National Consumer Disputes Redressal
Society Of Catalysts vs Chairman Greater Noida Industrial ... on 27 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 61 OF 2008 1. SOCIETY OF CATALYSTS N-130,Panchshila Park New Delhi-110017 ...........Complainant(s) Versus 1. CHAIRMAN GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY 169,Chitwan Estate Sector Gamma Greater Noida Uttar Pradesh ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. DR. B.C. GUPTA, MEMBER
For the Complainant : Mr. Omesh Saigal, In person with
Mr. Y.N. Vidyarthi, Advocate For the Opp.Party : Mr. Ravinder Kumar, Advocate
Dated : 27 Feb 2015 ORDER
JUSTICE V.K. JAIN, PRESIDING MEMBER
1.The complainant is a society registered under the provisions of the Societies Registration Act, 1860 and claims to be a voluntary consumer association. The complaint is alleged to have been filed on behalf of the 60 residents of Greater Noida and has been pursued by Shri Omesh Saigal, a former Chief Secretary of Delhi and a former Secretary to the Government of India, who is the Treasurer of the complainant-society. The case of the complainant in nutshell is that the opposite party had represented to the prospective purchasers of plots in Greater Noida that they would enjoy a clean environment and uninterrupted power supply through a joint venture company Noida Power Company Ltd. and most of the residents had opted to move to Greater Noida on account of the aforesaid claim of uninterrupted power supply, despite Greater Noida being far away from Delhi and the prospective purchasers having options to shift to other satellite towns such as Gurgaon and Noida.
2. This is also the case of the complainant that load shading in Greater Noida is the order of the day and lasts upto five hours a day on average. It is also claimed in the complaint that about 40% residents have installed invertors on account of frequent cuts in power supply and the cost of power through the use of invertor is much more than the power supplied through the distribution company such as NPCL. According to the complainant the residents are spending about Rs.180/- per month extra on account of deficiency in the service rendered by the opposite party and the amount spent by about 20000 residents of Greater Noida in last three years comes to Rs.12,96 crore. The complaint is, therefore, seeking the following reliefs:
(i) payment of compensation of the amount that the consumers have lost because of the deficiency of service of the OP in not providing 'uninterrupted power supply' as promised and forcing them to install invertors at heavy cost and incurring heavy losses. These losses amount to Rs.180/- per month for each of the 20000 consumers who have been forced to install inverters; i.e. a total over the last three years of Rs.6,480/- each. The Hon'ble Commission may order for the payment of compensation of Rs.6,450/- to each of the consumers named in para 3 above;
(ii) the Hon'ble Commission may also order for the payment of an amount of Rs.12.90 crores to 20000 odd consumers who are estimated to have invertors. This amount may be kept in the Consumer Welfare Fund till they can be identified and/or used for the welfare of consumers as per the rules of the said fund;
(iii) the Hon'ble Commission may also be pleased to order for the payment of Rs.5,000/- each to the consumers named in para 3 above and Rs.2.50 crore to the over fifty thousand consumers for the harassment and mental agony suffered on account of the power cuts. Since it may not be able to identify the large number of consumers who have suffered the loss and are entitled to this compensation, the provisions of Section 14(1)(hb) of the Act may be applied in all those cases where they hare not parties to the present proceedings;
(iv) award costs to the complaint-society as the Hon'ble Commission may deem fit and
(v) direct the OP to take immediate steps to provide reliable and uninterrupted power supply as promised by them to the residents of Greater Noida.
2. The complaint has been resisted by the opposite party on several grounds including that since the compensation claimed by an individual comes to a few thousand rupees only, this Commission lacks pecuniary jurisdiction to entertain this complaint and the complainant has no locus standi to file this complaint on behalf of the residents of Greater Noida. On merits, it is alleged that there is shortage of electricity throughout the country and usage of gadgets such as air conditioners, etc., has increased manifold, thereby increasing the gulf between the demand and supply of power, resulting in upsetting the planning. It is also claimed in the reply that though NPCL planned to install a power plant which was to run on natural gas, the said plant could not be set up due to non-availability of gas and, therefore, a thermal power station is proposed to be set up in District Mirzapur of Uttar Pradesh, which would increase the availability of electricity. It is also stated in the reply that Authority holds only 50% shareholding in NPCL which has been licensed by the Government to distribute power in Greater Noida.
3. The first question which comes up for our consideration in this case is as to whether the complainant society is entitled to file this complaint either on behalf of the residents of Greater Noida or on behalf of 60 persons who are alleged to have authorized it to file the present complaint by way of Letters of Authority annexed to the complaint. Section 12 (1)(b) of the Consumer Protection Act inter alia provides that a complaint in relation to any service provided or agreed to be provided may be filed by any recognized consumer association irrespective of whether the consumer to whom the services provided or agreed to be provided is a member of such association or not. Clause (c) provides that where there are numerous consumers having the same interest, the complaint can be filed by one or more consumers, with the permission of the consumer forum, on behalf of or for the benefit of all consumers so interested. As per the explanation below Section 12, recognized consumer association means any voluntary consumer association registered under the Companies Act or any other law for the time being in force. Since the complainant society is registered under the provisions of Societies Registration Act, it is undoubtedly a recognized consumer association within the meaning of Section 12 of the Act. Therefore, if as many as 60 residents of Greater Noida have authorized the complainant society to file this complaint, it is certainly competent to institute the same on their behalf. However, the provisions of clause (c) of Sub Section (1) of Section 12 are not available to the complainant, since no permission envisaged in the said clause has been sought. If such a permission is sought, the procedure prescribed in Order I Rule 8 of CPC is required to be followed.
4. A preliminary objection has been taken by the opposite party that this Commission lacks pecuniary jurisdiction to entertain the present complaint since the compensation in respect of 60 persons on whose behalf complaint purports to have been filed would be less than Rs.1,00,00,000/-. In this regard, we note that though the complainant has claimed compensation amounting to Rs.1,290/- on behalf of about 20,000 consumers who are alleged to have been compelled to install inverters on account of failure of the opposite party to provide uninterrupted power supply to them, it has also claimed Rs.2,50,00,000/- as compensation for harassment and mental agony on account of power cuts. Considering the above referred claim of Rs.2,50,00,000/- towards compensation on account of the alleged harassment and mental agony, we are not inclined to accept the contention that this Commission lacks pecuniary jurisdiction to entertain this complaint. Even otherwise, the complaint having been filed way back on 12-05-2008, we will not be justified in returning the same after six and half years thereafter.
5. Coming to the merits of the case, a perusal of the advertisement issued by the opposite party on 28-01-2004 would show that in the said advertisement it was projected by the opposite party, to the potential purchasers of its residential plots that 24 hours power and water supply would be available in the area. In the advertisement published in Hindustan Times on 11-03-2004 inviting the application for group housing residential schemes (plotted development), the opposite party projected to the potential applicants that besides pollution free atmosphere they would also have uninterrupted power supply available to them. The aforesaid advertisement was in respect of two plots one in Sector PHI-04 and other in respect of Sector PHI-03.
In his evidence by way of affidavit, Mr. Shantanu Sen, inter alia stated that based upon the advertisements issued by the opposite party in the newspapers, making claims of uninterrupted power supply and no power cuts he had decided to purchase a plot of land in Greater Noida. The plot was purchased by him on 16-03-1996 and the construction was completed in October 1998. He has further stated that due to repeated power cuts he was forced to buy an inverter with a battery costing about Rs.12,000/- and even that inverter was not able to take the load of the power cuts. He has further stated that the inverter purchased by him would require frequent repairs and services as a result of which he was compelled to buy another inverter. He has also claimed that the batteries of the inverter do not last more than one year and, therefore, he has to replace the old batteries incurring cost of about Rs.3,000/- per year. He has also stated that the power situation in Greater Noida has worsened after 2003 due to frequent power cuts followed by erratic power supply. According to him he was, therefore, compelled to buy a bigger inverter for Rs.31,000/-, with four batteries. Thereafter, he is paying Rs.3,500/- per year towards AMC of the said inverter. He has also claimed that every household in Greater Noida consumes about 300 units of electricity every month and two out of five residents have installed inverters on account of frequent cuts in power supply. According to him the cost of power through inverter is about Rs.3/- per unit more than the rate at which power is supplied by the power supplier.
6. In his affidavit by way of evidence, Shri Lalit Shrivastava, Chairman of the opposite party-authority has inter alia urged this Commission to take note of the fact that (i) there is shortage of electricity throughout the country, (ii) the usage of gadgets such as air-conditioner has increased by leaps and bounds and (iii) generation of electricity is in the hands of the State Electricity Boards and not in the hands of development authorities. It is further stated in the said affidavit that due to non-availability of gas, the power plant which NPCL was planning to set up could not be set up and, therefore, it is now proposed to set up a thermal power station in Mirzapur. It has also stated in the affidavit that till the year 2003-04 there was no shortage of power in Greater Noida though there were some power cuts due to local faults and shortage in supply by the electricity board. It has also claimed that the Annexures referred in the complaint are of the time when there was no power shortage in Greater Noida and no such advertisement has been issued thereafter.
7. The advertisements promising 24X7 power supply, filed by the complainant have been issued in the year 2004. The advertisements available on page 105 (Annex 4-7) of the paper book came to be published in Times of India on 28-01-2004 whereas the advertisement in Hindustan Times available on page 106 of the paper book (Annexure 4-8) was published on 01-03-2004. The same is the position as regards advertisement available on page 99 of the paper book (Annexure 4-1). Though the advertisement available on page 101 of the paper book (Annexure 4-3) appears to have been published sometime around August 2001, it does not contain a promise for 24X7 power supply. Though it is claimed in the aforesaid advertisement that there would be a reliable power distribution network, the said representation cannot be said to be promising 24X7 power supply. The shortage of power is not necessarily due to absence of a reliable power distribution network. Even if the distribution network is strong and reliable, it will not be possible for the supplier to provide 24X7 electricity unless sufficient electricity is available to it for distribution. In any case, the aforesaid advertisements were for setting up joint ventures and not for allotment of plots directly by the opposite party to the individuals. There is yet another advertisement published on 14-11-2002 but even in this advertisement the opposite party did not promise 24X7 power supply though a reliable power distribution network was projected.
8. The complainant has not filed the affidavit even of a single person who might have taken allotment from the opposite party influenced by the advertisements published in the newspapers in the year 2004. In fact, the complainant has not even filed affidavit of any person who may have taken allotment on the basis of the advertisements published in the year 2001 or 2002. As noted earlier, the complainant has filed only one affidavit and that is the affidavit of Mr. Shantanu Sen. Mr. Sen, as per his affidavit purchased a plot on 16-03-1996 and constructed a house in October 1998. There is absolutely no documentary evidence of the opposite party having issued advertisements before March 1996 or even before October 1998 promising 24X7 power supply to the potential purchasers. Though the complaint purports to have been filed on behalf of as many as 60 persons, the affidavits of the aforesaid 60 persons have not been filed to prove that they had purchased plots in Greater Noida on the basis of the promise made in the advertisement of 2004.
9. Thus, though the complainant has proved that the opposite party had promised 24X7 power supply to the potential purchasers of residential plots, by way of advertisements issued in the year 2004, it has not produced evidence of any of the complainants having purchased the residential plot in Greater Noida on the basis of the promise of 24X7 power supply contained in the said advertisement.
10. As noted earlier this complaint cannot be entertained under Section 12(1)(c) of the Consumer Protection Act since no application seeking requisite permission of this Commission has been filed. It was, therefore, imperative for the complainant to prove that they had acquired houses/plots in Greater Noida on the basis of the promise of 24X7 power supply contained in the advertisements issued by the opposite party.
11. Though the complainant has placed on record the letters dated 24-12-1993, 31-03-1995 and 08-06-1993, none of the aforesaid letters contains a promise to provide 24X7 power supply in Greater Noida. In the letter dated 24-12-1993 it was stated that to ensure uninterrupted power supply a new power company was constituted which had started functioning and which had plans to install a power generation plant of 75MVA in the first phase, the last letter does not contain any promise to provide 24X7 power supply to the residents of Greater Noida. Mere plan to install a plant of 75 MVA does not amount to making a promise to provide 24X7 power supply to the residents.
In the letter dated 31-03-1995 it was stated that the opposite party jointly promoted NPCL along with RPG Group to look after power distribution whereas in the letter dated 08-06-1993 it was stated that a new power company had been constituted for ensuring adequate and reliable power supply. Neither of the said letters can be construed as an unequivocal promise to provide 24X7 power supply to the residents of Greater Noida.
11. For the reasons stated hereinabove, we hold that the complainant has failed to prove that any of the 60 complainants had purchased plots/houses in Greater Noida on account of the advertisements promising 24X7 power supply in the said area. We also hold that the complainant has failed to prove any such promise prior to 1996 when a plot in Greater Noida was acquired by Mr. Shantanu Sen, sole witness of the complainant.
12. As noted earlier, by us, in the advertisement dated 28-01-2004, whereby applications were invited for allotment of residential plots, during the period from 03-02-2004 to 03-03-2004, the opposite party projected 24 hours power supply to the potential purchasers of the residential plots. Similar promise was repeated in advertisement dated 11-03-2004, inviting applications for allotment of group housing residential plots. It has been alleged in para 11 of the complaint that though initially the promise of uninterrupted power supply was adhered to by the opposite party there has been heavy load shading and huge power cuts since 2003, meaning thereby that since 2003 uninterrupted 24X7 power is not being supplied to the residents of Greater Noida. In its reply, the opposite party does not claim that it had supplied uninterrupted 24X7 power to the residents of Greater Noida in the year 2003 and that there was no load shading or power cuts in the aforesaid year. The opposite party has not explained to this Commission as to on what basis it had promised 24X7 power supply to its potential consumers in the advertisements dated 28-01-2004 and 11-03-2004 when, even at the time the said advertisements were issued, the residents of Greater Noida were not getting uninterrupted power supply. Though the opposite party has generally adverted to the shortage of power in general in the country and increase in the consumption of power due to use of gadgets such as air conditioners, it has not come out with material which would have justified the projection of 24X7 power supply in the advertisements dated 28-01-2004 to 11-03-2004. No study or any other material has been produced before us to show as to what was the assessment of the opposite party, before issue of the advertisements dated 28-01-2004 and 11-03-2004 as regards the demand and availability of power in Greater Noida. In our view, considering the averments made in the complaint, it was necessary for the opposite party to justify the promise made in the aforesaid advertisements, by producing before us the requisite material which would justify a promise of 24X7 power supply to the residents in the advertisements issued in January/March 2004. It is only the opposite party which knows on the basis which study/material it had projected an uninterrupted power supply to the potential consumers in the above referred advertisements. That having not been done, the inevitable presumption is that the aforesaid promise was made without any justification and reasonable basis.
13. In fact, the extent of load shading alleged in para 11 of the complaint which the opposite party has not specifically refuted is a clear indicator that the promise of 24X7 power supply was made without any foundation or reasonable basis, just with a view to invite more and more applications for allotment of plots in Greater Noida.
14. Section 2(r) of the Consumer Protection Act to the extent it is relevant defines unfair trade practice to mean a trade practice which for the purpose of promoting the sale or use or supply of goods or for the provision of any service adopts any unfair method or unfair or deceptive practice including the practices enumerated therein. Though the specific unfair methods and unfair or deceptive practices mentioned in the aforesaid clause are not exhaustive, one of the unfair practices specifically mentioned therein is falsely representing that the services are of a particular standard, quality or grade. If the opposite party did not have before it an appropriate study or adequate material which have justified projection of an uninterrupted 24X7 power supply to the potential consumers, it would only be safe to conclude that it had made a false representation to them as regards the standard of the services which it would be offering to them. It can hardly be denied that an uninterrupted 24X7 supply of power would be a service of a particular standard and, therefore, if a false representation is made to this effect, that in our opinion would amount to use of unfair trade practices for the purpose of promoting the sale or supply of goods or the provisions of services.
15. Though the complainant has not specifically alleged that the promise of 24X7 power supply amounts to unfair trade practice within the meaning of Consumer Protection Act, that in our view would not be material in a consumer complaint since a consumer forum is not expected to follow the strict rules of pleadings and evidence and if such a practice is made out from the facts available before a consumer forum it would be entitled to held the party concerned guilty of using unfair trade practices.
16. Though the supply of power in Greater Noida has now been entrusted to NPCL that in our view would be of no consequence if it is found that the opposite party had made promise of uninterrupted power supply without having any justification for making such a promise.
17. For the reasons stated hereinabove, while declining to grant any compensation to any individual, we direct the opposite party Greater Noida Industrial Development Authority to deposit a sum of Rs.10,00,000/- as compensation in the Consumer Welfare Fund by way of a demand draft in favour of the PAO, Ministry of Consumer Affairs, within four weeks from today. If the aforesaid amount is not deposited within the period stipulated above it shall carry interest at the rate of 10% per annum from the date of this order, till the time it is deposited.
The complaint stands disposed of.
......................J V.K. JAIN PRESIDING MEMBER ...................... DR. B.C. GUPTA MEMBER