ORDER NO. 4 DT. 15.02.2011

HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT

Appellant is present through Mr. B.Prasad along with Mr. P.K.Basu, Ld. Advocates.  Respondent is absent on calls.  Heard the Ld. Advocates for the Appellant in full.  Judgement is passed as under :-

This Appeal is by the complainant against the order of dismissal dated 17.6.10  of the complaint by the District Forum, Purulia in Consumer Complaint No. 35 of 2009.  The complaint was filed against the OP namely Damodar Valley Corporation, alleging deficiency of service because of its failure to maintain harmonic flow in supply of electricity to the factory.  The said complaint has been dismissed on the preliminary question of non-maintainability of the complaint case on two-fold grounds.   It has been held therein that since the complainant is carrying on its business of manufacturing of cement in its premises in which the electricity is being supplied by the OP, so the complainant is consuming electricity for commercial purpose and as such the complainant is not a Consumer and the complaint is not maintainable as per the provisions of Section 2(1)(d)(ii) of the Consumer Protection Act.  The other ground is that the agreement entered into by and between the parties to the complaint case on 24.8.04 for supply of electricity to the organization of the complainant contained an arbitration clause.  In view of such arbitration clause it has been held that this complaint is not maintainable.

It has been held by the Hon’ble Supreme Court in the decision reported in (2009) 3 WBLR (SC) 321 – Karnataka Power Transmission Corpn. & Another vs. Ashok Iron Works Pvt. Ltd., that the supply of electricity to a Consumer for the purpose of his manufacturing business cannot be said to be for commercial purposes.  The expression “supply” is not the synonym of  “sale”.  Further upon careful reading of Section 2(1)(d)(ii) it is distinctly clear that if the consumer gets supply of electricity even for carrying on its commercial activities but not for making any commerce in respect of such supply, then also he will remain as a Consumer of electricity.  In view of the decision of the Hon’ble Supreme Court as above and upon interpretation of the said section we are of the view that the findings made by the Forum below that complaint is not maintainable as the complainant got the supply of electricity for commercial purpose cannot, therefore, be sustained. 

The other ground that because of existence of the arbitration clause in the agreement between the parties, this complaint under the Consumer Protection Act would not be maintainable, cannot also be sustained. The Hon’ble Supreme court in the decision reported in AIR 2000 Supreme Court 2008  has clearly held that even if there be an arbitration clause in an agreement and a complaint is made by a consumer in relation to certain deficiency of service arising out of the said agreement, the existence of such arbitration clause will not be a bar to the entertainment of the complaint by the redressal agency constituted under the Consumer Protection Act since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. 

For reasons aforesaid the impugned judgement and order is set aside.  The complaint case is sent back on remand to the Forum below with a direction upon it to decide the same afresh on merits in accordance with law as expeditiously as possible.  The Appeal is thus allowed.