State Consumer Disputes Redressal Commission
Bhim Sain vs Punjab State Electricity Board on 3 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR-37A, CHANDIGARH
FIRST APPEAL NO. 1223 OF 2009
Date of Institution: 27.08.2009
Date of Decision: 03.02.2014
Bhim Sain son of Jagan Nath resident of Mansa Prop. Firm M/s Bhim
Sain Jagan Nath Rice Mills, Talwandi Sabo Road, Mansa, Tehsil and
District Mansa.
.....Appellant/Complainant
VERSUS
Punjab State Electricity Board, Patiala through its S.D.O. (City)
Mansa.
.....Respondent/Opposite Party
First Appeal against the order
dated 6.8.2009 passed by the
District Consumer Disputes
Redressal Forum, Mansa.
Quorum:
Hon'ble Mr. Justice Gurdev Singh, President
Sh. Baldev Singh Sekhon, Member
Smt. Surinder Pal Kaur, Member Present:
For the appellant : None
For the respondent : Sh.Munish Bansal, Advocate
BALDEV SINGH SEKHON, MEMBER
This appeal has been filed by the appellant/complainant against the order dated 6.8.2009 passed by the District Consumer Disputes Redressal Forum, Mansa (in short "District Forum"), vide which his complaint was dismissed on the ground that he was not a consumer as per the Consumer Protection Act, 1986 (in short "the Act").
2. The facts, as stated in the complaint, are that the complainant obtained an electric connection, bearing account No.MS43/0180, from the opposite party for running a Rice Mill, which was his sole source First Appeal No. 1223 of 2009 Page 2 of 9 of income. He had been making the payment of the electricity bills issued by the opposite party from time to time. He received bill dated 29.12.2007 in which an illegal demand of Rs.86,930/- was raised. This bill included Rs.71,369/- as miscellaneous charges which were illegal and baseless as no reason for charging the same was mentioned in the bill. He was ready to pay the current charges based on the actual consumption. Alleging deficiency in service, he filed complaint before the District Forum for setting aside the impugned demand of Rs.71,369/- and sought compensation of Rs.15,000/- besides Rs.5,000/- as litigation expenses.
3. Upon notice, the opposite party filed written reply taking preliminary objection that that the complainant was not its consumer within the meaning of "the Act" because he was running the Rice Sheller for commercial purpose and had employed a number of employees to run the same. On merits, it was pleaded that the amount was charged on the basis of report of Audit Party. The meter of the complainant remained faulty during the period from March, 2006 to April, 2006. Initially the monthly minimum charges were recovered from him whereas the bill was required to be issued on average basis from December, 2005 to February, 2006. Accordingly, the difference of charges was demanded through the impugned bill, which was correct and legally payable. Dismissal of the complaint was prayed.
4. Both the parties led their evidence by way of affidavits and documents.
First Appeal No. 1223 of 2009 Page 3 of 9
5. The District Forum, after going through the pleadings of the parties and evidence on record, dismissed the complaint of the complainant.
6. Aggrieved by this order, the complainant has come up in appeal on the ground that the District Forum has wrongly and illegally dismissed the complaint by observing that he is running a commercial activity for earning profit in his mill with medium scale non- residential electric connection for non-residential purposes, therefore, he did not fall in the ambit of definition of the 'consumer' given in Section 2(1)(d)(ii) of the Act and the complaint was, therefore, not maintainable. It was submitted that the complainant has clearly mentioned in his complaint that he was running the Rice Mill for earning his livelihood and that it was only source of his income but the District Forum has failed to appreciate the fact that Sh.Darshan Singh, Junior Field Investigator, an official of the Industrial Branch, Small Scale Industries, Mansa had tendered in evidence the relevant page of the register as Ex.C-2 and a copy of the certificate as Ex.C-3 according to which the Rice Sheller of the complainant is enlisted as Small Scale Industry, which he is running himself with the assistance of persons of his family on seasonal basis for earning his livelihood. The District Forum has wrongly held that the authority relied upon by the complainant was not applicable in the facts of the present case. The acceptance of the appeal, setting aside of the impugned order and allowing of the complaint was prayed.
7. On the other hand the learned counsel for the opposite party submitted that the electric connection, in question, was obtained under First Appeal No. 1223 of 2009 Page 4 of 9 medium supply and the same was being used for running a Rice Mill with the help of a number of workers. A person, who has taken the connection for such a commercial activity, cannot be termed as a 'consumer' as per Section 2(1)(d)(ii) of the Act. Dismissal of the appeal was prayed.
8. We have thoroughly gone through the pleadings of the parties and have carefully perused the evidence on record and.
9. The first and foremost question to be settled is whether the complainant, who is using the electric connection No. MS43/0180 released by the opposite party, falls within the ambit of definition of the 'consumer' as per Section 2(1)(d) of the Act, which provides as under:-
"2(1) (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 First Appeal No. 1223 of 2009 Page 5 of 9 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"
10. There is no doubt that the connection was obtained by the complainant for running the Rice Mill with the help of a number of workers. The complainant, in his complaint, has only stated that it is his sole source of income for earning his livelihood, but it is nowhere pleaded or proved that he was running this Rice Mill by way of self- employment. The explanation added to the Section 2(1)(d)(ii) of the Act stipulates that the commercial purpose does not include use by a person of the goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. Every business run by an individual or a group of persons is meant to earn the livelihood, but, to be a 'consumer' under the Act, one has to prove that he is running the business for commercial purpose by way of self-employment. In the instant case, the complainant is running a Rice Mill with the help of a number of First Appeal No. 1223 of 2009 Page 6 of 9 workers. He has nowhere stated that he himself is running the business by way of self-employment. Rather he has given employment to number of workers. The word 'commercial purpose' as used in Section 2(1)(d) was interpreted by the Hon'ble Supreme Court in the celebrated judgment reported as "Laxmi Engineering Works V/s P.S.G. Industrial Institute, II (1995) CPJ 1 (SC)". The Hon'ble Supreme Court was pleased to observe as under:-
"The National Commission appears to have been taking a consistent view that where a person purchases goods 'with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit' he will not be a 'consumer' within the meaning of Section 2(1)(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - the expression 'large-scale' is not a very precise expression - the Parliament stepped in and added the explanation to Section 2(1)(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression 'commercial purpose' a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The First Appeal No. 1223 of 2009 Page 7 of 9 explanation however clarifies that in certain situations, purchase of goods for 'commercial purpose would not yet take the purchaser out of the definition of expression 'consumer'. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a 'consumer'. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self employment, for earning his livelihood, it would not be treated as a 'commercial purpose' and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a 'commercial purpose', to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., 'uses them by himself', 'exclusively for the purpose of earning his livelihood' and 'by means of self employment' make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his First Appeal No. 1223 of 2009 Page 8 of 9 livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer."
11. The word 'commercial purpose' was also considered by the Hon'ble National Commission in the judgment reported as "Harsolia Motors V/s National Insurance Co.Ltd., 2005 CTJ 141 (CP) (NCDRC)". The Hon'ble National also considered the judgment of the Hon'ble Supreme Court in Laxmi Engineering Work's case (supra). The Hon'ble National Commission held as under:-
"25. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words 'for any commercial purpose' it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is First Appeal No. 1223 of 2009 Page 9 of 9 not directly intended to generate profit, it would not be commercial purpose."
12. Therefore, the complainant, who had hired the services of the opposite parties for commercial purposes, is not a consumer of the opposite parties within the meaning of Section 2(1)(d) of the Act and complaint filed by him is not maintainable.
13. In view of the above discussion and findings, the appeal filed by the appellant/complainant is dismissed and the impugned order of the District Forum is affirmed and upheld. No order as to costs.
14. The arguments in the case were heard on 16.1.2014 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KUMAR) MEMBER February 03, 2014 VINAY