(As Per A.A.Jain, Hon’ble Member)
The complainant has filed this complaint against the O.Ps. claiming various reliefs as per prayer clause. The fact of the case in brief are as under.
1 That , the complainant is widow and doing business of milling of salt by engaging herself in self employment for her and her minor children’s livelihood. The complainant is having electric connection of O.Ps. in the name of her late husband Shyamsundar Tolani, bearing Consumer No. 430010210148 . After the death of her husband, the complainant widow is using electricity of O.Ps. and paying the bill thereof. The average bill of the complainant was about 500 unit per month . But in the month of June 2005 the meter started moving fast and was showing excess reading than the use of complainant. Complainant alleged that the defective meter has showed the consumption reading 1168 unit for June 2005 and 895 unit for July 2005. The complainant initially did not care and paid the both bills but the defective meter showing use of electricity more than use. So complainant has complained about fast meter orally and in writing. Than she stopped to make payment from Feb.2006. So she filed this complaint praying that direction to all O.Ps. to correct the bill for the period from June 2005 to July 2006 by charging on past average consumption, restoration of her disconnected supply and Rs.350/- per day loss with mental harassment compensation with cost (Ex.1 with 33 documents).
2 The electric supply was disconnected by O.P. and the meter was taken by O.P. and check report is not given by O.P. After prayer of complainant and argument done by O.P., O.P. through his advocate submitted that complainant is not consumer. She is using electric energy for ‘Commercial purpose’ O.P. has submitted 5 case law. But all case law submitted by O.P. is not similar to the case in hand. So this forum ordered to restore the electric supply to the complainant after depositing Rs.10000/-. This order was passed on 07-12-2006.
3 In response to notice u/s 13 of C.P.Act 1986 , O.P. appeared and filed his reply on Ex.12 O.P. submitted that complainant does not fall under the orbit of Consumer. Because she used electricity for her salt industry i.e. for commercial use.
4 Further O.P. submitted that the complainant is seeking relief on frivolous ground out of rules. The consumption is correctly recorded as per their use of electricity, as connected load is 10 H.P.It can not be said by any stretch of imagination that meter was defective/fast because of consumption in June 2005 and July 2005 were recorded as 1168 units and 895 units respectively more than other months as alleged by applicant, There was progressive reading in subsequent months upto July 2006. Meter was replaced in July 2006.
5 On verifying all record thoroughly and hearing both the sides, following points arise for our consideration and our finding were given as below.:
Points Findings
A Whether the complainant is consumer as defind
u/s 2(d)(ii)of C.P.Act 1986 ? Yes
B Whether there is deficiency in services on part of O.Ps. ? Yes
C Whether the complainant is entitled for relief as prayed in
Prayer clause ? Yes
D What order ? As per final order
REASONS
6 O.P. had provided electricity connection on 15-04-1994 in the name of Shyamsunder G.Tolani vide consumer No. 430010210148 for milling of salt having load of 10 H.P. After the death of complainant’s husband, the widow of Shyamsunder Tolani who is complainant in this present case, is paying the bill since 2000, and O.P. has not taken any objection. Complainant used to adopt her husband’s business of milling the salt for her livelihood and her minor children are depend upon her and her old father-in law also dependant on her. The definition of consumer u/s 2(d) 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 2 [hires or avails of] the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person 3[but does not include a person who avails of such services for any commercial purpose]
4[Explanation : for the purpose of this clause “ Commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment]”
In the present case complainant is comes under definition of ‘beneficiary’ who used electricity for her livelihood by means of self employment. This was the duty of the complainant to apply O.P. for changing her husbands name and transfer for her name. But due to this minor lacuna her right cannot be overlooked.
We follow the case law of National Consumer Dispute Redressal commission New Delhi. First Appeal No. 534 of 1995 decided on 04-01-2004:
(ii) Consumer Protection Act 1986 section 2 (i)(d)- Consumer – self employment- defect in machine- There is no employment of labour on regular basis and the machine was generally worked by one man – it has been clearly spelt out that this was for earning their livelihood of which he has given comprehensive details in the affidavit filed by way of evidence. There is no rebuttal of this fact on record – Held that complainant purchased the machine for his self employment and for earning his livelihood – comes under the definition of Consumer. (Para 9).
Case Referred AIR 1995 SC 1428 (Laxmi Engineering Works Vrs. P.S.G.Industrial Institute)
Thus we record our finding that complainant is ‘Consumer’.
7 Electric meter of O.P. was moving fast it was observed by complainant in the month of June-July 2005. Complainant orally complained about fast meter to Mr. Gupta J.E. of Matatoli area. After transfer of Mr. Gupta J.E. the complaint was made to new J.E.Mr. Pawar but only assurance was given, no any action was taken by J.E. Then complainant made complaint in writing on 25-03-06 but O.P. did not taken any action and the widow complainant was harassed mentally and physically. No any action taken on complaint of complainant clearly shows deficiency in services on the part of O.P.
8 O.P. has filed five case law for our consideration as under :
A IV (2004) CPJ 26 : W.B.S.E.B. Vrs. Subhash Barik S.C. Case No.386/A of 2003.
In this case the complainant applied for a new service connection under Industrial category and a huge amount was lying unpaid in respect of another service connection in the same premises.
B IV(2004) CPJ 490 – Pramod Laxman Zinje Vrs. M.S.E.B. No. 625 of 2004
In this case complainant running hotel , this case is not identical to the present case.
C IV (2004) CPJ 351- Bengal Mills Stores Supply Co. Vrs. Nedungadi Bank Ltd. No. 181 of 2003 decided on 18-03-2004.
In this case complainant is a commercial entity and partnership firm and has filed this complaint on 4-7-2003 alleging deficiency in service against the O.P. Bank. This case is not similar as present case.
D IV 2004 CPJ 517 Appeal No. 240 of 1996 Ram Autar Santoria Vrs. Bihar Electricity Board. Appeal No. 240/1996- decided on 4-3-2004 by Bihar S.C.D.R.C.Patna.
In this case law, complainant running saw mill for business purpose. His electric connection was disconnected by electricity officers. Two months back. Complainant illegally connected electric line. Fire due to short circuit. Internal fitting done by saw mill owner. So claim damages against electricity board was rejected by commission.
This case, fact and culture is not similar to the present case.
E II (2004) CPJ 446 – Gupta Plastic Industries Vrs. B.S.E.S.Yamuna Power Limited. Appeal No. A1250 of 2003 decided on 21-10-2003
In this case complainant is owner of Gupta Plastic Industries situated at 4619/A Mondoli Road, Shahdara, Delhi 32. As the service in question regarding which the appellant had grievance was being availed of by the appellant for the commercial purpose. In record of this case it was not infact that complainant uses electric for the purpose of earning his livelihood by means of self employment. And complainant not comes under definition of u/s 2 (d)(ii)(Exp.) of C.P.Act 1986 and not consumer.
So in our view this case law is not applicable to the present case.
Hence all the above five case laws are not applicable to this present case.
9. Lastly on 8-7-2006 the defective meter was changed after making payment of Rs.150/- charges on 15-07-06 towards meter checking. The meter was in running condition, was taken by O.P. for testing. And the complainant was asked to wait for the check report . It is pertinent to note here that in the bill of August 2005 the mistake of 6000 units was done by meter reader, however after various efforts of the complainant it was corrected by O.P.
Then meter was not checked by O.P. and informed complainant that it was not in running condition. Thus there is deficiency in service on the part of O.P.
10 After changing the meter on 8-7-06 the consumption of the complainant is about 500 units per month i.e. 1636 units for 4 months Doc.No.34, 35, 36, 37. This clearly shows that in the month of June 2005 to July 2006 the defective meter has recorded excess consumption. Thus complainant is entitled for relief as prayed in prayer clause.
11 At this juncture it is pertinent to state here that this forum had passed an interim order dt. 07-12-2006 below Exh. 3 directing the O.P. to restore the electricity supply to the complainant and further not to disconnect the same till disposal of the case. In pursuance of the said order the complainant has deposited Rs.10,000/- with the O.P. The said amount of Rs.10,000/- has to be adjusted towards the amount of arrears outstanding against the complainant.
So we proceed to pass following order :
O R D E R
1. Complaint is allowed.
2. O.Ps. are directed to recover the consumption bill of disputed period June 2005 to July 2006 on average basis . The average consumption should be calculated from the bill of 1.7.06 to 31-12-2006 and adjust Rs.10,000/- as paid by complainant, within one month from the date of this order.
3. The O.Ps. are directed to pay Rs.2000/- to the complainant as the cost of the proceedings.
