State Consumer Disputes Redressal Commission
Punjab State Power Corporation Ltd vs The Zira Cooperative Sugar Mill Ltd. on 15 November, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 536 of 2016
Date of Institution: 13.07.2016
Date of Reserve : 02.11.2017
Date of Decision : 15.11.2017
1. The Executive Engineer, Punjab State Power Corporation
Limited, Sub Division, Zira;
2. The Sub Divisional Engineer, Punjab State Power
Corporation Limited, Sub Division, Zira.
....Appellants/Ops
Versus
The Zira Cooperative Sugar Mill Ltd., Zira through its General
Manager.
....Respondent/Complainant
First Appeal against the order dated
29.04.2016 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellants : Sh. Piyush Khanna, Advocate
For the respondent : Sh. B.S. Gill, Advocate for
Sh. N.S. Brar, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
First Appeal No. 536 of 2016 2 The appellants/Ops (hereinafter referred as Ops) have filed the present appeal against the order dated 29.04.2015 passed in consumer complaint No. 429 dated 30.9.2015 by the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed with the direction to Ops to pay to the complainant a sum of Rs. 12,71,766/- alongwith interest @ 9% p.a. from the date of filing of complaint till realization and to reduce the load of the complainant to 50 KW in LSI category with immediate effect and to charge the MMC in future. The complainant was further held entitled to a sum of Rs. 10,000/- for mental harassment and suffering and Rs. 5,000/- as litigation expenses. It was further ordered to comply with the order within a period of 30 days.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the Ops on the averments that complainant is a Society incorporated under the Cooperative Societies Act, 1961 and deals in manufacturing sugar. The complainant is consumer of Ops having electricity connection No. M64ZA0200001 in category LS under sanctioned load of 990.520 KW. Mill went into losses and stopped its working in the year 2005 and the load of the electricity connection was reduced from 990.520 KW to 231.175 KW for residential colony of the mill, bank, street lights, tubewell and office etc. All the employees of the mill retired under the voluntary retirement scheme w.e.f. 31.12.2011 and they vacated the residential colony, First Appeal No. 536 of 2016 3 therefore, consumption and load had gone done to a larger extent. Lateron the bank was also closed in the month of October, 2013. On 8.10.2012, the complainant through its General Manager applied to the office of the Ops for reducing the load of the mill from 231.175 KW to 109.920 KW alongwith necessary test report whereby he assessed the load to be 109.920 KW but Ops did not reduce the load but instead converted the category of the complainant from LS General Industry (wherein minimum monthly charges) are far less i.e. Rs. 182/-KVA as per Clause 7 of table 6.1 and revised tariff for financial year 2013-14 issued by the Punjab State Electricity Regulatory Commission, Chandigarh to bulk supply wherein MMC are far more i.e. Rs. 299/- KVA as per Clause 7 of the existing and revised tariff for the financial year 2013-14 without reducing the load from 231.175 KW to 109.920 KW. The Op at Zira had also written a letter dated 19.5.2015 to the Moga office of the Op wherein it was admitted by the office of the Op at Zira that connection of the complainant as LSI, which makes it clear that they had charged the rate of BS (HT) category. It has been stated that a sum of Rs. 13,44,300/- has been excessively charged by the Ops. The complainant also issued reminders on 23.10.2012, 7.11.2012, 12.1.2013 to the Ops, duly received by Ops but Ops did not bother to act upon the same and did not take the necessary action. Reminder dated 27.9.2013 was also issued to the Superintendent Engineer of the Ferozepur Circle and then a reminder dated 7.3.2014 was issued to the Chief Engineer, Consumer Grievances Redressal Forum, PSPCL, Patiala but with First Appeal No. 536 of 2016 4 no result. Complainant sent a letter dated 29.6.2014 and requested the Op to reduce the load to 50 KW and adjust the excess amount charged by the Op from the complainant but with no result. Then he got issued legal notice dated 28.7.2015 to the Op for reducing the load from 231.175 KW to 50 KW but no action was taken by the Ops. Alleging deficiency in service on the part of Op, complaint was filed before the District Forum seeking directions against the Op to refund a sum of Rs. 13,44,300/- illegally charged from the complainant under the head MMC, reduce the load of the complainant from 231.175 KW to 50 KW, pay Rs. 1,00,000/- on account of deficiency in service and unfair trade practice, Rs. 1,00,000/- on account of compensation for harassment, mental agony and Rs. 50,000/- on account of litigation expenses.
3. Upon notice, complaint was contested by the Op. It filed written reply taking preliminary objections that the complainant does not fall within the definition of consumer as the residential colony, tubewell, office, street lights etc. are located within the premises of the said Mill, the connection in question falls under the category of bulk supply and the tariff of bulk supply is applicable to the connection in question. The LS tariff is applicable only where the industrial load of any installation exceeds 50% of the total load. Complainant preferred Civil Writ Petition No. 12451 of 2003 regarding the imposition of monthly parallel charges in current bills on the basis of commercial circular No. 26/2002 and 60/2002, which was disposed off by Hon'ble Mr. Justice K. Kannan First Appeal No. 536 of 2016 5 on 19.2.2012. The respondents had preferred LPA against the order dated 19.2.2015 before the Hon'ble High Court of Punjab & Haryana. The application for reduction of load was not supported by required documents as per Electricity Supply Instruction Manual of the Corporation. In reply to the legal notice dated 28.7.2015, it was specifically replied that A&A agreement form alongwith test report besides the requisite processing fee has to be deposited before the request to be considered, which was sent vide memo No. 1021 dated 5.8.2015 and another notice dated 19.1.2015 was received on 2.2.2015, which was replied vide memo No. 190 dated 11.2.2015 and it was intimated that for reduction of load, A&A agreement form, copy of byelaws, special power of attorney, test report, photo identity proof identity of competent signing authority is required for processing the same; the complaint is barred by limitation as the cause of action had accrued to the complainant as on 8.10.2012 and is paying the tariff of bulk supply since July, 2013 without protest and that complicated questions of facts and law are involved, which required voluminous evidence, therefore, it is not possible to agitate it in the summary procedure and the matter be relegated to the Civil Court. On merits, it was admitted to the extent that the electricity connection was installed with the complainant having electricity connection No. M64ZA0200001, however, it was denied that the said connection was for LS General Industry category. The bill issued to the complainant shown that the electric connection in question is governed by the category HT Bulk Supply DPC as reflected in the bills attached. As First Appeal No. 536 of 2016 6 the connection in question falls under the category of bulk supply, therefore, the tariff of bulk supply is applicable. So far as required load of the complainant is concerned, it is for the complainant to get it reduced as per the requirement and as per the procedure laid down by PSPCL according to its rules. The present load of the complainant is 231.175 KW and the complainant is being charged on the basis of said load. In case the complainant was to get it reduced to 50 KW, the same can be done by the complainant after following the proper procedure laid down by PSPCL but only an application was received from the complainant for reducing the load from 231.175 KW to 109.920 KW. When the said application was processed, it was found that it does not complete the formalities as laid down under the rules of the Op. The application was not accompanied by certified copy of memorandum of association/article of association, certified copy of the incorporation of the Company, special power of attorney in favour of authorized signatory and certified copy of the resolution authorizing the signatory to sign on behalf of the company. The aforesaid application could not be processed as the same was neither complete nor in order. The complaint is also barred by limitation as it was filed in the year 2015 whereas the complainant is paying the bills since 2012 without any protest. The Op is not under obligation to reduce the load unless complete application is submitted to it. So far as the letter dated 19.5.2015, the official concerned was writing it to MMTS Moga for checking the working of the meter, namely, Gurdita Mal Shantia Parkash and Paras First Appeal No. 536 of 2016 7 Foods. When the employees of the complainant approached that it will be submitting the papers for reduction of the load to Op and request for the same be made to MMTS, Moga, it is corroborated from the fact that letter dated 23.7.2015 is attached alongwith the test report dated 23.7.2015. It was denied that minimum charges were wrongly charged from the complainant from 14.8.2013. It was also denied that a sum of Rs. 13,44,300/- was wrongly charged from the complainant. The legal notice dated 28.7.2015 was adequately replied vide memo No. 1021 dated 5.8.2015, therefore, there was no deficiency in service or any unfair trade practice on their part. Complaint is without merit, it be dismissed.
4. Before the District Forum, the parties were allowed to lead their respective evidence.
5. In support of his allegations, the complainant had tendered into evidence his evidence documents Exs. C-1 to C-50. On the other hand, Ops had tendered into evidence documents Exs. Ops 1 to Ex. Ops-8.
6. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellants/Ops have filed the present appeal.
8. We have heard the learned counsel for the appellants, learned counsel for the respondent and have carefully gone through the record of the case.
First Appeal No. 536 of 2016 8
9. It was argued by the counsel for the appellants /Ops that the impugned order is contrary to the facts on record. It was wrongly directed to the Op to refund to the complainant/respondent difference of the amount of monthly minimum charges charged by the Ops, making the calculation on the basis of load of 109.920 KW in the category of LS General Industry. Although an application was moved by the complainant for reduction of the load but it failed to complete the formalities by attaching A&A form, processing fee etc. and it was intimated to it and in reply to the legal notice but it was not complied with by the complainant. Therefore, the order passed by the District Forum is liable to be set-aside.
10. From the pleadings of the parties, it is clear that originally electricity connection No. M64ZA0200001 i.e. LS connection was for 990.520 KW. As per the pleadings, in the year 2005, the load was reduced from 990.520 KW to 231.175 KW. It has been stated by the counsel for the Ops that an application was received from the respondent/complainant for reducing the load from 231.175 KW to 109.920 KW and then to 50 KW but it was not accompanied with required documents. There is one letter dated 8.10.2012 Ex. C-2 vide which it was requested to the Ops that they are having the power load 231.175 KW and after taking the voluntary retirement by its employees, no one is residing in Mill's residential colony, therefore, it be reduced to minimum extent. It was accompanied with application in the prescribed proforma Ex. C-3. There is another letter dated 23.10.2012 Ex. C-36 wherein First Appeal No. 536 of 2016 9 this request was repeated. It was further repeated in the letter dated 7.11.2012 Ex. C-37 and then in the letter dated 12.1.2013 Ex. C-38 and then vide another letter dated 7.3.2014 Ex. C-40, dated 26.9.2014 Ex. C-41 and then in a legal notice dated 28.7.2015. They also placed on the record the test report Ex. C-46 and A&A form Ex. C-47 dated 23.7.2015 wherein the load has been shown as 50 KW. The Ops vide their letter dated 5.8.2015 addressed to Ops stated that to reduce the load A&A form alongwith the test report and Rs. 100/- as processing fee be deposited. Then it was replied to the legal notice dated 19.1.2015 vide letter dated 11.2.2015 Ex. Op-4 wherein it was stated that to reduce the load, A&A form, copy of byelaws, special power of attorney to sign A&A form, test report, photo identity proof of competent signing authority be filed but counsel for the complainant has not been able to refer to any document vide which these documents were submitted to the Ops. Without submitting those documents, the application for reducing the load cannot be considered. Earlier also the load of the complainant was reduced from 990.520 KW to 231.175 KW, therefore, they knew the procedure, therefore, the application should have been submitted in the prescribed form alongwith required documents but and fee the counsel for the complainant has not referred to any correspondence on the record by which those documents and fee were submitted with the Ops. Therefore, the application was not proper as it was not attached with the required documents and fee for reduction of the connected load, therefore, it cannot be said First Appeal No. 536 of 2016 10 that there was any deficiency in service on the part of Ops not to reduce the load.
11. It has been stated that from LS category, the connection of the complainant has been connected to BS category. Even if the load is not reduced for want of documents, the Ops did not have any document to prove on the record, how its load was changed from LS to BS and MMC for LS to BS are different. He has referred that MMC for LS is Rs. 182/- KVA and under BS it is Rs. 299/- KVA. However, the counsel for the Ops stated that the bills were not prepared according to MMC but according to the actual consumption and according to the actual consumption, the bills upto 9.7.2015 comes to Rs. 10,31,879/-, as per the details given by the counsel for the appellants/Ops, which are as under:-
Punjab Khand Udyog LS-01/Bulk Supply Tariff (Detail Actual Consumption & Bill Amount) as per sanction load 109.920 KW S. Date/ Consu Per SOP FCA FCA SOP + ED Total No. Month mption Unit Rate FCA Rate Per (Rs.) Unit (Pai-
se) 1 14.8.2013 7733 6.29 48641 0 0 48641 6323 54964 2 13.9.2013 7733 6.29 48641 0 0 48641 6323 54964 3 14.10.2013 3994 6.29 25122 0 0 25122 3266 28388 4 13.11.2013 8453 6.29 53169 0.09 760.77 53930 7011 60941 5 9.12.2013 3811 6.29 23971 0.09 342.99 24314 3161 27475 6 16.1.2014 5786 6.29 36394 0.09 520.74 36915 4799 41714 7 13.2.2014 9098 6.29 57226 0.12 1091.76 58318 7581 65900 8 10.3.2014 6630 6.29 41703 0.12 795.6 42498 5525 48023 9 10.4.2014 5712 6.29 35928 0.12 685.44 36614 4760 41374 10 13.5.2014 6126 6.09 37307 0 0 37307 4850 42157 11 16.6.2014 6154 6.09 37478 0 0 37478 4872 42350 12 11.7.2014 6270 6.09 38184 0 0 38184 4964 43148 13 13.8.2014 6718 60.9 40913 0 0 40913 5319 46231 14 12.9.2014 7050 6.09 42935 0 0 42935 5581 48516 15 8.10.2014 6730 6.09 40986 0 0 40986 5328 46314 16 13.11.2014 6744 6.09 41071 0.02 134.88 41206 5357 46563 17 15.12.2014 6240 6.09 38002 0.02 124.8 38126 4956 43083 18 13.1.2015 6042 6.09 36796 0.02 120.84 36917 4799 41716 19 19.2.2015 6676 6.09 40657 0.05 333.8 40991 5329 46319 20 16.3.2015 5264 6.09 32068 0.05 263.2 32321 4202 36523 21 13.4.2015 5508 6.09 33544 0.05 275.4 33819 4396 38216 22 11.5.2015 4034 6.09 24567 0.04 161.36 24728 3215 27943 First Appeal No. 536 of 2016 11 23 9.6.2015 4510 6.09 27466 0.04 180.4 27646 3594 31240 24 9.7.2015 4016 6.09 24457 0.04 160.64 24618 3200 27818 147032 907215 5952.62 913168 118712 1031879 G. Total 1031879 It is same, if calculated to 109.920 KW or 231.75 KW load.
However, the complainant in his complaint has referred to the minimum charges at 109.920 KW but the load was never reduced to 109.920 KW, therefore, minimum charges as referred in the complaint from 14.8.2013 to 9.7.2015 cannot be charged as referred by the complainant in its complaint and its difference has been taken by the District Forum as Rs. 12,71,766/-. That difference cannot be taken into consideration as the connected load of the complainant was not reduced from 231.175 KW to 109.920 KW and then to 50 KW. In case the rates have been charged as per the consumption then actual consumption charges have to be paid by the complainant whereas there is no difference in the consumption charges in LS/Bulk Supply tariff.
12. With regard to reducing load from 231.175 KW to 109.920 KW and then to 50 KW already the order has been passed by the District Forum that it will be reduced to 50 KW under LS category but no order has been passed with regard to submission of the required documents. The complainant in case wanted to reduce the load, is required to submit the documents and fee as referred above in the correspondence between both the parties, therefore, it was required by the District Forum to pass an order directing the complainant to submit the required First Appeal No. 536 of 2016 12 documents and fee within a specific period, it can be 30 days from the date of receipt of the order.
13. Another point has been raised by the counsel for the Ops that complainant is not a consumer. The complainant has been registered as a Society and is availing the services to supply the electricity and in case some deficiency has been alleged in its supply or preparation of the bills then it comes under the definition of deficiency in service and that complainant is a consumer.
14. It was argued by the counsel for the Ops that the complainant does not fall under the category of 'consumer' as the complainant is a firm, therefore, the electricity was used for commercial purposes. To support this preposition, the counsel for the Ops has referred to the judgment 2015(2) CLT 487 "M/s Fuchasia Developers Pvt. Ltd. versus M/s. DLF Commercial Developers Limited & Anr.". In that case, private limited company booked commercial space. Referring the explanation to Section 2(1)(d), it was observed that complainant being a juristic person, the explanation does not come into the play, therefore, Consumer Fora has no jurisdiction to entertain this complaint. Whereas counsel for the complainant argued that firstly it is not a commercial connection. The complainant availed the electricity supply for residential purposes also, therefore, it falls under the definition of consumer. To support this contention, he has referred the full bench judgment of Hon'ble National Commission titled as "Crompton Greaves Limited & Anr. Versus Daimler Chrysler India Private Limited & Ors.", Consumer Case No. 51 of 2006, First Appeal No. 536 of 2016 13 decided on 8.7.2016 wherein the Hon'ble National Commission relied upon the judgment "Laxmi Engineering Works Vs. P.S.G. Industrial Institute", reported in 1995 (3) SCC 583 wherein it was observed that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture, which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. Therefore, if a transaction of purchase of goods or hiring or availing of services is not aimed at earning profits or advancing the business activities of the purchaser, such a transaction will not be out of the purview of the Consumer Protection Act. It was further followed by the Hon'ble National Commission in judgment "Duggirala Prasad Babu Vs. M/s Skoda Auto India Pvt. Ltd.", Revision Petition No. 428 of 2013, decided on 4.3.2014 and accordingly, the Hon'ble National Commission held as under:-
"(a) If a car or any other goods are obtained or any services are hired or availed by a company for the use/personal use of its directors or employees, such a transaction does not amount to purchase of goods or hiring or availing of services for a commercial purpose, irrespective of whether the goods or services are used solely for the personal purposes of the directors or employees of the company or they are used primarily for the use of the directors or employees of the company and incidentally for the purposes of the company.First Appeal No. 536 of 2016 14
(b) The purchase of a car or any other goods or hiring or availing of services by a company for the purposes of the company amount to purchase for a commercial purpose, even if such a car or other goods or such services are incidentally used by the directors or employees of the company for their personal purposes.
In the present case, electricity connection was originally taken for the Mill which was closed in 2005. Load was reduced and after that no commercial activity was being taken in the Mill when application was made to further decreased the load. Therefore, it cannot be said that it was being used to earn any profit and in view of above law, the complainant falls under the definition of consumer.
15. No other point was argued.
16. Sequel to the above, we partly accept the appeal. The order passed by the District Forum to pay to the complainant a sum of Rs. 12,71,766/- alongwith interest @ 9% p.a. from the date of filing the complaint is set-aside, rather for the period 14.8.2013 to 9.7.2015 Ops will charge a sum of Rs. 10,31,879/-. In case any excess amount has been charged from the complainant that will be refunded alongwith interest @ 9% from the date of deposit till date of payment. With regard to reduction of load from the existing load to 50 KW, the complainant may deposit with the Ops the documents i.e. A&A form, copy of byelaws, power of attorney to sign A&A form, test report, photo identity proof identity of competent signing authority and fee etc. within a period of 30 days First Appeal No. 536 of 2016 15 from the date of receiving of copy of the order passed by this Commission, then further charges will be charged from the complainant on a load of 50 KW as per the order passed by the District Forum. There will be no change in the amount of compensation and litigation expenses as ordered by the District Forum.
17. Appellant No. 1 had deposited an amount of Rs. 25,000/- and Rs. 3,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to the District Forum to disburse the same to the complainant as per its entitlement on the basis of order passed by this Commission. The excess amount, if any, be refunded to the appellants/Ops. The concerned party will lodge their claim before the District Forum for execution purposes.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
19. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER November 15, 2017.
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