FA.No.1086/2007  against C.D.No.32/2005, District Forum-I, EAST GODAVARI AT KAKINADA.

Between:

1. Eastern Power Distribution Company of

    Andhra Pradesh Limited, rep. by its

    Chairman & Managing Director, Visakhapatnam.

2. The Superintending Engineer,

     Electrical Operation Circle, Rajahmundry.

3. The Divisional Electrical Engineer, Operation,

     A.P.E.P.D.C.L., Jaggampeta.

4. The Assistant Accounts Officer, E.RO.,

    A.P.E.P.D.C.L., Pithapuram.                                                       .Appellants/                                                                                                                                        Opp.parties

And

Kotha Jagadeesh, S/o.Atchyuta Rama Raju

35 years, Durga Engineering Works,

Near Fort Gate Pithapuram.                                                            Respondent/

                                                                                                            Complainant.

Counsel for the Appellants:  M/s.O.Manohar Reddy                                                                                                                                                                                                                                                                                                                               

Counsel for the Respondent.           Mr.A.V.L.S.Prakash

                        QUORUM:SMT.M.SHREESHA, HON’BLE MEMBER.

AND

SRI K.SATYANAND, HON’BLE MEMBER.     

WEDNESDAY, THE NINETEENTH  DAY OF AUGUST,

TWO THOUSAND NINE

ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Member .)

                                                                                                                                                                                                                        ***

            This is an appeal filed by the opposite parties assailing the order of the District Forum granting relief to the consumer complainant.

        The facts of the case briefly stated are as follows:

        The complainant installed a tyre and retreading unit at Seethampeta near Kattipudi taking loan from A.P.State Financial Corporation and also investing otherwise.  He applied for three phase supply of energy for the said unit by a letter dated 7-3-2001 to the opposite parties which are functionaries at four levels of A.P.Eastern Power Distribution Company Limited.  Thereupon the third opposite party informed the complainant to deposit an amount of Rs.16,930/- representing 10% supervision charges towards Quality Control on execution of work on Turn Key and an amount of Rs.10,340/- towards development charges and further amount of Rs.10,000/- towards security deposit.  Accordingly the complainant claimed to have deposited the total amount of Rs.37,270/-.  He also claimed to have purchased a 63 KVA transformer and was making arrangements to receive three phase power supply but on 2-7-2001 there was a fire accident by which his unit was damaged forcing him to shelve his plans.  He, therefore, requested the opposite parties to return the amounts deposited.  The Additional Assistant Engineer, Operation, addressed a letter on 11-9-2004 to the Assistant Divisional Engineer recommending the return of the deposit as per Ex.A2.  The said amounts were not returned to the complainant but on the other hand, he received a letter dated 23-1-2002 as per Ex.A3 from the fourth opposite party informing that A.P.E.P.D.C.L. was ready to give power supply to his unit if erection of line and transformer work was completed at his end.  However after lapse of 2 years, the complainant addressed yet another letter dated 21-10-2004 to the first opposite party wherein he represented that there was no improvement in his financial status and therefore he gave up the idea of developing the unit and accordingly he requested for refund of the amount deposited by him.  Inspite of the said letter, the copies of which were marked to other functionaries, there was no response and this kind of appropriation of his monies by the opposite parties had come to be characterized as deficiency in service rendering the opposite parties accountable.  In terms thereof, the complainant claimed to have filed the complaint.

        His claim was opposed by the third opposite party contending that they were ready to give power supply and it was the complainant that was not ready to take it and therefore they were not guilty of any deficiency in

service.   Aggrieved by the said response, the complainant filed the complaint from out of which this appeal arises for refund of the monies paid by him as the very purpose for which he paid them was frustrated due to various reasons including the fire accident.

        In support of his case, the complainant filed Exs.A1 to A5 and the opposite parties on the other hand did not adduce any evidence.

        On a consideration of the evidence adduced on both sides, the District Forum came to the conclusion that withholding the monies paid by the complainant when the complainant himself backed out from taking the supply on account of some supervening circumstances marks deficiency in

service and therefore ordered refund of the said amount with interest from the date of complaint, however, without awarding any costs.

        Aggrieved by the said order, the opposite parties filed the present appeal on the grounds inter alia that the order directing them to refund the amount was illegal as the said amounts were non refundable, even according to Ex.A1. 

        Heard the counsel for appellant.  The point that arises for consideration in this appeal is whether there are any good grounds to interfere with the order of the District Forum?

          The basic facts in the case are not in dispute.  Initially the complainant intended to take power supply and therefore he made payments as required for the supply.  Those amounts were obviously bulky in nature and one time payments meant no doubt to be retained by the department in case of consummation of the contract but this is a clear case that the deal was not pushed through for which the actual availment of the power can only be a hallmark.  Obviously the complainant stepped back in the middle and expressed his unequivocal intention not to press for the supply of electricity.  Virtually he backed out from his original plans to take supply due to some unforeseen circumstances including his financial break down for which he faulted his own insurance company with which we are less concerned.  The fact remains that he wanted to pull out the money that he paid naturally as he withdrew from the deal to get electric supply.  No doubt Ex.A1 prefers to call  the amounts paid by him as ‘non refundable’ but such an onerous clause has to be correctly construed as ‘holding up refund’ has some meaning if only the deal was taken to its logical conclusion.  This is not a case where the deal was conclued, on the other hand the complainant clearly backed out while the process was half way through.  So the monies parted with by the complainant would answer the description of payments made non gratuitously.  In such a case, definitely, the recipient of such amount has no right to forfeit  such amounts unless there is a course of law permitting them to do so.  Their mere characterizing the amounts as non refundable can never be accepted as conclusive proof of their power to appropriate the amounts unilaterally, much more so when the contract was not taken through the full circle.  The facts of the case, therefore, throw up a clear situation in which the impermissibility of a recipient of money which was by its very nature non gratuitous retaining the amount without authority.  Therefore, the opposite parties are under a legal obligation to return the amount to the complainant, the moment the complainant unequivocally expressed his inability to avail the services of the opposite parties, who are more or less, service providers, enjoying the monopolistic rights in the distribution of power sector in the area concerned.

        But it is quite possible that in a situation like this a question would crop up as to the maintainability of a consumer complaint.  As a matter of fact, none of the parties and obviously the District Forum also addressed this question. However, we feel that in the interest of justice, it would be better if this point is also made clear.  In the definition of ‘consumer’, vis-à-vis ‘service provider’, the Consumer Protection Act, 1986 (hereinafter called for brevity as C.P.Act, 1986) specifically included the ‘potential consumer’ also.  At the time when the complainant paid the amounts, he was a potential consumer, so as a potential consumer, he was entitled to exercise his rights under the C.P.Act,1986.  In this view of the matter, we feel that there is no impediment to upholding  the claim of the complainant.  The District Forum rightly gave relief to the complainant.      For the reasons stated above, we do not see any infirmity in the order of the District Forum. 

Accordingly the appeal is dismissed with costs in a sum of Rs.2,000/-.  The appellants are granted six weeks time to comply with the order.

MEMBER.           

                                                                                      MEMBER

                                                                         Dated 19-8-2009