Complaint No: 152 of 2022.
Date of Institution: 22.07.2022.
Date of order:13.02.2024.
Ishwar Chander Julka Son of Arvind Mohan Julka, proprietor Ishwar Julka Mushroom Farm, resident of Mohalla Partap Nagar, Railway Road, Qadian, Tehsil Batala and District Gurdaspur. Pin Code – 143516.
.....Complainant.
VERSUS
1. Punjab State Power Corporation Limited, The Mall Patiala – 147001, through is C.M.D.
2. X.E.N, Punjab State Power Corporation Limited, Qadian, Tehsil Batala and District Gurdaspur. Pin Code – 143516.
3. S.D.O, Punjab State Power Corporation Limited, Qadian, Tehsil Batala and District Gurdaspur. Pin Code – 143516.
4. J.E, Punjab State Power Corporation Limited, Qadian, Tehsil Batala and District Gurdaspur. Pin Code – 143516.
.....Opposite parties.
Complaint U/s 35 of the Consumer Protection Act, 2019.
Present: For the complainant: None.
For the opposite parties: Sh.Pranav Sharma, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Bhagwan Singh Matharu, Member.
Ishwar Chander Julka, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, 2019 (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 running one Mushroom Farm forming the part of the property Ishwar Julka Mushroom Farm at Batala Road, Qadian. Previously, the father of the complainant was running the said Mushroom Farm. The complainant is in possession of the said Mushroom Farm from the last since 2019. It was pleaded that an electric connection bearing connection No. 3005830517 has been installed in the Mushroom Farm in the part of Mushroom Farm at Batala Road, Qadian District Gurdapur in the name of the complainant i.e. Ishwar Chander Julka owner of the building and as such the complainant is the consumer of the opposite parties as defined under section 35 of the Consumer Protection Act. The complainant has made regular bill payments to the PSPCL of electricity connection installed at his Mushroom Farm since its installation. It was further pleaded that since the complainant has regularly paid the previous electricity bills to the electricity department w.e.f. 01.09.2019 to 10.05.2020 and approximate electricity consumption was around 1709 units per month and i.e. also before implementation of lockdown throughout the country and in the State of Punjab. The writ petition No. CWP No. 3017 of 2021 is pending in the Hon'ble Punjab & Haryana High Court, Chandigarh. It was further pleaded that after receiving the alleged bill, the complainant immediately approached the opposite parties and requested them to correct the bill and to charge actual consumption charges from the complainant as per units mentioned on the bill by the officials of the opposite parties themselves, but the opposite parties did not listen the requests of the complainant, rather started giving threats to the complainant either to pay the said amount to them otherwise they would disconnect the electricity supply of the complainant by removing the electricity meter. It was further pleaded that the complainant approached the opposite parties and requested them to declare the alleged bill to be illegal, wrong null and void and to charge actual consumption from the complainant. Two months back the officials of the opposite parties have illegally disconnected the connection of electricity supply of the complainant without intimating the complainant. It was further pleaded that the cause of action for filling the present complaint arose to the complainant against the opposite parties on May 2022, when the opposite parties have disconnected the electricity supply of the complainant illegally and wrongfully. It was further pleaded that from the above mentioned facts and circumstances it clearly shows that there is clear cut deficiency in service on the part of the opposite parties. After disconnection of electricity meter to Mushroom Farm, complainant has claimed a big Loss of Mushroom crop of Rs.28,00,000/-, against the PSPCL Department with 10% interest. 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 necessary directions may kindly be issued to the opposite parties to restore the electricity connection which was disconnected by the opposite parties bearing connection No. 3005830517, which is installed in the premises forming the part of property Mushroom Farm at Batala Road, Qadian, District Gurdaspur. The opposite parties may also be directed to pay Rs.28,00,000/- as compensation with interest to the complainant for mental harassment caused to the complainant and cost of the complaint may also be awarded to the complainant. Any other relief to which the complaint is found entitled may also be granted to him.
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 present complaint of the complainant is not maintainable in the present form. It was pleaded that the complaint is not sustainable as the complainant had already agitated the same matter & dispute in CWP No. 3017/2020 which is already pending before the Hon'ble Courts of Punjab & Haryana High Courts, Chandigarh. The complainant without getting any decision in the CWP, has again re-agitated the same matter & dispute on the same subject matter before this Hon’ble Commission at Gurdaspur when the matter is still Subjudice ,thus the present complaint is not maintainable and is liable to be dismissed. It was further pleaded that the complainant has not ever approached the present Commission with clean hands and had suppressed material relevant vital facts intentionally with mala-fide reasons from the Ld. Commission by filing bogus, frivolous, vexatious, misconceived, uncalled complaint in-fact he is making "The Mockery of the process of law" by agitating & re-agitating same matter without getting any decision from the Hon'ble High Court. The Petitioner is a willful evasion of the current electricity Dues / Bills / Charges, had intentionally not paying any heeds to the demand raised by PSPCL raised from time to time and had not even deposited current electricity dues, thus the present complaint is not sustainable or maintainable and same is liable to be dismissed. It was further pleaded that the petitioner / complainant after filing the CWP and this complaint is willfully not paying the current electricity charges of electricity availed by him, he even had not paid the electricity bills since the period 05/2020 and 06/2020 onwards and a huge amount of Rs.11,25,482/- is due towards the complainant till date, and the electricity connection of the complainant had been disconnected on dated 20.06.2022 due to non-payment of current electricity charges. The complainant had never approached for the reconnection of his electricity connection after paying the current electricity dues to the PSPCL. Thus, the complaint is not sustainable and same is liable to be dismissed as premature. It was further pleaded that the fact of matter is that the complainant is not making the payments even of his current electricity dues of electricity availed by him. It was further pleaded that the fact remains the bills during Covid period 03/2020 and 04/2020, “I” Code bills was issued i.e. bill based on average. This caused the actual bill in dispute to the complainant, but later on in bill of 06/2020 the adjustment of this period also was made in Bill of June 2020 in his account and adjustment of Rs.43,006/- was given to the complainant and thus regular billings there after continued for the subsequent period and thus in fact there is no dispute, but the complainant fully aware and having full knowledge of this fact. There is in fact no dispute in real sense and the complainant must pay and clear current electricity dues being raised from him, but he is intentionally avoiding and not even paying current dues. It was further pleaded that the complainant however in order to avoid the current electricity dues in most cunning manner is also not paying the current electricity bills though being demanded from him for the subsequent periods w.e.f. 05/2020 onwards which are being raised from him who is not paying the current energy bills amounting to Rs.11,25,482/-, but he is not paying the same in the Garb of filing the CWP and now this present complaint without getting any decision in CWP when matter is pending. The electricity bills w.e.f. 03/2020 to period 06/22. However since the complainant was not paying current electricity dues w.e.f. 05/2020 onwards even when adjustment of Ave Bills 03/2020 and 04/2020 bills was given in bill of 06/2020, but thereafter did not paid even the current electricity bills he had hardly made part payment of only 2/3 bills online on his own accord. After serving notices Memo No. 317 dated 21.03.2022 and Memo No. 413 dated 19.04.2022 and Memo No. 554 dated 13.05.2022 besides the electricity bills showing electricity consumed by the complainant TDCO was issued and finally after serving with energy bills and notices the connection was disconnected (PDCO) on dated 20.06.2022 when huge defaulting amount of Rs.11,25,482/- was recoverable from the complainant and on non-payment of current bills the electricity was disconnected on dated 20.06.2022 thus, the complainant was himself liable and responsible for his electricity connection disconnection. Thus, the present complaint of the complainant is liable to be dismissed. It was further pleaded that the business of the complainant never stopped and the complainant was availing electricity energy as fully evident from the consumptions shown in his bills generated to him, but he was not paying his bills / dues. It’s made clear, the complainant is defaulter of PSPCL and is in arrears of electricity dues / bills of the opposite parties and thus there is no deficiency in service on the part of the opposite parties and complaint is liable to be dismissed.
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 placed on file affidavit of Ishwar Chander Julka, (Complainant) as Ex.C-6 alongwith other documents as Ex.C-1 to Ex.C-7 alongwith complaint.
5. Learned counsel for the opposite parties has placed on file affidavit of Er. Gurmit Singh, (S.D.O, P.S.P.C. Ltd, Sub – Division, Qadian) as Ex.OPW-1/A alongwith other documents as Ex.OP-1 to Ex.OP-13 alongwith reply.
6. 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.
7. From perusal of order sheets it is evident that there is no representation on behalf of the complainant for the last five proceedings i.e. 04.12.2023, 15.012.2023, 09.01.2024, 19.01.2024 06.02.2024.
8. As per details of the case cited above and in the para No.2 and 3 of the complaint, it is fact that the present complaint is related to the Mushroom Farm having an industrial electric connection bearing A/c No.3005830517 under medium supply category with sanctioned load of 39.740 KW.
The copies of the electricity bills placed on record at Ex.OP-4 to Ex.OP-8 and Ex.OP-13 by opposite parties also proved that its an industrial electrical connection.
9. It has neither been mentioned in the complaint by the complainant that this connection is being used to earn livelihood by way self employment. The complainant also mentioned in the complaint under para No.5 that similar case has also been filed by him vide CWP No.3017 of 2021 before the Hon'ble Punjab & Haryana High Court Chandigarh. This petition of the complainant stand dismissed by the Hon'ble Court vide order dated 12.09.2023.
10. Opposite parties in their written statement denied all the allegations and stated regarding similar court case pending in the Hon'ble Punjab & Haryana High Court Chandigarh. Counsel for the opposite parties argued regarding jurisdiction of the present complaint in this Commission being an industrial connection.
11. Without going into the merit of the case first and foremost question to be settled is whether the complainant, who is using industrial electric connection with sanctioned load of 39.740 KW 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".
12. There is no doubt that the complainant is running Mushroom Farm with this industrial connection under medium supply category with the help of number of workers and to earn profit also. 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. 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".
13. 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.
14. 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. Pending application if any in this case stands also disposed off accordingly alongwith this main order. 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.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
16. 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)
Feb. 13, 2024 Member
*YP*
