganga Colony, Jalgaon. ... Appellant
VERSUS
1. The Assistant Engineer,
Maharashtra State Electricity Distribution Co. Ltd.
O & M Circle Office, Jalgaon,
Tal. & Dist.Jalgaon.
2. Crompton Greaves Ltd.,
Dixit Wadi, Jilha Peth,
Behind Mutton Market,
Jalgaon, Tq. & Dist. Jalgaon
Through its General Manager, ... Respondents
Coram : Shri. S.M. Shembole, Hon`ble Presiding Judicial Member.
Shri. K. B. Gawali, Hon'ble Member.
Present: Adv. Shri. S. A. Pradahn for appellant.
Adv. Shri. S. N. Tandale for respondent No.1.
- :: ORAL ORDER :: -
(Delivered on 15th May, 2014) Per Shri. K. B. Gawali, Hon'ble Member.
1. This appeal is filed by the original complainant against the judgment and order dated 10.04.2008 passed by District Forum, Jalgaon in consumer complaint 2 No.549/2006. The respondent No.1 is original opponent No.1 who is an officer of the MSEDCL, whereas respondent No.2 is the franchisee of respondent No.1, which is added as a party in appeal on the application of the appellant. For the sake of brevity the appellant is hereinafter termed as "the complainant" whereas the respondent No.1 as "opponent MSEDCL" and respondent No.2 as "opponent franchisee".
2. The factual aspects of this case in a nutshell are that the complainant is running a small scale industry by name Paradise Polymers Limited situated at MIDC, Jalgaon. That, he had obtained electric connection for the said industry bearing consumer No.110019004198 having meter No.054-01025556. That, at the time of obtaining connection the complainant was allotted a load of 80 KVA.
That, subsequently by his application dated 22.06.2004 he had applied for additional load of 220 KVA. Accordingly the opponent MSEDCL had given demand note on 29.09.2004 as per which the complainant deposited an amount of Rs.8,02,040/- on 18.06.2005 and the report of Electrical Inspector was submitted on 19.09.2005. However no additional load was sanctioned. Therefore the complainant vide its application dated 14.12.2005 requested for additional electric load but no any reply was given to his application and further the opponent MSEDCL asked him to make application for the load of 100 KVA. Accordingly the opponent MSEDCL sanctioned load of 100 KVA in the month of August, 2006. Thus the total load he was sanctioned was 180 KVA, but the additional load was not shown in his electric bills. He also expressed his grievance that although he was sanctioned additional load of 100 KVA, the charges of the same were being recovered as excess load/demand charges from Sept. 2005. That, the bill issued in the month of Oct.2006 was of the excessive amount and the time limit given to deposit the same was upto 15.11.2006. However the opponent MSEDCL did not correct the bill in spite of his request and had threatened him to disconnect the supply.
3 F.A. No. 490-08
3. It was further contended by the complainant that the electric meter was running fast and showing excess units and therefore by his application dated 12.07.2006 the complainant requested the opponent MSEDCL to test the meter. That as per the instructions issued by the opponent MSEDCL vide letter dated 29.10.2006 he has also deposited the testing fee of the meter at Rs.400/-. But in spite of depositing the said fees the meter was not tested.
4. The complainant thus contended that the opponent MSEDCL has committed deficiency in service and also played unfair trade practice which caused mental and financial harassment to him. He therefore filed complaint before District Forum seeking direction to opponent MSEDCL to cancel the electric bill amounting to Rs.19,71,470/- to sanction additional load as per the demand note and direct opponent MSEDCL as not to disconnect the electric supply. He also sought a compensation of Rs.15,000/- towards mental harassment and Rs.10000/- towards cost of the complaint.
5. Opponent MSEDCL appeared before Forum and by filing written version has resisted the claim. The opponent MSEDCL by way of its written version admitted to have given electric connection to the complainant and initially a load of 80 KVA was sanctioned. However the other contention and claims of the complainant were denied in toto. The opponent MSEDCL contended that the complainant was not the consumer as per the provision given u/s.2 (1) (d) of the Consumer Protection Act, 1986. Because, the complainant had obtained electric connection for running his said industry, the purpose of which was commercial. It was further contended that as per the complainant's application for additional load of 220 KVA he was asked to deposit Rs.8,02,040/-. But later on by his application he requested additional load of only 100 KVA and therefore on 26.07.2006 he was released load of 100 KVA i.e. total load of 180 KVA. That, this total load of 180 KVA was being recorded in the bill of November, 2006 and 4 onwards. It was contended that it is only because of the delay committed by the complainant completing the formalities for getting additional load said delay was occurred and hence for the alleged delay in releasing additional load the opponent MSEDCL was not responsible. It was further contended that the electric meter was tested on 14.08.2006 when the complainant's representative was also present and the testing report was also sent to the complainant by letter dated 19.08.2006. That, as per the said testing report the electric meter was running properly and there was no any defect. It was specifically contended that from 24.05.2006 the complainant had not paid the electric bills till the month of Oct.2006 and hence the notice dated 27.10.2006 was issued to the complainant asking him to deposit the entire outstanding amount of electric charges i.e. Rs.19,66,980/-. Accordingly the complainant had given the cheque bearing No.150112 of Rs.19,66,980/- drawn on Central Bank of India Branch, Jalgaon. But the complainant subsequently stopped the payment by giving such instructions to the bank. Therefore another notice dated 16.11.2006 for lodging complaint against the complainant u/s. 138 of the Negotiable Instrument Act was also issued. However the complainant did not deposit the said outstanding amount and falsely filed the complaint before the District Forum, so as to avoid the legitimate charges of the electricity consumed by him. It was therefore requested to dismiss the complaint with cost of Rs.10,000/-.
6. The District Forum after considering the evidence on record and hearing the parties has dismissed the complaint. The District Forum held the complainant as "consumer" on the ground that he had obtained electric connection from the opponent MSEDCL. However it is further held that the complainant failed to make the payment of the electric bills of Rs.19,66,980/- which included arrears of earlier period. It is further observed that the cheque dated 11.11.2006 issued by the complainant for Rs.19,66,980/- to the opponent MSEDCL was not encashed due to instructions given by the complainant to the 5 F.A. No. 490-08 bank as "stop payment". That, this cheuqe was not issued under protest. It is also observed that after giving the instructions to the bank for stopping the payment of said cheuqe this complaint was filed by the complainant just to avoid the payment and hence it is held that the complainant had not approached the District Forum with clean hands. It is also observed that the said meter was tested by the opponent MSEDCL and the same was found working properly without any defect. Hence in keeping with these observations the District Forum passed the impugned judgment and order by dismissing the complaint.
7. Aggrieved by the said judgment and order the present appeal is filed in this Commission by the original complainant which came to be finally heard on 05.05.2004. Adv. Shri. S. A. Pradahn was present for the appellant, whereas Adv. Shri. S. N. Tandale was present for respondent No.1 i.e. opponent MSEDCL. The respondent No.2 i.e. opponent franchisee had already been proceeded exparte. Both the counsel appearing for the appellant as well as opponent MSEDCL and submitted their written notes of argument. We also heard them finally and the appeal was adjourned for judgment. The learned counsel Shri. S. A. Pradhan appearing for the appellant/complainant has made almost the same averments in his written note of argument as made by the complainant in his complaint. Adv. Shri. Tandale also made the same averments in his written notes of arguments as made by the opponent MSEDCL in its written version and in support of his averments he relied on the following citations:
1. (1) 1995-99 C.P.J.- I (S.C.) Laxmi Engineering Works V.s P.S.G. Industrial Institute.
2. Maharashtra State Consumer Dispute Redressal Commission, Mumbai Bench at Aurangabad in F.A. No.702/2007, Assistant Engineer MSEDCL Vs. Shekharchand Ajmera.6
3. Maharashtra State Consumer Dispute Redressal Commission, Mumbai Bench at Aurangabad in F.A. No.372/2007, Assistant Engineer, MSEDCL Vs. Onkar Khurpe.
8. We have perused the documents placed before us which contain the copies of complaint, written version filed by the opponent MSEDCL, electric bills under dispute, correspondence made by the complainant for additional electric load as well as for testing of meter with the opponent MSEDCL, the impugned judgment and order, appeal memo, written note of arguments and case laws submitted by the learned counsel for the opponent MSEDCL. Before going into the merits of the case we have to consider the issue raised by the opponent MSEDCL as to whether the complainant is a consumer as per the provisions of the Consumer protection Act. As per the definition given u/s. 2 (1) (d), the term "consumer" means a person who buys goods or avail services for consideration but does not include a person who buys goods or avail such services for any commercial purpose.
The Act further provides that this clause of "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. It means a person who is engaged in commercial activity for earning his livelihood by means of self-employment, can fall within the ambit of term "consumer" under the provisions of Consumer Protection Act.
9. In the present case the complainant is running an industry by name Paradise Polymers Ltd, which is a commercial activity. Although he has mentioned in his complaint that, he is running his industry for earning his livelihood, we have to consider whether his said contention is sustainable. As mentioned above as per the explanation given to the definition of the term 'consumer', there are two ingredients to be fulfilled by a person who buys goods and availed services for commercial purpose i.e. goods bought and services 7 F.A. No. 490-08 availed should be exclusively for the purpose of "earning livelihood" and ii) that commercial activity should be carried out by means of "self-employment".
We have now to consider whether the complainant specifies both these ingredients although the complainant has made a statement in his complaint that he is running the said industry for earning his livelihood, it is however not been justified by giving any cogent evidence i.e. total turnover of his factory, net income, number of his family members and further whether he is involved in other activity etc. Secondly, the complainant has nowhere made clear that he is running the industry by means of self-employment. In fact he has obtained 180 KVA of electric load for the said industry, his monthly electric bills are in the range of Rs. 1.30 to 1.50 lacks, which itself indicate that the income of industry cannot be restricted only to the earning of livelihood of his family. To put into other words the said industry can be said as being run for earning profit. It is also not acceptable that the complainant runs this industry thorough "self employment".
10. It is thus clear that the services availed by the complainant from the opponent MSEDCL for running his industry cannot be treated as exclusively for the purpose of earning his livelihood and that too by means of self-employment. The complainant therefore cannot fall within the ambit of explanation given to the definition of the term consumer. Hence the complainant cannot be treated as a 'consumer' under the provisions of the Consumer Protection Act.
11. The District Forum although dismissed the complaint, has failed to consider these legal points and has wrongly held the complainant as consumer, only because he has obtained electric connection from opponent MSEDCL. Therefore the complaint filed by the complainant cannot be dealt with under the provisions of Consumer Protection Act as the complainant is not a "consumer" as defined u/s. 2 (1) (d) of C. P. Act. Hence the complainant has to approach the appropriate Forum to seek relief for his grievance. We therefore do not find it 8 necessary to go into the merit of the case and hence, we are inclined to confirm the order of the Forum below by dismissing the appeal.
12. In the result, we pass the following order.
-:: ORDER ::-
1. The appeal is dismissed.
2. No order as to cost.
(K. B. Gawali) (S.M. Shembole)
Member Presiding Judicial Member
Kalyankar