State Consumer Disputes Redressal Commission
M/S Mukta Predecessors P. Ltd. vs Pseb & Others on 26 November, 2013
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.10 of 2009
Date of Institution : 06.02.2009.
Date of Decision : 26.11.2013.
M/s Mukta Processors Ltd. (Successor in interest of M/s Gulabtec)
through its Director, D-30, Phase V, Focal Point, Ludhiana.
........Complainant.
Versus
1. Punjab State Electricity Board, The Mall, Patiala.
2. Chief Engineer/S.O. & C, Power Regulation & Control
Directorate, 220 KV Sub-Station, Ablowal, PSEB, Patiala.
3. Senior Executive Engineer, Focal Point Division (Special) PSEB,
Ludhiana.
.....Opposite parties.
Consumer Complaint under Section 12 of
the Consumer Protection Act.
Before:-
SH.INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER
SH.VINOD KUMAR GUPTA, MEMBER Present:-
Sh.Puneet Jindal, Advocate, counsel for the complainant.
Sh.B.S.Taunque, Advocate, counsel for the opposite parties.
VINOD KUMAR GUPTA, MEMBER:
This complaint has been filed through its authorized signatory/Director (hereinafter called as 'complainant') under Section 12 of Consumer Protection Act, 1986 (hereinafter called as "Act").Consumer Complaint No.10 of 2009 2
2. Brief facts of the case are that an electric connection bearing account No.FP-26/552 was earlier running in the name of M/s Gulabtec in the premises D-30, Phase V, Focal Point, Ludhiana. The said premises was purchased by the complainant through its Director Sh.Lakhwinder Singh Chawla son of Santokh Singh Chawla alongwith said electric connection. After receipt of full and final payment, Sh.Raj Kumar (Vendor) on behalf of M/s Gulabtec submitted an affidavit with the PSEB authorities on 25.9.2007 certifying that he has no objection in case electric connection bearing account No.FP-26/552 is transferred in the name of the complainant (Mukta Processors Pvt. Ltd.). On the same day, the complainant through Sh.Lakhwinder Singh Chawla submitted affidavit along with a request to the opposite party No.3 for transfer of connection in the name of complainant. The opposite parties were duly informed about the change of the occupation/ownership and only certain formalities were required to be done. The complainant had also deposited transfer fee of Rs.15,625/- and Rs.122500/- vide receipt dated 07.11.2007. The opposite party No.3 vide its memo dated 10.01.2008 directed the complainant to submit the transfer letter changing the name of the complainant. The said letter was received on 16.01.2008. The complainant immediately replied this letter to opposite party No.2 - Chief Engineer/S.O.&C, through its letter dated 17.1.2008 stating that certain formalities are required for transfer and on completion of these formalities, the necessary letter would be Consumer Complaint No.10 of 2009 3 supplied. The complainant received a letter dated 14.02.2008 from opposite party No.3 directing M/s Gulabtec Predecessor in interest of complainant to deposit a sum of Rs.2,69,506/- which is said to be Penalty for Peak Load violations on the basis of their internal correspondence issued by Senior Executive Engineer, MMTS-I, Ludhiana dated 25.09.2007. Alongwith the letter, alleged peak load violations for the month of September were also sent. It was pleaded that no intimation of either peak load hour restriction or any intimation that in case the consumer uses the connection during restricted hours would be liable to pay penalty was ever conveyed to the consumer. It was only in February 2008, the complainant was directed to deposit the said penalty amount within 10 days and complainant was informed that in case the said amount is not deposited then the electric connection, which by that time was being run by the complainant would be disconnected. It was pleaded that the levy of peak load exemption charges were informed to the complainant for the first time through letter dated 14.2.2008. The complainant inquired about this letter and found that M/s Gulabtec Predecessor in interest of the complainant was granted peak load exemption by the opposite parties only till 31.8.2007. Complainant being the new consumer was not aware that there are any peak load restrictions hours imposed by the opposite parties. Furthermore, to know this fact, vide letter dated 28.2.2008, the complainant applied to the opposite party No.3 for the grant of peak load exemptions on regular Consumer Complaint No.10 of 2009 4 basis and requested that intermediate period from 1.9.2007 till 19.02.2008 be regularized and no penalty be imposed for the same. Complainant offered to deposit necessary peak load exemption charges. The opposite party no.3 examined the whole case of the complainant and found that the Predecessor in interest of the complainant was allowed to use 400 KV load during peak load hours vide PSEB OP No.2 issued by No.1273 dated 28.02.2007. It was pleaded that the complainant started using the premises in August, 2007, thereafter even w.e.f. 1.09.2007, the new consumer having no notice of peak load restriction h ours and under bonafide impression continued to use power during alleged peak load restriction hours. Opposite party No.2 vide letter No.1273 dated 28.02.2008 has granted peak load exemption to the subsequent transferee i.e. complainant. In these circumstances opposite party No.3 recommended that as per levy of penalty under letter of MMTS-I Wing of the PSEB could not be informed to the complainant earlier. Therefore, it was recommended on acceptance of regular peak load exemption charges, the intervening period from 1.9.2007 to 19.02.2008 be regularized and penalty should not be levied. It was alleged that the opposite party No.3 issued another notice vide letter memo no.194 dated 25.02.2008 imposing a penalty of Rs.12,49,136/- and vide letter memo no.791 dated 18.03.2008 further imposed a penalty of Rs.15,04,208/- for the same period i.e. 1.9.2007 to 18.02.2008. The complainant was forced to deposit Rs.20,20,046/- through Consumer Complaint No.10 of 2009 5 various receipts from 25.02.2008 to 01.10.2008. Opposite parties failed to take any action on the request of the complainant and even failed to take action on the recommendation of the opposite party No.3. No show cause notice or opportunity of hearing was offered to the complainant. It was pleaded that under the Electricity Act, 2003 there is no provision whereby licensee could impose such kind of penalty for the alleged violation of peak load restriction hours. Under the 2003 Act, Section 45 empowers the distributor licensee to recover charges only for the tariffs fixed from time to time for actual electricity supplied, rent or other charges in respect of any electric meter or plant provided by the distributor licensee. It was further pleaded that the complainant applied for a light load of 9.950 KW which was granted to the complainant in November 2008 for sustenance. This connection bearing Account No.E-32-SP-050643W was for watch and ward and the same was released only on 17.11.2008. It was further pleaded that the small power connection was disconnected by the respondents on 30.01.2009 without any notice or prior intimation. The complainant has filed this complaint seeking directions to the opposite parties to withdraw the peak load exemption charges amounting to Rs.30,22,850/- and to pay Rs.20.00 Lac for harassment and to refund Rs.20,20,046/- already recovered from the complainant by the opposite parties and also to refund security amount of Rs.5.00 Lac alongwith interest @ 18%.
Consumer Complaint No.10 of 2009 6
3. Upon notice, opposite party replied by taking preliminary objections that the complainant had stepped into the shoes of his predecessor on purchasing the property and has been running the industrial establishment from 2.08.2007. The complainant after purchasing the property also inherited the liabilities of the predecessor connection holder M/s Gulab Tech. It is a matter of record that M/s Gulabtec had availed peak load hours exemption in order to run the factory. That the exemption period expired on 31.8.2007, it was submitted that the complainant instead of obtaining further exemption from peak load hours restrictions beyond 31.08.2007 continued to run the industrial establishment even during peak load hours thereby committing violation of the peak load restrictions. It was further submitted that the complainant has approached the Hon'ble Commission for a direction to the opposite parties to waive the penalty imposed on him on account of peak load hours restrictions and to regularize the period from 01.09.2007 to 18.02.2008. It was further submitted that there is no provision in the PSEB regulations to grant ex post facto sanction to waive the penalty amount on account of violation of the peak load hour restrictions nor any regulation to regularize the period of violation from 01.09.2007 to 18.02.2008. The complainant has not come to the Hon'ble Commission with clean hands and he has suppressed information relating to the dishonor of cheques issued by him to the PSEB on account of payment due. It was further submitted that the complainant submitted an Consumer Complaint No.10 of 2009 7 application to the opposite parties dated 15.4.2008 wherein the complainant requested to permit him to make the payment in installments. The complainant issued two cheques each of Rs.2,51,402/- dated 01.01.2009 and 01.02.2009 towards payment of installment but issued instructions to his banker not to clear the cheque which is a deliberate action on the part of the complainant. It was further submitted that affidavit of the complainant Lakhwinder Singh in para No.3 of the affidavit, the complainant has given an undertaking to make all outstanding payment in respect of the electricity connection. It was submitted that the complainant did not complete the formalities which were required to be complied with for the transfer of electricity connection in his name. As such, the electric connection continued to be in the name of M/s Gulabtec. The complainant submitted an application to the Senior XEN Focal Point received on 17.01.2008 that the premises could not be transferred in its name and sought more time to complete formalities. It was submitted that the MMTS-1, Ludhiana (Mobile Meter Testing Squad) visited the premises of the complainant in the presence of complainant and his representative on 25.09.2007 and down loaded the data from the meter of the complainant after down loading the MMTS processing the data downloaded from the meter of the complainant and also several other consumers. After analyzing the data downloaded from the meter, the Senior XEN MMTS intimated to the Senior XEN (Operation) Focal Point Division (Spl.) regarding the amount chargeable and also the Consumer Complaint No.10 of 2009 8 details of the violation. Memo No.87 dated 14.2.2008 intimated the detail of violation of peak load hours which shows that the complainant had been running his factory during peak load hours restrictions from 1.9.2007 to 24.09.2007 and for the violation complainant was requested to deposit the penalty amount of Rs.269506/-. It was further submitted that the complainant made the payment of Rs.2,69,506/- voluntarily. It was further submitted that the penalty of Rs.12,49,136/- was imposed on the complainant on the basis of the data downloaded from the meters of the complainant by the MMTS on 03.12.2007 and further a penalty of Rs.15,04,108/- was also based on the data down loaded by MMTS on 09.02.2008 in presence of the complainant/his representative. It was further submitted that there is no rule which permits non-payment of electricity bills by the complainant. Once the complainant defaulted by non- payment of outstanding electricity bills, then disconnection of the electricity connection is normal fall out which cannot be alleged to be illegal or a malafide action. However, on the direction of the Hon'ble Commission, the electricity connection has already been restored to the premises of the complainant. All other allegations were denied. There was no deficiency in service on the part of the opposite parties and prayed for dismissal of the complaint.
4. Counsel for the complainant tendered into evidence Ex.CA-1 dated 04.02.2009 and Ex.CA-2 dated 21.1.2010 affidavit of Sh.Lakhwinder Singh Chawla, Director/authorized Consumer Complaint No.10 of 2009 9 signatory of complainant alongwith Ex.C-1 to C-15 and closed the evidence.
5. Counsel for the opposite parties tendered into evidence affidavit of Er.H.S.Gill, Addl. S.E. of the opposite parties no.1 to 3 dated 03.09.2013 Ex.R-1 along with documents Ex.R-2 to Ex.R-9/2 and closed the evidence on behalf of the opposite parties.
6. We have heard the arguments advanced by the learned counsel for the parties.
7. Opposite parties have taken preliminary objections that the complainant has purchased the property and has been running the industrial establishment since 01.08.2007. The complainant after purchasing the property also inherited liability of the predecessor connection holder M/s Gulab Tec. M/s Gulab Tec had availed peak load hours exemption in order to run the factory even during peak load hours restrictions imposed by the PSEB from time to time. The complainant instead of obtaining further exemption from peak load hours restriction beyond 31.8.2007, continued to run the industrial establishment even during peak load hours thereby committing violation of the peak load hour restrictions. Opposite parties raised the preliminary objection in the written statement that the complainant was using his electric connection to run the predecessor connection holder M/s Gulab Tech which was being used "to earn profit" and complainant availed the services of the opposite parties for "commercial purposes" and thus did not fall within the Consumer Complaint No.10 of 2009 10 definition of "consumer" as provided under Section 2(i)(d) of the Act.
8. The amendment in the Act was carried out in the year 2002 vide Act No.62 of 2002 and the definition of consumer was further clarified to define the hiring or availing of the services and the person, who hires or avails services for any commercial purpose was excluded with this amendment. The definition of consumer U/s 2 (i) (d) of the Act stands as on today is as follows:-
2 (i) (d) : "consumer" means any person who--
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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 person 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 any commercial purposes;
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 purposes of earning his livelihood by means of self- employment;
Consumer Complaint No.10 of 2009 11
9. The Hon'ble National Commission in case "Ishwar Singh Vs Dakshin Haryana Vidyut Prasaran Nigam Ltd.", II (2011) CPJ-18(NC), has held that 'Atta Chakki' even though installed in the house would be for commercial purpose as nowhere it has been pleaded that 'Atta Chakki' was being used for own use of the complainant or that the 'Atta Chakki' was meant for his livelihood.
10. In view of the above discussions and applying the above proposition of law to the facts and circumstances of the present case, the complainant is running an industry and electric connection is being used to run an industry and it is for earning huge profits and the complainant has availed the services for commercial purpose. As such, as per amended provisions of the Act, it is excluded from the term "consumer" and the complaint is not maintainable. The complainant does not fall within the definition of the consumer so there is no merit in the complaint and same is dismissed. No order as to costs.
11. The arguments in this appeal were heard on 13.11.2013 and the order was reserved. Now the order be communicated to the parties.
12. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Judicial Member
November 26, 2013. (Vinod Kumar Gupta)
Lb/- Member