Complaint No: 142 of 2022.
Date of Institution: 13.07.2022.
Date of order:21.11.2023.
M/s Sarwan Rice Mill, Village Ladhupur, Tehsil and District Gurdaspur, through its authorized partner Sh. Ravinder Singh Son of Sh. Gurdeep Singh, resident of Village Ladhupur, Tehsil and District Gurdaspur, Aadhaar No. 5864 1815 4006.
.....Complainant.
VERSUS
1. Punjab State Power Corporation Limited, through its Chairman, the Mall Patiala. Pin Code – 147001.
2. Sub-Divisional Officer, Punjab State Power Corporation Limited, Sub-Division Kahnwan, District Gurdaspur. Pin Code – 143528.
3. Punjab State Power Corporation Limited, Gurdaspur, through its Deputy Chief Engineer, Jail Road, Gurdaspur. Pin Code – 143521.
……..Opposite parties.
Complaint Under section 35 of The Consumer Protection Act.
Present: For the complainant: Sh.B.S.Dhakala, Advocate.
For the opposite parties: Sh.Pranav Sharma, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Ravinder Singh, (Authorized Partner of M/s. Sarwan Rice Mill), (here-in-after referred to as complainant) has filed this complaint under section 35 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 partnership concern and is duly registered under the Indian partnership Act 1932 from the Registrar of Firm and Societies Punjab, Chandigarh vide registration No. 3061 of 2014-15 and Sh. Ravinder Singh Son of Sh. Gurdeep Singh, Sh. Gurdeep Singh Son of Sh. Gurcharan Singh and Sh. Avinder Singh Son of Gurdeep Singh are its partners and running their business of Rice Mill, for earning their livelihood. It was pleaded that Sh. Ravinder Singh is one of the partner of the complainant Rice Mill, knows well about the facts of the matter in hand and the present complaint is being filed on behalf of the other partners, as he has been authorized to file the present complaint by the other partners vide power of attorney dated 08.07.2022. It was further pleaded that the Complainant is consumer of the opposite parties and is having an electric connection for running their Rice Mill bearing A/c No.G7MS740010L with the sanctioned load of 99.43 K.W. which falls under the Medium Scale Industry (M.S). It was further pleaded that as per the requirement of Rice Mill, complainant moved an application to the opposite parties for the enhancement of load which is falling the category in Large Scale Industry (L.S). On the request of the complainant, the opposite parties had enhanced the load from 99.43 K.W to 177.00 K.W as well as change the category from Medium Scale Industry (M.S) to Large Scale Industry (L.S) since 14.10.2016 and the opposite parties allotted new connection bearing A/c No.G74LS0100003 under the category of Large Scale Industry. It was further pleaded that accordingly the complainant used the connection under the category of Large Scale Industry (L.S) with enhanced load. It was alleged that the opposite party No. 2 did not consider the enhancement of load of the complainant electricity connection and sent bill for the month of November and December 2016 under the category of Medium Scale Industry (M.S) by ignoring the category of L.S and in the said Bill the opposite party No.2 alleged that the complainant has consumed extra load from the maximum demand load which was sanctioned to the complainant vide Medium Scale Industry i. e. 99.43 K.W. It was further alleged that the opposite parties alleged in the bill for the month of November that the complainant had consumed extra from 99.43 K.W to 142.60 K.W in the month of November 2016 and they charged penalty of amounting Rs.32, 378/- for consuming extra load than the sanctioned load. In fact, the complainant had already enhanced their load from 99.43 K.W to 177.00 K.W. on 14.10.2016. It was further pleaded that in this regard, the complainant has moved an application to the opposite parties with the request that they had not consumed extra load than the sanctioned load, as complainant has already enhanced the load from 99.43 K.W to 177.00 K.W, as such, the complainant is not liable to pay the extra charged allegedly demanded by the opposite parties from the complainant vide bill No.261 dated 18.11.2019. It was further pleaded that on the application of the complainant, the opposite parties assured the complainant that they will rectify said extra charged bill amount in next coming months. It was further alleged that the complainant has astonished when he gain received bill No. 270 dated 19.12.2016 in which the opposite parties again imposed extra charged of Rs.45,008/- from the complainant and alleged that the complainant had again consumed 159.44 K.W than the sanctioned load i. e. 99.43 K.W for the Medium Scale Industry. It was further pleaded that thereafter, the complainant made many oral requests to the opposite parties No. 2 and 3 and to rectify the bill, but the opposite parties asked to the complainant to pay the extra charges at this stage and they assured that they will adjust the extra charged amount from the complainant in the next upcoming electricity bills. It was further alleged that on asking of the opposite parties No. 2 and 3, complainant deposited the said extra charged amount to the opposite parties but, despite making oral request so many times and written request dated 21.05. 2017, 01.05.2019 and 03.06.2020, the opposite parties did not adjust/refund the extra charged amount from the complainant till date. It was further alleged that the opposite parties for pressuring and not to demanding extra charge amount by the complainant from them, they without committing any default by the complainant, sent the bill No.20200623020076 with the demand of extra amount i. e. Rs.1,22,472/-. It was further pleaded that the meter of complainant was working properly without any default in the premises of the complainant. Nor the opposite parties ever given direct supply of electricity to the Mill of the complainant at any time, but the opposite parties charged the above said extra amount with the false pretext that the meter of the complainant was defective since 26.09.2019 to 28.11.2019 and further alleged that the supply given to the Mill of the complainant was given direct supply and they had charged the above said amount on the basis of average consumption which was consumed by the complainant earlier years. It was further pleaded that on dated 30.06.2020 the complainant moved complaint to the opposite party No. 3 to send the matter with D.S.C Committee and requested them that the complainant is not liable to pay the extra charges on average basis as their meter was running properly and the milling of paddy in the previous years 2018-19 was start from 19.11.2018 and in the year i.e. 2019-20 the milling for the paddy started from 03.12.2019 and it is also not fix time to milling the paddy on every year, as such, the opposite party has no right to demand the bill on average consumption. It was further alleged that despite several remainders on 18.01.2021, 11.01.2022 and 25.04.2022, the opposite party did not take any action on the request of the complainant and did not concede the request of the complainant. It was further pleaded that in the month of May the complainant received a memo No. 515 dated 10.05.2022 which was sent by Assistant Executive Engineer, Sub-Division, Kahnuwan, whereby the opposite party alleged that the above said amount was charged by the opposite party on the recommendation of Audit party. In fact, the alleged demand of the opposite party is illegal, null and void, and cryptic in nature, arbitrary and without any basis. It was further pleaded that the opposite parties have installed online electric meter in the premises of the complainant's Mill and the opposite party is taking the record of daily reading in their respective offices. In spite of that the concerned SDO, Kahnuwan noted down manually reading on 31.05.2021. But after some days, on account of heavy rainfall and sky lightening, the online meter of the complainant's Mill was burnt. The matter was reported to the opposite party and the opposite party made a direct supply to the Mill of the complainant. It is pertinent to mention here that the opposite parties have a record of earlier 15 days consumption by way of online reading record as well as manual reading noted by the concerned SDO, Kahnuwan. But the opposite party had charged Rs.1,52,740/- through bill No. 20210623020004 dated 23.06.2021 on the average basis of previous year i.e. from 18. 05.2020 to 18.06.2020. However, the opposite party has no right to demand the bill on average basis as per previous year consumption. As the fact of the matter is that the milling period for the year 2021 ended on 10.06.2021 and after that the Mill was not run by the complainant and no consumption was made from 11.06.2021 to 18.06.2021, as such, the complainant is not liable to pay the extra charges from 11.06.2021 to 18.06.2021. It was further pleaded that thereafter, complainant also made oral request to the opposite parties for not demanding average bill as per last year. However, the opposite parties gave assurance that they will charge the average bill on the basis of actual consumption used by the complainant for 15 days when the meter was in running condition in this paddy season and they also directed to the complainant deposit Rs.25,000/- as an advance payment and assured that they will send the bill after rectifying, but the opposite parties did not do so. It was further pleaded that the opposite parties had illegally recovered the impugned extra amount of bills for the months of November 2016 and December 2016 under the pretext that they shall adjust the same in the next upcoming bills, but till date the opposite parties have not adjusted the same. It was further alleged that in the monthly bill of dated 20.06.2022, in which the opposite parties has demanded Rs.3,06, 310/- (which includes arrear of Rs.1,93,140/- i.e. Rs.1,52,740/- charged on the basis of average minus Rs.25,000/- deposited by the complainant under protest plus interest and penalty). It was further pleaded that the complainant again approached the opposite parties and requested to rectify the average bill on the basis of the current consumption of the complainant and also requested to adjust the previously extra amount charged by them since 2016 to till date and to refund the balance to the complainant, but the opposite parties again make a false promise to adjourned the extra charged amount in the next coming month and further directed to deposited the consumption charges out of the current bills. Then, accordingly the complainant deposited the current consumption charges to the tune of Rs.1,13,170/- out of the bills amount of dated 20.06.2022 vide receipt No.18158551. It was further alleged that the opposite parties has refused to adjust the previous illegally extra charged amount by the opposite parties from the complainant i.e. (Rs.77,386/- under the pretext of over consumed load under Medium Scale Industry in the bills of November 2016 and December 2016), (Rs.1,22,472/- charged under the pretext of average bill for alleged direct supply for the period of 26.09.2019 to 28.11.2019) and (Rs.25,000/- got deposited by the opposite parties under the pretext of the advance payment of alleged average bill of June 2021) and the opposite parties is also threatening the complainant to deposit the balance alleged of Rs.1,93,140/-, otherwise they will disconnect the electricity supply of the premises of the complainant firm. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered huge loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in services on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in services 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 refund the amount of Rs.32,378/-, Rs.45,008/-, and Rs.1,22,472/-, alongwith interest @ 18% from the date of it deposit till its actual realization which they have illegally got deposit from the complainant under the present to adjust the same in next bills and to restrain the opposite parties to illegally demand of Rs.1,93,140/- under the head of arrear in the current bills, and with further direction to pay compensation of Rs.1,00,000/- as damages for humiliation, harassment, agony and inconvenience suffered by him from the hands of the opposite parties and Rs.50,000/- as litigation expenses, which the complainant has incurred. The complainant may kindly be granted any other relief to which he is legally and equitably entitled to as per the facts and circumstances of the case. This may be done for the sake of brevity and 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 present complaint of the complainant is not maintainable in the present form, that the complainant had not approached the Ld. Commission with clean hands and had suppressed material, vital facts intentionally with mala-fide from the Ld. Court who is actually in arrears of current electricity dues which he had not paid to the respective and as such is a defaulter of the opposite parties and thus is not entitled to any relief from the Hon’ble Court and till consumer clears at least all the current electricity dues payable by him to the opposite parties, failing which the present complaint is not sustainable or maintainable in the eyes of law and the same is liable to be dismissed on this score alone and that the act and conduct of the officials of the opposite parties are protected under the rules, provisions of The Indian Electricity Act & other related provision of Law. Thus the same is not sustainable or maintainable and is liable to be dismissed. It was pleaded that during the period of June 2021 the meter was reported defective on account of CT/PT unit was reported defective and hence reading cannot be recorded/taken. It is further pleaded that the bill of dated 5th July 2021 is as per provisions, sale manual Instructions & regulations average to be charged, demand was accordingly raised from consumer amounting to Rs.1,52,740/- during Bill period of July 2021 (Bill on Average). It was further pleaded that when this demand of Rs.1,52,740/- was raised in Bill of dated 5th July 2021, the consumer on his own accord had deposited on-line bill only for Rs.25,000/- which was part payment, without any prior approval or sanction from the competent authority. The balance amount remained unpaid which was carried forward with surcharge, interest etc. in his subsequent next energy Bills of next month as per consumption with current electricity dues also. It is further pleaded that it is strange on which method or yard stick the consumer had deposited Rs.25,000/- on-line without any prior approval for effecting any part-payment of his bills as same is not permissible to enjoy smooth supply of Electricity. More over the consumer w.e.f. July 2021 onwards had been depositing electricity Bills subsequently being raised from consumer as per billing cycle with all current electricity Bills with arrears which were unpaid in previous Bills were in fact not deposited by him not even full current electricity charges and thus the complainant is a defaulter of the opposite parties / Pspcl in arrears of current electricity dues, facing disconnection even on this account by the opposite parties but who are taking very Lenient view against consumer, who is taking advantage but however has failed clear all balance dues which are carried forward his bills from the consumer. It was further pleaded that when the Bill of period 20.06.2022 was issued to the consumer calling to deposit Rs.3,06,310/- actually Bill raised which is for Rs.3,06,310/- which included Average Bill of Rs.1,52,740/- of period 5th July and there after all balance arrears with current bills, surcharge interest etc. after adjusting all the electricity bills paid partly by the consumer on-line without any prior approval of the opposite parties for making any part payment in dues, thus Rs.1,93,140/- out of bill of Rs.3,06,310/- and again the complainant had only deposited Rs.1,13,170/- on his own accord without any approval or sanction and now thereafter raised dispute before this Ld. Commission only of Rs.1,52,740/- w.e.f. July 2021 onward any now arisen to Rs.1,93,140/-. It was further pleaded that in the Hon’ble Court he as per order of this Ld. Commission deposited 20% of Rs.1,93,140/- as such complainant himself had confined to raising dispute only for Rs.1,93,140/- on his electricity Bills. It was further pleaded that charging of Average and claiming electricity bill / dues based on Average in any way does not amounts to any deficiency in services rendered by the opposite parties, and any such consumer first of all is liable & directed to clear all the electricity dues / bills especially the current bills / dues or is liable to face consequences under law.
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 services 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 tendered into evidence affidavit of Ravinder Singh, (Complainant) as Ex.C-1/A alongwith other documents as Ex.C-2 to Ex.C-29.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Er. A.S Nagra, (S.D.O, P.S.P.C.Ltd, Sub – Division Kahnuwan) as Ex.OP-1/A alongwith other documents as Ex.OP-1 to Ex.OP-5.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant is having a rice mill being run under partnership and is running the said business for earning livelihood. The complainant had got installed electric connection No.G7MS740010L with sanctioned load 99.43 KW which falls under medium scale industry and as per requirement application for enhancing of load from 99.43 KW to 177.00 KW was applied and for change of category from medium scale industry to large scale industry on 14.10.2016 which was allowed by the opposite parties with a new A/c No.G74LS0100003. However, inspite of category and load having been enhanced opposite parties had illegally and unlawfully received excess amount from the complainant for having used and consumed extra load than the sanctioned and accordingly received Rs.32,378/-, Rs.45,008/- and Rs.1,22,472/- which is liable to refunded and opposite parties have further raised demand of Rs.1,93,140/- which the complainant is not liable to pay.
9. On the other hand counsel for the opposite parties has argued that the complainant is actually in arrears of current electricity dues which he has not paid to the opposite parties and as such he was defaulter of the opposite parties. It is further argued that amount has been charged correctly by the opposite parties. However, during the course of arguments counsel for the opposite parties has further argued that perusal of para No.2 complaint shows that the complainant has although mentioned that mill was being run for earning livelihood but it is nowhere mentioned that the said mill is being run by way of self employment and since the mill is a large scale industry as such cannot presumed to be a consumer under Consumer Protection Act.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. Without going into the merit of the case first of and foremost question to be settled is whether the complainant, who is using commercial electric connection with load of 99.43 KW and with alleged enhanced load of 177.00 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 connection was obtained by the complainant for running the Rice Mill with the help of a number of workers. The complainant, in his complaint, has only stated that it is his sole source of income for earning his livelihood, but it is nowhere pleaded or proved that he was running this Rice Mill 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 complainant is running a Rice Mill as large scale industry with the help of number of workers. He has nowhere stated he himself is running the business byway of self-employment. Rather he has given employment to number of workers to generate profit from this industry also. 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" Harsolia
Motors V. National Insurance Co. Ltd., 2005 CTJ 141 (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. 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)
Nov. 21, 2023 Member
*YP*
