PER SHRI S.M.SHEMBOLE, HON’BLE PRESIDING MEMBER.
This appeal is directed against the impugned judgment and order dated 27/07/1997 passed by the District Consumer Forum, Wardha in Consumer Complaint No.CC/94/169 dismissing the complaint.
Brief facts giving rise to this appeal are that,
1. Appellant- M/s. Shridhar Udyog is a consumer of the respondent- M.S.E.B., Wardha. It is a registered partnership firm and is running industry in M.I.D.C. area, Wardha having electric connection in the house and factory with 3 phase electric connection having 65 Hp for running the Oil Mill. (For the sake of brevity Appellant is hereinafter called as “the Complainant” and Respondent as “the Opponent”).
2. It is alleged by the complainant that the opponent board was claiming excessive electricity charges issuing the bills from time to time. Since the month of August- 1991 whenever, he received the bill, he made complaint and on the basis of his complaint the bill was revised till the month of Feburary-1992. He paid the revised bills. But again the opponent issued false bills showing arrears for the earlier consumption though the appellant had already made payment. On 23/01/1992 the meter was replaced and again on 19/06/1992 opponent board removed the meter and issued the bill showing consumption of 93,941 units, etc. It is submitted that the opponent-Board illegally recovered excessive amount of Rs.3,19,741=96 from him under threats of disconnection of electricity supply. Therefore, he has filed complaint claiming refund of excess amount paid by him and Rs.25,000/- towards compensation.
3. The opponent-Board resisted the complaint denying the allegations made by the complainant. However,it is not disputed by the opponent-Board, that the complainant made complaint from time to time and on the basis of complaint, electricity bills were revised and on issuing of the revised bills the complainant paid the amount of bill. It is contended that the complaint is not maintainable as its barred by limitation. It is further contended that the complainant has utilised the electricity supply for commercial purpose and therefore, the same complaint is not maintainable. It is also contended that as complicated issues are involved in the complaint, it is required to lead evidence and, therefore, it does not fall within the purview of the provisions of Consumer Protection Act. It is submitted that the complainant is in a habit to make complaints so as to get revised bills keeping the arrears dues pending and, therefore, the dues remained against the account of the complainant. On all these grounds it is submitted to dismiss the complaint.
4. On hearing both the sides and considering the evidence on record District consumer Forum, held that the complaint is not tenable as it is barred by limitation. Further it is held that the complainant utilised the electricity for commercial purpose and therefore, it does not fall within the purview of the Consumer Protection Act, etc. In keeping with these findings the District Consumer Forum dismissed the complaint.
5. Feeling aggrieved by the same judgment and order the complainant has preferred this appeal.
6. We perused the written notes of arguments submitted by Ld. Counsel for both the sides & heard the Ld. Counsel for the respondent. The Ld. Counsel for the appellant has sent pursis through his junior advocate to the effect that he has already filed written notes of argument and therefore, he does not intent to make oral argument.
7. At the outset, we may point it out here that except the appeal memo and copy of impugned judgment and order no other copies of documents including the copy of complaint, written version and electricity bills are produced by the appellant. Since, the summary proceeding is provided under Consumer Protection Act, it was obligatory on the part of the appellant to produce copies of all the documents which are produced before the District Consumer Forum, with the appeal memo but appellant did not take any pains to produce the Xerox copies of documents. Therefore, it is difficult to accept the submission made in the written notes of argument which are submitted by the Ld. Counsel for the appellant.
8. However, on the basis of the appeal memo, written notes of arguments submitted by counsel for both sides & copy of impugned judgment we have decided to dispose of this appeal.
The above facts, following points arises for our consideration:-
1. Whether the complainant is or was the consumer?
2. Whether the complaint is barred by limitation?
3. Whether the complaint is maintainable?
9. It is not disputed that the complainant/appellant was running a business of manufacturing of oil, etc. by availing services of opponent- M.S.E.B. for supply of electricity to the said factory. Therefore, it is specifically contended by the opponent-M.S.E.B. that the complainant is not its consumer as defined U/s 2(I)(d)(i) of the Consumer Protection Act. The services availed by the complainant for supplying electricity from the opponent-Board do not fall under the definition of service as per amended provision of Section 2(I) (o) of the said Act. To which it is denied by the Ld. Counsel for the complainant/appellant and submitted in his written notes of arguments that supply of electricity to consumer being service, is covered under section 2(I) (o) of the Consumer Protection Act. He also tried to support this contention by relying on the judgment of the Hon’ble Supreme Court in Karnataka Power Transmission Corporation & Anr. Vs. Ashok Iron Works Pvt. Ltd., III (2009) CPJ 5 (SC) in which it is held by the Hon’ble Supreme Court that supply of electricity by KPTC to a commercial consumer for commercial purpose is being the supply and not the sale of electricity, is a “service” covered U/s 2(I)(o) of Consumer Protection Act and if supply is not provided in time as is agreed upon, it amounts to deficiency in service U/s 2(I)(g) of the Act. In short it is held that the complaint under Consumer Protection Act by the consumer who avails electricity for commercial purpose is maintainable. To which it is denied by the Ld. Counsel for the respondent/opponent and submitted that a person availing services for any commercial purpose is not a consumer. He has supported his contention by relying on the authority of Hon’ble Supreme Court, in Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. 2011 (1) CPR 1 (SC) in which it is held that in case goods purchased for commercial purpose and services were hired or availed of for commercial purpose, the complaint before District Consumer Forum is not maintainable.
10. In view of the recent decision of the Hon’bel Apex Court in the case of Birla Technologies Ltd. Vs. Neutral Glass and Allied Industries Ltd. (Supra) we have no hesitation to accept the arguments advanced by the Ld. Counsel for the opponent/respondent and hold that the complainant/appellant is not a consumer and accordingly the District Consumer Forum has rightly held and therefore we endorse the same.
11. It is not disputed that since the month of August-1991 appellant/complainant disputed the electricity bill and though paid the electricity charges by getting revised bill, challenging the same bill along with subsequent bills which were issued and paid till the year 1994. Therefore, though he has filed the complaint in the month of November-1994, it is abundantly clear that some of the bills were challenged after laps of more than 2 years period. Hence, though the part of the claim is within limitation, since the same is clubbed with time barred claim the same can not be allowed. Thus, it is manifest that the complaint is barred by limitation. Accordingly, we answer to point No. 2 in the affirmative.
12. Point No.3:- For the forgoing reasons and our negative findings to point No.1 holding that the complainant is not a consumer of the opponent /respondent, it is obvious that the complaint is not maintainable. We, therefore, without considering the other submissions put forth by the Ld. Counsel for the appellant/complainant, hold that the complaint is not maintainable.
13. Thus, we have given our anxious thoughts to the arguments advanced by the Ld. Counsel for the respondent/opponent and also carefully perused the written notes of arguments submitted by Ld. Counsel for the appellant and we find that the District Consumer Forum has rightly dismissed the complaint holding it as false and frivolous. We find no glaring error or infirmity in the impugned judgment and order. Hence, no interference is warranted.
14. In the result the appellant fails and appeal deserves to be dismissed. Hence, the following order.
ORDER
1. Appeal is dismissed.
2. Having regard to the peculiar facts of the case we directed the parties to bear their own cost.
Dated:- 08/10/2012.
