State Consumer Disputes Redressal Commission
Rajaram Mej Products vs Chhattisgarh Rajya Vidyut Holding Co. ... on 14 December, 2017
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
Complaint Case No.CC/2017/59
Instituted on : 13.07.2017
Rajaram Maize Products, Proprietor - Suryakant Gupta,
S/o Late Rajaramji Gupta,
Village : Bhothipar, Tahsil & Dist. Rajnandgaon (C.G.).
Through : General Power of Attorney Holder -
Manoj Choubey, S/o Late Shri M.P. Choubey,
Tulsipur, Rajnandgaon (C.G.) ... Complainant
Vs.
Chhattisgarh State Power Distribution Co. Ltd.
Through : Regional Accounts Officer,
Rajnandgaon (C.G.) ... Opposite Party
PRESENT: -
HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT
HON'BLE SHRI D.K. PODDAR, MEMBER
COUNSEL FOR THE PARTIES:
Shri Shishir Bhandarkar, Advocate for the complainant.
Shri Harshad Vyas, Advocate for the O.P.
ORDER
Dated : 14/December/2017 PER :- HON'BLE SHRI JUSTICE R.S. SHARMA, PRESIDENT. The complainant has filed this consumer complaint under Section 17 (A) of the Consumer Protection Act, 1986 against the O.P. seeking following reliefs :-
(a) To cancel the demand illegally and arbitrarily made by the O.P. from the complainant for consumption of electricity to the tune of Rs.97,10,064.34 vide letter dated 06.03.2017.
(b) To direct the O.P. to pay a sum of Rs.50,000/- (Rupees Fifty Thousand) towards compensation for mental agony, to the complainant.
// 2 //
(c) To direct the O.P. to pay cost of litigation to the
complainant and to grant other reliefs, as this
Commission deems fit in favour of the complainant.
2. The O.P. is supplying electricity to the plant of the complainant situated at Village Bhothipar, Tahsil and District Rajnandgaon, although 70 to 80% of the required electricity is supplied from its own power plant. On 13.05.2016 in the plant of the complainant situated at Village Bhothipar, due to excessive heat, the bushing of C.T.P.T. which was installed for supply of electricity was burnt due to which fire was caught in the oil chamber. The complainant gave intimation regarding the incident to the O.P. on 13.05.2016 itself. The supply of electricity was interrupted. The complainant requested the O.P. to change the C.T.P.T. immediately, so that electricity be supplied to the complainant as supplied earlier. The O.P. till arrangement of the new C.T.P.T., separated the C.T.P.T of H.T. connection from metering and directly provided the electricity. When direct connection was provided from the H.T., then complainant demanded information from the O.P. regarding calculation of the consumption of the units of electricity, then the O.P. vide letter dated 24.05.2016 the O.P. informed that the C.T.P.T. of High Tension Connection, direct electricity was supply and the consumption of units was calculated on the basis of average consumption of electricity earlier. The complainant objected to the calculation on the above basis, on the ground that from the industrial feeder installed in 132 K.V.A. Sub Station, electricity is supplied to another Educational Institute, therefore, at the time of calculating consumption of electricity, after deducting the units of the electricity // 3 // supplied to the other consumers, on the basis of calculation of difference of remaining units, the complainant is liable to pay the amount, but the O.P. did not give any reply in this regard and did not investigate and settle the objection raised by the complainant regarding supply of electricity to another persons. The complainant had already requested to the O.P. on 13.05.2016 to change the C.T.P.T. and the O.P. assured the complainant to change it, but the O.P. delayed to change the C.T.P.T., therefore, vide letter dated 25.05.2016, the complainant made proposal that if the O.P. is not able to arrange the C.T.P.T., then the complainant be permitted to purchase the C.T.P.T. and to install it, so that actual metering can be done, but the O.P. did not give any reply to the above proposal. The O.P. changed the defective C.T.P.T. and installed new C.T.P.T. after 5-6 months. Prior to providing direct connection to the complainant i.e. in the month of February, March and April, 2016, the average consumption of the electricity was 315260 units. According to the letter dated 24.05.2015 of the O.P. on the basis of above consumption, the complainant is liable to pay the amount for the units consumed during the period May, 2016 to December, 2016 for which direct connection was provided and accordingly, the complainant paid the amount for the units consumed by it to the O.P. for the period from May, 2016 to September, 2016. In the letter dated 06.03.2017, the O.P. mentioned that for the period from May, 2016 to September, 2016, the complainant consumed total 1538618 units of electricity and directed the complainant to pay a sum of Rs.97,10,064.34. The complainant had already paid the payable amount for the above period on the basis of average consumption of 315260 for // 4 // 1576300 units. Thus the complainant has paid the amount for in excess for 37682 units than the consumption of units of electricity mentioned by the O.P. On the above basis, the O.P. was required to make adjustment of 37682 units in the bill for next month, but the O.P. did not do so and on the contrary demanded to make payment of Rs.97,10,064.34. After receipt of the letter from the O.P. the complainant attracted the attention of the O.P. towards above facts and requested to cancel the letter regarding payment, but the O.P. did not do so. The complainant sent notice to the O.P. through his counsel on 29.05.2017 and demanded to cancel its demand of the amount, demanded through letter dated 06.03.2017 and for the above period, excess payment for 37682 was made, therefore, the complainant requested to adjust the same in the bill for next months, but the O.P. did not give reply of the notice and did not adjust the amount paid for excess unit, in the bill for the month of May, 2017. The complainant is only liable to pay the amount for the units of electricity supplied to it, but the O.P. is arbitrarily demanding Rs.97,10,064.34 from the complainant, which is deficiency in service. After sending notice to the O.P. on 29.05.2017, the complainant met with Regional Accounts Officer and hope that he will consider his request, but he refused to consider on his request. The complainant is a small agriculture unit, which is running by its proprietor for his livelihood, therefore, the complainant comes in the category of consumer under Consumer Protection Act and his complaint is maintainable before this Commission. The complainant has filed instant complaint and prayed for granting reliefs, as mentioned in the relief clause of the complaint.
// 5 //
3. The O.P. filed its written statement and averred that the plant / factory of the complainant Rajaram Maize Product is situated at Village Bhothipar, District Rajnandga and earlier its sanctioned load was 1500 K.V.A. which was increased to 2000 K.V.S. on the request of the complainant. The complainant manufacturing glucose etc. in the above factory at large scale and is selling the goods in market through various firms. Thus, it is clear that the complainant firm is a commercial /industrial unit, which is running the business for earning income. Besides it, the complainant obtained the electricity connection for industrial unit and the calculation of consumption of electricity is done by the O.P. on the basis of prevailing tariff for industrial unit and the complainant is also satisfied and the payment is made by the complainant. The complainant is an industrial unit and for fulfilment of its commercial purpose, services of the O.P. is being received. The complainant is obtaining services of the O.P. for fulfilment of commercial purpose, therefore, on the above basis, the complainant is not consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. In the tile of the complaint, it is mentioned that Rajaram Maize Product is a proprietorship firm and it is mentioned that the instant complaint has been filed by General Power of Attorney Holder Manoj Choubey, but the complainant has not filed any document to the effect that the above firm is proprietorship firm and elaborate details of the General Power of Attorney Holder has not been mentioned in the complaint. The complainant firm executed an agreement with the O.P. (the then Madhya Pradesh Electricity Board) on 26.06.2982 for obtaining connection, in which it is mentioned that // 6 // the above firm is a partnership firm. In the title of the complaint, the complainant impleaded Chhattisgarh State Power Distribution Company Limited as Opposite Party, but the complainant did not follow the rules of Order 29 Civil Procedure Code, 1908. The complainant is very well aware that the O.P. is a registered Company under the provisions of the Companies Act, but even then the complainant ignored the provisions of Order 29 of Civil Procedure Code, 1908 and filed complaint against Regional Accounts Officer, Rajnandgaon, whereas he is only an employee of Chhattisgarh State Power Distribution Company Limited and is discharging his duty, therefore, the prima facie the complaint appears erroneous. Under the provisions of Electricity Act, constituted by Parliament, the Chhattisgarh State Electricity Regulatory Commission by using the power vested to it under Chhattisgarh State Power Supply Code, 2011, necessary amendment made from time to time, is in existence at present and according to the above provisions, the O.P. is supplying electricity to all connection holders and is calculating the consumption of electricity. According to para 9.30 of the Chhattisgarh State Power Supply Code, 2011, if any person is not satisfied with the calculation made in the supplementary bill, he is free to submit memo against the above calculation before the Higher Officers of the O.P.. The instant case relates to higher load, therefore, the complainant is free to submit application before Chief Regional Engineer in respect of supplementary bill and thereafter if the complainant is not satisfied, then the complainant has remedy to file complaint before the Forum, constituted under the provisions of Section 42(5) of the Electricity Act, // 7 // which is clearly mentioned in para 9.33, but the complainant has filed the complainant has filed complaint under Consumer Protection Act and not filed complaint under the Act, to which the complainant is operating / regulating. The complainant executed an agreement with the O.P. on 26.07.1982 and in these circumstances, the complainant is attached to any special law, he is bound to us the provisions of Consumer Protection Act. On the above basis, the complaint of the complainant is not maintainable before this Commission. On 26.06.1982 an agreement for providing electricity connection was executed between the complainant and O.P. According to para 37 & 39 of the above agreement, if any dispute arises between the parties, there is provision for settlement of dispute by the arbitrator. Both the parties will appoint one arbitrator and resultantly it is provided that third arbitrator is to be appointed for settlement of the dispute, but the complainant has deliberately has not complied with the conditions of the agreement and filed the complaint before this Commission. Earlier for such dispute, the complainant filed complaint against the O.P. before the O.P. and the decision of the Arbitrator was challenged by the complainant before Hon'ble HighCourt of Chhattisgarh and the case No. is ARBA No.41/2007. The complainant very well aware that the dispute between the parties to be settled as per the agreement, even then to suppress the above fact, the complainant filed the instant complaint before this Commission. The complainant vide letter dated 13.05.2016 beside mentioning to change C.T.P.T. also mentioned to add 33 KV line direct and on directing the line, whatever average consumption will come, is acceptable." The O.P. sympathetically // 8 // considered the request of the complainant and availed direct supply to the complainant. The O.P. sent letter to the complainant on 24.05.2016 and informed that in case there is problem in C.T.P.T. of High Tension Connection, direct connection is provided, then the assessment of the consumption of the electricity, is done on the basis of average consumption according to tariff of the company. The O.P. also informed to the complainant that it is not possible to bill the consumption of the complainant after deducting the consumption of electricity by another educational institution, which is operated by 132 K.V. Sub Station, a separate meter was installed for calculation of the consumption of units of electricity by the complainant and separate meter was installed for calculation of the consumption of units of electricity by another educational institution. Separate meters were installed for the calculation of the consumption of units of electricity by the each consumers, therefore, it is not possible to calculate the consumption of units of electricity, after deducting consumed units of another consumer from the units consumed by the complainant. When the O.P. received C.T.P.T., then the O.P. immediately installed the same in the premises of the complainant on 05.10.2016. C.T.P.T. is an instrument which is used for calculating the consumption of electricity and is available in limited stock and it is not possible to arrange the C.T.P.T. immediately. 33 KV Rajaram feeder, was made available for the complainant, which is crossing 33/11 KV Sub Station, and when the meter was tested then it is found that during the dispute period (13.05.2016 to 04.20.2016), the complainant used the excessive quantity of units than the average units for his plant, due to which line // 9 // loss is increased excessively. On examining the line loss scrutinily, it was found that one reason for increase of the consumption and the complainant was knowing it very well that due to burning of C.T.P.T. his connection was done directly and the billing which will be done, will be on the basis of the average of units consumed by the complainant in earlier months. Therefore, the complainant has deliberately stopped the power plant and was fulfilling the entire energy from the direct supply, as there is problem in C.T.P.T., so that from the problem created due to damage of C.T.P.T. and unavailability of it to the complainant, profit can be earned. The act of the complainant came in the knowledge of the O.P. when the feeder line loss of the complainant was increased very much than earlier feeder loss. On 18.01.2017, the Executive Engineer (Meter Testing), C.S.P.D.C.L. conducted testing of the meter installed in the feeder located at Kanchanbag, and it was found that the consumption of meter installed in feeder of the complainant is very excessive than earlier period. On the above basis the supplementary bill beside bill for average consumption, for consumption of 1538618.00 units for Rs.97,10,064.00 vide letter dated 06.03.2017 was sent and he was directed to pay the above amount. The complainant is liable to pay the above amount. The O.P. issued the bill to the complainant according to the consumption of electricity and as per rules prevailing for billing. The O.P. did not commit any deficiency in service. The complainant is a commercial unit and is doing business for earning profit and is not doing business for earning livelihood by means of self employment. The complaint is liable to be dismissed against the O.P. // 10 //
4. The complainant has filed documents. Annexure A-1 is letter dated 13.05.2016 sent by the complainant to the O.P., Annexure A-2 is letter dated 14.05.2016 sent by the complainant to the Superintendent Engineer, C.G. State Power Distribution Co. Ltd. Rajnandgaon, Annexure A-3 is letter dated 25.05.2016 sent by the complainant to the Executive Engineer, C.G. State Power Distribution Co. Ltd., Rajnandgaon (C.G.), Annexure A-4 is letter dated 24.05.2016 sent by the Superintending Engineer (M & O) Circle, Rajnandgaon to the complainant, Annexure A- 5 is letter dated 06.03.2017 sent by Regional Accounts Officer, C..S.P.D.C.L. to the complainant, Annexure A-6 is letter dated 15.05.2017 sent by Superintending Engineer (Circle) C.S.P.D.C.L. to the complainant, Annexure A-7 is registered notice dated 29.03.2017 sent by Shri Khemchand Jain, Advocate on behalf of the complainant to the O.P., Annexure A-8 is General Power of Attorney, Annexure A-9 is documents relating to the firm, Annexure A-10 is map prepared by Assistant Engineer (O & M), Annexure A-11 is Power Generation Register for the period from April 2016 to March 2017, Solar Power for the period from April 2016 to December, 2016, Annexure A-13 is letter dated 08.05.2016 sent by the complainant to the Chief Electrical Inspector (Electrical Safety), Raipur , Annexure A- 14 is Challan, Annexure A-15 is letter dated 14.06.2016 sent by the complainant to the Chief Electrical Inspector (Electrical Safety), Raipur, Annexure A-16 is Form - G (Rule 7) (1), Annexure A-17 is challan, Annexure A-18 is letter dated 20.09.2016 sent by the complainant to Chief Electrical Inspector (Electrical Safety), Raipur, Annexure A-19 is Form G (Rule 7) (1), Annexure A-20 is letter dated 22.10.2016 sent by // 11 // the complainant to the Chief Electrical Inspector (Electrical Safety), Raipur, Form G (Rule 7) (1), Annexure A-22 is letter dated 03.12.2016 sent by the complainant to the Chief Electrical Inspector (Electrical Safety), Annexure A-23 is Form G (Rule 7) (1), Annexure A-24 is Details of Production, Clearance, Value and Duty Paid, Original Power of Attorney.
5. The O.P. has filed documents. Document No.1 is agreement executed between the parties, document No.2 is spot map, document No.3 is Spot Inspection Report dated 30.01.2017 along with documents, document No.4 is letter dated 16.03.2017 sent by Executive Engineer (Circle) C.S.P.D.C.L. Rajnandgaon to the complainant, Annexure A-5 is letter dated 06.03.2017 sent by Regional Accounts Officer, C.S.P.D.C.L. Rajnandgaon to the complainant, document No.6 is letter dated 12.04.2017 sent by the complainant to Superintending Engineer, C.S.P.D.C.L. Rajnandgaon, letter dated 17.04.2017 sent by the complainant to the Superintending Engineer, C.S.P.D.C.L. Rajnandgaon, letter dated 15.05.2017 sent by the O.P. to the complainant, letter dated 31.05.2017 sent by the complainant to the O.P., letter dated 17.07.2017 sent by the O.P. to the complainant, Gazette Notification, Annexure A-8 is Tariff Schedule for Low Tension and High Tension Consumers,, comparative details of the electricity consumption, spot map.
6. Shri Shishir Bhandarkar, learned counsel appearing for the complainant has argued that the complainant obtained electricity // 12 // connection from the O.P. On 13.05.2016 in the plant of the complainant situated at Village Bhothipar, due to excessive heat, the bushing of C.T.P.T. which was installed for supply of electricity, was burnt and fire was caught in the oil chamber, due to burning of C.T.P.T. The intimation regarding the incident was given by the complainant to the O.P. The supply of electricity was interrupted. The complainant requested the O.P. to change the C.T.P.T. immediately, so that electricity can be supplied to the complainant as supplied earlier. When direct connection was provided from the H.T., then complainant demanded information from the O.P. regarding calculation of the consumption of the units of electricity, then the O.P. vide letter dated 24.05.2016 the O.P. informed that the C.T.P.T. of High Tension Connection, direct electricity was supplied and the consumption of units was calculated on the basis of average consumption of electricity earlier. Shri Bhandarkar, has further argued that initially the electricity was supplied from 132/33 KV Parrikalla Sub Station and thereafter the electricity was supplied from Kanchan Bag station instead of Parrikala Sub Station. The supply was also made to the educational institutions, Schools and Colleges and to some supply was given from Kanchan Bag Sub Station, therefore, the reading assessed by the O.P. is erroneous. The O.P. did not provide proper reading of some of the units. The complainant had requested the O.P. on 13.05.2016 to change the C.T.P.T. and the O.P. assured the complainant to change it, but the O.P. delayed to change the C.T.P.T., therefore, vide letter dated 25.05.2016, the complainant made proposal that if the O.P. is not able to arrange the C.T.P.T., then the complainant be // 13 // permitted to purchase the C.T.P.T. and to install it, so that actual metering can be done, but the O.P. did not give any reply to the above proposal. The O.P. sent excessive bill for the period may 2016 to December 2016 without any basis. In the letter dated 06.03.2017, the O.P. mentioned that for the period from May, 2016 to September, 2016, the complainant consumed total 1538618 units of electricity and demanded to pay a sum of Rs.97,10,064.34, which comes in the category of deficiency in service and unfair trade practice. The complainant is a small industrial unit and it is operated by the complainant for earning his livelihood by means of self employment, therefore, the complainant is a consumer and the O.P. is service provider. The complainant is entitled for getting the reliefs, as mentioned in the relief clause of the complaint. He placed reliance on Dakshin Haryana Bijli Vitran Nigam Vs. Haryana Jan Pratinidhi Co- operative Group Housing Society Limited, I (20160 CPJ 88 (Har.), Chief Administrator, HUDA & Anr. Vs. Shakuntala Devi, I (2017) CPJ 3 (SC); Uttrakhand Power Corporation Ltd. 7 Anr. Vs. Swami Atam Prakash Disciple Swami Balkrishan, III 92017) Cpj 65 (Utta.); Jaipur Vidyut Vitran Nigam Ltd. & Ors. Vs. Mahendra Singh, IV (2013) CPJ 394 (NC); Harinder Singh Vs. Punjab State Electricity Board & Anr. II (2017) CPJ 557 (NC); Davinder Kaur & Anr. Vs. Punjab State Electricity Board & Ors. I (2017) CPJ 588 (NC).
// 14 //
7. Shri Harshad Vyas, learned counsel appearing for the O.P. has argued that the complainant is not a consumer under Section 2 (1)(d) of the Consumer Protection Act and the complainant himself is generating electricity energy. The complainant pleaded in para 1 of the complainant that 70 to 80% of the electricity supply is done by the complainant from his own plant. The complainant had obtained electricity connection from the O.P. for industrial plant, therefore, the complainant is not a consumer and the complaint is liable to be dismissed. The complainant manufacturing glucose etc. in the above factory at large scale and sale the goods in market through various firm. Thus, it is clear that complainant firm is a commercial / industrial unit, which is running the business for earning income. Therefore, the complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. Shri Harshad Vyas has further argued that the complainant obtained electricity connection for industrial unit and the calculation of consumption of electricity is done by the O.P. on the basis of prevailing tariff for industrial unit and the complainant is also satisfied and paid the amount. The instant complaint has been filed by General Power of Attorney Holder Manoj Choubey, but the complainant has not filed any document to the effect that the above firm is proprietorship firm and elaborate details of the General Power of Attorney Holder, has not been mentioned in the complaint. The complainant firm executed an agreement with O.P. on 26.06.1982 for obtaining electricity connection in which it is mentioned that the above firm is a partnership firm, but in the title of the complaint, the complainant impleaded Chhattisgarh State power Distribution // 15 // Company Limited as Opposite Party, but the complainant did not follow the rules of Order 29 Civil Procedure Code, 1908. The complainant is very well aware that the O.P. is a registered Company under the provisions of the Companies Act, but even then the complainant ignored the provisions of Order 29 of Civil Procedure Code, 1908 and filed complaint against Regional Accounts Officer, Rajnandgaon , whereas he is only an employee of Chhattisgarh State Power Distribution Company Limited and is discharging his duty. Under the provisions of Electricity Act, constituted by Parliament, the Chhattisgarh State Electricity Regulatory Commission, by using the power vested to it under Chhattisgarh State Power Supply Code, 2011, necessary amendment is made from time to time, is in existence at present and according to the above provisions, the O.P. is supplying electricity to all connection holders and is calculating the consumption of electricity. According to para 9.30 of the Chhattisgarh State Power Supply Code, 2011, if any person is not satisfied with the calculation made in the supplementary bill, he is free to submit memo against the above calculation before the Higher Officers of the O.P. The complainant did not make any representation before the Higher Authority of the O.P. and has directly filed the complaint before this Commission. This Commission has no jurisdiction to decide the matter. According to para 37 & 39 of the agreement dated 26.06.1982 executed between the parties, if any dispute arises between parties, there is provision that dispute is only decided by the Arbitrator. The instant complaint is not maintainable. On examining the line loss scrutinily, it was found that one reason for increase of the consumption // 16 // and the complainant was knowing it very well that due to burning of C.T.P.T. his connection was done directly and the billing which will be done, will be on the basis of the average of units consumed by the complainant in earlier months. The complainant has deliberately stopped the power plant and was fulfilling the entire energy from the direct supply, as there is problem in C.T.P.T., so that from the problem created due to damage of C.T.P.T. and unavailability of it to the complainant, profit can be earned. The O.P. did not commit any deficiency in service. The complaint is liable to be dismissed.
8. We have heard learned counsels appearing for both the parties and have also perused the documents filed by them in the instant complaint.
9. The O.P. has raised objection that the instant complaint has been filed through General Power of Attorney Holder Manoj Choubey, but the Power of Attorney has not been produced by the complainant and the complaint has been filed against the provisions of Order 29 of Civil Procedure Code, 1908, therefore, the complaint is not maintainable. The above contention of the O.P. is not acceptable. In the title of the complaint, it is mention Rajaram Maize Products, Proprietor Surayakant Gupta. It appears that the complainant is proprietorship firm. The affidavit of Manoj Choubey has been filed by the complainant. Manoj Choubey, in his affidavit has stated that the complainant is a proprietorship firm and Suryakant Gupta is proprietor of the firm and he is Power of Attorney Holder of the complainant firm. The complainant has filed copy of power of attorney // 17 // executed by Suryakant Gupta in favour of Manoj Choubey, in which it is mentioned that he is Proprietor of Rajaram Maize Products and he appointed Manoj Kumar Choubey S/o Shri Mohit Prasad Choubey and Shri Rajesh Kumar, S/o Shri Radheyshyam Sharma as Power of Attorney Holders. It appears that according to the complainant, the complainant is a proprietorship firm and he duly appointed Manoj Kumar Choubey as a Power of Attorney Holder. Manoj Kumar Choubey verified the complaint as Power of Attorney Holder, therefore, the complaint is maintainable. The instant complaint has been filed on behalf of Rajaram Maize Proprietor through its Power of Attorney Holder and the Power of Attorney Holder has duly verified the complaint,. So far as Order 29 of Code of Civil Procedure, 1908 is concerned, it is relating to suits by or against Corporations and Order 30 of Code of Civil Procedure, 1908 is relating to Suits by or against firms and persons carrying on business in names other than their own. In the instant case, the complainant is not a partnership firm, but it is a proprietorship firm and the complaint has been filed by the complainant through his Power of Attorney Holder, therefore, the complaint is maintainable.
10. Next objection raised by the O.P. is that according to para 37 and 39 of the agreement executed between the parties, if any dispute arises between the parties, there is provision for settlement of dispute by the two arbitrators, one to be appointed by each party hereto, and an umpire to be appointed by the arbitrators before entering upon the reference. The decision or award of the said arbitrators or umpire shall // 18 // be final and binding on the parties hereto, therefore, this Commission has no jurisdiction to entertain the instant complaint.
11. Section 3 of the Consumer Protection Act, 1986 makes the position clear. It reads thus :-
"3. Act not in derogation of any other law.- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force."
12. In M/s National Seeds Corporation Ltd vs. M. Madhusudan Reddy and Another, 2013 (3) CPR 589 (SC), Hon'ble Supreme Court has observed thus :-
29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy of arbitration, then it may be possible to say that he cannot, subsequently, filed complaint under the Consumer Act.
However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. v. N.K. Modi (supra), the 2 - Judge Bench interpreted that section and held as under :-
"the provisions of the Act are to be construed widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force.
// 19 // It is true, as rightly contended by Shri Suri, that the words "in derogation of the provisions of any other law for the time being in force" would be given proper meaning and effect and if the complaint is not stayed and the parties are not relegated to the arbitration, the Act purports to operate in derogation of the Arbitration Act. Prima facie, the contention appears to be plausible but on construction and conspectus of the provisions of the Act we think that the contention is not well founded. Parliament is aware of the provisions of the Arbitration Act and the Contract Act, 1872 and the consequential remedy available under Section 9 of the Code of Civil Procedure, i.e., to avail of right of civil action in a competent court of civil jurisdiction. Nonetheless, the Act provides the additional remedy.
It would, therefore, be clear that the legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure. Thereby, as seen, Section 34 of the Act does not confer in automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that // 20 // the appropriate forum for adjudication of the disputes would be otherwise those given in the Act."
13. In Aftab Singh & Others Vs. Emaar MGF Land Limited & Anr. III (2017) CPJ 270 (NC), Hon'ble National Commission, has observed thus :-
"52. In view of the foregoing discussion, we arrive at the following conclusions: (i) the disputes which are to be adjudicated and governed by statutory enactments, established for specific public purpose to subserve a particular public policy are not arbitrable; (ii) there are vast domins of the legal universe that are non-arbitrable and kept at a distance from private dispute resolution; (iii) the subject amendment was meant for a completely different purpose, leaving status quo ante unaltered and subsequently reaffirmed and restated by the Hon'ble Supreme Court; (iv) Section 2 (3) of the Arbitration Act recognizes schemes under other legislations that make disputes non-arbitrable and
(v) in light of the overall architecture of the Consumer Act and Court evolved jurisprudence, amended Sub-section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to Arbitration in terms of the Arbitration Agreement."
14. In Satish Kumar Pandey & Ors. Vs. Unitech Ltd. III (2015) CPJ 440 (NC), Hon'ble National Commission, has observed thus :-
"18. .................As Provided in Section 3 of the Consumer Protection Act, the provisions of this Act are in addition to the other remedies available to a consumer. Therefore, the availability of arbitration as a remedy does not debar the complainant from approaching a Consumer Forum in a case of deficiency in the services rendered to him by the service provider or adoption of unfair trade Practices by him. This issue came up for consideration of the Hon'ble Supreme Court in National Seeds Corporation v. Madhusudhan Reddy & Anr., II (2012) SLT 51= I (2012) CPJ 1 (SC)= (2012) 2 SCC 506, and after taking into consideration the provisions of the Section 8 of the Arbitration Act of 1996 and the Section 3 of the C. P. Act it was held // 21 // that the plain language of Section 3 of the C. P. Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being I force. The Hon'ble Supreme Court has also held that the complaint filed by a consumer before the Consumer For a would be maintainable despite their being an arbitration clause in the agreement fo refer the dispute to the Arbitrator. In view of the above referred authoritative pronouncement of the Hon'ble Supreme Court which was later followed by a Three Members Bench of this Commission in DLF Ltd. v. Mridul Estate Pvt. Ltd. R.P. No. 412 of 2011, decided on 13.05.2013, the aforesaid contention advanced by the learned Counsel for the opposite party is liable to be rejected."
15. In DLF Limited Vs. Mridul Estates (Pvt.) Ltd, III (2013) CPJ 439 (NC), Hon'ble National Commission, has observed thus :-
"(i) Consumer Protection Act, 1986 - Sections 3, 21(b) -
Arbitration and Conciliation Act, 1996 - Section 8 - Jurisdiction - Valid Arbitration Agreement - Reference of dispute - Maintainability of complaint - Complaint filed by a consumer under C.P. Act would be maintainable and relief cannot be denied by invoking jurisdiction of Section 8 of Arbitration Act, 19986 - Remedy provided under CP Act is a special remedy with objective of redressal of grievances of affected consumers in expeditious and non-expensive manner - If small consumers are relegated to Alternative Dispute Resolution (ADR) mechanism of arbitration, remedy provided under CP Act would become illusionary - Consumer Fora are not bound to refer dispute raised in complaint on application filed under Section 8 of Arbitration Act, 1996 seeking reference of dispute to Arbitral Tribunal in terms of valid arbitration clause in agreement entered into between parties."
16. In Navin Khanna (Dr.) & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. & Anr. III (2016) CPJ 203 (NC), Hon'ble National Commission has observed thus :-
// 22 // "(ii) Consumer Protection Act, 1986 - Section 3 - Complaint -
Maintainability - Arbitration Clause in agreement - Complainant can avail the alternative remedy - Complaint maintainable.
17. In the instant case, the matter was not referred to the Arbitrators by the O.P. and O.P. itself had not appointed any Arbitrator and notice was also not given to the complainant regarding appointment of Arbitrator, therefore, on the basis of above cited judgments, merely presence of the arbitration clause in the agreement, it does not bar the jurisdiction of this Commission. Hence, the complainant has a right to file consumer complaint before this Commission according to the provisions of Section 3 of the Consumer Protection Act, 1986.
18. The next contention of the O.P. is that the complainant is not a consumer because he obtained the electricity connection for commercial purpose and therefore, the dispute between the parties is not consumer dispute. The complaint is not maintainable before this Commission. On the contrary the complainant argued that the complainant is a small industrial unit, running for earning livelihood by means of self employment, therefore, the complainant is consumer.
19. We have perused the complaint and documents filed by the complainant. In Para 1 of the complaint, the complainant pleaded that the plant of the complainant is situated at Village Bhothipar, Tahsil and District Rajnandgaon (C.G.), although 70 to 80% of the required electricity is supplied from its own power plant. It appears that the complainant himself established a power plant for supply of electricity. The complainant has filed document General Power of // 23 // Attorney, dated 25.01.1999, in which it is mentioned that Suryakant Gupta has two industrial premises, which are named as Rajaram Maize Products, Rajnandgaon and Rajaram and Brothers, Rajnandgaon. AnnexureA-3 is letter sent by the complainant to Executive Engineer, C.G. State Power Distribution Co. Ltd. Rajnandgaon (C.G.) in which it is mentioned that Rajaram Maize Products is manufacturer of Maize- Starch, Yellow - Dextrin, White Dextrin, Liquid Glucose and Dextrose Monohydrate.
20. From bare perusal of the pleadings and documents filed by the complainants, it appears that the complainant is having more than one industrial units and he is manufacturer of Maize-Starch, Yellow - Dextrin, White Dextrin, Liquid Glucose and Dextrose Monohydrate. Certain the complainant has engaged labours for manufacturing above products.
21. In Chandrakant Annarao Dhabale Vs. MGVCL, Baroda, IV (2015) CPJ 368 (NC), Hon'ble National Commission has observed thus :-
"4. Though, the Society is a person, as defined in the Consumer Protection Act, it is not a consumer since the bill in question was issued and the complaint was filed after amendment of Section 2(1)(d) of the Consumer Protection Act, which excludes from the ambit of the expression Consumer' a person hiring or availing service for a commercial purpose."
5. The learned Counsel for the petitioner has referred to the decision of this Commission in Superintending Engineer, Madhya Gujarat Vij. Co. Ltd. & Anr. v. Vinav Enterprises, Gujarat, Revision Petition No.3875 of 2006 decided on 9.2.2011, Chief // 24 // Engineer, Electricity Department & Ors. v. Virender Kumar, Revision Petition No.1977 of 2008 decided on 10.9.2014 and Tata Power Delhi Distribution Limited v. Ramesh Kumar Rohilla, I (2015) CPJ 249 (NC). He has also referred to the decision of the Hon'ble High Court of Delhi in Vinod Kumar Jain v. BSES Rajdhani Power Ltd., 150 (2008) DLT 385, decided on 30.4.2008, Madhya Pradesh Electricity Board v. Smt. Basantibai, 1987 (SLT Soft) 202 = AIR 1988 SC 71 and Bombay Electric Supply & Transport Undertaking v. Laffan (I) Pvt. Ltd. & Anr., II (2005) CPJ 6 SC. However, none of the aforesaid decisions applies to the case before us and therefore, the reliance on the aforesaid decisions, in my view, is whole misplaced."
22. In Bhim Sain Vs. Punjab State Electricity Board, 2014 (1) CLT 607 (Pb), Punjab State Consumer Disputes Redressal Commission, Chandigarh has observed that "The connection was obtained by the complainant for running the Rice Mill with the help of a number of workers. The complainant, in his complaint, has only stated that it is his sole source of income for earning his livelihood, but it is nowhere pleaded or proved that he was running this Rice Mill by way of self employment. The explanation added to the Section 2(1)(d)(ii) of the Act stipulates that the commercial purpose does not include use by a person of the goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. Every business run by an individual or a group of person is meant to earn the livelihood, but to be a 'consumer' under the Act, one has to prove that he is running the business for commercial purpose by way of self employment. In the instant case, the complainant is running a Rice Mill with the help of number of works. He has nowhere stated that he himself is running the business by way of self employment. Electricity // 25 // connection for 'commercial purpose' only. Consumer complaint not maintainable."
23. In Dakshini Haryana Bijli Vitran Nigam & Others Vs. Birender Singh, 2015 (1) CLT 382 (Har), Haryana State Consumer Disputes Redressal Commission, Panchkula has observed thus :-
"Consumer Protection Act, 1986, Section 2(1)(d) - Electricity - Commercial purpose - Complainant obtained the electricity connection for running liquor vend. Held - It is for "commercial purpose" and not for earning livelihood - Complaint not maintainable."
24. In Major Vishwani Puri, Complete Surveying Technologies (P) Ltd. & Ors. Vs. DLF Universal Ltd. (Earlier known as DLF Commercial Complexes), 2015 (1) CPR 301 (NC), Hon'ble National Commission has observed thus :-
(A) Consumer Protection Act, 1986 - Section 2(1)(d) - Real estate
- Allotment of commercial space - Deficiency in service -
Complainants have prayed for refund of amount paid by them with 18% interest thereon besides compensation of Rs.2 lakhs to each of complainants and Rs.15,000/- as cost of litigation to each of complainants. Merely taking a plea will not entitle complainants to get benefit of explanation which carves out an exception for person who has hired services exclusively for earning his livelihood by means of self employment irrespective of fact the service has been hired or availed for commercial purpose. Complainants have booked flats in a commercial tower and they are not covered under definition of "Consumer" as envisaged under Section 2(1)(d) of Act. Complaint filed by them is not maintainable. Complaints rejected.""= (B) Consumer Protection Act, 1986 - Section 2(1)(d) - Joint Complaint - Maintainability - Onus of proving that services were availed by respective complainants exclusively for the purpose of earning livelihood by means of self employment is on each and every // 26 // complainant. In order to succeed on issue of maintainability each and every complainant will have to lead separate evidence to prove that he booked commercial space for the purpose exclusively for earning livelihood by means of self employment. As each and complainant has to separately prove that he is covered by explanation to Section 2(1)(d) they cannot be permitted to maintain a joint complaint. Case of each complainant will have to be assessed on its own merits. This is a case of misjoinder of parties and as such a common complaint by 92 different complainants is not maintainable."
25. In Sanjay Agro Industries Ltd. Vs. UHBVN Ltd. & Anr. IV (2011) CPJ 333 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Ac, 1986 - Sections 2(1)(d)(ii), 21(b) - Electricity - Commercial Purpose - Penalty - District Forum quashed bills imposing penalty - State Commission set aside order on ground that complainant being a commercial entity and having availed services of Nigam purely for commercial purpose was not a consumer - Order passed by State Commission upheld."
26. In Birla Technologies Limited v. Neutral Glass and Allied Industries Limited., (2011) 1 Supreme Court Cases 525, Hon'ble Supreme Court observed thus :
"7. By its order dated 4.3.2004, the State Commission accepted the appellant's preliminary objection and dismissed the complaint. The respondent complainant, therefore filed First Appeal No.218 of 2004 before the National Commission. By its order dated 17.12.2009, which is impugned here, the National Commission reversed the order of the State Commission and held that the "goods" purchased by the respondent from the appellant were being used by the respondent for a commercial purpose and, therefore, the respondent was not a "consumer" within the meaning of Section 2(1)(d)(i) of the Act. However, the National Commission further held that notwithstanding such findings, the respondent was entitled to maintain a complaint // 27 // under the Act with respect to the deficiency in service during one-year warranty period with respect to the said goods relying on Section 2(1)(d)(ii) of the Act.
12. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15-3-2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto."
27. In Cheema Engineering Services vs. Rajan Singh (1997) 1 Supreme Court Cases 131, Hon'ble Supreme Court observed thus :-
"6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (1) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self- employment? The word "self-employment" is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, // 28 // namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all Tribunals stand set aside. The matter is remitted back to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order."
28. In M/s Rohit Chemical & Allied Industries Pvt. Ltd. National Research Development Corporation, IV (2013) CPJ 87 (NC), Hon'ble National Commission observed thus :
"22. In Laxmi Engineering Works v. P.S.G. Industrial Institute, AIR 1995 SC 1428, it was held :-
"12. Now coming back to the definition of the expression 'consumer' in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth // 29 // Century); it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taken a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit', he will not be a 'consumer' within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly, with a view to obviate any confusion - the expression 'large scale' is not a very precise expression - Parliament stepped in and added the explanation to Section 2(1)(d) by Ordinance / Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' - a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a 'consumer' but a person who buys a typewriter or a car for typing others' work, for consideration or for plying the car as a 'taxi', can be said to be using the typewriter / car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose' would not yet take the purchaser out of the definition of expression of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of 'self employment', such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, , he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e. by self- employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself ', 'exclusively for the purpose of earning his livelihood ' and 'by means of self-employment' // 30 // make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer). As against this, a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person, would not be a consumer. This is necessary limitation flowing from the expressions "used by him" and "by means of self-employment in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
29. Looking to the facts and circumstances of the case and cited judgment, it appears that the complainant has obtained electricity connection for his unit, which is run by the complainant for manufacturing Maize-Starch, Yellow - Dextrin, White Dextrin, Liquid Glucose and Dextrose Monohydrate. Certainly the complainant engaged labours for manufacturing above products and the complainant paid the remuneration to the employee & labour of the industry. The complainant himself pleaded that he has two industrial units and he is manufacturer. He obtained electricity connection for commercial units and he himself produces electricity energy and is obtaining 70 to 80% of the electricity supply from its owner power plant.
// 31 //
30. Therefore, the pleading of the complainant he obtained electricity connection for his personal use or for earning his livelihood by means of self employment, is not acceptable. On the contrary, it is established that the electricity is used for running industry, therefore, it cannot be said that the complainant obtained the electricity connection for his personal use or for earning his livelihood by means of self employment. The complainant is not a consumer, therefore, the judgments cited by the complainants, are not helpful to the complainant.
31. For the foregoing reasons, in our opinion, the complainant is not consumer under Section 2(1)(d) of the Consumer protection Act, 1986, therefore, the complaint is not maintainable before this Commission. Hence, without going into merits of the complaint, the complaint is liable to be and is dismissed on sole ground that the complainant is not consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. No order as to the cost of this complaint.
(Justice R.S. Sharma) (D.K. Poddar)
President Member
14/12/2017 14 /12/2017