PER: HON’BLE MR. SAMARESH PRASAD CHOWHDURY, PRESIDING MEMBER
The instant Revision Petition under Section 17(1)(b) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of Opposite Parties to impeach the Order No.09 dated 10.04.2018 made by the District Consumer Disputes Redressal Forum, Malda (in short, Ld. District Forum) in Consumer Complaint No. 87/2017. By the impugned order, the Ld. District Forum directed the OP No.3/Revisionist i.e. West Bengal State Electricity Distribution Company Limited (WBSEDCL) to comply with the Order No.08 dated 05.03.2018 within 5 days in default to deposit a cost of Rs.15,000/- in forwarding the complainant.
The Opposite Party herein being complainant lodged the complaint before the Ld. District Forum under Section 12 of the Act against West Bengal State Electricity Distribution Company Limited (WBSEDCL) and its officers on the allegation of deficiency in services on the part of them with prayer for following reliefs, viz. –(a) an order to correct the electric bills; (b) compensation of Rs.80,000/- for harassment and mental agony; (c) litigation cost etc.
The facts giving rise to this revision petition are that the complainant being a resident of Village + P.O.- Kaligram, P.S.- Chanchal, Dist- Malda installed an electric connection on 18.02.2014 for running of his husking mill being Consumer Id. No.300606780 corresponding to Meter No.LT-523088. In the month of March, 2017 a bill of Rs.1,91,000/- has been issued, which according to the complainant is an inflated one. In this regard, the requests and persuasions including legal notice to rectify the bill went in vain. Hence, the complaint.
The Revisionists being Opposite Parties by filing written version have stated that the complainant runs the husking mill for commercial purpose to earn profit and as such complainant is not entitled to any relief. The OPs have also stated that the connection of the complainant was disconnected on 05.07.2017 and reconnected on 31.07.2017 again disconnected on 18.09.2017 and reconnected on 14.11.2017 and it has been stated that there was no defect in meter reading.
After filing the complaint, the Complainant filed the application with prayer for reconnection of the electric connection for running of husking mill of the complainant. By the impugned order, the Ld. District Forum allowed the application with certain directions upon the OPs. Being aggrieved and dissatisfied with the said order, the OPs have come up in this Commission with the instant revision petition.
Mr. Srijan Nayak, Ld. Advocate for the Revisionists has submitted that the alleged complaint is essentially a billing dispute and the Ld. District Forum ignoring the provisions of the Electricity Act, 2003 and the regulations thereunder has passed the impugned order without referring the dispute to the CGRO/RGRO first and thereafter, in case of dissatisfaction to the Ombudsman and when without exhausting the remedies available under the Electricity Act the complainant approached the Ld. District Forum, the Ld. District Forum should have rejected the complaint.
Per contra, Mr. Soumen Mondal, Ld. Advocate for the Opposite Party/complainant has contended that the husking mill is the bread and butter of the complainant and when the Ld. District Forum has passed an order directing the WBSEDCL to issue electricity bills and particularly to restore the connection on payment of 30% of the arrear bill, the impugned order should not be interfered with.
We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, the Opposite Party/Complainant being a resident of Village+P.O.- Kaligram, P.S.- Chanchal, Dist-Malda is a ‘consumer’ under WBSEDCL being Consumer Id. No.300606780 and Meter No.LT-523088 and the said meter was installed on 18.02.2014. Admittedly, in the month of March, 2017 a bill of Rs.1,91,000/- has been issued, which according to the complainant is an inflated one. It is also not in dispute that the OP/complainant did not approach RGRO/CGRO for redressal of his grievances regarding the bill in question. Evidently, at least on three occasions, the electric connection of the complainant was disconnected for non-payment of bills and subsequently, the same was reconnected.
It is now well settled that in view of the decision of Hon’ble Supreme Court reported in (2013) 8 SCC 491[U.P. Power Corporation Ltd. & Ors. –Vs. – Anis Ahmed] the Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act but it is limited to the dispute relating to ‘unfair trade practice’ or a ‘restrictive trade practice’ adopted by the service provider or if the ‘consumer’ suffers from deficiency in service or hazardous service or the service provider has charged a price in excess of the price fixed by or under any law.
Now, the Regulation No.3.5 of West Bengal Electricity Regulatory Commission published in Kolkata Gazette (Extra-Ordinary) dated 07.08.2013 being notification No. 55, which has a statutory effect provides –
“3.5.1(a) – In case, there is any dispute in respect of the billed amount, the consumer may lodged a complaint with the Grievance Redressal Officer or the Central Grievance Redressal Officer of the licensee and thereafter to the Ombudsman in appeal against the order of the Grievance Redressal Officer or the Central Grievance Redressal Officer, in accordance with the provisions of the concerned Regulations. In such a case, the aggrieved consumer, pending disposal of the dispute, may, under protest, pay the lesser amount out of the following two options: -
- an amount equal to the sum claimed from him in the disputed bill, or
- an amount equal to the electricity charges due from him for each month calculated on the basis of average charge of electricity paid by him during the preceding six months,
the amount so calculated provisionally as per Clause (ii) above by the licensee and tendered by the consumer shall be accepted by the licensee against that bill on provisional basis”.
The provisions of Regulation 3.5.2 reads as under:-
“3.5.2. If any aggrieved consumer makes a provisional payment, as aforesaid, no penal measure including disconnection for non-payment shall be taken against him till the dispute is settled either at the level of the Grievance Redressal Officer or the Central Grievance Redressal Officer or the Ombudsman, as the case may be. However, imposition of a delayed payment, surcharge, if applicable shall not count towards a penal measure for this purpose”.
Admittedly, the complainant did not pay the amount of bill issued by the licensing authority. On the contrary, in the prayer portion of the petition of complaint, he has made a prayer for correction of the electric bill. However, the complainant did not approach the RGRO/CGRO. In case of such complaint, the complainant may under protest pay the lesser amount out of the following of two options –(i) an amount equal to the sum claimed from him in the disputed bill or (ii) an amount equal to the electricity charges due from him for preceding six months. There is no machinery before a Forum constituted under the Act to ascertain as to whether the meter in question was defective or not. The complainant did not make any prayer for inspection of the meter through any expert to ascertain its correctness.
The Regulation Nos.3.5.1 or 3.5.2 of Notification No.55/WBERC dated 07.08.2013 was published in exercise of the power conferred under Section 181 (1)(2)(x) read with Section 50 of the Electricity Act, 2003. Therefore, the Regulation has statutory force. When the legislature in its wisdom conferred some power to a particular authority, usually a Court of law should restrain itself to interfere with the same. When there is prescribed procedure, the complainant had/has ample opportunity to avail the procedure prescribed therein.
The revisional jurisdiction of the State Commission flows from Section 17(1)(b) of the Act, which runs as under:-
“to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity”.
Therefore, we are not unmindful to the fact that the jurisdiction of the Commission in exercising its revisional power is limited which can only be exercised in case of jurisdictional error and material irregularity.
In the instant case, the Complainant has stated that his livelihood depends on the husking mill but he did not state that he runs the husking mill exclusively for the purposes of earning his livelihood by means of self-employment.
For appreciation of the matter, it would be worthwhile to reproduce the provisions of Section 2(1)(d) of the Act which runs as follows –
“Consumer means any person who –
- 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 then 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
- 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”.
Explanation:- for the purposes 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 purposes of earning his livelihood by means of self-employment”.
The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes. Explanation to the Section creates and exception and states that clause ‘commercial purpose’ does not include used by a person of goods brought and used by him and services available by him exclusively for the purposes of earning his livelihood by means of self-employment.
In the case of Laxmi Engineering Works –Vs.- P.S.G. Industrial Institute reported in (1995) 3 SCC 583 the Hon’ble Supreme Court has observed that what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case. It is not the value of the goods that matter but the purpose to which the goods bought are put to. The Hon’ble Apex Court further proceeded to observe –
“the explanation, however, clarifies that in certain situations, purchase of goods for ‘commercial purpose’ would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer”.
In a decision reported in I (2005) CPJ 27 (NC) (M/s. Harsolia Motors – Vs. – National Insurance Co. Ltd.) the Hon’ble National Consumer Commission has observed that if the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act.
In another decision reported in (1997) 1 SCC 131 (Cheema Engineering Services –Vs.- Rajan Singh) the Hon’ble Apex Court has explained the term self-employment by observing thus:
“Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchase for the purpose of manufacture ..... by employing himself in working out or producing the goods for earning his livelihood. He includes the members of his family”.
The Hon’ble National Consumer Commission in a decision reported in 2000 (3) CPJ 13 (Shakti Engineering Works –Vs.- Sree Krishna Coir Rope Industries) has held that in order to have protection of explanation to Section 2(1)(d)(ii) of the Act, one must establish that he himself was engaged in the activity which generates livelihood. Acting in supervising capacity would not satisfy the requirement of explanation.
In the case beforehand, the complainant did not mention that he used to run the husking mill exclusively for earning their livelihood by means of self-employment. The complainant alone cannot run a husking mill and in order to run the assistance of some operator and several other persons are required and certainly the complainant will employ somebody to run the machine and to earn profit and as such the OP/complainant cannot be categorised as ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act.
For the reasons aforesaid, we must say that the Ld. District Forum has totally misdirected itself by not construing the definition of Section 2(1)(d) of the Act and the authorities referred above. In other words, before entering into the merits of the case, the Ld. District Forum should have considered first whether the subject matter was amenable before a Forum constituted under the Act.
In view of the above, the Revision Petition is allowed on contest. However, there will be no order as to costs.
The impugned order is hereby set aside.
Consequently, CC/87/2017 pending before the Ld. District Forum stands rejected.
However, this does not debar the Opposite Party/Complainant to approach the RGRO/CGRO or any other authority in accordance with law and in the process to overcome the hurdle of limitation, he may seek assistance of the decision of Hon’ble Supreme Court reported in the case of Laxmi Engineering Works (supra).
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Malda for information.
