State Consumer Disputes Redressal Commission
Yogesh Bihari Lal Gupta vs Bses Rajdhani Power Limited on 23 May, 2008
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 23-05-2008 Complaint Case No. C-07/3 Yogesh Bihari Lal Gupta, 125A, Krishna Nagar, New Delhi 110029. . . . Complainant In Person Versus 1. BSES Rajdhani Power Ltd. BSES Bhawan, Nehru Place, New Delhi 110019. 2. Business Manager (D) JKP, AGM (B) BRPL, G-8 Area, Maya Enclave, Hari Nagar, New Delhi 110064. . . . Opposite Parties CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. Through this complaint, the complainant is seeking compensation for wrongful, negligent and illegal acts of omission and commission of the O.P. in not providing electric connection inspite of the Ombudsman having held them guilty vide its Order dated 3-11-2006 for not processing the request of the complainant as per rules. The order of the Ombudsman is as under:-
Record shows that the request of the appellant for new connection dated 1-10-2005 was not processed as per rules and considerable delay was caused as new connection was given on 13-09-2006. Therefore, a penalty of Rs. 500/- is payable by Discom as per Regulation 38 (Chapter IX) of DERC Regulations, 2002 (Performance Standards Metering & Billing).
2. The case of the complainant in brief is that on 01-10-2005 he applied for a 5KV commercial connection. Having received no response till 20-10-2005 he visited the office of the O.P. on 21-10-05 but was informed that huge arrears were outstanding against the premises in the name of Shri R.S. Salooja, previous owner of the building which was in clear violation of Sec. 4 (ii) of the Electricity Act. On 24-01-2006 the complainant filed a complaint before the Consumer Grievances Redressal Forum (CGRF) of the O.P. but the CGRP vide its order dated 18-05-2006 was though convinced of the deficiency on the part of the O.P. but granted only a compensation of Rs.
1000/-. Feeling aggrieved the complainant filed an appeal before the Ombudsman and the Ombudsman vide its order dated 3-11-2006 awarded a compensation of Rs. 5000/- to the complainant and imposed a penalty of Rs. 500/- on the O.P. for its failure to process the application as per rules.
3. On the above allegations the complainant has claimed the following relief:-
Rental loss @ Rs. 1000/- each w.e.f.
1-11-05 under Sec. 43(3) of the Electricity Act 2003 (1000 x 410) Rs. 4,10,000-00 Refund for cancellation of Rental Agreement dated 26-09-05 on 15-12-05. Rs.
17,500-00 Damages for harassment, Torture and mental agony. Rs. 2,05,000-00 For non-compliance/ five Contraventions @ Rs. 1.00 Lakh each Under Sec. 142 of the Electricity Act. Rs. 5,00,000-00 For continued failure since 13-06-06 @ Rs. 6000/- each per day under Sec. 142 of the Electricity Act.
Rs. 12,00,000-00 Punitive damages for willful malicious Act and, negligence causing grievous Injuries to the complainant. Rs. 2,50,000-00
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Rs.25,82,500-00
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4. The complaint was resisted by the O.P. on the ground that the complainant had already exhausted the remedy as provided under the Electricity Act, 2003 by filing a complaint before the Consumer Grievance Redressal Forum (BPRL) and the said Forum had disposed of the complaint by granting relief to him vide its Order dated 18-05-2006 and thereafter the complainant had filed an appeal before the Ombudsman against the said Order of the CGRF and the appeal was also disposed of by the Ombudsman vide its reasoned Order dated 13-11-2006. Therefore, having exhausted the remedies provided under the Electricity Act, 2003 the complainant is estopped from agitating the same dispute under the Consumer Protection Act. Further that the complainant is indulging in Forum shopping which practice has been deprecated by all the Courts and the complainant should not be allowed to indulge in such an exercise as he had already chosen a Forum and mechanism provided under the Electricity Act and having got the relief to which he was entitled. Further that the complainant is not a consumer as he had only applied for a connection and had not become the legal owner of a power meter and as such the O.P. had not rendered any service whatsoever and hence the question of deficiency in service does not arise.
5. On merits it was contended by the O.P. that the complainant was duly explained about the pre-conditions for grant of an electricity connection and since the complainant failed to comply with the pre-conditions he disentitled himself from grant of a connection. Even otherwise the issue already stands adjudicated by the CGRF and the Ombudsman which orders had attained finality.
6. The objection of the O.P. that the complainant has no remedy under Consumer Protection Act, once he had approached CGRF as well as the Ombudsman, is completely devoid of substance, as the Supreme Court has case after case taken a view that by virtue of Sec. 3 of the Act, the remedy under the Consumer Protection Act, is in addition to and not in derogation of any other law and even if the consumer has sought any such remedy before the civil Court or any other Forum or even if there is an arbitration clause, still the consumer can file a complaint under Sec. 12 of the Act for seeking compensation as no other statute recognizes compensation as recognized by the Consumer Protection Act for mental agony, actual loss or harassment, trauma, etc. suffered by the consumer due to negligence or malafide or repressive conduct of the service provider. In this regard the observations of the Supreme Court in various cases are noteworthy and are as under:-
SCOPE OF SECTION 3 OF ACT 1986
(i) Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRS and Ors. Civil Appeal No. 92 of 1998 decided on 11-12-2003.
Reported in S.C. & N.C. Consumer cases (1996- 2005).
10. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.
(ii) Fair Air Engineers Pvt. Ltd. and Anr. Vs. N.K. Modi, 1996 (6) SCC 385.
It would, therefore be clear that the legislature intended to provide a remedy in addition to the consequent 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.
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 matter 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 the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.
(iii) Smt. Kalawati and others Vs. M/s United Vaish Co-operative Thrift and Credit Society Ltd. R.P. No. 823 to 826 of 2001, SC & NC Consumer Law Cases (1886- 2005) 275, wherein the National Commission observed that
4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a consumer under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.
(iv) JURISDICTION OF CONSUMER FORUM/COMMISSIONS
(i) Lucknow Development authority Vs. M.K. Gupta, 1994 (1) SCC 243- On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon the list.
Remedies that are available to the aggrieved party under the 1986 Act are wider. For instance in addition to granting a specific relief the forums under the 1986 Act have jurisdiction to award compensation for the mental agony, suffering etc. which possibly could not be given under the Act in relation to any other dispute under any other law.
(ii) Spring Meadows Hospital and another Vs. Harjot Ahluwalia through K.S. Ahluwalia and another, 1998 (4) SCC 39 On the question of jurisdiction it is stated that the forums under the Act have jurisdiction to entertain a complaint despite the fact that other forums/courts would also have jurisdiction to adjudicate upon it. It is also noticed that the Act provides for a further safeguard to the effect that in the event a complaint involves complicated issues requiring recording or evidence of experts, the complainant would be at liberty to approach the civil court for appropriate relief.
7. Having accorded careful consideration to the rival contentions and claims of the parties as well as the orders passed by the Ombudsman and CGRF, we find that the complainant has suffered at the hands of the O.P. immensely though his grievances were redressed subsequently by the O.P. so far as sanctioning of new electricity connection was concerned.
8. Merely because the complainant has sought compensation under different provisions of law of Electricity Act, does not mean that the complaint filed by him before this Commission cannot be treated as a complaint under the Consumer Protection Act. It was deemed as having filed under Sec. 12 of the Act. Otherwise this Commission did not have any jurisdiction to entertain the same. The Ld. Counsel for the O.P. further states that the orders of Ombudsman and CGRF were duly complied with. However, the remedies and compensation under any other law are independent and have no relevance to the compensation to be awarded under the Consumer Protection Act.
9. However, the complainant who is present in person states that after having installed the connection, the O.P. has again withdrawn it without any notice. The subsequent action of the O.P. as stated by the complainant reeks of vendetta.
10. In a recent judgment reported in Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65 the Supreme Court has provided a very wide connotation to the word compensation as appearing in the provisions of the Consumer Protection Act, by including each and every element of suffering suffered by the consumer at the hands of service provider and has even gone to the extent of calling upon the District Forum for recovery of compensation awarded from the salary of officials responsible for the woes and sufferings of the consumer so as to vindicate the strength of law. The observations made by the Supreme Court are quote worthy and are as under:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
11. However, taking over all view of the case as well as subsequent event of the O.P. having withdrawn the connection, though the Ld. Counsel for the O.P. states that the connection has been re-installed, we deem that a lump sum compensation of Rs. 50,000/- shall meet the ends of justice.
12. Payment shall be made within one month from the date of receipt of a copy of this order. Similarly, if the meter has not been installed, it should be installed within one month.
13. The complaint is disposed of in aforesaid terms.
15. Copy of order as per statutory requirement be forwarded to the parties free of cost and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK