BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 10th day of December, 2015
First Appeal No.5/2015
Rajasekar, S/o Swaminathan,
No.AR/2 of the Executive Engineer,
B & R Public Works Department,
Central Division, Government Quarters,
BL, AR, Mudaliarpet, Puducherry. …………. Appellant
Vs.
Electricity Department,
Government of Puducherry,
Rep. by its Junior Accounts Officer/Revenue,
Puducherry. ………….. Respondent
(On appeal against the order passed by the District Forum, Puducherry in Consumer Complaint No.78 of 2009, dated 31.12.2014)
Consumer Complaint No.78 of 2009
Rajasekar, S/o Swaminathan,
No.AR/2 of the Executive Engineer,
B & R Public Works Department,
Central Division, Government Quarters,
BL, AR, Mudaliarpet, Puducherry. …………. Complainant
Vs.
Electricity Department,
Government of Puducherry,
Rep. by its Junior Accounts Officer/Revenue,
Puducherry. ………….. Opposite Party
BEFORE:
HON’BLE THIRU JUSTICE K.VENKATARAMAN
PRESIDENT
TMT.K.K.RITHA,
MEMBER
FOR APPELLANT/COMPLAINANT.:
Thiru S.Vimal,
Advocate, Puducherry.
FOR RESPONDENT/O.P.:
Thiru.S.Tamilselvan,
Government Pleader, Puducherry.
O R D E R
(By Hon'ble Justice President)
1. This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry, made in CC No. 78/2009 dated 31-12-2014.
2. The complainant before the district forum is the appellant herein. The opposite party therein is the respondent herein. The parties are referred to in the same position as before the district forum, for the sake of convenience.
3. The complainant filed the complaint before the district forum seeking for
- A direction to the opposite party either to rectify or to replace the complainant’s defective electricity consumption meter.
- To direct the opposite party to refund the excess amount charged from the complainant.
- To direct the opposite party to pay a sum of Rs.25,000/- with interest at 12% P.A thereon from the date of this complaint till complete discharge thereof towards compensation for the physical, mental and monetary loss an agony caused to him due to their defective product and Unfair Trade Practice as per section 14(d) of C.P. Act.
- To direct the opposite party to pay the complainant a sum of Rs.5000/- towards litigation cost and expenditure towards the complainant.
4. It is the case of the complainant before the district forum that he is a Government employee and residing at Government quarters. He is the beneficiary of the services of the opposite party. He found in July 2007 that his electricity consumption meter was not functioning and the same was intimated to the concerned meter reader of the opposite party. He found that the meter was struck. Till September 2007 as there was no response from the opposite party in replacing the defective meter, he has given a written complaint on 04-09-2007 to replace the defective meter. The complainant was making repeated request. However the consumption of electricity in his primises was the same. While so the bill has been escalated from Rs.45 to Rs. 95 per month. Therefore the complainant was forced to issue an advocate notice dated 12-04-2009 however there was no reply from the opposite party. Hence the complaint was prefered before the district forum.
5. The opposite party filed a reply version contenting that the service connection stands in the name of executive engineer public works department. Therefore the complainant has no locus standi to file the complaint as there is no previty of contract between the complainant and opposite party. It is further contended that the complainant is not a consumer and hence the complaint is liable to be dismissed. It is also contended that due to acute shortage of meters, it could not be replaced immediately and the same was replaced on 21-08-2009. Further it was contented that the billing was properly done and there is no unjust demand. If any excess payment is made the same will be adjusted in future bills. It is also contended that if any case to be filed against the Government of Puducherry, the union of India should be added as parties. Since the same has not been done, the complainat is liable to be dismissed on this ground also.
6. On behalf of the complainant, he examined himself as CW1 and Exhibits C1 to C9 were filed and marked. On behalf of the opposite party one Ms. Bhuvaneswari was examine RW1. No document was filed on behalf of the opposite party. After hearing both parties, the district forum dismissed the complaint. The appeal is directed against the said order. In the appeal we have heard the learned counsel appearing for the appellant and the counsel for the respondent.
7. Before the district forum as well us before as it was contended on behalf of the opposite party that the complainant who is residing in a Government quarters maintained by PWD department and enjoying the electricity which stands in the name of PWD department, cannot be considered as a consumer. The counsel appearing for the opposite party takes shelter under Sec 2 (15) of the Electricity Act which defines “consumer”. It reads: “consumer” means any person who is supplied with electricity for its own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and include any person whose premises are for the time being connected for the purpose of receiving electricity with the works of licensee, the Government or such other person, as the case may be”. He also relied on the decision rendered by the Hon’ble High Court Madras in W.P. No. 2863 of 2009 dated 19-04-2010 to support his case. On the other hand it is contended on behalf of the complainant that the complainant who is enjoying the electricity, though in the premises owned by the Government, has to be considered as a consumer under the Consumer Protection Act. He relied on Sec 2 (d) of the Consumer Protection Act which defines “Consumer”
8. We have carefully considered the submission made by both the counsels. It is not in dispute that, the complainant is residing in the Government quarters and maintained by PWD Department. It is also not disputed that the electricity service connection stands in the name of the PWD Department. However, one shall not forget the fact that the complainant is enjoying the power supply in the premises occupied by him. Sec 2 (d) for the consumer Protection Act 1986 which defines consumer states that not only the person who buys the goods but also a person enjoys such goods shall be considered as consumer. It would be useful to extract Sec 2 (d) i and ii of the Act which is extracted hereunder.
2(d) “Consumer” means any person who -
(i) “ buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) “[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
9. The object of framing the Consumer Protection Act is to promote and protect the rights of the consumers. It is a benevolent legislation enacted for the welfare of the society. When such is the position, we cannot close our eyes to say that the complainant is not a consumer. The judgment relied on by the learned counsels appearing for the opposite party rendered in W.P. No. 2863 of 2009 referred to above will not come to the rescue of the opposite party. That is the case were one M/s.Lanxess India Pvt. Ltd who was opposite party before the district consumer forum approached the Hon’ble High Court challenging the filing of the complaint by one M/s.Yuvashri enterprises alleging that the later is not a consumer since there was no service rendered by the former to the later. On the particular facts of the case, it has been found by the Hon’ble High Court Madras that the complainant there in is not a consumer. The facts of the present case are entirely different. Considering the overall discussion made above we have no option but to conclude that the complainant is a consumer as defined under the Consumer Protection Act. This point is held in favour of the complainant, there by setting aside the finding rendered by the district forum in this connection.
10. The next contention on behalf of the opposite party is that the right to sue against the Union Territory of Puducherry is vested upon only the union of India represented by Chief Secretary of the Union Territory of Puducherry. First of all it has to been seen that the complaint filed was against electricity department pertaining to their business and not regarding any administrative functions of union Territory. Therefore to say that the complaint filed against the electricity department is not maintainable does not hold good. The judgment cited by the learned counsel appearing for the opposite party reported in 1979 (2) MLJ page 474 will not be applicable to the facts of the present case. That is a case were the appellant therein filed a suit for recovery of money being the successful bidder of toddy shop auctioned by the Government of Puducherry. While dealing with such facts the Hon’ble High Court in the said case relying on Sec 55 (b) of Union Territory Act 1963 came to the conclusion that since the suit connected with Administration of union territory, Government of India should have been impleaded as a party. But the position here is entirely different as discussed above. Therefore the said judgment will not be applicable to the present case on hand. Therefore the conclusion arrived at by the district forum holding that the complaint is bad for none joinder of necessary party, namely the Union of India is liable to be set aside. The argument advanced by the learned counsel appearing for the opposite party in this regard is also liable to be rejected. Therefore we hold that the complaint filed against the electricity department without impleading Union of India is perfectly maintainable. This point is held infavour of the complainant.
11. The district forum did not consider the other point whether there was any deficiency of service attributed against the opposite parties in view of the finding regarding the other points discussed above. However in view of the finding rendered by us that the complainant is a consumer and that the complaint is not bad for non-joinder necessary parties, we have to decide whether there was any deficiency of the service of the opposite parties. It is not disputed that the complainant having found in July 2007 that the meter was not functioning informed the meter reader of the opposite party and since there was no action by the opposite party, he has given a written complaint on 04-09-2007 to replace the defective meter. Since there was no action by the opposite party, he was forced to issue an advocate notice on 12-04-2009. In the meanwhile the bill amount of Rs.45 was increased to Rs. 95 though it is stated that there has been no change or variation in consumption of electricity by the complainant. The opposite party who has received the advocate notice of the complainant did not give any reply even though the notice was received by the opposite party on 13-04-2009 as could be seen in Exhibits C4. The opposite party also admits that due to shortage of meter it was replaced only on 21.09.2008.
12. In the facts and circumstances discussed above we are of the view that there is a deficiency in service rendered by opposite party. Since it is stated that the opposite party replaced the defective meter the 1st prayer for rectifying or replacing the complainants defective meter doesn’t require any consideration at our end. However the opposite party has to repay the excess amount collected from the complainant. It is the case of the complainant that there has been no change or variation in consumption of electricity by him which is not disputed on behalf of the opposite party by sending a suitable reply for Exhibits C3 notice. The contention raised for billing Rs.95 is totally unacceptable. Therefore we direct the opposite party to repay the excess amount collected from the complainant.
13. As regards the compensation that has been sought for by the complainant, we are of the view that a sum of Rs.5,000/- would just and reasonable considering the hardship caused to the complainant. As for as the cost is concerned we are of the view that definitely the complainant would have spent considerable amounts in fighting the litigation and hence it would be just and reasonable to award a sum of Rs.5,000/- which is prayed for by the complainant towards litigation cost and expenditure.
14. Thus, we set aside the order of the district consumer disputes Redressal forum Puducherry made in CC No. 78 of 2009 dated 31.12.2014 and direct the opposite party to
- Refund the excess amount charged from the complainant
- Pay a sum of Rs.5,000/- towards compensation to the complainant
- Pay a sum of Rs. 5,000/- towards litigation cost and expenditure towards the complaint
The appeal is thus allowed in part as indicated above.
Dated at Puducherry this the 10th Day of December 2015.
(Justice K.VENKATARAMAN)
President
(TMTK.K.RITHA)
Member
