Uttarakhand

StateCommission

A/13/205

Uttarakhadn Power Corporation Ltd. - Complainant(s)

Versus

M/s Ram Kishan Dass & Sons - Opp.Party(s)

Mr. S.M. Jain

13 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,UTTARAKHAND
176 Ajabpur Kalan,Mothrowala Road,
Dehradun-248121
Final Order
 
First Appeal No. A/13/205
(Arisen out of Order Dated 21/06/2013 in Case No. 176/2011 of District Hardwar)
 
1. Uttarakhadn Power Corporation Ltd.
through its Executive Engineer EDD Haridwar.
...........Appellant(s)
Versus
1. M/s Ram Kishan Dass & Sons
Chowk Bazar, Jawalapur, Haridwar.
...........Respondent(s)
 
BEFORE: 
 HON'ABLE MR. JUSTICE B.C. Kandpal PRESIDENT
 HON'BLE MR. D. K. Tyagi, H.J.S. MEMBER
 HON'BLE MRS. Veena Sharma MEMBER
 
For the Appellant:
For the Respondent:
ORDER

ORDER

 

(Per: Mrs. Veena Sharma, Member):

 

            This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred by the appellants against the order dated 21.06.2013 passed by the District Forum, Haridwar in consumer complaint No. 176 of 2011.  By the impugned order, the District Forum has allowed the consumer complaint and cancelled the notice dated 21.04.2011. The District Forum directed the Electricity Department-opposite party to pay Rs. 50,000/- to the complainant within one month from the date of the order.

 

2.       In brief, the facts of the consumer complaint are that the complainant had an electricity connection in the name of his father for a firm named M/s Ram Kishan Dass & Sons, for which the electricity bills were paid regularly.  Due to some reasons, the said firm was closed, so there was no use of the above electricity connection. The complainant Sh. Kamal Kumar Mehta has submitted an application dated 03.05.2006 for disconnection of the said electricity connection of the firm. The opposite party has charged Rs. 200/- for disconnection fees and Rs. 1,800/- for last bill, which were also paid by the complainant on 03.05.2006 vide receipt Nos. 087875 and 006810.  On the same day, i.e. 03.05.2006, the opposite party wrote a letter to the complainant and clerk of the concerned department that the complainant has paid his final bill and standard charge of Rs. 200/- for disconnection of electricity connection, so in future no bill should be issued to the complainant against the said electricity connection and also directed to remove the meter etc. from the premises of the firm. After 4-5 days, employees of the Electricity Department removed the meter etc. from the premises of the firm and assured that no bill shall come in the name of the said firm in future.  Despite this, the opposite party send electricity bills again time to time to the complainant. The complainant sent many registered letters to the opposite party for cancellation of these bills.  It is alleged that the opposite party sent a notice dated 21.04.2011 to the complainant for a sum of Rs. 47,249/- with the condition that if the complainant does not pay the same amount till 31.05.2011, then the same amount will be recovered from the complainant.  The opposite party sent the above bill, whereas neither there was any electricity supply in the firm nor any electricity meter was available in the firm and the complainant has already paid disconnection fees and final bill on 03.05.2006.  The act of the opposite party shows deficiency in service and it comes under unfair trade practice.  The complainant suffered financial loss and social and mental agony.  Due to deficiency in service and unfair trade practice on the part of the opposite party the complainant filed a consumer complaint before the District Forum, Haridwar.

 

3.       The opposite party has pleaded in its written statement that the consumer complaint filed by the complainant is on frivolous grounds.  The complainant is not a consumer of the Electricity Department, as the complainant has not changed the electricity connection in his name after the death of his father.  The present consumer complaint is barred by time.  That the said electricity connection was being used commercially, therefore, the consumer complaint is not maintainable before the District Forum. The complainant has not submitted the disconnection application and receipts of Rs. 200/- and Rs. 1,800/- for final bill to the UPCL. In absence of these documents, the opposite party could not rectified the problem of the complainant.  So the complainant’s consumer complaint cannot be allowed.  Therefore, there is no deficiency in service and also no unfair trade practice on the part of the opposite party.

 

4.       The District Forum, on an appreciation of the material on record, has allowed the consumer complaint vide order dated 21.06.2013 in the above terms.  Aggrieved by the said order, the Electricity Department and Executive Engineer, EDD (Urban), Haridwar have filed the present appeal.

 

5.       We have heard learned counsel for the appellants and have also perused the record.  None has appeared on behalf of the respondent. 

 

6.       So far as the appeal filed by the Electricity Department and Executive Engineer, is concerned, the appellants have taken a stand that the impugned judgment and order dated 21.06.2013 passed by the District Forum is against the law.  The District Forum has failed to appreciate that the respondent was not a consumer within the meaning of the Consumer Protection Act, 1986. The respondent was using the said electricity connection for commercial purpose, i.e. running the firm for earning profit and there is no element of self-employment of earning the livelihood, hence, the District Forum had no jurisdiction to entertain the consumer complaint and pass the impugned order. The District Forum has failed to appreciate that under Section 142(5) of Electricity Act, 2003, there is a Consumer Grievance Redressal Forum for redressal of the grievance of the consumers.  In view of this, the Electricity Act, 2003 is a special act.  Hence, the District Forum should not entertain the consumer complaint and should have referred to CGRF, because the present case is a case of billing dispute.  The District Forum has awarded Rs. 50,000/- as compensation/damages to the respondent on mere asking, without giving any reason and without any proof.  The Electricity Department is a corporation wholly owned by the State Government and its funds are public money.  The District Forum has failed to appreciate that no coercive action was taken by the appellants for recovery of the amount.  No proceedings for recovery of the amount as arrears of land revenue had been initiated, nor any notice was sent in this regard.  The respondent did not approach and contact the office of the Electricity Department for redressal of his grievance, if any.  The District Forum has failed to appreciate that the statutory procedure is laid down for getting the connection disconnected.  The respondent did not follow the said procedure. There was no evidence that the connection was permanently disconnected or the appellants had removed the electric line and electricity meter from the premises of the respondent.  By mere deposit of Rs. 200/- by a person, who is not a consumer, has no consequence and permanent disconnection of electricity connection of the respondent cannot be done.  The licensee is governed by statutory rules.  The District Forum has failed to appreciate that the respondent did not disclose, as to when his father had died and who are the legal heirs of deceased and who were using the said electricity connection after the death of his father.  The electricity connection was in the name of respondent’s father and the respondent did not get his name substituted, there is no contract between the appellants and respondent-Sh. Kamal Kumar Mehta.  The respondent had no locus standi to file the consumer complaint. The consumer complaint filed by the complainant is time barred. 

 

7.       The respondent has not appeared before this Commission, despite proper service of the notice. 

 

8.       Learned counsel for the appellants submitted that the consumer complaint is not maintainable, firstly because it is barred by time and secondly because the complainant is not the consumer of the Electricity Department. The electricity connection was in the name of respondent’s father and respondent did not get it mutated in his name.  The contract for supply of electricity was between the Electricity Department and Sh. Ram Kishan Dass, respondent’s father, and not between the Electricity Department and the respondent. 

 

9.       In support of his contention, the learned counsel for the appellants referred to a judgment 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 Hon’ble National Commission has held that every person engaged in any economic activity of production including agriculture and horticulture, manufacture, distribution and sale, is engaged in a commercial activity” could not be said to be a ‘consumer’.  He also cited a judgment of the Hon’ble Supreme Court in the case of Marine Container Services South Pvt. Ltd. vs. Go Go Garments; 1998 AIR SCW 3430.  The Hon’ble Apex Court has held that “the Contract Act applied to all, litigants before the Commission under the Consumer Protection Act, 1986 included.”

 

10.     In this case, it is to be decided whether respondent using the electricity connection for commercial purpose, can file a consumer complaint within the purview of Consumer Protection Act, 1986 or not.  This question has been answered by this Commission in its order dated 27.01.2010 passed in First Appeal No. 85 of 2009; Uttarakhand Power Corporation Limited vs.     Sh. Virendra Kumar, Partner M/s Rajnish Khandsari Udyog, wherein it is held that the services of UPCL were hired by the complainant for commercial purpose and, therefore, the complainant would not fall within the ambit of consumer.

 

11.     The Hon’ble Apex Court in AIR 1995 SC 1428, consistent view that where a person purchase a goods with a view to use such goods for carrying on any activity on a large scale for earning profit, he will not be a consumer within the meaning of Section 2(d)(1) of the Consumer Protection Act, 1986.

 

12.     We considered the submissions raised by the learned counsel for the appellants.  On the point of maintainability of the complaint case, we find that the arguments advanced by the learned counsel for the appellants are tenable.  In view of the decision of the Hon’ble Supreme Court in the case of “Marine Container Service South Pvt. Ltd. (supra), there was no privity of contract between the appellants and respondent and, therefore, respondent is not a consumer of the Electricity Department.  This Commission has expressed the same view earlier also in the First Appeal No. 40 of 2010; Uttarakhand Power Corporation Ltd. & Anr. vs. Hemendra Singh Panwar, decided on 03.12.2010, and we find no reason to deviate from our view in this case.  Thus, the consumer complaint being non-maintainable on these grounds, the appeal is liable to be allowed.

 

13.     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 and is liable to be set aside.   

 

14.     For the reasons aforesaid, the appeal is allowed. The impugned judgment and order dated 21.06.2013 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 176 of 2011 is dismissed.  No order as to costs.

 

(MRS. VEENA SHARMA)                                 (D.K. TYAGI)                       (JUSTICE B.C. KANDPAL)

 
 
[HON'ABLE MR. JUSTICE B.C. Kandpal]
PRESIDENT
 
[HON'BLE MR. D. K. Tyagi, H.J.S.]
MEMBER
 
[HON'BLE MRS. Veena Sharma]
MEMBER

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