This complaint is coming on for final hearing before us in the presence of Sri K.Krishna Murthy, Advocate for the complainant and Sri P.Rambabu, Advocate for O.P.1, Sri P.Venugopal Rao, Advocate for O.P.2 and having stood over for consideration, the Forum made the following:-
O R D E R
This is a complainant filed under Section 12 of Consumer Protection Act seeking the relief to direct the 2nd O.P. to shift the transformer from the place now it exists to another suitable place and to pay compensation of Rs.10,000/- towards mental agony and physical discomforts on the following averments. The complainant purchased the shop of 1st O.P. under an agreement of sale dt.15-2-2006 and subsequently filed a suit in O.S. 17/2006 and obtained a decree for specific performance and having filed E.P.52/2010 a sale-deed was executed by the court on 22-10-2010 and in Ex.A.81/10 the court delivered the shop room to the complainant on 20-12-2010 and as on the date of filing suit the electricity service connection was not given by the APEPDC Ltd., to the complainant. The 1st O.P. is required to provide a space for erection of a transformer for supply of power to the shopping complex and lodge under his occupation. Out of vengeance against the complainant the 1st O.P. prevailed upon the 2nd O.P. and got erected the transformer at the entrance of the shop room of the complainant during pendency of the said suit. A notice was given to the 2nd O.P. on 8-5-2007 while the erection of transformer process was under taken but unfortunately the said notice was not served and in the meantime the transformer was erected, which has been causing him much hindrance for free ingress and egress to and from the shop of the complainant. The 1st O.P. being the builder of the complex and before he disposed of the shop, being owner thereof ought to have raised a pillar, above the height of ground floor shops and laid a platform on such pillar to facilitate the erection of the transformer, which cause no hindrance to anyone. The transformer has been causing lot of inconvenience besides damaging the business of the complainant.
The complainant let out the shop to D.Jyothi for less amount, that too on condition that the complainant will take steps for removal of the transformer. In the recent times, when there was a shower of rain and thunders, the subject transformer is stated to have given high voltage lightening and sound and the same was recorded in the C.C. camera got fixed by the tenant in the shop. Hence, the complainant is apprehending danger to the public whoever may step in the shop room at any moment. The complainant got issued a notice to 1st O.P. demanding him to provide suitable place for shifting the transformer and make arrangements of the same but of no avail. The 1st O.P. sent a reply with false averments and disowning his responsibility and attributed the 2nd O.P. had chosen a place and fixed the transformer. Since the 1st O.P. caused inconvenience to the purchasers of the shop room amounts to deficiency of service. Similarly the action of 2nd O.P. in installing the transformer at the foot steps of the shop room of the complainant amounts to failing in their duty and deficiency in service. Since the complainant suffered mental agony owing to the conduct of O.Ps., he estimated the damages at Rs.10,000/-. Hence, the complaint.
The O.Ps. 1 and 2 filed separate counters traversing the material allegations made in the complaint. In the counter of 1st O.P. it is averred that the total ground floor of the building is commercial complex and when he offered to sell the shop rooms in the ground floor he intimated the proposed purchasers including the complainant that they have to bear the electricity charges, deposits and also expenses for installation of electricity transformer as required by the department, upon which all the purchasers have agreed to do so. Except the complainant the purchasers of other rooms and the 1st O.P. have contributed money for installation of transformer and have obtained service connections to their respective shops. After the necessary amounts were deposited and after completion of the formalities the department inspected the total property and earmarked the place in front of the total property for installation of the transformer. The authorities of the electricity department selected the place which is not useful for any public purpose without taking suggestions of the owners of the shops or O.P.1 and having taken their own decision they have installed the transformer.
It is averred that there is 2 feet width of site exclusively belonging to the 1st O.P. between the western edge of complainant shop and the transformer installed by the electricity department. The complainant did not contribute any amount for installation of transformer and has obtained service connection to his shop room and as such the 1st O.P. had to invest Rs.15,000/- for the above said purpose to be the share of complainant. The complainant is liable to pay the said amount to the 1st O.P. and in order to avoid the payment the complainant invented the theory as if the 1st O.P. acted detrimental to his interest.
It is averred that the complainant’s shop situated at south-west corner of the ground floor adjacent to the road leading to M.R.College and there are row of shops in the ground floor and a pathway exists in between the said row of shops and the said path way situates to the north of complainants shop room. The customers of complainant can directly enter his shop from the said pathway. The existence of transformer is not at all preventing the customers to enter the shop of complainant. Since the electricity department installed transformer in the road margin without causing any inconvenience to the customers of complainant to have ingress and egress to the said shop room there is no deficiency in service on the part of O.Ps. and as the complaint merits no consideration the same is liable to be dismissed.
In the counter of 2nd O.P. it is averred that the complainant is not a consumer and as such the complaint is not maintainable. It is averred that service connection has been provided to complainant under cat-II which is of Commercial and non-domestic nature and as such this Forum has no jurisdiction to entertain the complaint. It is averred that 2nd O.P. erected the transformer at the place provided by the then owner of the building after taking the feasibility for erection of the same into consideration as the said transformer is exclusively meant for the service of the shopping complex.
It is averred that the transformers was erected and services were released on 15-11-2007 whereas the complainant has applied for service connection to his shop on 30-6-2011. Hence, the complainant has no right to question the erection of transformer as it was pre existing by the time of his acquiring title to his shop room. It is averred that the 2nd O.P. is not deficient in rendering service to the complainant as the latter did not raise any objection when the transformer was installed and as there are no bonafieds in the complaint, the same is liable to be dismissed.
The complainant, O.P.1 and 2 filed their respective evidence affidavits. The complainant and 2nd O.P. filed brief written arguments and on behalf of complainant he got marked Ex.A.1 to A.8. 2nd O.P. got marked Ex.B.1. Perused the material placed on record.
Now the point for consideration is whether the complainant is entitled to get reliefs prayed for.
It is the specific contention of the complainant that he has purchased a shop room from the 1st O.P. and as the 1st O.P. did not execute a sale deed a suit in O.S.17/2006 was filed for specific performance of contract and he having obtained a decree filed E.P.52/2010 and E.A.81/10 and obtained sale deed as well as possession of the room and the 1st O.P. having developed grudge against him has instigated the 2nd O.P. to install the transformer just in front of his shop room and thereby caused inconvenience to his customers to have ingress and egress to the said shop. It is his further contention that as there are deficiency in service rendered by the O.Ps. for not erecting the transformer in a suitable place without causing any hindrance or inconvenience to the customers to visit his shop.
Since the O.Ps. in this case are disputing the status of parties i.e., Consumer and service provider relationship in between them a date is caste upon the complainant to prove that he is a consumer and defined in Sec.2 (d) of C.P.Act. He has to prove that the service was rendered to him by the O.Ps. and the said service was hired by him and for hiring such service he has paid consideration in the manner envisaged by Sec.2(1)(d) of the Act.
In a decision in (2009) CPJ 34 (SC) : wherein it is held: According to the definition of ‘Consumer’ in section 2(d) of the Act, a person who hires or avails of any services for a consideration is a consumer. The following category of service availors will not be consumer (i) Persons who avail any service for any commercial purpose (ii) persons who avail any free service (iii) persons who avail any service under any contract of service.
Coming to case on hand the complainant has taken a plea that as he filed a suit against the 1st O.P. the latter prevailed upon the 2nd O.P. and got erected the transformer at the entrance of his shop room during pendency of the said suit. The above said fact is denied by both the O.Ps.
In the counter of 2nd O.P. it is averred that they have installed the transformer at the place provided by the then owner of the building after taking the feasibility for erection of the same into consideration since the transformer is meant exclusively for the service of the said shopping complex. The complainant did not adduce any cogent evidence to believe that the 1st O.P. had prevailed upon the O.P.2 and got erected the transformer at the entrance of his shop. As per complainant a notice was given to the 2nd O.P. on 8-5-07 while the erection of transformer process was undertaken. As seen from the pleadings and evidence adduced on behalf of complainant he filed O.S.17/2006 on the file of Additional District Judge Court, Vizianagaram for specific performance against the 1st O.P. and obtained a decree and filed Ex.P.52/2010 for execution of a sale deed and filed E.A.81/2010 for delivery of the shop room. When the above said case proceedings were pending, the alleged erection of transformer in front of the shop room of complainant was undertaken in the year 2007. When the complainant alleged to have given notice to the 2nd O.P. on 8-5-2007 calling upon them not to erect the transformer he had knowledge that the transformer was erected way back in the year 2007 by which time the O.S.17/2006 was subjudice.
For the reasons best known the complainant did not choose to implede the 2nd O.P. in the said suit seeking the relief not to erect the transformer near his shop room causing hindrance to his customers to have ingress and egress to the said shop room. It is not the case of complainant that he paid the required amount to the 2nd O.P. for installation of a transformer to take electrical power connection to his shop room. He did not hire the service of the 2nd O.P. for installation of the transformer.
As seen from the principles laid down in the decision cited supra a person who avails service for any commercial purpose or avails service freely or avail service under any contract of service he will not come within the purview of the definition of consumer as defined in Sec.2 (d) of the Act. As we have already stated supra no evidence is forthcoming to believe that the complainant has availed the services of O.P. for consideration. It is the specific contention of 1st O.P. that he spent a sum of Rs.15,000/- towards the share of complainant for installation of the transformer and spent Rs.6,000/- towards service connection to the complainant shop room. It is not the case of complainant that he has spent necessary amount for installation of transformer or for taking service connection to his shop. Under such circumstances it can safely be inferred that he has availed free service of O.Ps. 1 and 2 and the said service was availed for commercial purpose. Hence, he does not come under the purview of definition of consumer as defined in Sec.2(d) of the Act.
In this case the complainant had knowledge about erection of transformer way back in the year 2007 as he alleged to have given a notice to the 2nd O.P. on 8-5-2007 calling upon them not to erect the transformer in front of his shop. From the date of issuance of the said notice the limitation starts running for filing a case. As per Sec.24 (a) of the Act the District Forum shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen. The cause of action in this case has arisen on 8-5-2007 when he got issued a notice to the 2nd O.P. in this regard. The complainant ought to have filed this complaint before 9-5-2009 but he did not do so. Since this complaint was filed in the year 2012 and as the complainant did not file any petition seeking the relief to condone the delay in filing the complaint his claim is barred by limitation. As per complainant the 1st O.P. being the builder of the complex and before he disposed of the shop, being owner thereof ought to have raised a pillar above the height of ground floor shops and laid a platform on such pillar to facilitate the erection of the transformer which cause no hindrance to any one. As seen from the photographs filed into court by the complainant as well as O.P.1 which are marked as Ex.A.5 and Ex.B.1 respectively there is a pillar having platform on which the transformer was erected.
Hence, in view of the above said facts and circumstances we are of the considered opinion that there is no merit in this complaint.
In the result, the complaint is dismissed, but under the circumstances without costs.
Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 17h day of January, 2014.
Member President
CC. 67 of 2012
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For P.W.1 For R.W.1
DOCUMENTS MARKED.
For complainant:-
1. Ex.A.1 Non Judicial Stamp paper
2. Ex.A.2 Lawyer Notice
3. Ex.A.3 Acknowledgement from 2nd O.P. dt.19-6-2012
4. Ex.A.4 Lawyer Notice
5. Ex.A.5 Two Positive Photographs
6. Ex.A.6 Disk
7. Ex.A.7 Sagar Studio receipt
8. Ex.A.8 Current Bill Xerox copy
For O.P.
1.Ex.B.1 Three Photographs.
President.
