State Consumer Disputes Redressal Commission
The Executive Engineer Electrical ... vs Bam Dev on 26 July, 2011
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. FIRST APPEAL NO.447/2009 ORDER RESERVED ON 8.7.2011. DATE OF DECISION: 26.7.2011. In the matter of: 1. The Executive Engineer, Electrical Division, H.P.S.E.B., Gagret, Tehsil Amb, District Una, H.P. 2. The Assistant Engineer, H.P. S.E.B. Electrical Sub Division, Tahliwal, Tehsil Haroli, District Una, H.P. Appellants. Versus Sh. Bam Dev, son of Sh. Madan Lal, Prop. Munish Cattle Feed, Gram Udyog Workers Welfare Association, Plot No.26, Industrial Area, Tahliwal, District Una, H.P. Respondent. --------------------------------------------------------------------------------------------------------------------------------- Honble Mr. Chander Shekhar Sharma, Presiding Member. Honble Mrs. Prem Chauhan, Member. For the Appellants: Mr. Shashi Bhushan Singh, Advocate. For the Respondent: Mr. Hem Singh Thakur, Advocate vice Counsel. --------------------------------------------------------------------------------------------------------------------------------- O R D E R:
Chander Shekhar Sharma, Presiding Member.
1. This appeal is directed against the order of the District Forum, Una passed in Consumer Complaint No.113/2007 on 9.10.2009, whereby opposite parties, were directed to correct Bill No.2288604, dated 23.7.2007, Annexure A.1 by deleting sundry charges for the months of February, 2005 to June, 2005 and to issue the modified bill to the complainant for payment by giving reasonable time to deposit the amount of the modified bill.
2. Facts of the case as they emerge from the complaint file are, that Shri Bam Dev, complainant, hereinafter referred to as the respondent, who was Proprietor of Munish Cattle Feed, Gram Udyog Workers welfare Association, was having a plot No.26 in Industrial Area, Tahliwal, Tehsil Haroli, District Una. He had been provided an electricity meter for the supply of electricity and he was regularly paying electricity bills to the opposite parties, hereinafter referred to as the appellants. Respondent received an electricity bill No.2288604 from the appellants on 23.7.2007 for the month of June, 2007 amounting to Rs.47,197/- for consumption of electricity, but he was surprised to see that the appellants had added an extra amount of Rs.80,413/- on account of sundry charges and an amount of Rs.8,498/- as excise duty (E.Duty) thus raising a total demand of Rs.88,911/- as arrears.
3. Further allegations in the complaint were to the effect that MRI of the meter in question used to be conducted every month and no fault or defect was ever found in the meter. Neither the respondent was ever informed about such arrears nor any demand on this account was raised earlier despite MRI of the meter in question having been conducted every month by the appellants. The respondent approached appellant No.1 on 25.7.2007 with written application dated 23.7.2007 praying therein to clarify such excess billing alongwith details of its period and purpose and simultaneously requested not to charge extra amount and rectify the bill, but of no avail as it was told to be rectified only by the Court.
4. Other averments in the complaint were to the effect that said demand of arrears was wrong without any binding effect upon the respondent. This demand being illegal is liable to be withdrawn and discharged and the illegal threat of electricity connection being disconnected in the event of non payment of this extra amount is also uncalled for.
5. In this background, present complaint under Section 12 of the Consumer Protection Act, 1986 was filed alleging deficiency of service and unfair trade practice on the part of the appellants, seeking direction from the Forum below to the appellants to withdraw and discharge the extra amount of Rs.88,911 included in the bill, Annexure C.1for the month of June, 2007 wrongly shown as sundry charges and Rs.50,000/- was also claimed as compensation for mental agony, harassment etc. besides Rs.10,000/- on account of litigation expenses.
6. This complaint was resisted by contested by the appellants who had taken objections relating to mis-joinder and non-joinder of parties and it was also pleaded that the respondent had not approached the Forum below with clean hands and has suppressed the material facts as the respondent had made the unauthorized use of the electricity by tampering the electricity meter and thus was not competent to file and maintain the complaint. Further objections were to the effect that the Fora below had no jurisdiction to try and entertain the complaint since the appellants-HPSEB has constituted Forum for redressal of disputes between the consumers and the HPSEB. Since the respondent has not approached the said Forum, complaint is pre-mature and respondent has got no cause of action and the complaint is thus not maintainable, rather the respondent has neglected to pay the charges of Public Utility Organisation and has withheld the charges on account of electricity actually consumed by him.
7. Further pleadings of the appellants in their reply was to the effect that the installation of meter in the premises of the complainant was meant for supply of electricity of power to the industry of the complainant and as such the demand for Rs.82,932/- which had been demanded from the respondent on account of difference between the amount already charged and the amount to be charged as per rest result of aforesaid meter for the period from February, 2005 to July 2005 and in addition to this amount of Rs.82,932/-, Rs.4,691/- were charged on account of difference between the amount already charged and the amount to be charged due to change of tariff for the month of December, 2004 and demand for Rs.1281/- was made on account of less charged demand charges for the period from June, 2005 to August, 2005 which is justified since the audit party has also raised this objection and as such the prayer had been made for dismissal of the complaint being false, frivolous and not maintainable.
8. Brief resume of evidence led by the parties in nutshell is that the respondent in support of his case has filed his own affidavit and placed reliance upon various documents, Annexures, A.1 to A.4, which are; electricity bills issued to the respondent and letter dated 23.7.2007 addressed to the S.D.O. Tahliwal by the respondent.
9. The appellants in support of their case has filed affidavit of Shri Jagdev Singh, Superintending Engineer (OP) Circle, HPSEB, Rakkar Colony, Una and placed reliance upon various documents, Annexures R1 to R8, which are; statement relating to difference charged after installation of Test Meter as per order of Senior Executive Engineer (E) Division, Gagret(remarks recorded on MTO) Director by Director Enforcement/XEN flying squade (HPSEB Shimla) relating to the complainant and the statement relating to charges levied amounting to Rs.4,691/- charged through sundry item No.723/4 assessed by the Audit Party and charges of Rs.1288/- charged through sundry item No.735/4 assessed by the Audit Party and the Meter change order of the said Cattle feed industry, meter change/disconnection order, electricity bill No.2288604, letter addressed to the Senior Executive Engineer, HPSEB, dated 23.8.2007, copy of the Notification of H.P. State Electricity Board constituting a Forum for the redressal of grievances of the consumers.
10. We have heard the learned Counsel for the parties and have also gone through the record of the case minutely.
11. Mr. Shashi Bhushan Singh, learned Counsel for the appellants argued that the order of the Forum below is not legally sustainable since the respondent, Bam dev, does not fall within the ambit of definition of consumer under the Consumer Protection Act and as the electricity meter which was taken by the respondent, that was for commercial purpose of running a factory, as such present complaint is not maintainable and he had also argued that this is a case of theft of electricity. As such, appropriate course for the respondent in this case was to approach the appropriate Forum. The disputed bills are within two years and as such the Forum below had wrongly excluded the bills from February to June, 2005 which were issued by placing reliance upon Section 56 of the Electricity Act which was for making recovery after a period of two years from the date when such became due.
12. Mr. Shashi Bhushan Singh, Advocate in support of his case has placed reliance on various decisions of the Honble Supreme Court as well as of the Honble Commission, like Punjab State Electricity Board & another, IV(2010) CPJ 1 (SC), Mohan Lal and another Versus UHBVN & Anr., II (2010) CPJ 44 (NC) and Mohammad Haseeb Ahmad Versus Maharashtra State Electricity Board & Ors., III (2010) CPJ 242 (NC). There is no dispute about the legal position laid down in these rulings. Our view is supported by the decision of the National Commission in the case of Jharkhand State Electricity Board & Anr. V. Anwar Ali, II (2008) CPJ 281 (NC).
13. Learned Counsel for the respondent Shri Hem Singh Thakur supported the order of the Forum below. As per him, the bills given to him were highly inflated and simply on the basis of audit objection, illegal demand of energy bills to the tune of Rs.88991/- was raised on account of sundry charges etc. Per him, the respondent is a consumer under the Consumer Protection Act, 1986.
14. After hearing the learned Counsel for the parties and after going through the record of the case minutely, we are of the considered view that there is a force in the present appeal and it deserves to be accepted. Reason being that in the present case there is no whisper in the complaint to the effect that the respondent had established this industry for earning his livelihood for which electricity connection was taken by him since the appellants in their reply had also stated that the electricity connection was given to the proprietor of the industry. Even as per document, Annexure A.4, which is a letter, dated 23.7.2007, addressed by the Munish Cattle Feed Gram Udyog which is engaged in high quality gawala, cattle and poultry feed, dated 23.7.2007 to the S.D.O., Tahliwal. This fact is clear from the perusal of the aforesaid letter that the complainant is running a factor in the industrial area of Tahliwal.
As such, there appears to be force in the arguments of the learned Counsel for the appellants that the respondent does not fall within the definition of a consumer under the Consumer Protection Act since he avails services of electricity for commercial purpose. For ready reference, Section 2 (1)(d)(ii) is reproduced below:-
(d) consumer means any person who,--
(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 period 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 ny 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 purpose of earning his livelihood by means of self-employment.
15. Since this connection has been taken by the respondent for commercial purposes, as such the respondent in the present case does not fall within the ambit of definition of a consumer as reproduced above and the Forum below has wrongly taken cognizance of the case as amendment had come into force with effect from 15.3.2003.
16. Since we have gone into the question of jurisdiction only, merits of the case have not been touched at all by us.
17. No other point was urged.
In view of the aforesaid discussion, and facts and circumstances of this case, we set aside the order passed by the District Forum below in Consumer Complaint No.113/2007, dated 9.10.2009 and accept the present appeal.
Since there is a remedy for filing an appeal to the appropriate authority regarding the wrong billing/assessment etc., as such the respondent is at liberty to take appropriate course under the provisions of the Electricity Act, 2003 by approaching the appropriate Forum/Authority in the matter and the period spent by him during the course of proceedings before the Consumer Fora will not come in his way for filing complaint to the appropriate authority under the Indian Electricity Act, 2003.
All interim orders passed from time to time in this appeal shall stand vacated forthwith.
Copy of this order be supplied to the parties free of cost as per rules.
Shimla, Announced on July 26, 2011.
( Chander Shekhar Sharma ) Presiding Member.
( Prem Chauhan ) Member