ORDER

By Smt. C. S. Sulekha Beevi, President,

1. Complainant along with his friend Moroli Ali are tenants in the building near Manalimmal bus stand, Wandoor and are beneficiaries under first and second opposite party for the supply of electricity to the room(12/315). Complainant used to pay the current charges to the manager of the building along with the rent as agreed by them. But this Manager, Kunhali who is fourth opposite party herein did not remit the current charges in the electricity office and the supply was disconnected. Thereafter complainant paid charges and the electricity supply was restored. Kunhali then filed a Rent Control Petition as RCP-9/2006 under sections 11(2) (3) (4(i) of Kerala Building Lease and Rentrol Act before Rent Control Court at Manjeri. Order was pronounced in this case on 31-01-2008 allowing eviction under 11(ii)(b)_ and disallowing the prayer under 11(3) and 11(4)(i). Complainant preferred appeal before Rent Control Appellate Court, Manjeri as RCA 11/2008. The appellate Court had stayed the order in R.C.P.9/2006. That complainant is still in possession of the room as tenant. Opposite party refused to accept current charges from the complainant from 2006 onwards stating that there is dispute pending before the court. So complainant could not pay the current charges. Opposite party disconnected the supply on 18-8-2008. Though complainant requested for reconnection opposite party did not restore the supply stating that the service connection is in the name of Smt. Pathummakutty who is third opposite party herein. On 29-8-2008 complainant approached opposite party and submitted all documents to show that he has right to remit the current charges. Opposite party assured to restore the supply on payment of entire arrears. Complainant then paid Rs.2,275/- towards current charges of this consumer connection. Even then opposite party did not restore the supply. Hence this complaint alleging deficiency in service against first and second opposite parties. Complainant prays for a) restoration of the electricity supply b) a direction against opposite parties to receive the current charges from the complainant hereafter c) compensation of Rs.25,000/- towards mental agony and monetary loss suffered by him.

2. Supplemental opposite parties three and four were impleaded as per orders in I.A.95/09. Notice issued to third opposite party was returned unclaimed though intimation was served. Third opposite party was absent and set exparte on 28-5-2009. Fourth opposite party entered appearance through counsel and filed version.

3. First and second opposite parties filed a combined version stating that the said consumer connection, No.1894 of Wandoor electrical section stands in the name of Smt.Pathummakutty. That opposite party is unaware of the dispute pending before the court between complainant and fourth opposite party. That current charges was not remitted by Pathummakutty and so the supply was disconnected. Thereafter dismantling notice was issued on 21-7-2008. The service connection was dismantled on 19-8-2008. The averment in the complaint that complainant approached opposite party on 29-8-2008 and requested for restoration of supply is denied by opposite party as false. That the entire arrears was already paid on 29-8-2008. That Smt. Pathummakutty had given a request to dismantle the service connection. That opposite party has acted only as per provisions of law and that there is no deficiency in service.

4. Fourth opposite party filed separate version admitting that complainant had taken the room No.12/315 on lease from fourth opposite party on 01-9-2004. The averments in the complaint regarding the agreement to pay current charges and entrustment of current charges along with rent is denied as false. That supply was disconnected due to the non-payment of current charges by the complainant. It is admitted by fourth opposite party that RCP-9/06 was filed against the complainant and that RCA 11/08 is pending before the Rent Control Appellate Court. Complainant did not deposit the rent arrears. The room is now lying vacant and is not used by the complainant. Complainant had filed O.S.45/06 against opposite party before Munsiff Court, Manjeri by fabricating document. This case was dismissed. Opposite party has field a complaint against the complainant herein before the Wandoor police under sections 420, 427, 465, 468, 471 of IPC and the case is now pending before Judicial First Class Magistrate II, Perintalmanna as C.C.238/2007. That the supply to the room was disconnected only because complainant did not pay the current charges. Opposite party has no part in it. That complainant is not entitled to any reliefs.

5. Evidence consists of the proof affidavit filed by complainant and Exts.A1 and A2 marked for him. First opposite party filed counter affidavit for himself and on behalf of second opposite party. Exts.B1 to B3 marked for opposite parties. Fourth opposite party filed counter affidavit. No documents marked for fourth opposite party.

6. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

7. Point (i) & (ii):-

The grievance of the complainant is that first opposite party refused to accept the current charges from him from 2006 onwards and later opposite party disconnected the electricity supply without notice. That first opposite party has acted so under pressure from fourth opposite party. Complainant seeks restoration of electricity supply to the shop room and also a direction against first opposite party to receive the current charges from the complainant hereafter.

8. Along with the complaint, a petition I.A.398/08 was filed by the complainant under section 13(3-B) of the Consumer Protection Act, 1986 as amended to date. It was affirmed by complainant in the affidavit that the entire arrears of current charges was paid by him on 29-8-2008. The interim prayer for restoration of supply was thus allowed.

9. The complaint is refuted by first and second opposite parties stating that there was no refusal to accept current charges from the complainant. That the service connection stands in the name of Smt.Pathummakutty. Current charges from 2006 onwards was defaulted. Notice of disconnection and dismantling was served to Smt.Pathummakutty. The supply was severed only after such notices and due to the default in paying energy charges. It is also stated that the complainant had no occasion to approach opposite party on 29-8-2008 and request for reconnection since the entire arrears were paid as on 29-8-2008.

10. At the outset it has to be stated that there are several litigations pending between the complainant and fourth opposite party who is managing the affairs of the landlord who is a minor. In the instant case, the question whether the complainant can continue to have uninterrupted power supply to his shop room by paying regular energy charges is co-existent with the question whether complainant can legally continue his possession of the shop room as a tenant. The second issue is outside the scope of jurisdiction of this Forum.

11. The complainant who claims to be a tenant has come before this Forum as a beneficiary. A tenant can be a beneficiary and thus a consumer only if the services are availed by the tenant with the approval of the first person ie., the landlord. The moment such approval ends and conflict arises between the tenant and landlord, the tenant ceases to be a beneficiary. The legislative intend is to keep such issues regarding title and possession outside the scope of adjudication of Consumer for a. As per section 2(d) a consumer means any person who,--

“(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;”...........

12. Admittedly a case was filed by landlord against the complainant for eviction. It is not disputed that the order of eviction passed by the Rent Control court in RCP-9/06 is stayed by the Rent Control Appellate Court. In such circumstances the complainant is legally entitled to be in possession of the room and is a beneficiary. But his foot hold as a beneficiary/consumer is fully dependent upon the final decision in the Rent Control Litigation. The onset of the Rent Control Petition makes it candid that the approval of the landlord is lost. As long as the complainant has legal right to occupy the room and remain as tenant he is entitled to uninterrupted service of supply of electricity on payment of charges. Undisputedly the current charges were defaulted from 2006 onwards. Opposite party is entitled to disconnect and dismantle the service connection for non payment of charges. Ext.B2 is the notice of dismantling issued by opposite party to the actual consumer. So it established that the disconnection of the supply was due to non payment of charges which is proper and legal. We do not find any deficiency on the part of first and second opposite parties on this count. The supply to the room has already been restored and this part of the relief claimed is satisfied.

13. Second grievance of the complainant is that first opposite party is refusing to accept the current charges from him. Complainant contends to have paid the entire arrears on 29-8-2008 It is his case that opposite party refused to accept the current charges from him from 2006 onwards. But there is no document to show that he was willing to pay the charges and that he tendered the amount to opposite party. There is not even a single communication by the complainant to opposite party requesting to accept the current charges from him. It is admitted by opposite party that the arrears are cleared. Needless to say that opposite party is bound to supply energy only if the charges for the supplyis regularly paid. Refusal to accept charges cannot be a ground for non-payment of electricity charges. If there is any hindrance to pay the charges due to refusal to accept the charges, directly the complainant, or for that matter, any consumer, can make payment of the energy charges by way of demand draft or money order as is instructed by opposite party on the reverse side of every bill. On such score we do not think that there is any need to pass an order against opposite party to receive the current charges from the complainant.

14. It was submitted by opposite party that the actual consumer/Smt.Pathummakutty in whose name the connection stands, has applied for dismantling of the service connection. Ext.B3 is the request given by Smt.Pathummakutty to first opposite party for dismantling the consumer connection. If the complainant is legally entitled to occupy the room then he has a right to enjoyment of the amenities to the room. If he is aggrieved by disruption of his amenities by the landlord the tenant can approach the Rent Control Court for reinstating them. The Forum cannot go into such an issue. The complainant has approached this Forum as a beneficiary alleging deficiency in service against first and second opposite parties. As already stated the supply was disconnected due to non-payment of charges. We therefore do not find any deficiency on the part of first and second opposite parties. The supply to the room has been restored and complainant has a right to have uninterrupted supply as long as he is legally entitled to remain in the room and is paying regular current charges. The moment his legal right to remain in the room ends he ceases to be a beneficiary/consumer.

15. In the result, we partly allow the complaint and direct opposite party to continue the electricity supply to the shop room occupied by the complainant (12/315) as long as the complainant is legally entitled to occupy the room and also paying the energy charges. We make it clear that opposite party is at liberty to proceed under provisions of law in case there is non-payment of energy charges.

Dated this 6th day of March, 2010.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN,

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 and A2

Ext.A1 : Certified copy of the order of RCP-9/06.

Ext.A2 : Receipt for Rs.954/- dated, 19-11-2008 from opposite party to complainant.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B3

Ext.B1 : True photostat copy of service connection register of opposite party.

Ext.B2 : True photostat copy of the notice dated, 21-7-2008 from opposite party to third opposite party.

Ext.B3 : True photo stat copy of the request from third opposite party to AE., KSEB., Wandoor.

C.S. SULEKHA BEEVI, PRESIDENT

MOHAMMED MUSTAFA KOOTHRADAN, MEMBER

E. AYISHAKUTTY, MEMBER