7. We have considered rival contentions of counsel for the parties. We find plea of learned counsel for the complainant as partly tenable in so far as legality and validity of impunged bill is concerned. These broad facts are not disputed that complainant obtained electric connection bearing A/c No. X 24 KR 260534 N for his poultry farm as per version of Er. Kultar Singh JE vide affidavit Ex.R11 that said meter was found to be dead stop on its inspection on 16/10/2006 and same was changed vide MCO No. 136/58815 dated 16/10/2006 Ex.R1 in the presence of representative of complainant duly signed by him and that he packed and sealed removed meter and deposited the same vide Ex.R2 dated 24/1/2007 as later on it has also been alleged by opposite party Board vide affidavit of Nirmal Singh JE Ex.R10 that again meter of the complainant was found to be burnt and same was changed with new meter vide MCO No. 61/52989 dated 9/10/2007 Ex.R4 and complainant deposited Rs.300/- as cost of the said meter and the said meter was packed and sealed and deposited in the ME Lab vide Ex.R6 dated 11/1/2008. There is application Ex.R7 dated 9/10/2007 purported to be signed by the complainant/applicant for change of burnt meter. Thereafter audit section issued letter vide Ex.R8 dated 4/3/2008 to Assistant Executive Engineer , Sub Division PSEB Nadala for levying of penalty charges amounting to Rs.40,093/- in respect of dead stop meter on the basis of average consumption from June,2006 to Oct. 2006 and in respect of burnt meter for the period April, 2007 to Oct. 2007 on the basis of which impunged memo Ex.R9 and also impunged bill dated 10/5/08 followed. No doubt, Balwinder Singh SDO reiterated his version and defended legality and validity of impunged bill vide affidavit Ex.R5. Regulation No.73.1 lays down that "on receipt of report regarding meter becoming defective,dead stop or burnt, it requires to be immediately replaced and the meter alongwith report requires to be forwarded to XEN/ME for further action and method of calculation for charging the consumer is laid down in Regulation No.73.1.2." Be that as it may. Neither of the functionaries JE or Internal Auditor can assume the role of ME Lab. Complainant has rightly questioned stand of opposite party Board about arbitrary levy of charges because complainant was never proved to be participant in the unilateral proceedings adopted by the functionaries of the PSEB. In a similar case reported as PSEB Vs. Mohan Lal 2007 (i) CLT page 193 the impugned bill was quashed as illegal and contrary to the Provision of Sales Regulation No. 67.1 and 67.2 because of unilateral procedure conducted about the checking of the meter and without testing of the meter in the ME Lab in the presence of the consumer and thus violation of the principle of natural justice. Regulation No. 67.1 clearly envisages that the JE would report on the line to determine as to whether the damage to the meter is due to the default, negligence on the part of the consumer and thereafter the alleged burnt meter or the defective one has to be tested in the ME Lab in the presence of the consumer or authorized representative. The consumer, therefore, has at least a right under the Rules of natural justice to know as to when the meter is going to be checked who knows that the default being pointed out by the ME Lab may have occurred due to the burning of the meter. All these things could have been made the subject matter of cross check by the complainant had he been given the opportunity to be present at the time the meter was tested in the M.E. Lab." Reference is also made to another case reported as PSEB vs. M/s GMP Finishing Mills 1999 (2) CLT 243 wherein it was held that "demand raised on account of audit objection/report perse is illegal.
8. Moreover, it is also apparant from documents Ex.R2 and R6 that meter in question was not sent to the ME Lab after its removal within time frame of fifteen days at the time of its being alleged dead stop and also at the time when it was found to be burnt as required under Regulation NO.64.6 and further violated Regulation No. 64.7. We further find grave factual infirmity in the auditor's note Ex.R8 as to how the meter was found to be dead stop and burnt at different times when it was recording electric consumption as clearly reflected in the note itself on the basis of which amount of Rs.25660/- was got deposited earlier. No plausible explanation was forthcoming from the counsel for the opposite party Board. The consumption of electricity units clearly negate the allegation of opposite party regarding the meter in question being dead stop/burnt. Therefore, we are of the considered opinion that impunged bill containing sundry charges of Rs.40,093/- is illegal, arbitrary and unjustified.
9. Apropos the crucial plea of learned counsel for the opposite party Board on the maintainability of the complaint that complainant is not a "consumer" within the meaning of Section 2(i)(d) of the Consumer Protection Act, 1986 as he was engaged in poultry farm's business at large scale and it was not exclusively for the purpose of earning his livelihood by means of self-employment. We find merit in this contention. No doubt, complainant has stated in the complaint and also in his affidavit Ex.C1 that he obtained electric connection for his poultry farm which was exclusively for the purpose of earning livelihood by means of self-employment. According to him, poultry farm is a seasonal business and electric consumption varies from season to season and depends upon the number of birds kept in the poultry farm. He further admits that average consumption of electricity for the said poultry farm remained from 800 to 900 units for the period of two months and average number of birds kept by the complainant in the said poultry farm remained between 9000 to 10,000. He also admits that around January to May, 2006 he had increased the number of birds upto 19,000 to 20,000 but as he could not manage the same and the same was not viable and its capacity was again decreased to 9000 to 10000. Few affidavits Ex.C2 and C3 were also filed by him in support of his version. Section 2(i)(d) of the C.P. Act defines term "consumer" which does not include a person who obtains goods for resale or for any commercial purpose and also who hires or avails of services for any commercial purpose. Though by explanation added to this Section by amendment on 15/3/2003, "commercial purpose" excluded the category of such person who buys goods and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. In the instant case, complainant has nowhere stated that he was himself alone engaged in poultry farm business assisted by his own family members and one or two persons employed for the purpose of earning livelihood by means of self employment. The strength of birds kept in the poultry farm varying from 9000 to 10000 and also around 19000 to 20000 during winter season raises strong inference and proves that complainant had not engaged himself in the poultry farm business for earning livelihood by means of self employment but large scale of human labour was also employed by him to carry on poultry farm business at large scale for generating huge profits. For instance mere bald version of an Industrialist that he was running his manufacturing units for his own livelihood by self-employment even if he has engaged large amount of labour for marketing his products at large scale and generating hefty profits cannot bring him within the ambit of "Consumer" as defined in aforesaid Section as it will negate the social purpose and objective behind the explanation added to Section 2 (i)(d) of the Act ibid by way of the amendment. Amendment was necessitated to protect small consumer whose livelihood is dependent upon avocation at small scale by self-employment. Hon'ble Supreme Court has clearly explained in para-1 of the judgment reported as AIR 1995 Supreme Court 1428 Laxmi Engineering Works vs. PSG Industries Institute as follows :
" The National Commission appears to have taken a
consistent views that where a person purchases
goods with a view to using such goods for carrying
on any activity on a large scale for the purpose of
earning profit he will not be a "consumer" within the
meaning of Section 2(d)(1) of the Act. Broadly
affirming the said view and more particularly with a
view to obviate any confusion-the expression "large scale"
is not a very precise expression-the Parliament
stepped in and added the explanation to Section
2(d)(1) by Ordinance/Amendment Act, 1993
. The explanation excludes certain purposes from
the purview of the explanation "commercial purpose"-
& case of exception to an exception. Let us elaborate :
a person who buys a typewriter or a car and uses them
for his personal use is certainly a consumer but a person
who buys a typewriter or a car for typing other's work for
consideration or for plying the car as a taxi can be said
to be using the typewriter/car for commercial purpose
.The explanation however, clarifies that in certain situation
purchase of goods for "commercial purpose " would
not take the purchaser out of the definition of expression
"consumer". If the commercial use is by the purchaser
himself for the purpose of earning his livelihood by
means of self-employment , such purchaser of goods
is yet a consumer . In the illustration given above, if the
purchaser himself works on the typewriter or plies
the car as a taxi himself, he does not cease to be a
consumer. In other words if the buyer of goods
uses them himself i.e. by self-employment, for earning
his livelihood, it would not be treated as a'commercial
purpose' and he does not cease to be a consumer for the
purpose of the Act. The explanation reduces the question,
what is a "commercial purpose" to a question of fact to
be decided in the facts of each case. It is not the value
of the goods that matters but the purpose to which the
goods bought are put to. The several words employed
in the explanation, viz. "use them by himself," exclusively
for the purpose of earning his livelihood" and " by means
of self-employment " make the intention of Parliament
abundantly clear, that the goods bought must be used
by the buyer himself by employing himself for earning
his livelihood. A few more illustration would serve to
emphasise what we say. A person who purchases a
autorickshaw to ply it himself on hire for earning his
livelihood would be a consumer.. Similarly, a purchaser
of a truck who purchases it for plying it as a public
carrier by himself would be a consumer. A person who
purchases a lathe machine or other machine to operate
it himself for earning his livelihood would be a consumer.
( in the above illustration, if such buyer takes the
assistance of one or two persons to assist/help him in
operating the vehicle or machinery, he does not cease
to be a consumer.) As against this a person who purchases
an auto-rickshaw, a car or a lathe machine or other
machine to be plied or operated exclusively
by another person would not be a consumer. This is
the necessary limitation flowing from the expression
"used by him ," and " by means of self-employment "
in the explanation. The ambiguity in the meaning of the
words "for the purpose of earning his livelihood" is
explained and clarified by the other two sets of words."
10. In the light of pertinent observations of Hon'ble Apex Court referred to above and applying to the facts of the present case, we are of the opinion that running poultry farm with the strength of 9000 to 10000 birds and also 19000 to 20000 birds in the winter season by the complainant cannot be said by any logic and reason that he engaged himself in the poultry farm business for self employment but conversely he has been carrying on business at large scale with employment of large amount of human force for commercial purpose and for generating profits out of this commercial venture. His bald version of self-employment in such a business does not confer upon him status of consumer engaged in his business by self employment. Reference is also made to case of Hon'ble National Commission reported as (II) 2008 CPJ 210 (NC) Wimco Ltd. vs. Ashok Sekhon & Ors. wherein on the facts it was clearly held that "complainant purchased trees for commercial purpose for generating profits. Growing up trees in 9 acres of irrigated land would not amount to indulging in self-employment. Goods purchased not for self-consumption but for resale proved-commercial purpose involved and complainant was not held to be a consumer".
In the ultimate analysis of aforesaid discussion we hold that complainant being not a consumer is not competent to file this complaint. Therefore, complaint is not maintainable and the same is hereby dismissed with no order as to costs. He may resort to civil remedy in the Civil Court, if so desires. Time spent in litigation in this case will not be counted for the purpose of limitation for filing civil suit,
Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room.
Announced : ( Shashi Narang ) (Gulshan Prashar ) (A.K. Sharma )
25.9.2008 Member Member President.
