State Consumer Disputes Redressal Commission
M/S. Sai Baba Modern Rice Mill, ... vs 1.The Asst. Engineer Operation ... on 4 February, 2013
BEFORE THE A
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION : HYDERABAD.
F.A.No.703/2011
against C.C.No.13/2011, Dist.
Forum, Mahabubnagar.
Between:
M/s.
Sai Baba Modern Rice Mill, Polepalli Village,
Jedcharla
Mandal Mahabubnagar Dist. by its
Proprietor
K.Mallappa.
Appellant/
Complainant
And
1.
The Asst.
Engineer Operation Jedcharla, APCPDCL,
2.
The Asst.
Divisional Engineer OP Jedhcarla, APCPDCL,
3.
The
Asst. Account Officer ERO Jedcharla
APCPDCL
4.
The Divisional
Engineer Op., Jedcharla APCPDCL,
5.
The
Superintending Engineer Op., Mahabubnagar,
APCPDCL.
Respondents/
Opp.parties
Counsel for the Appellant : Mr.B.Ram Mohan Reddy
Counsel for the Respondents : M/s. P.Ganeswara Rao
QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE
PRESIDENT,
And
SRI
S.BHUJANGA RAO, HONBLE MEMBER.
MONDAY, THE FOURTH DAY OF FEBRUARY, TWO THOUSAND THIRTEEN.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** The unsuccessful complainant filed appeal against the order dt.5.7.2011 of the District Forum, Mahabubnagar made in C.C.No.13/2011, which is filed by the appellant/complainant seeking direction to the opposite parties to collect the billing amount of the subject bill from 1999 to 2004 and refund the excess amount of Rs.10 lakhs collected from the complainant or to adjust the excess amount in the future bills and award costs of the complaint.
The brief case of the complainant as set out in the complaint is as follows:
The complainant has installed 34 HP Rice Mill at village Polepally, Jedcherla Mandal, Mahaboobnagar Dist. with the permission of the Collector. After construction of the mill, Inspector of the respondents/opposite parties came and verified the electrical fitting works and on his report connection was given in the year 1999 and meter was installed. As per the meter reading, the amount was collected for the consumption charges of the month, 10 times more than the consumption charges of every month treating the rice mill as 75 HP motor instead of 34 HP motor. The complainant is not aware of the said excess collection of monthly billing amounts and due to his innocence, he paid the amount with great difficulty to run the mill and sustained heavy loss in the business by paying excess amount to the department from the year 1999 onwards.
While the matter stood thus, in the year 2004, the Department of the opposite parties has installed digital meter and collected only one time of the billing amount. On his enquiry, the complainant came to know that such 10 times more billing amount is to be collected for 75 to 100 HP capacity motor but not for 34 HP motors. On coming to know about the same, the complainant approached the opposite parties with a representation to refund the excess billing amount or to adjust the same in future bills, and the complainant was informed that as per Board rules they have collected the amount according to the bill. The complainant approached APCPDCL Forum which did not consider his request.
Thereupon, the complainant approached Vidyut Ombudsman with an appeal. Vidyuth Ombudsman also dismissed the claim without perusing any material. The acts of excess collection, on the part of the opposite parties, amounts to deficiency in service. Hence the complaint.
Resisting the compliant, the opposite parties filed counter/written version denying the material allegations made in the complaint and contended that the complaint is not maintainable in accordance with the provisions relating to electricity supply and maintenance under Indian Electricity Act,2003. The complaint filed by the complainant is barred by limitation.
The opposite party further contended that the dispute is already adjudicated by the competent authorities like Redressal Forum of Consumer Grievances for APCPDCL at Hyderabad and the appellate authority there from i.e. Vidyuth Ombudsman established under enactment of Indian Electricity Act,2003. Indian Electricity Act has overriding effect under Section 174, as such, the complainant shall not take any shelter under the provisions of Consumer Protection Act, 1986. The complainant ought to have filed an appeal or proceedings before the competent authorities as prescribed under Indian Electricity Act,2003. Hence the complainant shall not agitate the issue before the District Forum.
These opposite parties further contended that there was no excess collection from the complainant as alleged in the complaint and the billings were made in accordance with the Electricity Supply Rules and general terms and conditions of the supply. Hence the grievance entertained by the complainant is baseless and untenable under law. There is a clear provision barring the other Courts and tribunals from entertaining the disputes, except otherwise, provided under Indian Electricity Act, 2003. Hence the complaint is liable to be dismissed with costs.
During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked Exs.A1 to A87. The opposite parties neither filed evidence affidavit nor documents, on their behalf.
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum came to the conclusion that the complaint is not maintainable before it and that the complaint is barred by limitation and consequently the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred the above appeal contending that the District Forum did not appreciate the averments of the complaint with reference to the documents. That the respondent did not deny the fact that they have collected more than 10 times of meter reading than actual amount from 1999 to 2004, though 10 times more amount is to be collected for 75 to 100 HP motor but not to the 34 HP motor mill. District Forum ought to have given finding on the said fact, and collection of consumption charges and collection of excess amount or adjustment of excess amount in future bills is left to the discretion of the appellant/complainant. That the jurisdiction of the Consumer Forum was not ousted so far as the present dispute is concerned. That after entertaining the complaint, the District Forum came to conclusion that the dispute is not in time, the same is not correct. At the time of registering the case, if such objection is raised, the complainant would have filed the delay petition. The appellant/complainant came to know the said fact after installation of the digital meter to the mill and the employees themselves have disclosed that 10 times more amount will be collected for 75 to 100 HP motor but not to 34 HP motor. This dispute is therefore required to be adjudicated by the Forum under the Consumer Protection Act. The impugned order of the District Forum is therefore liable to be set aside and the appeal may be allowed directing the respondents to refund the excess amount collected with compensation of Rs.10 lakhs.
We heard the counsel for both the parties and perused the material placed on record.
Now the point for consideration is whether the impugned order of the District Forum is vitiated for misappreciation of fact or law?
It is not in dispute that the complainant had installed 34 HP Rice Mill at village Polepally, Jedcharla Mandal, Mahaboobnagar Dist. with the permission of the Collector and that after verification of the electrical fitting works by the Inspector of the Department of the opposite parties, power supply was given in the year 1999 and a meter was installed. As seen from the impugned order of the District Forum, the District Forum dismissed the appellants complaint on two grounds, firstly the complaint is not maintainable before the District Forum as the complainant is not a Consumer within the meaning of the Consumer Protection Act and secondly in view of the nature of the present dispute, the complainant has to approach the concerned special court established under the Indian Electricity Act, 2003 having jurisdiction over the matter for determination of the dispute of the present nature between the complainant and the opposite parties and consequently the complaint is barred by limitation.
The learned counsel for the appellant has submitted that the complainant has been running the Rice Mill to eke out his livelihood by means of self employment, as such, the complainant comes under the definition of Consumer as defined under Section 2(1)(d) of the Consumer Protection Act. For the first time, the learned counsel for the appellant/complainant submitted that the complainant has been running the rice mill to eke out his livelihood by means of self employment that too during the course of his arguments. Neither in the complaint, nor in the evidence affidavit of the complainant, there is whisper that the complainant has been running the mill to eke out his livelihood by means of self employment, as such he comes under the definition of Consumer as defined under Section 2(1)(d) of the Consumer Protection Act. Even in the appeal grounds, the appellant/complainant has not urged that he has been running the rice mill to eke out his livelihood and as such he falls under Consumer as defined in the Consumer Protection Act. Infact, in the complaint, the complainant has categorically stated that he is not aware of the excess amount of the monthly billing amount and due to innocence he paid the amount, with great difficulty, to run the rice mill and sustained heavy loss in the business by paying the excess amount to the Department from 1999 onwards. At the beginning of Para 4 page 3 of the complaint, the complainant has categorically stated that the electricity for commercial purpose and use of electricity for commercial purpose, so the complainant is the consumer is capable of seeking relief under the Consumer Protection Act. The said part of admission on the part of the complainant itself shows that he is consuming power supply provided by the opposite parties, in running the mill, for commercial purpose. Therefore, we are of the firm view that the complainant is not a Consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. Therefore, the contention of the counsel for the appellant/complainant is not acceptable as it is not sustainable under law. Hence we hold that the complaint is not maintainable under Consumer Protection Act.
It is alleged in the complaint, that as per the meter reading, the amount was collected for the consumption charges of a month, 10 times more the consumption charges of every month, treating the rice mill as 75 H.P.Motor. Infact, it was only 34 H.P.Motor as per the sanction proceedings of the Collector and that the complainant came to know about the excess collection of monthly billing only after new meter is installed. In the complaint, the complainant has categorically admitted that he approached APCPDCL Forum for redressal of his grievance, but the Forum did not take into consideration the excess collection of billing amount and did not call for record pertaining to the Mill of the complainant from the year 1999 and dismissed the case. The complainant then approached Vidyuth Ombudsman by way of appeal and the said authority also dismissed the claim of the complainant without perusing any material.
During the course of hearing of the appeal, the respondents/opposite parties filed a petition in I.A.No.2703/2012 praying to receive the order copies i.e. 1). C.G.No.MBNR-11/Dt.9-8-2010/Mahaboobnagar Circle dt.24th September, 2010 and 2). Appeal no.46 of 2010 Dt.30.11.2010 before the Vidyuth Ombudsman, as additional evidence, in this matter. After hearing both the parties, the petition was allowed and both the documents were marked as Exs.B1 and B2. As seen from Exs.B1 and B2, prior to filing of the present complaint, before the District Forum Mahaboobnagar, the complainant had approached the CGRF(Forum for Redressal of Consumer Grievances of APCPDCL, Hyderabad) by filing a complaint under Electricity Act,2003 and after dismissal of the complaint on 24.9.2010 on merits, aggrieved by the said order, the complainant had filed an Appeal No.46/2010 before the Vidyuth Ombudsman under Electricity Act,2003 and the same was dismissed on 30.11.2010. Thereafter the complainant filed the present complaint for the same relief, which was rejected by the above said two authorities under Electricity Act, 2003.
Both the authorities found that the bills issued were correct. We hold that the complainant cannot come back to the Consumer Forum for seeking relief against the order of the Ombudsman. Therefore the complaint is not maintainable under Consumer Protection Act,1986. We are fortified by a decision reported in 2010 (1) CCC 594 (NS)(SHRI PRATAP vs. MHARASHTRA STATE ELECTRICITY DISTRIBUTION CO.LTD., wherein the Honble National Disputes Redressal Commission, New Delhi observed as follows:
.that in the case in hand, the petitioner decided to revert to the Consumer Fora, after he voluntarily decided to withdraw the appeal before a forum of competent jurisdiction. The error, on the part of petitioner, is that against the order of assessment under Section 126 of the Electricity Act,2003, he chose to go before Ombudsman and decided to come back to Consumer Fora, whereas he should have filed an appeal under Section 127 of the Electricity Act, 2003. Having abandoned the route for seeking relief under Consumer Fora voluntarily, he cannot come back to it for seeking relief, as it would appear to be an appeal against the order of Ombudsman. Consumer Fora are neither the Appellate Authority against the order of Ombudsman nor exercise power under Section 127 of the Electricity Act,2003 The Honble National Commission further held that since the petitioner is looking for a remedy, he can seek relief under Section 127 of the Electricity Act,2003 or go before a Civil Court. Thus the Revision Petition is disposed of leaving the petitioner to approach appellate authority under Section 127 of the Electricity Act, 2003 or approach the Civil Court for any relief/remedial action.
As stated above, the District Forum dismissed the complaint on the ground that the same is barred by limitation. We fully agree with the finding of the District Forum. The very case of the complainant is that the opposite parties have collected excess amount from the date of installation of the meter i.e. 29.9.1999 till 12.4.2004, the date on which a new digital meter was fixed. The complainant ought to have filed the complaint within a period of two years from 12.4.2004 i.e. on or before 12.4.2006. But the complainant filed the present complaint before the District Forum on 22.12.2010 i.e. after more than two years. Therefore, the present complaint is clearly barred by limitation, in view of the Sec.24(A) of the Consumer Protection Act,1986.
The learned counsel for the appellant/complainant submitted that the District Forum did not take any objection regarding the limitation, at the time of registration of the complaint and had the Forum taken the objection, at the time of registration of the complaint, the complainant would have filed the petition to condone the delay in filing the complaint. The said submission of the learned counsel for the appellant/complainant lacks logic and hence not sustainable under law. Simply because the office did not take objection at the time of filing of the complaint regarding the limitation, the delay occurred in filing the complaint cannot automatically be condoned. Infact the opposite parties have taken a specific plea in their written version that the complaint is barred by limitation. Even after filing of the written version by the opposite parties taking plea of limitation, the complainant did not choose to file an application to condone the delay in filing the complaint. Therefore, we have no hesitation to hold that the complaint is clearly barred by limitation.
Having regard to the facts and circumstances discussed above, we do not find any irregularity or illegality in the impugned order of the District Forum to interfere with it.
In the result, the appeal is dismissed confirming the order of the District Forum, but without costs in the circumstances of the case.
INCHARGE PRESIDENT MEMBER Pm* Dt. 4.2.2013