Complaint No: 408 of 2018.
Date of Institution: 01.10.2018.
Date of order:23.01.2024.
Baldev Singh Son of Mohinder Singh, resident of Village Alawalwal P.O Talwandi Rama, Tehsil Dera Baba Nanak, District Gurdaspur.
.....Complainant.
VERSUS
1. Punjab State Power Corporation Ltd., Gurdaspur, Sub Division Dera Baba Nanak, Tehsil Dera Baba Nanak, District Gurdaspur, through its SDO. Pin Code – 143604.
2. Punjab State Power Corporation Ltd., The Mall Patiala, through its Managing Director. Pin Code – 147001.
.....Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Gurbachan Singh, Advocate.
For the Opposite Parties: Sh.Opinder Rana, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Bhagwan Singh Matharu, Member.
Baldev Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against P.S.P.C.Ltd. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is having domestic service electricity connection bearing A/c No.G23SJ521157P, installed by the opposite parties in his house, hence the complainant falls under the definition of the consumer of the opposite parties. It was pleaded that normally electricity consumption charges are around Rs.1000 to Rs.4000 and he used to pay the same as per the electricity bills demanded by the opposite parties. It was further pleaded that the complainant received bill dated 1st July 2018 for the period from 5th May 2018 to 1st July 2018 in which demand of Rs.1,35,600/- is raised, out of which Rs.1,21,401/- are demanded as arrears. The complainant approached the opposite parties and tried to enquire the matter and requested them to withdraw their illegal demand of the opposite parties vide bill dated 1st July 2018 of Rs.1,35,600/-, but the opposite parties did not pay any heed to the request of the complainant. The complainant in order to avoid any complications deposit the amount of Rs.40,000/- vide receipt No. 118 dated 24.08.2018, under the promise of the opposite parties to rectify the bill. It was further pleaded that the opposite parties threatening the complainant that they will disconnect the electricity connection of the complainant and will recover the remaining alleged amount illegally, forcibly and without any due course of law. The demand of arrears in bill dated 1st July 2018 is illegal, arbitrary and against the principles of natural justice. It was further pleaded that the meter of the complainant is being used for the domestic purpose supply and whereas the bill is coming regularly as category NRS (Non-Residential Supply). Moreover, before imposing such huge bills the opposite parties has not issued any prior notice for payment and even the meter of the complainant is affixed on the pole about 500 meters distance from the house of the complainant and key of the boxes is remained with J.E. It was further pleaded that the opposite parties have removed the meter in the absence of the complainant and affixed new meter without any information to the complainant. Moreover, the meter has not been checked in the M.E. Lab in the presence of the complainant and checked without the consent of the complainant. No signature of the complainant was obtained by the opposite parties before removing the meter or at the time of affixing the meter. It was further pleaded that the complainant had deposit the payment of Rs.520/- dated 23.08.2018 for challenging the meter of the complainant as meter was defective, but even then meter was not checked in the M.E. Lab. Moreover, no notice has been issued before recovering this huge amount and meter has not been removed from the poll in the presence of the complainant and not as per rules and regulations of the opposite parties department. It was further pleaded that the demand of the opposite parties amounting to Rs.1,35,600/- is totally illegal, null and void and there is clear cut deficiency in service on the part of the opposite parties. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that the complaint of the complainant may kindly be allowed and the bill dated 01.07.2018 for Rs.1,35,600/- may kindly be ordered to be quashed and to pay Rs.20,000/- on account of mental torture and physical harassment suffered by the complainant from the hands of the opposite parties, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has filed the false and frivolous complainant. The complainant has not come to this Hon’ble Court with clean hands and the present complaint filed by the complainant is not maintainable in the present form. It was pleaded that the bill dated 05.05.2018 to 01.07.2018 of Rs.1,35,600/- is legal and genuine as per the consumption of the complainant. The fact of the matter is that the complainant is a habitual defaulter and has not deposited the energy bill since November 2016. The detail of the defaulting amount is as under:-
11/2016 - Rs.2,523/-
01/2017 - Rs.3,813/-
03/2017 - Rs.5,153/-
05/2017 - Rs.25,542/-
07/2017 - Rs.39,664/-
09/2017 - Rs.51,207/-
11/2017 - Rs.54,095/-
01/2018 - Rs.54,467/-
03/2018 - Rs.1,02,986/-
05/2018 - Rs.1,21,401/-
01/2018 - Rs.1,35,600/-.
It was further pleaded that the above said amount is unpaid energy charges of the complainant. So, the amount demanded by the opposite parties is legal and genuine and binding upon the complainant. The complainant is a habitual defaulter and not paying the electric bill regularly. No threat was ever raised by the opposite parties as alleged in this present complaint.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed Self Attested affidavit of Baldev Singh, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-28.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Gurnam Singh, (S.D.O, P.S.P.C. Ltd, Sub - Division Dera Baba Nanak, Gurdaspur) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-3 alongwith reply.
6. Rejoinder not filed by the complainant.
7. Written arguments filed by both the parties.
8. We have carefully gone through the pleadings of counsels for the parties; oral arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purpose of adjudication of the present complaint.
9. The complainant in the present complaint has alleged that opposite parties issued electricity bill dated 01.07.2018 bearing A/c No.G23SJ521157P for an illegal demand of Rs.1,35,600/- including arrear amount of Rs.1,21,401/- which is placed at Ex.C1. It was prayed to quash the disputed electricity bill. In para No.1 of the complaint it has been mentioned by the complainant that he is having domestic service electricity connection but in para No.4 of the complaint it was pointed out that the bills are being issued under NRS category. The copies of electricity bills placed at Ex.C3 to Ex.C13 clearly shows that the bills are issued under NRS category.
10. Opposite parties in their written reply denied all the allegations and stated that the amount charged in the bill is the accumulated unpaid bills of energy charges for electricity consumed against above referred electric connection from 11/2016 to 07/2018.
11. As per Ex.C14 put on record by the complainant through additional evidence it is mentioned by the opposite parties at para No.4 that the said connection is running under NRS category and being used at brick kiln, whereas counsel for the complainant has argued that the connection is being used for residential purpose and placed a copy registration certificate (R.C.) of brick kiln at Ex.C8 which is in some other name but it cannot be ascertained from this document that whether it is the same place where the disputed connection is installed. The complainant has not submitted any other cogent evidence to prove that said connection is not installed and used for brick kiln.
12. On the other hand counsel for the opposite parties has argued that the said connection is being used at brick killn under NRS category since its installation and this Commission has no jurisdiction for adjudication of the present complaint.
13. From the perusal of the record and evidences in the file it is seen that the complainant nowhere mentioned that the said connection is being used to earn livelihood by way of self employment but seems to be given a misleading statement in the complaint with the pleading that the said connection is being used for domestic purpose.
14. Without going into the merit of the case first and foremost question to be settled is whether the complainant, who is using commercial electric connection at brick kiln falls within the ambit of definition of 'Consumer' as per Section 2(1)(d) of the Act, which provides as under:-
"2(1)(d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and party promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation. For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment".
15. There is no doubt that the connection was obtained by the complainant under NRS category. The complainant, in his complaint, has only stated that it is being used for domestic purpose but it is nowhere pleaded or proved that he was running this connection for earning livelihood by way of self employment. The explanation added to the Section 2(1)(d)(ii) of the Act stipulates that the commercial purpose does not include use by a person of the good bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. Every business run by an individual or a group of persons is meant to earn the livelihood, but, to be a consumer under the Act, one has to prove that he is running the business for commercial purpose by way of self-employment and is not intended to generate profit. In the instant case, the electric connection is used at brick kiln and number of workers might have been engaged. He has nowhere stated that he himself is running the business byway of self-employment. The word commercial purpose as used in Section 2 (1) (d) was interpreted by the Hon'ble Supreme Court in the celebrated judgment reported as "Laxmi Engineering Works V. P.S.G. Industrial Institute, (1995) 2 CPJ 1 (SC)". The Hon'ble Supreme Court was pleased to observe as under:-
"The National Commission appears to have been taking a consistent view 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(1)(d)(i) 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(1)(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression commercial purpose a 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 others work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for commercial purpose would not yet 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 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., uses 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 illustrations would serve to emphasise what we say. A person who purchases an auto- rickshaw 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 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 illustrations, if such buyer takes the assistance of one or two persons 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".
16. The word commercial purpose was also considered by the Hon'ble National Commission in the judgment reported as"Hrsolia Motors V. National Insurance Co. Ltd., 2005 CTJ141(CP) (NCDRC). The Hon'ble National also considered the judgment of
The Hon'ble Supreme Court in Laxmi Engineering Works case (supra).
The Hon'ble National Commission held as under:-
"Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generated profit, it would be commercial purpose".
Therefore, the complainant, who had hired the services of the opposite parties for commercial purpose, is not a consumer of the opposite parties within the meaning of Section 2(1)(d) of the Act and complaint filed by him is not maintainable. In view of the above discussion and findings, the appeal filed by the appellant/complainant is dismissed and the impugned order of the District Forum is affirmed and upheld. No order as to costs.
17. In view of the above discussion, evidence and case law, we are of the considered opinion that the present complaint filed by the complainant is not maintainable in this Commission and is hereby disposed off. However, complainant is at liberty to approach appropriate Court of Law for redressal of his grievance. Complainant can avail benefit of section 14 of Limitation Act, if so desired.
18. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
19. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Jan. 23, 2024 Member
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