DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. 22 of 16.1.2008<br /> Decided on : 14.3.2008<br /> <br /> Partibha Gupta W/o Sh. Dharmesh Gupta S/o Sh. Kanwar Chand, R/o Gandhi 2094, Mall Road, Bathinda.<br /> ...... Complainant<br /> <br /> Versus.<br /> <br /> 1.Punjab State Electricity Board, The Mall, Patiala through its Secretary.<br /> 2.A.E.E./S.D.O, Punjab State Electricity Board, Civil Lines, Bathinda<br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. M.L. Bansal, Advocate<br /> O R D E R.<br /> LAKHBIR SINGH, PRESIDENT:-<br /> 1. Small Power Electricity Connection bearing A/c No. SP-16/0073 of the load of 19.93 Kws was got installed by the complainant in her premises in the year 1988-89 for the purpose of earning livelihood and to augment family income. Plot measuring 1 Kanal 13 Marlas in the revenue limits of Hazi Rattan, Bathinda where connection has been installed was purchased by her and Smt. Anita vide sale deed No. 2307 dated 22.6.1988. In the portion owned by her, there are two kachcha rooms. In one of them, this connection has been installed. Working shed of 20' x 70' has been constructed where saw mill is working. Remaining portion is lying vacant. In order to avoid bickering in the family, family settlement had taken place between her and Smt. Anita. Portion shown in blue and green colour fell to her share. Entries in the municipal record were made as per settlement. She has no connection with the portion of Anita which has separate gate. Both the portions stand bifurcated by a wall between them shown in dark red and yellow colour in the site plan. Before partition, there was an iron gate/shutter between her property and the property of Smt. Anita. After partition, it has been permanently closed and closed portion has been shown in blue shade. Electricity connection was released to her by the officials of the opposite parties after they were fully satisfied in all respects. It was being checked by them. On 21.2.2006, they had come at the spot and had checked the connection. It is alleged that report was made by them illegally that meter was running slow by 12.14% and in its place, electronic meter be installed and that previous meter be sealed, packed and sent to M.E Lab. Vide letter No. 475 dated 27.7.2006, without getting the meter checked from the M.E Lab or from the Chief Electrical Inspector, Patiala, penalty of Rs. 3,126/- was imposed with direction that in case the amount was not deposited, connection would be disconnected. In the circumstances, amount of RS. 3,126/- was deposited vide receipt No. 273 dated 7.3.2006. This amount is liable to be refunded. Once again the officials checked the connection on 21.2.2007. It is alleged that they falsely reported that there was mixing of supply of two connections i.e. her connection bearing A/c No. SP-16/0073 and of Smt. Anita bearing A/c No. SP-16/0177. They further alleged that they were installed in one and the same premises. On 20.10.2007, officials had again come to her premises. Previous meter was removed without any prior notice. Her SP connection was converted into Medium Supply (MS) connection by including SP connection No. SP-16/0177 of Smt. Anita. No opportunity of hearing was afforded. Action of the opposite parties is illegal. Bill dated 28.11.2007 for a sum of Rs. 6,078/- pertaining to A/c No. SP-16/0073 was issued. Note was given on it that connection has been changed to MS-182 w.e.f. 28.10.2007 and connection No. SP-16/0177 was merged with connection No. SP-16/0073. Amount of this bill was deposited vide receipt No. 21039 on 11.12.2007. Nothing was due after the payment of this bill. On 29.12.2007 another bill no. 415 was issued showing a sum of Rs. 2,440/- as payable and A/c number shown in the bill was MS-12/0182. There was no occasion of charging this amount. Thereafter, bill No. 470 dated 29.12.2007 was issued which was received on 1.1.2008 against actual reading whereby surcharge of Rs. 13,742/- was shown. New reading shown was 34533. It is added by her that she was liable to pay Rs. 12,270/- as SOP, Rs. 2,600/- as electricity dues and Rs.75/- as meter rent i.e. Rs. 14,945/- out of Rs. 26,470/- out of the amount of bill No. 470. Opposite parties forcibly got deposited Rs. 26,470/- from her i.e. Rs.18,625/- on 8.1.2008 and Rs. 7,855/- vide receipt dated 11.1.2008. Out of this amount of Rs. 26,470/-, she claims Rs. 11,525/- as refund alongwith interest till payment. Thereafter, application was moved by her alleging that additional surcharge of Rs. 13,742/- was wrongly added and the matter be referred to the Dispute Settlement Committee. On her representation, J.E was deputed by the opposite parties who had visited the spot on 7.1.2008. It was pointed out by him that reading of KWH was 18550 and KVAH was 31787. Thereafter, SDO had visited the spot and had verified the reading. He had confirmed the reading upto 7.1.2008 noted by the J.E. Accordingly opposite parties reduced the surcharge from Rs. 13,742/- to Rs. 5,890/-. Even this amount was in excess. On 10.1.2008 officials of the opposite parties had called her in their office. She was forced to deposit Rs. 7,855/- without any basis claiming it to be due out of bill dated 29.12.2007. Memo No. 93 dated 10.1.2008 was issued by them which was received on 13.1.2008 whereby demand of Rs. 7,658/- + Rs. 28,552/- = Rs. 36,210/- has been raised alleging that on account of checking of the record amount of short assessment has been detected. He assails this letter as illegal, null and void, arbitrary and against rules. According to her, memo is without any basis. Moreover, her request for putting up the case before Dispute Settlement Committee is pending. Request was made by her to withdraw the impugned demand raised through memo No. 93 dated 10.1.2008, refund Rs. 3,126/- and Rs. 7,855-, but to no effect. To the contrary, they extended threat to disconnect her electricity connection. In these circumstances, this complaint under section 12 of the Consumer Protection Act (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to refund Rs. 3,126/- (deposited on 7.3.2006) and Rs. 11,525/- alongwith interest; withdraw memo No. 93 dated 10.1.2008 or quash the same; re-convert connection No. MS-0182 into 0073 SP; pay Rs. 50,000/- on account of mental tension, harassment and botheration, besides costs of the complaint.<br /> 2. Opposite parties filed their version taking legal objections that complaint is not maintainable in the present form; complainant has no cause of action and locus-standi to file it; he has not approached this Forum with clean hands; this Forum has got no jurisdiction to entertain and try the complaint as her connection is commercial/industrial one; complainant is not consumer and complaint is false and frivolous. She was running two electricity connections in one premises which is against rules. One can have only one connection in one premises. Accordingly after checking by the Flying Squad, connection of the complainant bearing A/c No. SP-16/ 0073 and SP-16/0177 were clubbed and A/c No. MS-12/182 was allotted. Connection can be changed from SP to MS if the supply goes beyond 20 Kws. In this case, load of both the connections was more than 20 Kws. She was directed to pay Rs. 28,552/- for the period 9/2006 to 6/2007. On 22.2.2006, meter was checked in routine and it was found slow by 12.14%. Complainant was directed to pay Rs. 7,658/- for the period 4/2006 to 1/2007. After that her meter was changed. She was rightly issued memo in question with direction to pay Rs.36,210/-. When checking was done, meter was found slow and two connections were found running in one premises and complainant/her representative was present. They admit that complainant had applied for electricity connection. She was given A/c No. SP-456 in the year 1988 with sanctioned load of 19.93 Kws. In the year 1990, she managed to get another connection in the same premises in the name of Smt. Anita Gupta with sanctioned load of 6.409 Kws with account No. SP-177. These account numbers were later on changed to SP-16/173 in the name of the complainant and SP-16/177 in the name of Smt. Anita Gupta. Memo No. 475 dated 27.2.2006 was rightly issued. Complainant has deposited the amount without any objection. Meter installed in the premises of the complainant was changed on 20.2.2007 as per report made by the checking staff. Bill dated 28.11.2007 was issued which was deposited. After clubbing both the connections, account of the complainant was to be reviewed. Bill No. 415 dated 29.11.2007 was issued on average basis. This amount was adjusted in the subsequent bills. Surcharge of Rs. 13,742/- shown in bill No. 470 dated 29.12.2007 was rightly charged due to low power factor. Bill for Rs. 26,470/- relating to MS category was sent for actual consumption. Surcharge of the bill was wrongly reduced. Later-on, it has been corrected and complainant was directed to pay Rs. 26,470/-. They deny the remaining averments in the complaint.<br /> 3. In support of her allegations and averments in the complaint, Smt. Partibha Gupta complainant tendered into evidence her own affidavit (Ex.C.1), photocopy of her PAN Card, photocopy of Voter Identity Card of Smt. Anita Rani (Ex.C.3), photocopy of PAN Card of Smt. Anita Gupta (Ex.C.4), photocopy of her Voter Identity Card (Ex.C.5), photocopy of PAN Card of her husband Sh. Dharmesh Gupta (Ex.C.6), photocopy of PAN Card of Mukesh Gupta (Ex.C.7), photographs (Ex.C.8 to Ex.C.10), photocopy of Ration Card (Ex.C.11 & Ex.C.12), photocopies of Passbooks regarding Gas Connections (Ex.C.13 & Ex.C.14), photocopies of telephone bills (Ex.C.15 & Ex.C.16), photocopies of receipts (Ex.C.17 to Ex.C.19), photocopy of memo dated 10.1.2008 (Ex.C.20), photocopy of notice (Ex.C.21), photocopy of checking report (Ex.C.22 & Ex.C.23), photocopy of letter dated 2.1.2008 (Ex.C.24), photocopy of one page of Assessment Register (Ex.C.25), photocopy of Rough Sketch (Ex.C.26), photocopies of bills (Ex.C.27 to Ex.C.29), photocopies of payment receipts (Ex.C.30 to Ex.C.32) and photocopy of sale deed No. 433 (Ex.C.33).<br /> 4. On behalf of the opposite parties, reliance has been placed on affidavits (Ex.R.1 to Ex.R.3) of S/Sh. Bhoj Raj, AEE/Enforcement, Rahul Kansal, SDO and C.D Mittal, Senior Executive Engineer respectively, photocopy of checking report (Ex.R.4), photocopy of notice dated 27.2.2006 (Ex.R.5), photocopy of Audit Report (Ex.R.7), photocopy of SJO (Ex.R.8), photocopy of letter dated 13.3.2007 (Ex.R.9), photocopy of Account Statement (Ex.R.10), photocopies of Audit Reports (Ex.R.11 & Ex.R.13), photocopy of memos dated 14.8.2007 & 10.1.2008 (Ex.R.12 & Ex.R.14),photocopy of letter (Ex.R.15) and photocopy of MCO (Ex.R.16).<br /> 5. We have heard the learned counsel for the parties. Apart from this, we have perused the record.<br /> 6. One of the legal objection taken by the opposite parties is that complainant is not consumer as connection has been obtained for commercial/industrial purpose. Argument pressed into service by Mr. Gupta, learned counsel for the complainant is that electricity connection was taken by the complainant from the opposite parties for earning livelihood and as such, complainant falls within the definition of consumer as has been given in section 2(1)(d) of the Act.<br /> 7. Mr. Bansal, learned counsel for the opposite parties argued that evidence on the record does not bring the complainant within the ambit of consumer and as such, this Forum has got no jurisdiction to entertain and try the complaint.<br /> 8. We have considered the rival arguments. Consumer has been defined in section 2(1)(d) of the Act. It is reproduced as under :-<br /> “Consumer” means any person who-<br /> ( i ) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of <br /> deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid 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 obtain such goods for resale or for any commercial purpose; or <br /> ( ii ) hires or avails of any services 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 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 purpose;<br /> 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 purpose of earning his livelihood by means of self-employment.” <br /> 9. Complainant admits in para No. 5 of the complaint that electricity connection No. SP-16-0073 was obtained by her for running saw mill. Sanctioned load is 19.93 Kws. It means that she has hired the services of the opposite parties for running saw mill i.e. for commercial purpose. In such a situation, it was for the complainant to establish that the services of the opposite parties availed by her are exclusively for the purpose of earning her livelihood by means of self employment. Onus to prove it is upon her. For this she has placed on record her bald affidavit which stands amply rebutted with the affidavit Ex.R.2 of Sh. Rahul Kansal, SDO, PSEB, Civil Lines Sub Division, Bathinda. There is no specific pleading of the complainant that she has availed the services of the opposite parties exclusively for the purpose of earning livelihood by means of self employment. Rather, her averment is that she has got the connection for earning livelihood and to augment the family income. It is not her case that saw mill is being run by her by means of self employment. She is an income tax assessee having PAN No.AARPG1359H, copy of which is Ex.C.2. She did not deem it fit to place on record her income tax returns. Had they been produced, this Forum could come to know the income of the complainant from saw mill. From that income, it could be inferred as to whether it is such an income which could be for the purpose of livelihood only. Ex.C.24 is the copy of the application moved by the complainant to the Executive Engineer, PSEB, Civil Lines, Bathinda. She has signed it as Partner of M/s. Paramount Industries, Deep Nagar, Hazi Rattan, Bathinda. When this application is carefully perused, it comes to light that it pertains to connection No. SP-16/0073 and SP-16/0177. It appears that she has concealed the fact that she is Partner of M/s. Paramount Industries. Ex.R.15 is another application of the complainant to the SDO, Civil Lines, Bathinda. In this letter as well, she has described herself as Smt. Partibha Gupta of M/s. Paramount Industries, Street No. 3, Deep Nagar, Hazzi Rattan, Bathinda. She has mentioned in this application that electricity connection No. SP-16/0073 has been installed in their factory. As per the contents of the application, there was fire in the factory. Request was made by her for replacement of the meter to ensure proper supply of power to the factory to avoid huge loss of production in it. Area of the plot is 1 Kanal 13 Marlas where saw mill is being run. She has herself placed on record three copies of the photographs which are Ex.C.8 to Ex.C.10. A perusal of Ex.C.8 reveals that there is huge stock of woods in the premises where saw mill is being run. Keeping all the relevant facts, circumstances and the evidence on the record in view, we have no hesitation in concluding that complainant is running the business at a large scale. In case, word livelihood is given very liberal approach, each and every person availing the services for commercial purpose whatsoever may be its nature, would become consumer merely by writing words that he/she has availed the services for the purpose of earning livelihood. Her husband is also income tax assessee. His affidavit is not on the record that he has meagre income. In these circumstances, it is difficult to hold that she is running the saw mill merely for the purpose of earning livelihood and that too by way of self employment. Moreover, she has herself stated that she is running it for augmenting the family income as well. When she is availing the services of the opposite parties for release of electricity connection for commercial purpose and she has not proved by way of leading cogent and convincing evidence that she has availed their services exclusively for the purpose of earning her livelihood by way of self employment, she is not consumer.<br /> 10. Since complainant has failed to prove that she is consumer, this complaint before this Forum is not maintainable. Accordingly, merits of the case are not being touched. Complaint is dismissed with no order as to costs.<br /> 11. Before parting with this order, it is made clear that complainant is at liberty to approach the civil court/any other competent authority for the redressal of her grievances, if so advised and permitted by law. Copy of this<br /> <br /> order be sent to the parties free of cost. File be consigned. <br /> <br /> Pronounced (Lakhbir Singh)<br /> 14.3.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br />