Haryana

Charkhi Dadri

CC/148/2022

M/s Jagdish Pahal Stone Crusher - Complainant(s)

Versus

Managing director, DHBVN - Opp.Party(s)

Sh. Varun Aggarwal

19 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHARKHI DADRI. 

                                                          Complaint No.: 148 of 2022.

                                                         Date of Institution: 31.05.2022.

                                                          Date of Order: 19.07.2024.

M/s Jagdish Pahal Stone Crusher, village Birhi Kalan, Tehsil and District Charkhi Dadri through its Proprietor Manuj Pahal, resident of M. C. Colony, Charkhi Dadri.

                                                                   …..Complainant.

                    Versus

1. D H B V N, Shakti Bhawan, Sector-6, Panchkula through its Managing Director.
2. Executive Engineer, D.H.B.V.N. (OP) Division, Charkhi Dadri, District Charkhi Dadri.
3. Sub Divisional Officer, D.H.B.V.N. (OP) Division, Charkhi Dadri, District Charkhi Dadri.

…...Opposite Parties.

 

                   COMPLAINT UNDER THE

CONSUMER PROTECTION ACT.

 

Before: -      Hon’ble Mr. Manjit Singh Naryal, President.

                   Hon’ble Shri Dharam Pal Rauhilla, Member.

                  

Present:       Shri Varun Aggarwal, Advocate for the complainant.

                   Shri Rajesh Dhaka, Advocate for the OPs.

 

ORDER:-

                   Brief facts of the complainant’s case are that the proprietor of complainant firm is running stone crushing unit for earning his livelihood by means of self-employment.  It is averred that the electric connection bearing No. B36-BKHT-0002 was issued in the year 2016 and total amount for the connection was deposited with the OPs.  It is further averred that after two years, OPs have demanded an amount of Rs. 3,59,890/- + Rs. 26,180/- on the observation of audit party that it was under assessment.  It is further averred that the OPs have never issued any notice or never heard the complainant before demanding above amount.  It is further averred that the complainant had deposited the above amount in the month of March, 2019, when OPs have threatened to disconnect the supply.  It is further averred that the OPs have further charged an amount of Rs. 31,780/- as interest on the aforesaid amount.  It is further averred that all the expenses of the erection of HT line has been incurred by the complainant, hence, the complainant was not liable to pay any service connection charge i.e. the cost of extension of service line from the distribution main to point of supply, but the OPs have charged an amount of Rs.5,83,500/- after two years from release of electric connection.  It is further averred that the complainant had submitted an application dated 23.12.2019 requesting therein to refund the amount, which was received on 21.1.2020 by the OP No. 3, but the OPs have neither replied the application nor refunded the amount.  It is further averred that the cause of action to file present complaint accrued on 21.1.2020, which is continue and recurring one and the present complaint is within prescribed period.  It is further averred that the OPs were requested many times to refund the amount, but they did not pay any heed towards the requests, which amounts to deficiency in service on the part of the OPs.  Hence, this complaint.

2.                On appearance, the OPs filed contested written statement denying the allegations of the complainant.  It is averred that the claim of the complainant is time barred.  It is further averred that the account of the complainant firm was debited by a sum of Rs. 3,59,890/- by audit party on 16.10.2018, further a sum of Rs.5,83,500/- was also posted on 31.12.2018, which was deposited by the complainant without filing any object in the month of March, 2019 and complainant has filed the present complaint on 25.5.2022, which is time barred.  It is further averred that this Hon’ble Commission has no jurisdiction to decide the present complaint, as electricity is being used for commercial purpose.  It is further alleged that the present dispute is related to unauthorized use of electricity.  It is further averred that stone crusher was inspected by the audit party of Nigam on 16.10.2018 and during inspection it was found that the sanctioned load of consumer and connected load of consumer was different and consumer was using more than sanctioned load.  It is further averred that amount of penalty (half margin) was imposed upon the complainant, which quite just and legal as per sale circular of the Nigam.  It is further alleged that the complainant has already deposited half margin amount without filing any objection and filed the present complaint after two years, which is time barred.  Thus, there is no deficiency in service on the part of OPs and prayed for dismissal of complaint with costs.

3.                Ld. Counsel for the complainant to prove his case placed on record the duly sworn affidavit of the complainant as Ex. CW1/A and documents Annexure C1 to C6 and closed the evidence. 

4.                 Ld. Counsel for the OPs in support of its case has placed on record the duly sworn affidavit as Ex. RW1/A documents Ex. R1 to R5 and closed the evidence.

5.                We have heard ld. counsel for both the parties at length and gone through the case file very carefully.

6.                Ld. Counsel for the complainant has reiterated the contents of complaint.  He contended that OPs have wrongly charged the amount of Rs. 3,59,890/- + Rs. 26,180/- and Rs.5,83,500/- from complainant firm.  He further contended that there is deficiency in service on the part of the OPs and prayed for acceptance of the complaint. He further contended that the complainant firm was established by the proprietor of complainant firm for running stone crushing unit for earning his livelihood by means of self-employment and thus, the complainant is consumer under Section 2 (1) (d) of the Consumer Protection Act, 2019 and placed his reliance upon case law titled as Rohit Chaudhary & Anr. Vs M/s Vipul Ltd., Civil Appeal No.5858 of 2015, decided by the Hon’ble Supreme Court of India vide order dated 6.9.2023.

7.                On the other hand, ld. counsel for OPs reiterated the contents of the written statement. He contended that the amount has been rightly charged from the complainant firm, as the complainant firm was using load more than sanctioned load, as pointed out by the audit party of Nigam.  He further contended that there is no deficiency in service on the part of OPs and the complaint of the complainant is liable to be dismissed.  He placed his reliance upon case titled as U.P. Power Corporation Ltd. and others Vs Anis Ahmad, DOD 1.7.2013 of the Hon’ble Supreme Court of India.

8.                After hearing the learned counsel for both the parties and having gone through the material/facts and documents available on the records, we are of the considered view that the complaint in hand deserves acceptance, as there is deficiency in service on the part of OPs. 

9.                The plea taken by complainant firm is that they have moved an application dated 23.12.2019 for refund of amount, which was received by the OPs on 21.1.2020 is tenable, because the OPs have failed in passing any order on that application.  So, in our view, the present complaint is well within limitation period.  The plea taken by the OPs that this Commission has no jurisdiction to entertain the present complaint, is not tenable at all, as it is specifically pleaded that the stone crusher is being run by the proprietor for earning his livelihood by means of self-employment and thus, the complainant is consumer under Section 2 (1) (d) of the Consumer Protection Act, 2019.  So, the present complaint is well within the purview of ‘Consumer’ under Section 2 (1) (d) of the CP Act, 2019.  The Hon’ble Supreme Court of India in case titled as Rohit Chaudhary & Anr. Vs M/s Vipul Ltd., Civil Appeal No.5858 of 2015 has also explained the interpretation of the Commercial Purpose and Consumer.  The order of the Hon’ble Supreme Court is fully applicable to the facts of the present case.  The order of Supreme Court produced by the OPs in support of their case is not identical to the facts of the case in hand.  So the case law is not applicable to the facts of the present case.

10.              The dispute arises when the OPs have charged an amount of Rs. 3,59,890/- + Rs. 26,180/- and Rs. 5,83,500/- from complainant firm on the observation of the audit party.  The plea taken by the OPs that the account of the complainant firm was debited by a sum of Rs. 3,59,890/- by audit party on 16.10.2018 and Rs. 26,180/- as interest, as the connected load was found excess than sanctioned load is not tenable.  The plea of OPs is not tenable, as no independent witness has been joined during the inspection to prove the report of inspection, which is necessary in case of such instructions.   The OPs have failed to explain in their written statement that as to why an amount of Rs. 5,83,500/- was posted on 31.12.2018 in the account of complainant firm without giving any notice for the same.  The OPs have just mentioned in their written statement that an amount of Rs. 5,83,500/- was posted in the account of complainant on 31.12.2018, which is not sufficient.  Furthermore, no advance notice was given to complainant firm before posting above amount in its account, whereas advance notice is required to serve by the OPs upon their consumers before posting any amount in his account.  In our view, the audit party has arbitrarily charged the amount in dispute from the complainant firm. Moreover, the OPs have failed to produce any document specifying that as per which sale circular of the Nigam, the amount in dispute was posted in the account of the complainant. 

 

On the other hand, the complainant has fully proved its case by producing on record documents Ex. C1 to C6.    

11.              So, after considering all above mentioned important issues, we came to the conclusion that OPs are liable for errors & negligence committed on their part.  It is fully proved that the OPs have wrongly charged Rs. 3,59,890/- + Rs. 5,83,500/- from the complainant account.  In our view, it is the bounden duty of the OPs to prove their case beyond doubt by leading some convincing and cogent documentary evidence, but the OPs have failed to do so. 

12.              Moreover, the OPs have deliberately does not settle the requests of the complainant in time without any reason.  Therefore, in view of facts and circumstances mentioned above, complaint of the complainant is allowed and amount of Rs. 3,59,890/- (as per Ex. C3) and Rs. 5,83,500/- (as per Ex. C4) charged from the complainant are hereby set aside being charged illegally.  The OPs are hereby directed to remove the debit entries for the above said amount of Rs. 3,59,890/- + Rs. 5,83,500/- from the complainant’s account.  So, OPs are directed:-

i)        To refund/adjust the amount of Rs. 3,59,890/- + Rs. 5,83,500/- charged from the complainant together with interest @ 9% per annum from the date of deposit till its realization.

ii)       To pay Rs.10,000/- (Ten thousand only) as compensation on account of mental agony, physical harassment & hardship, due to deficiency in service & mal trade practice on the part of OPs.

iii)      To pay Rs.5000/- (Five thousand only) as counsel fee as well as the litigation charges.

          The compliance of the order shall be made within 45 days from the date of the order, failing which OPs shall be liable to pay interest on the said amount @ 12% per annum from the date of deposit till its actual realization.  Certified copies of the order be sent to parties free of costs.  File be consigned to the record room, after due compliance.