Punjab

StateCommission

A/11/1565

Shanker Lal - Complainant(s)

Versus

PSPCL - Opp.Party(s)

Atul Malhotra

10 Jul 2015

ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1565 of 2011

 

                                                                                                             Date of Institution 28.10.2011

                                                                                                            Date of Decision :  10.07.2015

 

 

Shankar Lal S/o Sh.Kanhaiya Lal, Proprietor M/s Hira Foundary Works, 160, Globe Colony, Near Dada Colony, Jalandhar, Punjab.                                                                                                                                                                                                                                                                                                          …..Appellant/Complainant

         

                                      Versus

 

 

1.       Punjab State Power Corporation Ltd. (Earlier Known as Punjab   State Electricity Board) The Mall, Patiala, Punjab through its          Chairman.

 

2.       SDO/AEE, Punjab State Power Corporation Ltd (Earlier Known as        Known as State Electricity Board), Commercial Unit-I, Near Reru    Bye    Pass Chowk, Jalandhar Punjab.

 

                                                          … Respondents/Opposite Parties.

 

 

First Appeal against order dated 03.08.2011 passed by the District Consumer Disputes Redressal Forum, Jalandhar

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

 

          For the appellant                            :     Sh.Atul Malhotra, Advocate  

          For the respondent              :     None.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 03.08.2011 of District Consumer Disputes Redressal Forum Jalandhar, dismissing the complaint of the complainant. The instant appeal has been preferred against the same by the complainant now appellant in this appeal.

2.      The complainant Shankar Lal has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs, on the averments that complainant is sole proprietor and owner of Hira Foundary Works, Jalandhar. The complainant was allotted an electricity connection bearing account no.J 21 MD 141577 Q. The said electricity connection was applied and running under Small Power category previously. The said firm of the complainant is a small scale firm and is registered as a Small Scale Industry with the Department of Industries, Jalandhar. The complainant has been using and consuming electricity connection for self-use and for self-employment for earning his livelihood and hence, the complainant is a consumer of the OPs. The checking was conducted by the officials of the OPs at the premises of the complainant on 22.12.2009 and everything was found to be O.K. More so, all the three phases of the said electricity meter were working properly. Again checking was conducted by the officials of the OPs at the premises of the complainant on 29.06.2010, where it was found by the officials of the OPs that meter of the complainant was running correctly and particularly, all the three phases of the said meter were working properly. The said officials of the OPs illegally and arbitrarily came to the conclusion and mentioned in the report that meter no.6342449 of complainant got smoky. The meter of the complainant was running and working properly and was giving correct readings and consumption. Pursuant to second checking, the OPs changed the old meter no.6342449 of the complainant with a new meter no.10186104, but OPs failed to remove, pack or seal the old meter in the presence of the complainant or its representative. The OPs also failed to get the said old meter of complainant checked from  ME Lab in the presence of the complainant or any of his representatives. The complainant has no information about the date of checking or details or mode of the checking of the old meter of the complainant adopted by the officials of the OPs. The OPs illegally and arbitrarily issued supplementary bill demanding of Rs. 49,993/- as sundry charges in the bill dated 18.08.2010. The complainant had to deposit bill, challenge fee for Rs.450/- and Rs.10,000/- out of the said disputed amount of Rs.49,993/-, along with current charges of energy for Rs.3760/-. The complainant approached the OPs and protested against the said illegal, unilateral and arbitrary sundry charges raised by OPs from the complainant. The complainant demanded the copy of the bills and justification/reasons for the said sundry charges, but OPs gave nothing. The act of the OPs is against the terms and conditions laid down in the Electricity Act 2003 and Electricity Supply Code. The OPs, without giving any opportunity of being heard to complainant and without issuing any supplementary bill and without doing any provisional assessment, raised the demand of sundry charges of Rs. 49,993/- from the complainant. The complainant has, thus, filed the consumer complaint against OPs, directing the OPs to quash the demand of sundry charges of Rs.49,993/- raised from the complainant, vide bill dated 18.08.2010. The complainant has also prayed that the OPs be directed to pay Rs.50,000/-  to complainant for the above-mentioned deficiency in service.

3.      Upon notice, OPs appeared and filed written reply, raising preliminary objections that complaint of the complainant is not maintainable and is false and frivolous and merits dismissal on this score. The complainant has no cause of action to file the complaint. The complainant has not approached the Consumer Forum with clean hands and rather suppressed the material facts from the Forum, with malafide intention. The complainant has no locus standi to file the present complaint. The jurisdiction of the Consumer Forum to entertain, try and decide the present complaint is also questioned by the OPs in the complaint. On merits, the OPs pleaded that complainant has not been using and consuming electricity connection for self-use and self employment for earning livelihood. The complainant has employed number of workers in his factory to perform the jobs. Hence, the complainant has no locus standi to file the complaint, as he is not a ‘consumer’. The complainant has been using the electricity connection for commercial purposes only. It was averred by OPs that meter of the complainant was checked by the Enforcement No.2 Jalandhar, vide report no.48/623 on 29.06.2010 and it was reported that on consumer's working load, the segments (1) (2) (3) of meter were found blinking, but meter's reading was not being completely displayed since the meter got smoky. As a result, the meter should be replaced forthwith and old removed meter should be brought before the ME Lab for further investigation. The meter in question was removed on 30.06.2010, vide MCO No.1/67064 dated 30.06.2010 and consumer's account was overhauled by 'Audit' party on 03.07.2010 under Half Margin No.3. The Audit Party recorded a fall in consumption during the period 12/09 to 5/10 as compared to the corresponding period of 12/08 to 5/09.  The audit party revalued the consumer's account on the basis of the consumption of corresponding period under the Regulation 21.4 of Power Supply. The account of the complainant was overhauled during the period 12/09 to 5/10 (Base 12/08 to 5/09) and a sum of Rs.49,993/- was charged in the account of the complainant. It was further pleaded that the demand of the OPs is legal and justified, as per rules and regulations. The OPs controverted the averments of the complainant regarding his entitlement to any relief and further prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavits of complainant Ex.C-A and Ex.C-B along with copies of documents Ex.C-1 to Ex.C-21. As against it, OPs tendered in evidence affidavit of Er.KPS Sekhon, Addl. SE East Special Division Ex.O-1 along with copies of documents Ex.O-2 to Ex.O-6. On conclusion of evidence and arguments, the District Forum, Jalandhar, dismissed the complaint of the complainant by virtue of order dated 03.08.2011. Dissatisfied with the order of the District Forum Jalandhar dated 03.08.2011, the complainant now appellant has preferred this appeal against the same.  

5.      We have heard learned counsel for the parties and have also examined the record of the case.

6.      The evidence is required to be examined by us, in view of the respective pleadings of the parties, to decide the controversy in this case. The District Forum has observed in the order under challenge in this case dated 03.08.2011 that complainant has been using the electricity connection for commercial activities and held the complainant not to be a consumer. The complainant has challenged this point before us in this appeal. We are confined in this appeal to determine the short point, as to whether the complainant is proved to be ‘consumer’ of the OPs or not? The affidavit Ex.C-A of the complainant is on the record. The submission of the counsel for complainant now appellant is that complainant has pleaded that he has been using the electricity connection for earning his livelihood by means of self-employment and as such, he is consumer under Section 2 (i) (d) of Consumer Protection Act 1986. On the other hand, the OPs pleaded that the complainant has been using the electricity connection for commercial purposes by employing number of workers in his factory for doing the above job. The complainant has pleaded and placed his affidavit on the record in this case. From perusal of affidavit Ex.C-A, the complainant simply stated that the allegations contained in para no.2 to 11 of the complaint are true as per his knowledge and records. He has specifically sworn in his affidavit, reiterating the point that the allegation contained in affidavit are true to his knowledge. Additional affidavit Ex.C-B of the complainant is on the record, but he has not stated this point in it that he has been using the electricity connection for his self-employment only. Ex.C-1 is certificate of the factory location of the complainant, Ex.C-2 is the checking report of the complainant of the electricity connection. The sanction load is 29.65 KW as depicted in the report Ex.C-2, Ex.C-3 is the sanction load is 29.65 KW, Ex.C-4 is receipt of payment of Rs.450/-, Ex.C-5 is receipt of payment of Rs.13760/-, Ex.C-6 is letter from the complainant to OPs, Ex.C-7 to Ex.C-14 are copies of bills. The OPs tendered in evidence affidavit Ex.O-1 of Er.KPS Sekhon, Additional SE, East , Special Division, wherein he stated that complainant has employed number of workers in his factory for doing the job and he has been carrying on the job for commercial purposes and not for self-employment. The counter-affidavit of Er. KPS Sekhon, Additional SE Ex.O-1 is on the record to the effect that complainant took the connection for factory purposes and employed number of workers and has been running job to generate profits only. Ex.O-2 is report regarding this fact of the OPs that the meter screen was not displaying the correct consumption and its segment (1), (2), (3) were blinking.

7.      From appraisal of the above-referred evidence on the record, we have come to this conclusion that complainant had taken the sanctioned load of electricity connection of 29.64 KW. This is generally taken for running the small industry and not for domestic purposes. The counter affidavit tendered by Er. Kirpal Singh Sekhon, Ex.O-1, is on the record is to the effect that complainant has been running the above small factory for generating profits by employing number of workers. In the circumstances of the case, the District Forum by relying upon law laid down in Ishwar Singh Versus… Dakshin Haryana Vidyut Prasaran Nigam rightly held that Atta Chakki being run in the complainant's house-Theft of electricity detected. It was held that complainant could not be a ‘consumer’ within Section 2(i)(d)(ii) of the Act because complainant used the Atta Chakki for commercial purposes although installed in his house. We find that small scale industries cannot be run single-handedly by the complainant. The complainant must have employed number of workers to assist him to carry on this small scale industry. Obviously the purpose, for which electricity connection has been taken by the complainant, is to generate profits and is not exclusively for his self-employment for earning his livelihood. Small Factory cannot be run unless the factory owner employs host of workers for carrying on the activities in the small factory. Consequently, we infer while concurring with the findings of the District Forum that complainant took the electricity load of 29.64 KW as sanctioned load for running small factory only. The complainant cannot run small factory alone and must have employed number of persons, as stated by Additional SE in his affidavit, vide Ex.O-1 on the record. The complainant has, thus, not been found to be a consumer, earning his exclusive livelihood by means of self-employment through above electricity connection. After amendment of the Act by means of Act 62 with effect from 15.03.2003, if person hires services for commercial purposes and does not use them for earning his livelihood by means of self employment, then he cannot be held to be a ‘consumer’. The finding of the District Forum that complainant is not proved to be a consumer is upheld in this case.

8.      Counsel for the appellant relied upon law laid down in case titled as "Bombay Electric Supply & Transport Undertaking .versus.. Laffans (India) Pvt. Ltd, and another," reported in 2005(2) CLT Page 451-452, wherein Apex Court has held that meter is alleged to be not correct the appellant cannot be allowed to raise an additional demand over and above the demand raised through bills, which were issued and paid by the respondent as the appellant has not made a reference to the Electrical Inspector as required under Section 26 of the Act. Reliance was also placed upon by the appellant in case law titled as "Haryana State Electricity Board ..versus.. Mam Chand, reported in 2006(2) CLT Page 372 that supply of electric energy by Nigam falls under Section 2(1)(o) of the Consumer Protection Act. However, if energy is supplied for earning employment by means of self-employment, then in view of Section 2(d) of the Act, the complainant would be consumer, but in case the energy is supplied the energy for carrying on the commercial activities, then complainant would not be a consumer. Similarly, reliance was placed upon by appellant on the decision of our own State Commission in case titled as Punjab State Electricity Board and others ..versus.. Sh. Chand Kohli, in First Appeal No. 459 of 2010, date of institution 19.03.2010, decided on 23.11.2013. It nowhere, lays down that person, who carries on the business in factory premises, would be a consumer.  We rely upon the affidavit of Er.KPS Sekhon, Addl. SE East Ex.O-1, which carries more logic because a small factory cannot be run by a person all alone, unless he employees host of workers to carry on its activities. Small Factory is generally installed for earning profits by a person and is obviously for commercial purposes. We are in agreement with the findings of the District Consumer Forum and hold that the complainant is not proved to be a ‘consumer’ under the Consumer Protection Act 1986 of the OPs.

9.      Once complainant is not found to be a consumer, hence this Commission cannot look into further allegations, as to whether the demand raised by the OPs from the complainant is justified or not? 10.         In view of the above discussion, the order of the District Forum Jalandhar under challenge in this appeal dated 03.08.2011 is affirmed. Finding no merits in the case, the appeal of the appellant is hereby dismissed.

11.    Arguments in this appeal were heard on 06.07.2015 and the order was reserved. Now the order be communicated to the parties.

12     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                             (HARCHARAN SINGH GURAM)

                                                                              MEMBER

 

July  10,    2015.                                                            

(ravi)