State Consumer Disputes Redressal Commission
M/S Ram Hari Motors Pvt. Ltd. vs Hpseb & Another on 27 February, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.
F. A. No: 192/2011
Date
of Decision: 27.02.2012.
M/S Ram Hari Motors Pvt. Ltd.,
Shri Krishana Nagar, Rani-ki-Bain, P.O. Gutkar,
Tehsil Sadar,
District Mandi, H.P. through its authorized
representative
Shri Rajesh Soni S/O Shri Jagar Nath, R/O Village
Salag,
P.O. Jukhala, Tehsil Bilaspur, H.P.
Appellant
Versus
1. H.P.S.E.B. through its Secretary,
Vidut Bhavan, Shimla, H.P.
2. Assistant Engineer, Electrical Sub Division
No.II,
Himachal Pradesh, State Electricity
Board,
District Mandi, H.P.
Respondents
For the Appellant: None.
For the Respondents: Mr. S. Bhushan Singh Chandel, Advocate.
F.
A. No. No: 220/2011
Date
of Decision: 27.02.2012.
1. Secretary, H.P.S.E.B. Kumar House,
Near Chaura Maidan, Shimla-5.
2. Assistant Engineer, H.P.S.E.B.
Electric Sub Division No. II,
H.P.S.E.B. Mandi, District Mandi, H.P.
Appellants.
Versus
M/S Ram Hari Motors Pvt. Ltd.
Shri Krishna Nagar, Rani Ki Bain, Post Office
Gutkar,
Tehsil Sadar, District Mandi, H.P.
Through its Proprietor Mrs. Gagan Deep Kaur.
Respondent.
Coram
Honble
Mr. Justice Surjit Singh (Retd.), President
Honble
Mr. Chander Shekhar Sharma, Member
Honble
Mrs. Prem Chauhan, Member.
Whether
approved for reporting?[1]
For the Appellants: Mr.
S. Bhushan Singh Chandel, Advocate.
For the Respondent: None.
O R D E R:
Justice Surjit Singh (Retd.), President (Oral) By means of this order, we proceed to dispose of the above numbered and titled two appeals, as both of them arise out of the same order, i.e., is order dated 3rd May, 2001 of learned District Consumer Disputes Redressal Forum, Mandi, H.P. One appeal, i.e., F.A. No.192 of 2011, has been filed by the complainant, M/S Ram Hari Motors Private Limited and the other appeal, i.e. F.A. No.220/2011, by the opposite parties, i.e., Secretary, H.P. State Electricity Board and another.
2. Complainant is a Private Limited Company, with its headquarter at Gutkar, Tehsil Sadar, District Mandi, H.P. Complainant was sanctioned an electricity connection of 31 K.W. by the opposite parties some time prior to year 2005. Electricity was consumed by the complainant for commercial activities run by it. Meter installed at the premises of the complainant became non-functional in the month of March, 2008, and thereafter the respondents who had been supplying the electricity to the complainant started raising demand for consumption on the basis of average consumption worked out on the basis of the previous consumption. They had been claiming consumption charges for 5000 units per month.
3. In April, 2009, after the meter was replaced, a demand for `70,700/-was raised by the opposite parties showing the said amount due on account of sundry charges. When the complainant made enquiries, as to on what basis the sundry charges had been claimed, she was informed that audit was conducted and the auditor had pointed out that though in addition to consumption charges, demand charges were required to be paid by the complainant, no demand for such charges had been raised from May, 2005 to August, 2007. Complainant then paid the amount of `70,700/- to escape disconnection of power supply to his commercial premises and then filed a complaint alleging (a) average billing for the period when the meter stopped working was faulty, (b) she (complainant) was forced to pay an amount of `70,700/- on account of sundry charges, though the said amount had become time barred as per Section 56 of the Electricity Act, 2003 and (c) a few domestic connections had been made available to other persons from the transformer, which had been installed at the exclusive cost and expense of the complainant. She claimed the refund of the entire amount of `70,700/- and the quashing of average bills for the period when the meter remained non-functional and also claimed damages and litigation expenses.
4. Complaint was contested by the opposite parties (Appellants in F.A. No.220 of 2011). It was stated that the complainant was not a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act, 1986. Also, it was stated that the complainant had paid an amount of `70,700/- without any demand and hence she was estopped to claim refund of the said amount. It was stated that the amount of `70,700/- had been claimed on account of sundry charges for the period from May, 2005 to July, 2007, because in the bills for the aforesaid period, demand for sundry charges could not be raised, though the complainant, on account of connection released in her favour being of more-than 20 K.W. was liable to pay such charges. It was stated that the sundry charges for the aforesaid period were not claimed from the complainant on account of mistake of fact on the part of billing staff, as they mistook connection to be for 3.1 K.W. instead of 31 K.W.
5. Rejoinder was filed by the complainant in which, it was denied that complainant was not a consumer.
6. Learned District Forum vide impugned order dated 03.05.2011, concluded that the claim for demand charges having been made in June, 2009, the demand for the period two years prior to June, 2009, was barred by time by virtue of the provisions of Section 56 of the Electricity Act, 2003. It was held that the demand charges for only one month amounting to `4200/-, could have been recovered by the opposite parties. Hence, learned District Forum ordered the refund of `66,500/- out of the amount of `70,700/-. As regards the claim for quashing the bills based on average consumption, learned District Forum held that complainant had withheld material evidence in the form of consumption bills for the period prior to and subsequent to the spell when the meter remained out of order, which rendered it liable to an adverse inference that consumption of electricity in its premises was more-than 5000 units a month for which it was charged on average basis.
7. Complainant filed F.A. No.192 of 2011 within time, seeking modification in the order of the learned District Forum, that entire demand of `70,700/- was quashed and average bills for the period when the meter had been functional were also quashed.
8. Appeal filed by the opposite parties, i.e. F.A. No.220/2011, is apparently barred by time. There is delay of 26 days in filing the appeal. Application for condonation of delay has been filed, in which it is stated that the opposite parties being a body Corporate, its functionaries took time to process matter and to obtain orders for filing appeal and because of that, delay had taken place. Reasons stated in the application, in our view, are sufficient for condoning the delay. Hence, the delay is condoned and appeal admitted.
9. No body has put in appearance for the complainant (appellant) though on the previous date, one Shri S.R. Bansal, Advocate put in appearance for the counsel for the complainant and the matter was adjourned to this date in the presence of the said advocate. For the opposite parties who are appellant in F.A. No.220 of 2011, Shri Shashi Bhushan Singh Chandel, Advocate is present.
10. Opposite parties in their appeal have assailed the order of the District Forum for refund of an amount of `4200/-, mainly on the ground that the learned District Forum did not have the jurisdiction to pass the impugned order as the complainant was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act,1986.
11. We have heard Shri Shashi Bhushan Singh Chandel, Advocate appearing for the opposite parties, who are appellants in F.A. No.220 of 2011 and gone through the record.
12. Complainant per its own case is a Private Limited Company. The power connection, in question, is a commercial connection and not a domestic one. That means the power was being supplied to the complainant for commercial activity. Section 2(1) (d) of the Consumer Protection Act, 1986 defines a consumer in the following terms:-
(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) 3[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 3[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system or deferred payment, when such services are available of with the approval of the first mentioned person 4[ but does not include a person who avails of such services for any commercial purpose];
5[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 purpose of earning his livelihood by means of self employment;]
13. From bare reading of the above reproduced definition of a consumer, it is clear that if goods or services are hired/availed for commercial purpose, the buyer of goods or hirer or the person availing the service is not a consumer unless he buys the goods or avails the services for the purpose of earning his livelihood by means of self employment. In the present case, complainant which is a Private Limited Company, has not claimed that the supply of electricity was being made to it, to enable the promoters of the company to earn livelihood by means of their self employment. Not only that the complainant had not taken this plea in the complaint, but it also failed to raise it even in the rejoinder, despite the fact that a specific objection was raised by the opposite parties that the electricity having been purchased by the complainant for commercial purpose, it (complainant) was not a consumer and hence the District Forum had no jurisdiction. Complainant did file rejoinder, but did not take such a plea. Therefore, the complainant is not a consumer.
14. As a result of the above stated position, appeal filed by the opposite parties, i.e. F.A. No.220/2011, is allowed and the complaint filed by respondent/complainant, M/S Ram Hari Motors Private Limited, before learned District Forum is rejected, as the learned District Forum has no jurisdiction to entertain the same. Appeal filed by the complainant, i.e. F.A. No.192/2011, becomes infructuous on account of rejection of the complaint on the ground of lack of jurisdiction of the District Forum.
15. Original copy of this order be placed on the record of F.A. No.192/2011 and an authenticated copy thereof, on the record of F.A. No.220/2011.
16. Both the appeals are disposed of.
17. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) {Retd.} President (Chander Shekhar Sharma) Member (Prem Chauhan) Member February 27, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?