State Consumer Disputes Redressal Commission
1.The Superintendent Engineer, ... vs M.S. Lakshmi Stones Crushers, R.By Its ... on 9 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. FA/133/2014 (Arisen out of Order Dated 04/02/2013 in Case No. Complaint Case No. CC/83/2011 of District Karimnagar) 1. 1.The Superintendent Engineer, Operation,APNPDCL Karimnagar 2. 2. The Divisional Engineer, Operation APNPDCL, AP Transco Operation Huzurabad 3. 3.The Asst. Divisional Engineer, Operation APNPDC Ltd., Bheemadevaripalli 4. 4.The Addl. Asst. Engineer, Operation APNPDC Ltd., AP Transco Bheemadevaripalli ...........Appellant(s) Versus 1. M.s. Lakshmi Stones Crushers, R.by its Sole Proprietor Kasturi Ailaiah, Son of Mallaiah, Aged 50 Years, Occ Business, R.o. Bheemdevaripalli Village and Mandal of Karimnagar District ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 09 Feb 2018 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 133 OF 2014 AGAINST C.C.NO.83 OF 2011 DISTRICT CONSUMER FORUM KARIMNAGAR Between The Superintendent Engineer, Operatoin, APNPDC Ltd., The Diviiosnal Engineer, Operation, APNPDC Ltd.,(APTRANSCO) Operation, Huzurabad The Assistant Divisional Engineer, Operation, APNPDC Ltd., The Addl. Assistant Engineer, Operation APNPDC Ltd, (APTRANSCO) BheeMdevaripalli Appellants/opposite parties AND M/s Lakshmi Stones Crushers rep. by its Sole Proprietor Kasturi Ailaiah, S/o Mallaiah, Age 50 years, Occ: Business R/o Bheemdevaripalli, Village and Mandal of Karimnagar District Respodnent/complainant Counsel for the Appellants M/s R.Vinod Reddy Counsel for the Respondent Served QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE NINETH DAY OF FEBRUARY TWO THOUSAND EIGHTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the opposite parties aggrieved by the orders of District Consumer Forum, Karimnagar, dated 04.02.2013 made in CC No. 83 of 2011 wherein it allowed the complaint directing the complainant to pay Rs.1,12,741/- towards demanded amount under Ex.A2 within one month from the date of receipt of the order and in the event of failure to comply the order opposite parties are at liberty to disconnect the service connection No.7703-661 Category-IIIA Bheemdeveraplli.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainants, in brief, is that the complainant is a consumer of opposite parties having service connection No.BDP-661 under category-iii at Bheemdeverapalli Village. Since then the complainant has been paying monthly consumption charges regularly without committing any default. While so on 07.08.2010 the opposite party no.3 served an assessment notice bearing No.430/10 informing the complainant that the service is inspected by the opposite parties and on inspection it is observed that all the seals are intact and that the voltages in Phase ii are found zero in the meter display and that the meter was changed. In the notice it was stated that due to defect in the meter the recording was showing less energy consumption and that the back billing was assessed for an amount of Rs.4,39,507/- for 115356 units during the period between 22.06.2009 to 05.06.2010., On receipt of the said notice the complainant approached the opposite parties about the said demand but they instead of rectifying the meter problem have disconnected the supply and demanded the complainant to pay 50% of the assessed amount. As the crushing industry broke down the complainant paid an amount of Rs.2,25,533/- towards 50% of the assessed amount along with other charges. Thereafter, the opposite parties again demanded the complainant to pay left over balance amount of Rs.2,14,025/- towards back billing amount. Less recording of consumption was due to defective meter for which the complainant is not liable. Hence, the complaint praying to direct the opposite parties to set aside the demand notice dated 07.08.2010 for Rs.4,39,507/- towards assessment for back billing during the period between 22.08.2009 to 05.06.2010; to pay compensation of Rs.50,000/- towards mental agony and costs.
4. The opposite parties resisted the case contending that during the course of inspection by the Additional Assistant Engineer, CT Meters, Karimangar in the presence of complainant it is found that the meter was defective and not recording the consumption in two phases. As per the terms and conditions of Electricity Act an assessment notice was given to the complainant wherein it is clearly mentioned therein that if the consumer was agreeable to pay assessed amount the entire amount should be paid within 15 days from the date of notice. Even after receipt of notice, the complainant has not approached the opposite parties. Therefore, the said connection was disconnected on 15.10.2010 as the complainant failed to pay the assessed amount in four installments granted by the opposite parties after the representation of the complainant. Meanwhile the complainant paid two installments and availed power supply. After restoration of the power supply the complainant was asked to pay balance amount but instead of payment he approached the District Forum. There is no deficiency of service on their part. Hence, the opposite parties prayed for dismissal of the complaint.
5. In proof of the case of the complainant, the Proprietor has filed his evidence affidavit and got Exs.A1 to A7 marked. On behalf of the opposite parties, the Assistant Engineer, Operation of the oppose party no.4 filed his evidence affidavit and no documents have been filed.
6. The District Forum after considering the material available on record, allowed the complaint bearing CC No.83 of 2010 by orders dated 04.02.2013 granting the reliefs, as stated in paragraph No.1, supra.
7. Aggrieved by the said decision, the opposite parties no.1 and 3 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum erred in directing the complainant to pay Rs.1,12,741/- towards the demanded amount under Ex.A2. The opposite parties after inspection of crushing unit issued assessment notice dated 07.08.2010 for the sum of Rs.4,39,507/- being the back billing for the period from 22.09.2009 to 05.06.2010 and directed to pay 50% of the assessed amount and also in the notice it is suggested if the complainant is not agreed the he may represent the matter to the opposite party no.2. If the complainant is not satisfied with the assessment notice, he may approach official channel under section 127 of Electricity act 2003 instead of filing complaint before the District forum which has no jurisdiction as per the judgment of the Hon'ble Supreme Court in (2012)(3) SCJ 192 and III(2013) CPJ 1(SC). The meter was tested in the CT lab and was found to be recording less consumption energy. Having agreed with the finding if there is any discrepancy in the comparing the consumption of the energy with previous years as contended by the complainant the same should have brought to the notice of opposite party no.2 under appeal. Hence, the opposite parties prayed to allow the appeal by setting aside the order of the District Forum.
8. Counsel for the appellant present and was heard. No representation for the complainant despite service of notice. The counsel for the opposite parties have filed their written arguments.
9. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
10. It is an undisputed fact that the complainant is consuming electricity for running his Stone Crushing Industry. Ex-facie it was for commercial purpose. The complainant alleged that he has been running this Stone Crushing Industry to eke out his livelihood by means of self-employment. But as seen from the record, it has been doing business by utilizing power supply. The opposite parties after inspection of the meter found that due to defect in the meter it has been showing less consumption of energy and as such issued assessment notice for payment of an amount of Rs.4,39,507/- towards back billing and allowed the complainant to pay the same in four installments. The complainant paid only two installments and got the power supply. Thereafter the complainant instead of paying the remaining two instalments filed the complaint before the District Forum. In the counter affidavit of the opposite party no.4, the concerned officer detailing as to how these assessments were made could not be controverted by the complainant. There is no technical data from the complainant to show that the assessment made by opposite party no.4 was wrong.
11. 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 // 11 // partly paid and partly promised, or under any system of 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;"
12. 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.
13. . 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".
14. In case of Kiran Rai Khatri Vs. Dakshin Haryana Bijli Vitran Nigam Ltd., 2011 (2) CPR 194 (NC), Hon'ble National Commission 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
15. Looking to the facts and circumstances of the case, it appears that the complainant obtained electricity connection for his Stone Crusher and certainly the stone crusher is run by the complainant for commercial purpose, therefore, the complainant is not a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986.
16. In fact the Honble Supreme Court in Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. reported in CDJ 2010 SC-1177 held:
that the goods sold by the appellant to the respondent/complainant amounted to `goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. On the one 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 CDJ 2010 SC 1177
17. In the light of authoritative pronouncement of the Honble Supreme Court and in the teeth of admitted commercial activity undertaken by the complainant, he cannot be termed as consumer as defined under the Consumer Protection Act.
18. Even if it was not for commercial purpose and that the complainant is doing his business to eke out his livelihood the complaint is not maintainable before the consumer fora for the reason that this question is already covered by the decisions of the Honble Supreme Court and National Commission in (Civil Appeal No. 14421 of 1996) in CESC Ltd., Vs. N.M. Banka and Biswananth Mukherjee Vs. West Bengal State Electricity Board reported in I (2012) CPJ 47 NC respectively. It was held that the correct course for a consumer with a dispute regarding the correctness of the electricity meter or of the billed electricity consumption would be to apply to the electrical inspector designated (under the Indian Electricity Act). The complainant had in fact had not filed any complaint before the Electrical Inspector and instead of doing so had filed the complaint before the District Forum.
19. In U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmed, III (2013) CPJ (SC) 1, Hon'ble Supreme Court observed thus :-
"45. The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173, 174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging ""unauthorized use of electricity" as defined under Section 126 or committing offence under Section 135 to 140 do not fall within the meaning of "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
46. The acts of indulgence in "unauthorized use of electricity" by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 neither has any relationship with unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous service by the licensee. Such act of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in 'unauthorized use of electricity', do not fall within the meaning of "complaint" as we have notice above and therefore, the "complaint" against assessment underSection 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, is not maintainable before the Consumer Forum."
[ // 15 // See also Uttar Haryana Bijli VitranNigam Ltd. v. Om Prakash, IV (2013) CPJ 571 (NC); and DHBVNL v. Abhay Kumar Jain, IV (2013) CPJ 599 (NC)].
20. The complainant instead of filing appeal against the order of assessment under Section 126 of the Electricity Act,2003, he filed complaint before the District Forum for seeking relief, as it would appear to be an appeal against the assessment order. Consumer Fora are neither the Appellate Authority against the assessment order nor exercise power under Section 127 of the Electricity Act,2003 Since the complainant is looking for a remedy, he can seek relief under Section 127 of the Electricity Act,2003 or go before a Civil Court.
21. For the above discussion and in view of the order passed by Hon'ble Supreme Court in the case of U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmed (Supra) and Kiran Rai Khatri Vs. Dakshin Haryana Bijli Vitran Nigam Ltd. (Supra), the complaint filed in the present case before the District Forum under the Consumer Protection Act, 1986 is not maintainable and the complainant is not "consumer", therefore, the complaint is not maintainable. District Consumer Forum by ignoring the said facts allowed the complaint by quashing electricity bill. District Consumer Forum committed illegality and infirmity by allowing the complaint. Accordingly, the point no.9 supra is answered.
In the result the appeal is allowed setting aside the order of the District Forum, Karimnagar passed in C.C.No.83 of 2011 dated 04.02.2013 and consequently the complaint is dismissed with liberty to the complainant to seek appropriate remedy available to him before other appropriate Forum and in such a situation he is entitled for exclusion of the period spent between filing of the claim till disposal of the Appeal U/s. 14 of the Indian Limitation Act, 1963 for the purposes of limitation in the light of the decision of the Honble Supreme Court of India in Trai Foods Ltd Vs. National Insurance Company Ltd and another reported in (2004) 13 SCC 656. No costs PRESIDENT MEMBER 09.02.2018 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER