State Consumer Disputes Redressal Commission
Mpeb vs Gwalior Forest Product Ltd. on 15 July, 2022
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL FIRST APPEAL NO. 1342 OF 2013 (Arising out of order dated 05.07.2013 passed in C.C.No.217/2011 by the District Commission, Shivpuri) M.P.MADHYA KSHETRA VIDYUT VITRAN COMPANY LIMITED THROUGH GENERAL MANAGER, FIRST, BANGANGA, SHIVPURI (M.P.) ... APPELLANT. Versus THE GWALIOR FOREST PRODUCT LIMITED THROUGH ADMINISTRATIVE OFFICER, KATTHAMIL, SHIVPURI (M.P.) ... RESPONDENT. BEFORE: HON'BLE SHRI A. K. TIWARI : PRESIDING MEMBER
HON'BLE DR. SRIKANT PANDEY : MEMBER COUNSEL FOR PARTIES : Shri G. P. Upwanshi, learned counsel for the appellant. Shri Hemant Sharma, learned counsel for the respondent. O R D E R (Passed on 15.07.2022)
The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:
This appeal by the opposite party is directed against the order dated 05.07.2013 passed by the District Consumer Disputes Redressal Commission, Shivpuri (for short 'District Commission') in C.C.No.217/2011, whereby the complainant's complaint has been allowed.
2. Facts of the case in short as stated by the complainant/respondent are that he had obtained high tension electricity connection no.572095 from the opposite party/appellant of which bills were regularly paid. It is alleged that on 14.05.2009, the opposite party/appellant electricity company raised a demand for Rs.98,478/- for the dues of the year 1987-89 on the basis of audit recovery. Despite prayer for quashing the said demand, but the opposite party not quashed the same. The complainant/respondent therefore filed a complaint before the District Commission against the opposite party/appellant-electricity company seeking relief for quashing the demand raised of Rs.98,478/- along with compensation of Rs.20,000/- and costs Rs.5,000/-.
3. The opposite party/appellant resisted the complaint on the ground that audit team found dues of Rs.98,478/- on the said connection for the period 1987-89. Since the complainant filed a complaint challenging the recovery of 1987-89, therefore, the complaint is time barred. It is further submitted that the complainant is an industry manufacturing kattha, kachh & belia sereta. The connection obtained by the complainant is an industrial connection for commercial use. 400-500 workers were employed in its factory. The complainant has not obtained the connection for the purpose of earning his livelihood by means of sel-employment.
4. The District Commission allowed the complaint assuming the complainant as consumer and quashed the demand of Rs.98,478/- raised by the opposite party and directed the opposite party/appellant to pay Rs.2,000/- as compensation and Rs.500/- as costs to be paid within two months failing which the amount shall carry interest @ 9% p.a.
5. Heard learned counsel for the parties. Perused the record.
6. Learned counsel for the opposite party/appellant argued that on the basis of audit report, recovery for a sum of Rs.7,61,071/- was raised against the complainant for different periods, but the complainant has challenged the demand for Rs.98,478/- for the period 1987-89 which has wrongly been quashed by the District Commission while allowing the complaint. The complainant had obtained industrial connection for running his industry i.e. for commercial purpose, therefore, the complaint filed by the complainant is not a consumer dispute. Thus the order of the District Commission deserves to be dismissed on this ground. There are 400-500 workers employed in his industry. The complainant has not obtained the said electricity connection for running industry for earning his livelihood. The District Commission has wrongly interpreted the decision of the Hon'ble Supreme Court in Karnataka Power Transmission Corporation Vs Ashok Iron Works III (2009) CPJ 5 (SC). The Consumer Protection (Amedment) Act 2002 came into force on 15.03.2003 and therefore it is applicable to the complaint filed on 03.05.2011.
7. Learned counsel for the complainant/respondent argued that the respondent the District Commission has rightly passed the impugned order. The audit recovery for the period 1987-89 cannot be raised after such a long period in the year 2009, which is time barred. While raising the said demand, the opposite party was deficient in service.
8. The first and foremost question to decide this complaint is whether the dispute involved falls within the purview of 'consumer dispute' and whether the complainant could be termed as 'consumer' as defined under the Consumer Protection Act, 1986. It is also to be seen that whether the services availed by the complainant from the opposite party-electricity company would fall within the term 'commercial purpose'. The other question also have to be answered that as to whether such services are availed by the complainant exclusively for the purposes of earning his livelihood by means of self-employment. To decide the issue, it is necessary to refer relevant provisions of the Act with regard to definition of 'consumer' as defined in Section 2(1)(d), which is as follows:-
2(1)(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 service 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 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 purpose 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.
The aforesaid explanation was added in the Consumer Protection Act, 1986 by Consumer Protection (Amendment) 2002 which came into force on 15.03.2003.
9. It is thus clear from the aforesaid, that for filing a complaint before the District Commission, the complainant has to be a 'consumer' as defined under Section 2(1)(d) of the Act or he hires or avails of any service for a consideration. By way of explanation, it has been added "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.
10. Since the complainant has filed the complaint before the District Commission on 03.05.2011, the Amendment Act containing Explanation came into force on 15.03.2003 will very well applied in the present case. On perusal of the impugned order we find that the District Commission has wrongly interpreted the judgment of Hon'ble Supreme Court in Karnataka Power Transmission Corporation Vs Ashok Iron Works III (2009) CPJ 5 (SC) holding that the demand raised for the period prior to amendment, therefore, the complainant is a consumer.
11. On perusal of complaint we find that though the complainant is an industry manufacturing kattha, kacch, belia and sereta. There are 400-500 workers employed in his industry. Thus it cannot be said that the business of the complainant and electricity connection for running his industry availed by the complainant from the opposite party-electricity company solely for the purpose of earning livelihood of its owner by means of self-employment. The complainant nowhere in his complaint has stated that he has hired or availed services of the opposite party-electricity company exclusively for the purposes of earning his livelihood by means of self-employment.
12. We find that the Act is a special statute enacted with the purpose of providing a speedy and simple redressal to consumer disputes and if the definition of 'consumer is expanded so as to include such a person who avails of such services for any commercial purpose, the very purpose of this Act would be defeated. From the definition of 'consumer' as defined under Section 2(1)(d)(ii) and explanation, it is lucidly clear that whenever a person avails of any services for commercial purposes, he would not be a consumer, it is further clarified that the '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.
13. If a person buys goods for commercial purpose or avails services for commercial purpose, he would have been out of the ambit of the term 'consumer' by virtue of Explanation, which is now common to both Sections 2 (1)(d)(i) and 2(1)(d)(ii) of the Act, he would have been come within the ambit of term 'consumer', only if purchase of such goods or availing of such services was exclusively for the purposes of earning his livelihood by means of self-employment.
14. Hon'ble Supreme Court in Laxmi Engineering Works Vs P. S. G. Industrial Institute II (1995) CPJ 1 SC has held that a person who buys goods and use them himself, exclusively for the purpose of earning his livelihood by means of self-employment is within the definition of the expression 'consumer'. It has also been held that whether the purpose for which a person has bought goods is a 'commercial purpose' within the meaning of definition of expression 'consumer' in Section 2(d) of the Act is always a question of fact to be decided in the facts and circumstances of each case. Here in the present case, from the facts and circumstances, it is clearly established from the complaint itself had hired services of opposite party-electricity company for expansion of business and gaining huge profits. Therefore, it cannot be said that the complainant had availed services exclusively for the purpose of earning his livelihood by means of self-employment. The complainant is therefore cannot be termed as 'consumer'.
15. Hon'ble Supreme Court in U. P. Power Corporation Limited & Ors Vs Anis Ahmed III (2013) CPJ 1 (SC) has held that the complainants had electrical connections for industrial/commercial purpose and therefore, they do not come within the meaning of "consumer" as defined under Section 2(1)(d) of the Consumer Protection Act, 1986, they cannot be treated as "complainant" nor they are entitled to file any "complaint" before the Consumer Forum.
16. In the present case, the complainant a registered company availed industrial electricity connection for running industry. The complainant is a big business enterprises employing about more than 400 employees as stated the opposite party/appellant in the reply to which the complainant has not challenged by way of filing any counter affidavit. The complainant has not availed the services of the electricity company exclusively for the purposes of earning his livelihood by means of self-employment but for commercial purpose. The complainant is therefore not at all falls within the purview of 'consumer' as defined under Section 2(1)(d)(ii) of the Act and it cannot be said that he had hired services of the opposite party electricity company exclusively for the purposes of earning his livelihood by means of self-employment.
17. In view of the above discussion, we find that the complaint was not maintainable in law or in facts before the District Commission and is liable to be dismissed in limine. The District Commission fell in error in entertaining the complaint which did not disclose any consumer dispute as defined under Section 2 of the Consumer Protection Act, 1986.
18. Therefore, this appeal succeeds and is allowed. The impugned order is set-aside and the complaint filed by the respondent is dismissed. No order as to costs.
(A. K. Tiwari) (Dr. Srikant Pandey) Presiding Member Member