By Smt. C.S. Sulekha Beevi, President,<br /> <br /> <br /> This complaint coming up for admission was heard in the presence of Adv.P.C.Girish, Counsel appearing for complainant and the Forum doth order as under:-<br /> <br /> 1. Complainant is the administrator of Marthoma Mission Hospital, Chungathara. The hospital is a charitable institution and does not work on profit basis. The hospital is provided with electric connection by opposite parties and current charges were regularly paid. While so, opposite parties issued an additional bill for the period from 12-8-96 to 8/97. Complainant paid the amount as per this bill to avoid disconnection. Aggrieved by the issuance of this bill, he preferred a complaint as O.P.No.145/98 before this Forum. It was allowed in favour of complainant vide order dated, 23-11-1998. An amount of Rs.98,211/- was ordered to be refunded. Opposite parties preferred Appeal No.77/99 upon the order of district Forum. Vide order in Appeal 77/99 dated, 22-3-2000 the order of the District Forum was modified. Meanwhile complainant had filed execution petition as E.P.No.11/99 before this Forum. On modification of order in Appeal third opposite party had issued direction to second opposite party to comply order as per department sanction LE/IV/6581/98 dated, 25-7-2000 Thiruvananthapuram. But second opposite party and other officials did not comply with the order issued by third opposite party. That when E.P.11/99 was taken up before the forum second opposite party filed a petition to the effect that Rs.98,211/- is to be refunded to the complainant and second opposite party will adjust the said amount from next monthly bills. The said undertaking was filed by opposite party on 21-2-2008. That opposite parties ought to have complied the Appeal order issued on 22-3-2000 in Appeal 77/00. Even after receiving sanction for compliance of the order second opposite party has not taken any steps to adjust the amount of Rs.98,211/- in future bills of the complainant. That the complainant is entitled to receive Rs.98,211/- from opposite parties on 25/7/2000 and since it was not adjusted for such a long time complainant has incurred loss of interest, upon the said amount from 22-3-2000. This was caused only due to deficiency in service committed by opposite parties. That since execution petition was pending complainant was not able to file further steps in the matter. The cause of action arose on 21-2-2008 when second opposite party refused to pay the interest for the sum of Rs.98,211/-. Hence this complaint praying (i) to admit the case on file (ii) to order the opposite parties to pay interest for Rs.98,211/- @ 24% per annum from 25-7-2000 till realisation (iii) to order cost of the proceedings.<br /> <br /> 2. On perusing the averments in this complaint we entertained the doubt whether the non-compliance of an order of District Forum or State Commission would give rise to a new cause of action to file a new complaint, alleging deficiency in service. Since most of the contentions raised in this complaint is basing upon the order in O.P.No.145/98 and E.P.No.11/99 this forum suo motto called for the records of E.P.No.11/99 to this case. Ext.C1 to C3 were marked as forum documents. No documents were submitted by complainant.<br /> <br /> 3. We think that it is necessary to discuss the backdrop of the complaint and order in O.P.No.145/98 upon which this complaint has been founded by the complainant. In O.P.No.145/98 complainant was aggrieved by the issuance of an electricity adjustment invoice dated, 11-3-1998 for Rs.1,03,913/-. In this bill a sum of Rs.93,957.05 was claimed by way of short assessment for the period 6/96 to 8/97. According to complainant since the hospital was paying regular current charges the bill was issued without proper basis. A considered order upon merits was passed in O.P.No.145/98 on 23-11-1998. This order is marked as Ext.C1. Para 7 and 8 of Ext.C1 order reads as under:-<br /> “7. It is admitted that the complainant has already paid the amount. Therefore we think that the complainant is entitled to get refund of the amount paid. We accordingly pass the following order:<br /> 8. The opposite parties are directed to refund a sum of Rs.98,211/- to the complainant within one month from the date of receipt of a copy of this order. Parties are directed to suffer costs.”<br /> Upon this order of the District Forum opposite party preferred Appeal 77/99 before the Hon'ble state Consumer Disputes Redressal Commission, Thiruvananthapuram. In appeal it was held that the assessment of excess energy and charging the complainant with penal charge for a period prior to 12-8-1996 may not be upheld and that part of the claim has to be set aside. That consequently, the claim for energy charges after 12-8-96 was only valid. The order in Appeal is marked as Ext.C2. The operative portion of Ext.C2 order in Appeal No.77/99 dated, 22-3-2000 is as under:<br /> “In the result the appeal is allowed in part, and the opposite parties are directed to revise Ext.P5 invoice (emphasis supplied) assessing the excess consumption with penal charge for the period from 12-8-96 and served the invoice on the complainant; since the complainant has already paid as per Ext.P5, the excess amount so collected will be adjusted against his future consumption(emphasis supplied) The appeal is allowed as stated above. In this appeal there will be no order as to costs.”<br /> 4. The present case of complainant is that on receiving the order in Appeal No.77/99 third opposite party accorded sanction to second opposite party to comply the order. The sanction order is LE/IV/6581/98 dated, 25-7-2000 Thiruvananthapuram. The present grievance of complainant is that even after this sanction, opposite parties failed to adjust the amount to his future bills and thereby has committed deficiency in service. The main relief sought in this complaint is to direct opposite party to pay interest upon Rs.98,211/- @ 24% per annum from 25-7-2000 till realisation.<br /> <br /> 5. The question that poses for consideration before us is that whether the non-compliance of the modified order in Appeal No.77/99 would give rise to a new cause of action to file this complaint. Consumer Protection Act envisages specific provisions for compliance of the orders of District Forum, State Commission and National Commission. In case of non-compliance, the remedy available before the complainant is to file an execution application along with the modified order in the Appeal. In our view it is necessary to give finality to litigations and non compliance of the order cannot give rise to a new cause of action. It was urged by the counsel appearing for complainant that 3rd opposite party accorded sanction on 25-7-2000. Since opposite parties failed to adjust the amount to his future bills from this date complainant suffered loss of interest and benefits upon this amount. It is contended that the act of opposite parties in not complying with the sanction dated, 25-7-2000 amounts to deficiency in service. A complaint is defined under section 2(1)(c) of the Act.<br /> Sec.2(1)(c) – 'complaint' means any allegation in writing made by a complainant that --<br /> (iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;<br /> As per the definition, the allegation must be regarding any service that is hired or availed. The failure on the part of opposite party to comply with the sanction accorded by 3rd opposite party or comply with order of State Commission would in effect amount to non-compliance of order. If the order is complied and amount is adjusted to future bills, it will not be hiring or availing of any service but will amount to compliance of the order. For these reasons we find that the present complaint does not pertain to hiring or availing of any service for consideration for which a consumer com plaint is maintainable. We are of the considered view that any loss or hardships caused due to delay or non-compliance of an order cannot give rise to a new consumer complaint.<br /> <br /> 6. At this juncture, it becomes pertinent to note the proceedings in execution application filed by complainant. Complainant filed E.P.No.11/99 on 05-3-1999 for execution of the order of District Forum in O.P.No.145/98. Opposite party filed counter on 16-4-1999 stating that appeal No.77/99 is pending. Thereafter the case was posted to various dates until 17-02-04. Although during this time the order of District Forum was modified by the order of State Commission dated, 22-3-2000, both sides have not produced this modified order before the Forum for all these four years, for reasons best known to them alone. Due to vacancy in the post of President and Member there was no sitting of this Forum from 17-02-04 for a long time. The present President assumed charge on 25-6-07 and E.P.No.11/99 came up before us on 23-7-07. Nothing was represented by either side regarding the stages of appeal or it's disposal. The Forum had no knowledge about the order in appeal and the case was posted to different dates with direction to produce stay order. On 01-01-08 complainant filed affidavit proving means of opposite party and seeking enforcement of the order of the District forum. Even in this affidavit complainant has deliberately suppressed that the Appeal No.77/99 has been disposed off. This affidavit is marked as Ext.C3. Para 5 and 6 of Ext.C3 reads as under:<br /> “5. The opposite parties are having enough and more means to comply the order of this Honourable forum. The opposite parties are not even adjusting the amount in future bills. The opposite parties ought to have complied the order even before filing this execution petition. The opposite parties deliberately not done any thing during the last four years stating that this Honourable forum is not sitting. The opposite parties not considered the after effects of non compliance of the order in an institution like the charitable hospital.<br /> 6. In the said circumstance this complainant is not having any other option except to approach this Honourable forum for non compliance of the order. The opposite parties not even filed any affidavit in the matter. The opposite parties are duly bound to comply the order of the forum. Since the same is not done even after having sufficient means and machinery to comply the orders of the forum this complaint requesting the forum to punish the opposite parties under section 27 of the CPA.”<br /> In the above circumstance this Honourable forum may kindly take necessary steps to enforce the order of this Honourable forum (emphasis supplied) and the opposite parties may be punished accordingly.<br /> <br /> 7. On 21-02-08 opposite party submitted that the order upon which E.P.No.11/99 is filed has been modified by State Commission. A statement was also filed that opposite party was willing to adjust the amount to future bills of complainant from next month onwards. On 22-02-08 opposite party produced the copy of order in Appeal No.77/99. E.P. Was closed on 22-02-08. Thus there has been deliberate latches on the part of complainant to produce the order copy of Appeal and get the modified order executed. Date of order of Appeal is 22-3-2000 and sanction order was on 25-7-2000. Even if we assume that the allegations did give rise to a consumer complaint, this complaint is barred by limitation. Complainant attempts to hold upon the statement filed by opposite party on 21-02-08 to overcome the hurdle of limitation. We are unable to accept this since there was no order to pay interest by the District Forum or State Commission and therefore no refusal by opposite party to pay the same as contended by complainant.<br /> <br /> 8. From the above discussion we hold that the complaint is not maintainable and hence dismissed. The records in E.P.No.11/99 shall be placed back after substituting copies of the Exhibits by the office.<br /> <br /> Dated this 8th day of July, 2008.<br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Nil<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Nil<br /> Court document marked : Ext.C1 to C3<br /> Ext.C1 : Photo copy of the order of the District Forum in O.P.No.145/98<br /> dated, 23-11-1998.<br /> Ext.C2 : Photo copy of the order of State Commission in Appeal No.77/99<br /> dated, 22-3-2000.<br /> Ext.C3 : Affidavit filed by complainant in E.P.No.11/99 dated, 21-12-2007.<br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> Sd/-<br /> E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br />