ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellants against the order dated 28.11.2014 passed by the District Forum, Haridwar in consumer complaint No. 427 of 2013. By the impugned order, the District Forum has allowed the consumer complaint and has directed the opposite party-Electricity Department to issue a fresh electricity bill on the basis of average reading after deducting twelve months’ bill from the last bill dated 07.10.2013 for a sum of Rs. 77,799/- according to IDF and adjust the amount paid by the complainant within a month from the date of the order and not to disconnect the complainant’s electricity connection and also not to harass the complainant.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint are that an electricity connection No. 690/0401/0046 is in the name of Sh. Budh Sen Chandmohan, uncle of the complainant and its meter No. 08226257. With new sealing dated 25.07.2009 a new connection having No. Division Code 69K/000/21583 was installed. The complainant has pleaded that the aforesaid connection of Atta Chakki has been running for last 70 years. The complainant informed the opposite party-Electricity Department on 30.07.2009 about the defect in the meter on 23.07.2009. The official of the opposite party-Electricity Department recommended about the defective meter on 24.08.2009 and on that count a new meter was installed by the opposite party at the Atta Chakki of the complainant on 07.09.2009. Reading in the sealing report dated 07.09.2009 was shown 39649. Later on bill was issued by the opposite party showing reading of 45306 for the period from 25.07.2009 to 25.08.2009 and also shown as IDF. The complainant sent a letter to the opposite party to issue bill, but the opposite party sent a bill of IDF for a period from 25.08.2009 to 25.09.2009 and also shown bill of Rs. 19,430/- for reading 2970 of IDF. Again the complainant sent a letter to the opposite party, but no action was taken on his complaint and issued bills of IDF for 2 to 3 months and there after stopped sending bills to the complainant. Again on visiting the complainant to the office of the opposite party several times, the opposite party issued a bill on 26.12.2011, in which present reading was shown as 52229 and previous reading of 39649 at the time of sealing and bill for 12650 units was issued. There was an outstanding bill of Rs. 1,083/-. The complainant sent a letter to the opposite party on 30.12.2011, but no action was taken and again the opposite party issued a bill of Rs. 1,35,512/- for the period from 26.12.2011 to 21.01.2012, in which date for disconnection was mentioned as 13.03.2012, but the opposite party instead of rectification of the bill, disconnected the electricity connection of the complainant on 27.02.2012. The complainant had deposited Rs. 49,000/- on 29.02.2012 and connection was restored. After deposition of Rs. 49,000/-, the opposite party did not issue bill in time and no bill was issued in the month of June, 2012. Again on 08.06.2012, the opposite party disconnected the electricity connection and a bill of Rs. 1,07,058/- dated 20.06.2012 was issued, for which the complainant sent a letter to the opposite party for correction of IDF bills and adjustment of money deposited by the complainant and also deposited Rs. 300/- on 21.07.2012, thereafter electricity connection was again restored after 44 days. The opposite party stopped to issue bills to the complainant, thereafter on 01.10.2012 again electricity connection was disconnected. On the request of complainant, a bill of Rs. 93,677/- was issued for which the complainant deposited Rs. 45,000/- as part payment on 18.10.2012 and Rs. 300/- for restoration of connection. Electricity connection of the complainant was again restored on 18.10.2012 after 18 days of disconnection. On 18.10.2012 Rs. 45,000/- was deposited by the complainant, but on 30.11.2012 the opposite party again disconnected the electricity connection of the complainant. The complainant was harassed for 4 to 5 months and thereafter a bill of Rs. 72,359/- was issued in the month of April, 2013. The complainant sent a letter to the opposite party that his electricity connection is disconnected for last 4 to 5 months and also electricity connection was disconnected for 2 months earlier. Therefore, he prayed for preparation of correct bills for which the complainant is ready to pay. On 02.05.2013, the complainant paid Rs. 10,000/- as part payment and Rs. 300/- for restoration of connection, even then the opposite party did not correct the bills. Again on 13.06.2013, the complainant paid Rs. 10,000/- as part payment, even then the correct bill was not issued by the opposite party and again on 21.08.2013, the electricity connection was disconnected. Since 21.08.2013 up to till date, the electricity connection is disconnected. The opposite party is harassing the complainant for the last two years and disconnecting the said electricity connection time to time. The complainant has already deposited Rs. 1,50,000/- in the opposite party-Electricity Department. Atta Chakki is the only means of livelihood and employment of the complainant. Due to disconnection of electricity connection, the complainant had suffered a loss in his business. The complainant is a consumer of the opposite party and is ready to deposit outstanding electricity bill. The electricity connection has been disconnected for 10 months and several bills of IDF were issued, which should be adjusted and the opposite party be directed to issue correct bill after deduction of surcharge and also opposite party be directed to connect the electricity connection, which was disconnected on 21.08.2013. There is deficiency in service on the part of the opposite party. The complainant suffered mental, physical and economic loss.
3. The opposite party-Electricity Department has filed written statement and has pleaded that the complainant is not a consumer of the answering opposite party because the electricity connection in question is in the name of Sh. Budh Sen. After death of Sh. Budh Sen, the complainant has not applied for the mutation of name of Late Budh Sen in his name, therefore, the complainant is not competent to file the consumer complaint. The answering opposite party has pleaded that the said electricity connection was taken for commercial use of electricity and has been used by Late Sh. Budh Sen or the complainant for commercial use. Therefore, the consumer complaint is not maintainable before the District Forum. This electricity connection was disconnected for want of deposit of electricity charges for which there is no deficiency on the part of answering opposite party. On the request of the complainant, it was directed to pay the electricity dues in installments, even then the complainant did not deposit the dues of electricity bill. Therefore, the answering opposite party was forced to disconnect the electricity connection. The answering opposite party can disconnect any electricity connection for outstanding dues under U.E.R.C. The complainant was given several occasions to pay the outstanding dues of electricity bills after restoring the electricity connection. Even then he did not pay the amount, therefore, he is not entitled to get any relief. Electricity bill was rectified, even then it was not paid by the complainant. Electricity bills of the period of IDF were also rectified. It is not possible to exempt the complainant from payment of IDF bills during that period connection was disconnected. The complainant has to pay the minimum bill of the duration of IDF bills. The amount deposited by the complainant has already been adjusted by the answering opposite party. There is no deficiency on the part of the answering opposite party.
4. The District Forum, on an appreciation of the material on record, has allowed the consumer complaint vide order dated 28.11.2014 in the above terms. Aggrieved by the said order, the opposite party-Electricity Department has filed the present appeal.
5. We have heard Sh. S.M. Jain, learned counsel for the appellants and gone through the entire record of the District Forum and also perused the material placed on record. None has appeared on behalf of the respondent before this Commission.
6. Learned counsel for the appellants has submitted that the impugned judgment is illegal against law and facts. The District Forum has failed to appreciate that the respondent was not consumer, as the disputed connection was in the name of Late Sh. Budh Sen, who is allegedly uncle of the respondent-complainant. After his death, the contract of supply of electricity stands automatically terminated. Respondent did not get the connection mutated in his name and the bills were continuously being sent to him in his uncle’s name till date. The respondent has no locus standi to file the consumer complaint. The District Forum has failed to appreciate that the respondent used the electricity, but did not pay the amount, so connection was disconnected several times for non-payment of the dues. Respondent got the connection reconnected after depositing making small part payments several times, but did not pay the bill in full. The District Forum has failed to appreciate that the connection was used for commercial purpose, i.e. for running Atta Chakki. The consumer Sh. Budh Sen had taken connection of 10.640KW which was chargeable under RTS-7 (LT & HT Industry) of the Tariff. The connection was being used for running Atta Chakki and electricity at large scale was being consumed in the said industry. The District Forum has failed to appreciate that if the connection is disconnected for non-payment, the fixed charges etc. are continuously payable and the consumer is liable to pay the same inspite of the fact that the connection is temporarily disconnected till the permanent disconnection is made. The District Forum had no jurisdiction to hold that the consumer is not liable to pay for the period of 12 months, during which the consumer’s electricity had been disconnected and the said finding is against the Tariff framed by Uttarakhand Electricity Regulatory Commission (UERC). The District Forum has failed to appreciate that the bills from 08.09.2009 to 11/2011 were corrected on average basis and up to 11/2011 a sum of Rs. 1,26,102/- were outstanding as per bill statement on record. No error has been pointed either by the respondent or by the District Forum in the billing statement, therefore, the District Forum was not right in ordering the preparation of bill on average basis. The bills are prepared according to Tariff and cannot be directed to be prepared against the tariff. The consumer got the bill for the period from 26.12.2011 to 11.01.2012 corrected by approaching the indoor mechanism for correction of bill. The District Forum is not the appellate authority to sit in appeal over the decision. After correction the respondent was found due to pay Rs. 1,30,135/-. The District Forum has not appreciated the pleas taken by the appellants in the written statement, affidavit and the documents filed alongwith the affidavit. The District Forum has failed to appreciate that the respondent was not entitled to reconnection unless the entire bill has been paid. The appellants time and again gave opportunity to pay the amount by small deposits. The respondent availed the opportunity, but did not deposit the bill in full. Whatever the amounts the respondent paid has been adjusted in the account of the consumer. The District Forum has wrongly directed to reduce the bill for 12 months and prepare the bill on the basis of average during which the IDF bills were sent and not disconnect the connection of the respondent. The respondent had no right in the connection. The District Forum has failed to appreciate that the Electricity Act, 2003 is a Special Act and the supply of electricity is governed by its own Act, Rules and Regulations framed by the UERC and the provisions of other law have no application as per Section 173 & 174 of the Electricity Act, 2003, which is a complete code in itself. The UERC has established the Consumer Grievance Redressal Forum under Section 42(5) of the Act for deciding the billing dues and other electricity grievances and the respondent should have been referred to that forum by the learned Forum than itself deciding the same, overlooking the statutory Forum established by law for redressal of such disputes.
7. Respondent or his counsel did not appear before this Commission and has not submitted is version.
8. There is no dispute regarding the fact that the electricity connection No. 690/0401/0046 was sanctioned by the appellants in the name of Sh. Budh Sen Chand Mohan for commercial purpose to run a Floor Mill (Atta Chakki) sometime about 70 years ago. The respondent is the nephew of late Budh Sen, who has already expired. The respondent has never applied for the mutation of this electricity connection from the name of Sh. Budh Sen to his name. The complainant has also not apprised the Forum below whether he is the only legal heir of Late Budh Sen or there are some other legal heirs of Late Budh Sen. The respondent has also not disclosed in his consumer complaint about his locus standi to file the consumer complaint against the Electricity Department-appellants and has also not disclosed how did he became consumer of the appellants after death of his uncle Late Budh Sen.
9. Section 2d(i) & (ii) of the Consumer Protection Act, 1986 defines ‘Consumer’ as follows:-
(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;
10. Admittedly, Sh. Budh Sen S/o Late Sh. Chandra Mohan was the consumer of electricity connection No. 690/0401/0046, which was taken for purpose of running floor mill (Atta Chakki) and this electricity connection was provided as a commercial connection. The respondent being nephew of Late Budh Sen had never applied for the mutation of this connection from the name of Late Budh Sen to his name after death of Late Budh Sen. Therefore, he is not a consumer of the Electricity Department-appellants. The connection was also taken by Late Budh Sen for commercial purpose, therefore, the original consumer, i.e. Late Budh Sen or the respondent do not come within the definition of consumer.
11. In the present case, it is to be decided whether the respondent using the electricity connection for commercial, can file a consumer complaint within a purview of the Consumer Protection Act, 1986 or not? This question has been answered by this Commission in its judgment dated 27.01.2010 passed in First Appeal No. 85 of 2009; UPCL vs. Sh. Virendra Kumar, Partner M/s R.K. Udhyog, wherein it is held that the services of the UPCL were hired by the complainant for commercial purpose and, therefore, the complainant would not fall within the meaning of consumer. In the case of Marine Container Services South Pvt. Ltd. vs. Go Go Garments; 1998 AIR SCW 3430, the Hon’ble Supreme Court has held that there was no privity of contract between the Electricity Department and respondents and, therefore, the respondents are not the consumers of the Electricity Department. This Commission has expressed the same view earlier also in the First Appeal No. 40 of 2010; Uttarakhand Power Corporation Ltd. & Anr. vs. Hemendra Singh Panwar decided on 03.12.2010 and we find no reason to deviate from our view in this case. Thus, the consumer complaint being non-maintainable on this ground, this appeal is liable to be allowed.
12. Learned counsel for the appellants referred to a judgment of the Hon’ble National Commission in the case of Santokh Singh vs. Punjab State Electricity Board; IV (2003) CPJ 146 (NC). In this case, the Hon’ble National Commission has held that minimum charges will be payable even if the electricity is not consumed because supply has been disconnected by the Board due to non-payment of electricity charges, pilferage, malpractices etc. In Chapter 4, Uttarakhand Electricity Regulatory Commission (The Electricity Supply Code) Regulations, 2007, it is mentioned that if the consumer does not clear all the dues including arrears within 6 months of the date of disconnection, such connections shall be disconnected permanently. Citations produced before us by the learned counsel for the appellants is applicable in the instant matter also.
13. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside.
14. For the reasons aforesaid, the appeal is allowed. The impugned order dated 28.11.2014 passed by the District Forum, Haridwar is set aside and consumer complaint No. 427 of 2013 is dismissed. No order as to costs. The respondent is directed to file his complaint before the Consumer Grievance Redressal Forum of Electricity Department within one month. The amount deposited by the appellants at the time of filing the appeal be released in appellants’ favour.
