ORDER

(Per: Mr. D.K. Tyagi, Member):

            This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred by the appellants against the order dated 17.07.2013 passed by the District Forum, Haridwar in consumer complainant No. 42 of 2012.  By the impugned order, the District Forum has allowed the consumer complaint and cancelled the electricity bills in question for a sum of Rs. 2,59,581/- and Rs. 52,036/- total Rs. 3,01,793/- and directed the opposite party-The Executive Engineer, EDD, UPCL, Haridwar to pay Rs. 5,000/- as compensation to the complainant within one month from the date of this order.  The District Forum has also directed that the complainant should not be harassed on the basis of bills in question and electricity connection of the complainant be not disconnected and the amount deposited by the complainant be adjusted.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-M/s Adi Industries has taken an electricity connection (commercial) No. 2561 from the Electricity Department and paying all the electricity bills issued by the Electricity Department.  On 31.01.2012 the complainant has deposited an electricity bill of Rs. 42,212/- issued by the Electricity Department. The opposite party-Executive Engineer replaced the complainant’s old electricity meter with a new meter in the month of April, 2010, but regarding the replacement of meter no receipt was provided, even after demanded by the complainant. The opposite party advised the complainant to deposit an amount of Rs. 1,16,960/- as penalty due to defective meter, otherwise its electricity connection will be disconnected.  Thereafter, the complainant deposited Rs. 1,16,960/- in the office of opposite party for which a receipt was issued.  The complainant, thereafter, used to deposit electricity bills, but in the month of December, 2011, the opposite party again replaced the complainant’s meter, which was previously installed/replaced by the opposite party itself, but no receipt was given to the complainant in this regard, even after its demand. The complainant sent a letter dated 28.01.2012 to the Electricity Department with a prayer to explain the reason for replacement of the meter, but the Electricity Department did not give any satisfactory information to the complainant.  The opposite party again issued two bills for the sum of Rs. 2,59,581/- and Rs. 52,036/- total Rs. 3,01,793/- on 03.01.2012 as penalty without showing satisfactory explanation regarding these bills.  The complainant alleged that the said two bills were issued in the month of January, 2012 as penalty, is unlawful and only to harass the complainant. Whenever the electricity meters were replaced by the opposite party, they were in a sealed condition and the seals were intact.  The opposite party came to the complainant’s company on 09.02.2012 at 02:00 p.m. and pressurized the complainant to deposit a sum of Rs. 2,59,581/- and Rs. 52,036/- as penalty for the month of January, February and March, 2010 and threatened to disconnect the electricity connection, in case penalty is not deposited. The complainant has deposited Rs. 42,212/-, which was outstanding on 31.01.2012, even then the opposite party has issued penalty of Rs. 2,59,581/- and Rs. 52,036/- for the month of January, February and March, 2010, which is liable to be cancelled. Alleging deficiency in service on the part of the Executive Engineer, EDD (Rural), Haridwar-opposite party the complainant-M/s Adi Industries, Haridwar filed a consumer complaint before the District Forum, Haridwar.

3.       The opposite party has filed written statement before the District Forum and pleaded that the said electricity connection has been taken by the complainant for commercial use in the industry and the complainant has been using this connection for commercial/industrial purpose, therefore, the consumer complaint is not maintainable and the District Forum has no jurisdiction to adjudicate the matter.  In the present case, the complainant has tried to make an amendment that the complainant is using electricity for earning its livelihood. Actual fact is that the complainant company is an industrial unit in which several workers are employed and the complainant is doing business of manufacturing bottles, which is a commercial purpose.  The opposite party and his subordinate had explained to the complainant that there is no penalty on electricity bills, rather Electricity Department issued bills of electricity which was actually used by the complainant. On the basis of M.R.I. of electricity meter of the complainant, the fact came into knowledge of the opposite party that the complainant’s meter is not showing correct readings, whereas the complainant has been using the electricity regularly, therefore, a check meter was installed on 18.01.2010 in the premises of complainant and they found that there was a difference in readings of old meter and new meter.  Therefore, a new electricity meter was installed on 28.01.2010 in the complainant’s premises.  The old meter was found slow by 16.78%, therefore, on the basis of check meter assessment, from September, 2008 to 28.01.2010 and on the basis of an average reading from 18.01.2010 to 28.01.2010, an amount of Rs. 79,877/- was assessed and demand of Rs. 1,16,960/- was made.  The complainant deposited the same.  It is made clear that there is no provision of charging interest on the basis of check meter assessment, only electricity charges are demanded which are assessed on the basis of technical fault in the meter.  Similarly, the M.R.I. was conducted again and voltage was found low, therefore, again a check meter was installed on 20.06.2011 in the complainant’s premises, which was finalized on 24.11.2011 and on the basis of meter checking assessment from 29.01.2010 to 24.11.2011 Rs. 1,93,172/- were assessed, because the load of meter was found 18.90% slow on checking.  Adding this amount in the bills amount, a bill of Rs. 3,67,857/- was sent to the complainant, which has not been paid by the complainant. The Electricity Department has issued the bill on the basis of consumption of electricity by the complainant.  The electricity connection of the complainant is for commercial use for industrial unit.  There is no allegation made by the opposite party towards the complainant regarding tempering of seal of the meter.  The bills sent to the complainant are on the basis of technical fault, as the complainant has utilized the electricity, therefore, the complainant is liable to pay the bills amount. There is no deficiency in service on the part of the Electricity Department.  Therefore, the consumer complaint is not legally maintainable before the Consumer Forum.  

4.       The District Forum on an appreciation of the material on record has allowed the consumer complaint vide order dated 17.07.2013 in the above terms.  Aggrieved by the said order, the Electricity Department and Executive Engineer, EDD (Rural), Haridwar have filed the present appeal.

5.       We have heard learned counsel for the parties and have also perused the record. 

6.       There is no dispute that the respondent has taken an electricity connection (commercial) No. 2561 from the Electricity Department.  The respondent-complainant has filed the consumer complaint against the opposite party only on the basis that the Electricity Department replaced its old meter already installed in the respondent’s premises with a new meter and again the Electricity Department replaced the meter, which was earlier replaced by the Electricity Department with a new one and on the basis of the readings the Electricity Department imposed penalty, which is legally unlawful and bills issued as penalty are liable to be cancelled.

7.       Learned counsel for the appellants has submitted that the complainant was not a consumer within the meaning of Consumer Protection Act, 1986 and the consumer complaint filed by respondent is not legally maintainable.  Respondent is a limited company and is not an individual and there is no question of its using electricity for earning its livelihood by self-employment. The respondent has director, managing directors, staff etc. and workers. The respondent is using the electricity purely for earning profit and not for its livelihood, as alleged.  It is purely a commercial purpose.  The respondent is manufacturing plastic bottles for commercial supply to the traders, employing many employees on wages for manufacturing process and staff for the office. Learned counsel also argued that the assertion made in the affidavit of an employee Sh. Som Nath Singh for the first time to cover up the defect could not be relied by the District Forum without any pleading.  It is settled law that no evidence can read without any pleading.  Learned District Forum has failed to appreciate that the consumer complaint is not signed by a duly authorized person, authorized by the company in resolution duly passed.  Sh. Som Nath Singh, so called supervisor, had no authority to file the consumer complaint on behalf of the company.  Learned counsel has also argued that the Electricity Department has a right to charge for the energy actually consumed by the respondent.  The District Forum has failed to appreciate that the meter was not giving the reading of actual consumption of energy.  It was known by MRI report, so the check meter was installed to check the recording by the main meter.  The respondent cannot be allowed, not to pay for the actual energy consumed by it and, thus cause loss to the Electricity Department and enrich itself.  The District Forum has failed to appreciate that there is no deficiency in service, if the payment of actual energy is charged by the appellants, without any penalty or without any surcharge.  The District Forum has failed to appreciate that the appellants again got the MRI of respondent’s meter and less voltage was found, so a check meter was again installed on 20.06.2011 and finalized on 24.11.2011 and an assessment from 29.01.2010 to 11.01.2011 was made on the basis of average from 20.06.2011 to 24.11.2011, i.e. Rs. 1,93,172/- was made, as the meter was recording less consumption by 18.90%.  When MRI is taken, then the actual working of meter is detected and then check meter is installed to know about the recording of consumption by the main meter.  The District Forum has failed to appreciate that there is neither any fault of the staff of the Electricity Department nor it is unfair trade practice or deficiency in service.  No penalty has been imposed, nor any payment under higher tariff is charged, nor any surcharge is charged.  The disputed amount is being for the actual energy consumed by the respondent, as per tariff.  The District Forum has awarded Rs. 5,000/- as compensation/damage to the respondent on mere asking without giving any reasons and without proof and has wrongly cancelled the bill of Rs. 3,01,793/-. 

8.       Learned counsel for the respondent has submitted that there is no checking report of any lab on the record.

9.       Learned counsel for the appellants-Electricity Department has cited a decision of this Commission in the case of First Appeal No. 110 of 2006; Bal Kishan vs. Executive Engineer, U.P.C.L., Nainital decided on 13.02.2008.  The State Commission has observed that the submissions of the appellant-complainant that even if the electricity connection was for commercial purpose, the complainant should be deemed to be a consumer and could have sought the proper relief from the Consumer Redressal Forum, but this Commission has held that the submissions of the appellant/claimant do not carry conviction in view of the provision of Section 2(d)(ii) of the Consumer Protection Act, 1986, which provide that a person, who avails service for any commercial purpose, is not a consumer.  Learned counsel also cited a decision of the Hon’ble National Commission in the case of M/s Wimco Ltd. vs. Ashok Sekhon and Ors.; 2008 (2) CPR 124 (NC).  In this case, the National Commission has observed that where the goods were purchased not for self-consumption or in self-employment, but for commercial purpose to earn profits, person could not be said to be a “consumer”.   Learned counsel has also cited a decision of this Commission in Revision Petition No. 07 of 2011; Uttarakhand Power Corporation Limited and another vs. M/s Uttaranchal Filament (India) decided on 17.01.2014.  This Commission has observed that since the complainant is an industrial unit, it must have employed number of employees for working in the unit.  It can safely be said that the complainant is engaged in commercial activity and using the electricity for commercial purpose and, as such, the complainant does not fall under the definition of “consumer”, as provided under the Consumer Protection Act, 1986. This Commission, during adjudication of this revision petition, has also cited some other decisions passed earlier by this Commission.  The question whether a company using the electricity for commercial purpose, can file a consumer complaint within the purview of Consumer Protection Act, 1986 or not, has been answered very well by this Commission in its order dated 27.01.2010 passed in First Appeal No. 85 of 2009; Uttarakhand Power Corporation Limited vs. Virendra Kumar, Partner M/s Rajnish Khandsari Udyog.  In its order, this Commission has repeated its earlier view on this point expressed in Revision Petition No. 12 of 2009; Uttarakhand Power Corporation Limited vs. M/s Iqbal Ice Factory, which was decided per order dated 27.06.2009 and it was held that the services of UPCL were hired by the complainant for commercial purposes and, therefore, the complainant would not fall within the ambit of “consumer”.  In the case of “Iqbal Ice Factory”, the complainant had filed a Revision Petition No. 2405 of 2009 before the Hon’ble National Commission.  The Hon’ble National Commission, vide its order dated 13.07.2009, upheld the view of this Commission.  After that, the complainant had filed a Review Application No. 232 of 2009 before the Hon’ble National Commission, which was dismissed vide order dated 11.09.2009. 

10.     From the perusal of the material on record, it is evident that there is no authorization letter in favour of Sh. Som Nath Singh, Supervisor, M/s Adi Industries-respondent, who has filed affidavit in evidence before the District Forum. In Para No. 1 of the consumer complaint, the complainant has stated that the complainant has taken an electricity connection (commercial) No. 2561 from the Electricity Department.  This para of consumer complaint itself clear that the electricity connection was taken by the complainant for commercial purpose.  The respondent is a manufacturer of plastic bottles and is having so many employees in this industrial unit.  Since the respondent is an industrial unit and is engaged in commercial activity and must have employed number of employees and, hence, it could not be said that the complainant is running the industrial unit for earning livelihood by means of self-employment.

11.     The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained.  Therefore, the impugned order passed by the District Forum is liable to be set aside and the consumer complaint is liable to be dismissed. 

12.     For the reasons aforesaid, the appeal is allowed.  The impugned judgment and order dated 17.07.2013 passed by the District Forum, Haridwar is set aside and consumer complaint No. 42 of 2012 is dismissed.  No order as to costs.