Date : 31/10/2012

O   R   A   L   O   R   D   E   R

Per Shri.B.A.Shaikh, Hon`ble Presiding Judicial Member.

1.       The case of the complainant in brief as under

          The complainant is an industry having name and style as “ M/s.Jai Bhavani Packaging Industries. The complaint is filed  through its Prop. Shri.Ramrao Sheshrao Nagargoje, who is the Ex-serviceman. He established the unit in the aforesaid name at Aurangabad in the year 1993. The opponent No. 1 Chief Engineer of  the Maharashtra State Electricity Distribution Co.Ltd gave electric connection to the said unit for 6 H.P. On the application of the complainant, the said load was enhanced to the extent of 66 H.P. on 23/01/2004. The complainant also paid Rs 11,000/- as per quotation of enhanced  said load. The complainant also completed other  administrative and legal formalities as required for enhancement of the load. The said additional supply was delayed by the opponent for no reason for period of 80 months. Therefore the machines purchased and installed by the complainant were lying idle which caused huge financial loss to the complainant. The opponents also caused delay in  supply of power meter to the complainant even after payment of demand note, which also caused heavy loss to the complainant. Moreover, there was low voltage of the electricity which was supplied to the unit of the complainant resulting in loss of production and rejection of finished goods. There was also levy of additional supply charges than permissible limits. There is also excess levy of fuel  charges ignoring guide lines issued in that  behalf. There is also wrong  and excess billing  in each and every  month,  right from the date of installation of the meter. The complainant has given all  aforesaid details running into 38 pages in  the complaint. Lastly he sought  the following reliefs in the complaint.

b.       The respondent company be ordered to place on record the copy of          the C.P.L. for assessing the consumption and levy of defend    charges from time to time.

c.       To direct the respondent company to pay the amount of Rs   8,00,000/- to the complainant under the head of 10 %  profit loss,

          treating  the total production as Rs 80,000,00/- for the period from         27/01/2004 till 29/09/2005 on which day, the enhanced supply    was connected and increased from 06 H.P. to 66 H.P. and under       the head of delay caused in enhancing the load.

d.       To direct the respondent company to pay the amount of Rs   6,00,000/- towards the liquidated damages and loss of profit         during the period from 29/09/2005 till 01/5/2008, for low voltage       supply made to the complainant unit and for their failure to provide the separate transformer or proper load on the existing      transformer, during the said period treating it to be 10 % loss as   against the total production of Rs 60,00,000/- during the disputed     period.   

e.       To direct the respondent company to pay the incentive as printed   on the over leaf of the bill of demands issued by them and as per          their own policy and guidelines, at the rate of Rs 0.85 paise per unit consumed for approximately 12,000 units per month for last   37 months, calculated to the tune of Rs 3,70,000/- for having used     the power supply during the period from 23.00 hours to 06.00         hours especially in night shifts.  

f.        To direct the respondent company to refund the amount of Rs        1,50,720/- deposited by the complainant vide demand note dated       24/11/2006 alongwith the penal interest at the rate of 18 % per       annum right from the date of its deposit made, till its realization.

g.       To direct the respondent company to refund the amount of Rs        1,03,994.88 paise, shown as arrears in bill dated 15/12/2006 and the said amount be ordered to be refunded alongwith penal    interest at the rate of 18 % per annum from the date of its deposit,          till its realization.

h.      To direct the respondent company to refund the additional supply charges of Rs 2,33,292/- to the complaining alongwith the penal      interest  @ of 18 % per annum from the date of its respective      recovery made in a given month, till its realization.

i.        To direct the respondent company to refund the amount of Rs        90,401/- so recovered by them from time to time under the head of         Indian Adhibhar/fuel sur-charge as on date, from  the date of its         respective recovery made, till its refund, along with penal interest       at the rate of 18 % per annum.

j.        The amount of new meter charges of Rs 11,000/- so paid on           27/01/2004 be refunded along with penal interest @ 18 % p.a.   for having failed to supply the new meter, as per demand.

k.       Towards the mental agony, physical harassment and the follow up           charges, as a token of damages, the complainant be awarded a         sum of Rs 3,00,000/-.

l.        The complainant be awarded a sum of Rs 25,00,000/- towards the           cost of the complaint.

2.       The opponent No. 1 and 2 initially filed reply to the application moved by the complainant for interim relief. Lateron the opponents advocate filed pursis before this Commission stating that the said reply be treated as written version of the opponents. Both the opponents in that reply denied in toto the case of complainant.  They have  submitted that no mischief is ever played with any of  the consumer of The Maharashtra State Electricity Distribution Co.Ltd. The sum and substance of their reply is that there is no wrong committed by them at any time. They also submitted that there was no low voltage provided  from their side and that tariff was applied as per approval from higher authority and   all the bills  were issued as per meter reading and as per prevailing tariff approved  by MERC. Thus they have justified the acts done by them  from time to time and they submitted that the complaint may be dismissed with cost.

3.       The complainant filed evidence affidavit with re-joinder.  The opponent advocate submitted a pursis stating that the opponents do not want to file evidence affidavit. The complainant advocate filed written notes of argument on 09/07/21012. Thereafter the complaint was adjourned to 28/08/2012, 03/09/2012 and 21/09/2012 for arguments. On 21/09/2012  complainants advocate was heard and opponents advocate failed to appear for final hearing. The complaint was reserved for judgment and order after hearing on 21/09/2012.

4.       We have perused all the papers placed  before us and written notes of argument filed by the complainant. Following issues arise for our determination. We also record our findings as against each of them, for the reasons given next there under:

Sr.No.                             Issues                                                Finding

01.     Whether the complainant has proved that it is a 

consumer as defined under Sec. 2(1)(d) (II) of  Consumer

Protection Act, 1986 ?                                                    No.

02.     What order ?                                                        As per final

                                           R E A S O N S

05.     As to issue No. 1 :-

          There is no reference in the written notes of argument filed by the complainant as to how  the complainant is a consumer as defined under the Provision of Sec. 2(1) (d) (II)of Consumer Protection Act, 1986. The complaint is maintainable before this Commission only when the complainant is a consumer as defined under the said provision of law. The Sec.2 (1)(d) (II)  of the Consumer Protection Act interalia provides that consumer does not include a person who avails services for any commercial purpose. The explaination appended to  Sec. 2(1)(d) of Consumer Protection Act reads as under “ For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought any used by him and services availed by him exclusively for the purposes of earning of his livelihood by means of self-employment.

6.       In the instant case admittedly the complainant is a industry named and styled as M/s.Jai Bhavani Packaging Industries.  The said industry is  established by its Prop. Namely Shri. Ramrao Sheshrao Nagargoje. The complainant in the complaint stated that said Shri. Ramrao Sheshrao Nagargojeis an Ex-service man. It is not pleaded in the complaint that the services provided by both the opponents are exclusively for the purpose of earning livelihood by  of Shri. Ramrao Sheshrao Nagargoje by means of self employment. Moreover, the complainant adduced no evidence to prove that the services of the opponents were hired only for earning livelihood of the said Shri. Ramrao Sheshrao Nagargoje and that to by means of his self employment. Therefore in the absence of any  such pleading and proof we are not inclined to hold that the said services of the opponents were hired by Shri. Ramrao Sheshrao Nagargoje for the purpose of earning his livelihood by means of self employment.  

7.       No doubt the opponents  in their written version raised  no such plea that the complaint is not filed by the consumer as defined under Sec. 2(1)(d) (II) of Consumer Protection Act. However, we find that the complaint itself shows that the services of the opponents were hired for the commercial purpose only. Thus from the case of complainant as put forth  in the complaint, it is evident  that the services of the opponents were availed exclusively for commercial purpose by the complainant..

8.       We thus hold that it is not proved by the complainant that services of the opponents were availed exclusively for the earning of livelihood of Shri. Ramrao Sheshrao Nagargoje by means of his self employment. Herd   the complainant does not fall within the ambit  of definition of consumer as given in Section 2 (1) (d) of Consumer Protection Act. The complaint is therefore not maintainable before this Commission. Accordingly the aforesaid issue No. 1 is decided negative and following order is passed.  

                                      O   R    D    E  R  

1.       The complaint is dismissed.

2.       Both the parties shall bear their own cost.

3.       Copies of this judgment and order  be sent to both the parties.