KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM. F A. 738/2005 JUDGMENT DATED: 03-11-2009 PRESENT: SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANTS 1. The Kerala State Electricity Board, represented by its Secretary, Vydyuthi Bhavan, Thiruvananthapuram. 2. The Assistant Engineer, Electrical Section K.S.E.B Office, Gandhi Nagar P.O., Kottayam. (Rep. by Sri. B. Sakthidharan Nair, Counsel) Vs RESPONDENT Bishop House as per billing name Good Samaritan House, Gandhinagar P.O, Kumaranalloor Panchayat, Kottayam District. Represented by Bishop of Thiruvalla diocese, Issac Mar Clemis and represented through the beneficiary Sister Superior. JUDGMENT SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated 23rd May 2005 passed by CDRF, Kottayam in OP.No. 320/2004. The complaint in the said original petition was filed by the respondent herein as complainant against the appellants/opposite parties alleging deficiency in service in issuing A2 additional electricity bill dated 23-11-2004 for Rs. 29,877/-. Thereby the complainant requested for getting A1 additional bill cancelled. The opposite parties (KSEB) entered appearance and filed written version denying the alleged deficiency in service. They contended that A2 bill was issued based on the meter readings recorded by the new meter installed at the premises of the complainant. They vehemently contended that the complaint is not maintainable as the complainant is not a consumer as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. It is further contended that the old meter was faulty and the same was burnt on 12-04-2004 and the same was replaced by a new meter; that the old meter was replaced at the request of the complainant and on payment of the cost of the meter. The opposite parties further contended that the complainant has been running a hostel for profit and so the complainant has been assessed under LT-VII tariff as the electrical energy has been consumed for commercial purpose. Thus, the opposite parties requested for dismissal of the complaint in OP 320/04. 2. Before the Forum below, both parties filed proof affidavit in support of their respective pleadings. Exts. A1 series, A2 and A3 documents were marked on the side of the complainant and B1 to B4 documents on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below passed the impugned order thereby A2 additional bill was cancelled. The request of the complainant to change the tariff from LT-VII to LT-VI was disallowed and the complainant has been held as a consumer coming under the purview of the Consumer Protection Act, 1986. The opposite parties were also directed to pay cost of Rs. 750/- to the complainant. Hence the present appeal by the opposite parties in OP 320/04. 3. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned Counsel for the appellants/opposite parties. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the complainant in OP No. 320/04 (respondent herein) on the file of CDRF, Kottayam is not a consumer as defined u/s 2(1) d (ii) of the Consumer Protection Act, 1986 as the complainant was conducting a hostel for commercial purpose. He further relied on B1 to B4 documents and argued for the position that the additional electricity bill for Rs. 29,877/- was issued based on the readings recorded by the new meter which was installed by replacing the old faulty meter. Thus, the appellants requested for setting aside the impugned order passed by the Forum below and for dismissal of the complaint in OP No.320/04 on the file of CDRF, Kottayam. 4. The points that arise for consideration are: 1. Whether the Forum below can be justified in holding that the complainant is a consumer coming within the ambit of the Consumer Protection Act, 1986? 2. Whether the complainant has succeeded in establishing the alleged deficiency in service in issuing A2 additional bill for Rs. 29,877/-? 3. Is there any sustainable ground to interfere with the impugned order dated 23-05-2005 passed by the CDRF, Kottayam in OP 320/04? 5. Point No. 1: The case of the complainant is that the complainant is running a charitable institution for poor and needy children and that the complainant is a charitable institution providing free food and accommodation to poor and needy children. The definite case of the complainant is that the said institution is being run not for any profit motive and is being run for affording free accommodation and food to poor and needy children. On the other hand, the opposite party Kerala State Electricity Board would contend that the complainant is not a consumer as defined u/s 2(1) d (ii) of the Consumer Protection Act, as the electricity is being supplied to the institution of the complainant for commercial purpose. The definite case of the opposite parties is that the complainant is running a hostel for accommodating students from the school of medical education and the said hostel is being run for commercial purpose for making profits. It is further contended that the complainant has been paying the electricity charges under tariff LT-VII which is meant for commercial purpose. 6. There is no dispute that the complainant is running a hostel for accommodating children. The definite case of the complainant is that the said institution is a charitable institution providing free food and accommodation to poor and needy children. If the case of the complainant that the institution of the complainant is a charitable institution and providing free food and accommodation to poor and needy children is true and correct, then there will be necessary documents regarding the accommodation provided to the inmates. It is for the complainant to establish the fact that the complainant is running a charitable institution providing free food and accommodation to poor and needy children. But the complainant has not adduced any evidence to substantiate the case that the complainant is running a hostel not for profit. It is for the complainant to establish his/her case regarding the constitution of the institution and also the purpose for which the institution is being run. No doubt that the complainant is running a hostel. Whether the said hostel is being run for providing free food and accommodation to poor and needy children is a matter within the knowledge of the complainant. The complainant alone can establish the aforesaid fact regarding the purpose for which the hostel is being run. But the complainant has not adduced any evidence in support of the said case. The Forum below has gone wrong in casting the burden of proof on the opposite party KSEB. It is for the complainant to establish his case that the hostel is being run for providing free food and accommodation to poor and needy children and the same is not being run for commercial purpose. 7. The opposite parties have vehemently contended that the complainant is running a hostel for accommodating students of the medical education and that the said hostel is being run for commercial purpose with an intention of profit making. There can be no doubt about the fact that the complainant will be maintaining necessary documents for the inmates who have been accommodated in the said hostel. The documents maintained by the complainant with respect to the running of the hostel would reveal the fact as to whether the said hostel is being run for providing free food and accommodation to poor and needy children. But no such document is forthcoming from the side of the complainant. On the other hand, the Forum below found fault with the opposite parties in not establishing the case of the complainant. The Forum below has also omitted to note the fact that the complainant is being treated as a consumer under Kerala State Electricity Board with Consumer No. 3487 under tariff LT-VII. Admittedly, tariff LT-VII is for a consumer of electrical energy for commercial purpose. The Forum below has also accepted the case of the opposite parties that the complainant is being charged under LT-VII tariff from the very beginning. So, that fact would also give an indication that the complainant has been consuming electrical energy for commercial purpose. The finding of the Forum below that the complainant is a consumer who is running a charitable institution cannot be upheld. The aforesaid finding regarding the status of the complainant is made by the Forum below without any cogent and supporting evidence. So, the aforesaid finding of the Forum below is liable to be set aside. The materials available on record would show that the complainant is running a hostel for commercial purpose. If that be so, the complainant (respondent herein) is not a consumer as defined u/s 2(1) d (ii) of the Consumer Protection Act, 1986. The available materials on record would only show that the complainant availed the services of the opposite party/KSEB for commercial purposes. Then, the complainant cannot be treated as a consumer as defined u/s 2(1) d (ii) of the Consumer Protection Act, 1986. This point is found accordingly. 8. Point Nos 2 & 3: It has been held that the respondent/complainant is not a consumer as defined u/s 2(1) d (ii) of the Consumer Protection Act, 1986. If that be so, the Forum below had no jurisdiction to entertain the complaint in OP No. 320/04 on the file of CDRF, Kottayam. The finding made by the Forum below regarding deficiency in service on the part of the opposite parties is also legally unsustainable. So, the order passed by the Forum below cancelling A2 additional bill is also unsustainable. The impugned order dated 23-05-2005 passed by CDRF, Kottayam in OP No. 320/04 is liable to be set aside. Hence we do so. In the result, the appeal is allowed. The impugned order passed by the Forum below is set aside and the complaint in OP No. 320/04 is also dismissed as not maintainable. The parties are directed to suffer their respective cost throughout. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER Sr. | 
