DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.35/2008

East Block, Bhavani Kunj Association

Through its Authorized Representative

Sh. Rajesh Punchi

RS 3, Bhawani Kunj, Behind D-2,

Vasant Kunj, New Delhi- 110070

….Complainant

Versus

BSES Rajdhani Power Ltd.

Through its Principal Officer/CEO

BSES Bhawan, Nehru Place,

New Delhi

Business Manager

Vasant Kunj, Distt.- Mehrauli,

Adchini, New Delhi

….Opposite Parties

  Date of Institution    :   22.01.2008    

  Date of Order            :   01.08.2022    

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

ORDER

President: Ms. Monika A Srivastava

The complaint has been filed by a registered RWA (Resident Welfare Association). OP-1 is a licensee to supply electricity for Delhi i.e. BSES Rajdhani Power Ltd. and OP-2 is the business manager, Vasant Kunj.

It is a case of the complainant that the OP is licensee to supply electricity for Delhi and the electricity is being consumed by them vide a single delivery point connection (SDPC) of 70KW load
vide K No.711151292 DX in the name of the complainant
Association. The said connection was finally converted to K No.2520G0030616/2151/Vasant Kunj (MLI). Regular bills were raised in the name of Association and the same were paid from time to time after collection from the individual member of the said association. 

At the time of sanction and installation of the above said connection the following expenditure was incurred by the complainant:-

(i)   Security amount                                                             Rs.1,12,000/-

(ii)  Cost of estimate for other various Expenses                Rs.5,19,996/-

(iii) Security Deposit Accounts low and Medium voltage  Rs.88,168/-

(iv) Connection charge                                                         Rs.16,747/-

      Total:                                                                              Rs.7,36,911/-

The receipts of payment of all the above said amounts are annexed here as annexure-I, II, III, IV for kind perusal of this Commission.

It is stated that the SPD connection was surrendered as per direction of the OP vide letter dated 16.07.2007 and all the members of the Welfare Association were provided separate connections with advice to complete all the formalities to get their connections and the individual connections were installed in the name of the members at their residence in the new scheme after completion of all the formalities and deposit of the necessary charges.

It is stated by the complainant that the equipments installed by the OP were taken over by the OP and it was advised that the security deposit shall be refunded with the cost of the equipment after deduction of depreciation on the equipments for the period that the same remained installed at the premises of the Association.  It is stated that the complainant had paid total cost of the equipments and is entitled to get the depreciated value of the equipments that by the OP from the complainant. 

It is further stated that the security deposits as well as other purchases like transformer, meter and other costs were refundable for which all the formalities were completed but no amount has been refunded by the OP.  It is stated that interest on the said security amount is also applicable @ 24% per annum as per Clause 11 of the condition of the supply which are applicable between the parties.  The complainant has annexed the last paid bill as Annexure-V with meter removal report dated 06.09.2007 annexed as annexure-VI, along with letter of advice dated 16.05.2007 to surrender the SPD connection as Annexure-VII. The complainant seeks to recover Rs.7,36,911/- from the OP on account of refund along with 24% interest as applicable as per agreement between the parties.  The complainant have also sought compensation of Rs.50,000/- for harassment and also sought cost of litigation.

The OP has filed its reply wherein it is stated that the complaint is false, baseless, misconceived and gross abuse of the liberal provisions of the law and therefore is liable to be dismissed.

It is stated by the OP that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act as has been held by the Hon’ble Supreme Court, NCDRC, SCDRC in plethora of judgments like Laxmi Engineering, Harsolia Motors.  It is stated that the complainant is a commercial entity and as per the agreement entered between OP, the contract with the complainant is an agency of the company was for receiving electricity in bulk at one or more point from the company and distributing the electricity so received, to the residents of the area calculating revenue from them and making payment to the company for the bulk supply on monthly basis.  It is stated that as per the policy of the OP, the SPDS (Single Point Delivery System) provided is an alternative when individual connections could not be provided due to non-availability. But now the SPD connections given has been surrendered.  It is stated by the OP that the contract signed between the erstwhile DVB and the complainant is purely commercial contract wherein as per clause No.8 of the agreement, the complainant was receiving commission on energy charges for distributing it. It is also submitted by the OP that only the security amount is refundable, cost of equipment are not refundable.

It is stated by the OP that in SPDS connection, an agreement entered between the OP and contractor is an agency of the company.  This facility was provided as an alternative when individual connections cannot be provided due to non-availability.  It is further stated that the complainant has not filed any proof regarding the refund of security amount and has not approached this Commission with clean and bonafide intention. It is also stated that the complainant has filed false, frivolous complaints with a view to take undue advantage i.e. to avoid payment of the bill amount which is lawfully demanded by the OP against the actual consumption of electricity.  It is further stated that there is no deficiency in service on the part of the OP and the connection of the complainant is based on a contract under SPDS.

In rejoinder, the complainant has stated that they are Resident Association and have taken services of the OP for the benefit of the members of the Association without any profit making object, therefore the case laws by the OP are not applicable to the present case.  It is stated that the instruments that were installed in the premises of the association were taken over by the OP and therefore they have to pay against the same along with specific payment of security. The equipment purchased from the funds of complainant cannot be taken away by the OP.  It is stated that the security amount cannot be swallowed by the OP and it is refundable to the complainant.  It is reiterated that the complainant not being a profit making organisation is entitled to claim the refund and the non-refund of the security amount is deficiency in service on the part of the OP.  It is stated that the receipts that are filed with the complainant confirms the status of the complainant as consumer.  The said receipts are duly admitted between the parties as the OP has supplied electricity to the complainant association as a consumer.  25% commission has also been admitted by the OP that was given to the complainant as consumer on behalf of the members of the association. 

It is stated that the security amount of Rs.1,12,000/-, Rs.86,168/- totalling to Rs.2,00,168/- has to be refunded on the basis of admission and the remaining amount of Rs.5,19,996/- and Rs.16,747/- are subject to adjudication.  It is stated that only the connection charges of Rs.16,747/- may be withheld by the OP, all the equipments were purchased by the association and not purchased by the OP hence the cost of Rs.5,19,996/- is also liable to be refunded to the complainant.  It is further stated that the complainant is entitled to interest @ 24% per annum since the date of deposit, as per rules.  It is stated by the complainant that Welfare Association is not a profit making organisation. It is also stated that the complainant in his rejoinder has stated that though they were getting 25% commission but that used to be passed on to all the members of the association. It is stated that Laxmi Engineering, and Raj Electrical vs. BSES related to a commercial organisation whereas the complainant is a Resident Welfare Association and had taken the services of the OP for the benefit of the members of the association without any profit making object. It is also stated that as the OP has taken over all the assets and liability of the erstwhile DVB they are liable to pay the securities and other claims that are against the DVB and therefore it is their responsibility to pay the amount claimed which is deposited with the DVB along with the assets and liabilities under the agreement.

This Commission has gone through the entire material on record i.e. rejoinder, evidence affidavits and written submissions of both the parties and it is comprehended that for a just decision in the case, it is imperative that the preliminary objection raised by the OP be decided, “Whether Complainant is a consumer”.

It is noted that there is an agreement between the complainant and the OP and by way of that agreement, the OP was supplier of electricity and the complainant was its agency, who was further supplying the electricity to the residents of the Association. It is also not in dispute that for this service, the complainant was getting a fixed percentage from the bill payment.

This Commission is of the opinion that since the complainant was given a 25% commission by the OP, the nature of the contract is commercial. Therefore, the complainant cannot be terms as a consumer and this complain would fail on that ground. It is a commercial contract and the complainant cannot be taken to be a consumer.

Complaint is dismissed without any costs.

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.