State Consumer Disputes Redressal Commission
Sh. Deepak Sood. vs Muncipal Corporation Shimla. on 22 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 51/2017
Date of Presentation: 10.03.2017
Order Reserved on : 14.12.2018
Date of Order : 22.04.2019
......
Deepak Sood son of late Shri Onkar Nath Sood resident of
Kesari Bhawan Below Old Bus Stand Shimla-171001 H.P.
...... Appellant/Complainant
Versus
Municipal Corporation Shimla The Mall Shimla-1 H.P. through
its Commissioner.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Abhishek Raj vice Mr. Gaurav
Sharma Advocate.
For Respondent : Mr. Harish Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 05.12.2016 passed by Learned District Forum in consumer complaint No.130/2013 titled Deepak Sood Versus Municipal Corporation Shimla.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017 Brief facts of consumer complaint:
2. Shri Deepak filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant about fifteen years back applied for commercial water connection from opposite party in the shop known as Shimla Coal Company near bus stand. It is pleaded that complainant left the shop in question about five years ago because lease deed stood expired. It is pleaded that last bill was deposited by complainant on 25.02.2010 and thereafter complainant requested the opposite party to disconnect the water connection on 29.11.2010. It is pleaded that in the month of May 2012 opposite party demanded an amount of Rs.7560/-(Seven thousand five hundred sixty) from complainant. It is pleaded that matter was also reported to Mayor of Corporation. It is pleaded that now amount has been increased to Rs.11186/-(Eleven thousand one hundred eighty six) as per latest bill dated 10.03.2013 annexure-C6.
Complainant sought relief of quashment of bills dated 10.03.2013, 17.10.2012 and 01.05.2012. In addition complainant sought compensation to the tune of Rs.20000/- (Twenty thousand) for mental agony and harassment. In addition complainant sought relief of litigation costs to the tune of Rs.11000/-(Eleven thousand). Prayer for acceptance of consumer complaint sought.
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Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017
3. Per contra version filed on behalf of opposite party pleaded therein that complainant has no cause of action. It is pleaded that water connection was used for commercial purpose and Consumer Forum has no jurisdiction to dispose of consumer complaint. It is pleaded that complainant is estopped to file present consumer complaint due to his own act, conduct and deed. It is pleaded that complainant has no locus standi to file the present consumer complaint. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum dismissed the consumer complaint on the ground that complainant does not fall within the definition of consumer as defined under Consumer Protection Act 1986. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether commercial water 3 Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017 connection falls within the domain of Consumer Protection Act 1986?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant did not file affidavit under section 13(4) of Consumer Protection Act 1986 relating to controversial facts. Learned Advocate appeared on behalf of complainant has given statement before learned District Forum on dated 07.06.2014 which is quoted in toto:-
Statement of Sh. Gaurav Sharma Adv. for the complainant.
W/Oath 07.06.2014 Stated that I have tendered document Annexure-C7 alongwith rejoinder. That be read as evidence. I close my evidence in affirmative with liberty to file rebuttal if need be.
Sd/- Sd/- RO & AC Member.
8. Similarly opposite party also did not file affidavit under section 13(4) of Consumer Protection Act 1986 relating to controversial facts and given statement that version filed by opposite party be read in evidence on behalf of opposite party.
Statement of learned Advocate appeared on behalf of opposite party dated 07.04.2016 is also quoted in toto:-
Statement of Sh. Harish Chauhan Adv. vice for opposite party.
W/Oath 07.04.2016 4 Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017 Reply alongwith affidavit already filed be read in evidence and close the evidence on behalf of opposite party.
Sd/- Sd/- Sd/- Sd/- RO & AC President Member Member.
9. Submission of learned Advocate appearing on behalf of complainant that water bills dated 10.03.2013, 01.05.2012 and 17.10.2012 be quashed is decided accordingly. It is well settled law that controversial facts should be proved by parties under section 13(4) of Consumer Protection Act 1986. It is well settled law that pleading of parties and evidence of parties in support of pleadings are entirely two different concepts under law. It is well settled law that pleading is not substitute for proof. It is also well settled law that proceedings under Consumer Protection Act 1986 are quasi judicial proceedings. It is also well settled law that affidavit filed in support of pleading could not be treated as affidavit filed relating to controversial facts under section 13(4) of Consumer Protection Act 1986. See latest HLJ 2017 H.P. High Court 1011 titled Oriental Insurance Company Ltd.
Versus Champa Devi & Ors.
10. Submission of learned Advocate appearing on behalf of complainant that complainant was running chemist shop and water was not utilized for commercial purpose but was used for his personal consumption in shop is decided 5 Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017 accordingly. State Commission has carefully perused water bills dated 01.05.2012 annexure-C3, dated 17.10.2012 annexure-C5 and dated 10.03.2013 Annexure-C6. In all the bills in question tariff type has been mentioned as commercial. There is no recital of domestic connection or personal consumption connection in water bills which are in dispute. As per section 2(d)(ii) of Consumer Protection Act 1986 service of any kind relating to commercial purpose is outside the domain of Consumer Protection Act 1986. It is proved on record that commercial water connection was obtained by the complainant for chemist shop and lease deed was executed by complainant for chemist shop with land owner. There is no evidence on record in order to prove that complainant used to reside in the chemist shop. Plea of complainant that water connection was obtained for his personal use is defeated on the concept of ipse dixit (An assertion made without proof). See 2018(2) CPR 575 NC titled Gowhar Riyaz Khan Versus M/s. Ansal Housing & Construction Ltd. & Anr. See 2018(2) CPR 551 NC titled DLF Universal Ltd. (Earlier known as DLF India Ltd.) Versus Anjani Dass & Anr. In view of tariff type mentioned as commercial in nature in disputed bills State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to dispose of consumer complaint under Consumer Protection Act 1986. 6
Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017
11. Submission of the learned Advocate appearing on behalf opposite party that order of learned District Forum is in accordance with law and is in accordance with proved facts is decided accordingly. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to set aside order of learned District Forum in view of the fact that all water bills in question are commercial in nature. However it is expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of dispute. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
12. In view of findings upon point No.1 above complainant is relegated to civil court for adjudication of dispute. Statement of learned Advocate appeared on behalf of complainant namely Sh. Gaurav Sharma dated 07.06.2014 and statement of learned Advocate appeared on behalf of opposite party namely Shri Harish Chauhan dated 07.04.2016 and water bills Annexures-C3, C5 & C6 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order 7 Deepak Sood Versus Municipal Corporation Shimla F.A. No.51/2017 be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 22.04.2019 KD* 8