State Consumer Disputes Redressal Commission
Tamil Nadu Electricity Board,Tatabad, ... vs V. Vijayalakshmi,No.1448A-6, Sakthi ... on 30 March, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBER
Thiru.S.Sambandam, B.Sc., MEMBER II F.A.NO.405/2009 [Against order in C.C.No.150/2007 on the file of the DCDRF, Coimbatore] DATED THIS THE 30th DAY OF MARCH 2011
1. Tamil Nadu Electricity Board, | Rep. by its Executive Engineer, | Tatabad, Kovai -
12. HoH | |
2. The Executive Engineer, | Tamil Nadu Electricity Board, | Tatabad, | Appellants / Ops.
Kovai 12. | |
3. The Assistant Executive Engineer, | Tamil Nadu Electricity Board, | Ramakrishnapuram, Ganapathy, | Kovai 6. | Vs.
1. V. Vijayalakshmi, | Respondents/complainants |
2. P. Loganathan, | No.1448A-6, Sakthi Road, Ramakirshapuram, | Ganapathy, Kovai
6. | The respondents as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to rectify the defective meter and restore the service connection bearing No.929 of the complainant, to pay Rs.1 lakh for damages for causing mental agony and deficiency in service, to pay Rs.2,000/- towards cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.22.09.2008 in C.C.150/2007.
This appeal coming before us for hearing finally on 17.03.2011, upon hearing the arguments of the either counsels and perused the documents, as well as the order of the District Forum, this Commission made the following order:
Counsel for the Appellants / Ops. : Mr.N.Saravanan, Advocate.
Counsel for the Respondents/ Complainants : Mr.V.Anandha Moorthy, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The first complainant is the landlord and the second complainant is her tenant, who is conducting a Rice Mundy in the premises belonged to first complainant, under the name and style of Amman Rice Mundy, in which, Service Connection No.929 is situated, through which, the second complainant is consuming electricity, for commercial purpose. The first complainant obtained the said electricity service connection for her shop, which is rented to the second complainant for commercial usage.
3. The meter fixed in the premises found to be defective and it was not recording the correct consumption. The opposite parties, who are bound to maintain the meter with good condition also failed. The second complainant reported the matter regarding the excessive recording due to faulty meter, to the opposite parties, who had removed the old meter and installed a new meter on 14.3.2006, which also failed to record the consumption properly, resulting excessive recording of units, thereby compelling the second complainant to complain, the same to the opposite parties. Thereafter, the opposite parties have failed to rectify the defective meter, but disconnected the service connection for non-payment of the alleged consumption charges, which was not paid by the complainants, due to excessive recording. Therefore, the acts of the opposite parties should be construed as negligent act, for which, the complainants are entitled to sum of Rs.1 lakh as compensation, in addition to, a direction to rectify the defective meter and restore the Service Connection bearing No.929.
4. The opposite parties resisted the complaint, inter alia contending that the second complainant is not a consumer and as such, the case is not maintainable that the consumers are duty bound to pay the electricity charges and their failure would result disconnection, that upon complaint, it is true, a new meter was installed, replacing the old meter, that in view of the fact, after disconnection, connection was taken from 929, it had recorded higher unit, not due to faulty mete,r and that since they have not committed any deficiency in service, they are not liable to answer the claim of the complainants.
5. The District Forum deducing a conclusion that the opposite parties had committed deficiency in replacing defective meter and to effect service connection, has come to the conclusion that there was deficiency in service, on that basis, directed the opposite parties to rectify the defective meter and restore the service connection bearing No.929, as well as to pay Rs.10,000/- towards compensation with cost, as per the order dated 22.09.2008, which is under challenge.
6. Admittedly, the first complainant is the owner of Door No.1448-A/6, Sathy Road, Coimbatore, wherein, she had obtained a service connection, for business bearing Service Connection No.929. The said premises and the service connection was given to the second complainant, for lease, and the second complainant was using the premises, as well as the service connection, for commercial purpose, commercial usage, as pleaded in Para 3 and 4 of the complaint. It appears, there was some problem in the meter, bearing Service Connection No.929 and upon complaint, meter was replaced and even thereafter, according to the complainants, the new meter has also not functioned properly, since it recorded excessive units. Thus, complaining, it seems, the second complainant has failed to pay the consumption charges, resulting disconnection.
Therefore, alleging deficiency, the landlord and the tenant jointly have field this consumer complaint, seeking a direction, against the opposite parties to rectify the defective meter and restore the Service Connection No.929, in addition to, a compensation of Rs.1 lakh probably, jointly in their favour, not independently each.
7. Though the first complainant is the owner of the service connection, even as per the case of the complainants, the second complainant alone is using the same and if at all, he alone can be considered as consumer, and if at all, relief can be given, if he comes within the ambit of the Consumer Protection Act. When the complainants themselves have not claimed independent compensation, for each of them, unfortunately, an over enthusiastic Consumer President, directed the opposite parties to pay compensation, for each complainant, Rs.10,000/-, which is unwarranted even as per the case of the complainants. When the first complainant has not used the meter or when she was not compelled to pay the alleged excessive charges, there is no question of mental agony or suffering to the first complainant, warranting separate compensation. Unfortunately, the District Forum, taking very lenient view, granted compensation for each of the complainant, separately even without considering the scope of the case namely whether the Consumer Forum has jurisdiction to decide the case or not.
8. It is the specific case of the opposite parties, that the second complainant is not a consumer. Even in the absence of the defence, it is the duty of the Consumer Forum, to find out the maintainability of the case, which is mandate of the Act as well as guidelines of the National Commission.
9. The complainants themselves have stated, that Service Connection No.929 is used for commercial purpose and the same was obtained for commercial usage. The District Forum ought to have decided the maintainability of the case, which they failed, but it found fault with the opposite parties unfortunately. The amended Consumer Protection Act, which came into effect from 15.03.2003, while defining the consumer excludes a person, who avails of such services for any commercial purpose. The Legislatures thought it fit, if no exemption is given, that may affect the ordinary person, who eke livelihood by their self-employment and that is why, explanation was appended to the definition of the consumer, excluding the person, who earns his livelihood by means of self-employment. It is not the case of the complainants, in the complaint that they have obtained the commercial service connection, for self-employment. Admittedly, the first complainant obtained the service connection for commercial purpose, and admittedly for commercial purpose alone, to run a Rice Mundy, which should be for profit motive. The premises, including the Service Connection No.929 was leased out to the second complainant for commercial purpose. Realizing the same, the complainants have stated in their complaint itself The complainant No.2 is doing business and there is an Electricity service connection for commercial purpose bearing S.C.No.929 in the above address further affirming which is rented to the complainant No.2 for commercial usage, thereby showing the services availed, by the complainants are only for commercial purpose, and not for other purposes namely domestic where they cannot be a profit element. Under the definition, since a person who hired or availed the service of others, for any commercial purpose is excluded from the definition of the consumer and therefore as per the settled law, as on this date, the Consumer Forum cannot decide the dispute between the parties as held by the National Commission in Mohammed Haseeb Ahmed Vs. Maharasthra State Electricity Board and Ors reported in 2010 CTJ 886 (CP) [NCDRC]. Even assuming that the meter installed in the complainants premises was defective, if that is so, they have to workout their remedy elsewhere, and not before the Consumer Forum, which was not at all considered by the District Forum, resulting an order, without jurisdiction and in this view, it has to be set aside.
10. The District Forum has given a direction to reconnect the service connection and it is conceded before us, reconnection was given on 10.02.2010, thereby satisfying, the first part of the order, whether it is correct or not, which we are not going to disturb. As far as compensation is concerned, since the Forum has no jurisdiction, that should be set aside and for that purpose, the appeal is to be allowed.
11. In the result, the appeal is allowed, the order of the District Forum in CC.150/2007, dt.22.09.2008 is set aside, and the complaint is dismissed. There will be no order as to cost throughout.
12. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellants/ opposite parties duly discharged, since appellants succeeded, and there is no need to retain the FDR.
S. SAMBANDAM J. JAYARAM M.THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/EB