Date   : 13.03.2013

Per Mr.K.B.Gawali, Hon`ble Member.

1.       This appeal is filed by original opponent against the judgment and order dated 20.3.2012 passed by Dist.Forum Latur in C.C.No.325/2009, whereby appellant is held liable for giving deficient service to the respondent herein who is the original complainant. 

2.       The brief facts leading to the present appeal are narrated as under.

          That, the respondent is doing business of construction and had obtained electric connection for the construction work of Government administrative building at Latur on 19.11.2007.  That, the respondent is carrying out of his business of construction work for livelihood of his family. That, this electric connection was of the type LT-2 and since the beginning he has been paying electric bills regularly. It was contended that on 13.7.2009 the appellant  electric company had issued him assessment bill of the exorbitant amount of Rs.12,24,367/- for the units of 48,727 without giving any reason for it. That, the said bill was totally false and illegal.  It was mentioned by the said appellant that the same was assessed as per Section 126 of Electricity Act.  It was further contended that on 7.5.2009 respondent also recovered Rs.27,700/- towards additional security amount, although company had already deposited Rs.4000/-. It was further alleged that on 4.8.2009 the appellant  electric company disconnected the electric supply of respondent without giving any notice and therefore the company through its Manager approached to the Dist.Forum seeking direction to the appellant  to cancel the said disputed electric bill amounting to Rs.12,24,367/- dated 13.7.2009 and also to refund amount of Rs.27,700/- deposited toward additional security amount. It was also sought to pay it Rs.2 lakhs as compensation towards mental & physical harassment and Rs.50,000/- towards cost of complaint.

3.       Appellant  electric company appeared before the Forum and denied the claim in toto.  It was contended that electric connection was given for domestic purpose in the name of construction firm i.e. Rudrani Construction company and not in the name of  complainant i.e. present respondent.  Secondly, it was also contended that complainant was not consumer under provision of Section 2(d) of Consumer Protection Act and therefore it was not maintainable. It was further averred that respondent originally applied for electric connection for commercial purpose. It was however using the electricity for construction of flats which was detected during the inspection of flying squad of the appellant from Aurangabad.  The said use of construction purpose was unauthorized   use which covered under the offence of theft and therefore it was issued assessment bill of Rs.12,24,367/- U/s 126 of Electricity Act 2003.  As regards the amount of Rs.27,700/- it was contended that the same was charged to the respondent as per provisions given U/s 47(1) of Electricity Act 2003. Thus it was contended that there was no deficiency in service on the part of appellant and the complaint being false and baseless be dismissed.

4.       Dist.Forum on the basis of available record and after hearing the  parties has partly allowed the complaint and cancelled disputed  electrical bill of Rs.12,24,367/- dated 13.7.2009 and further directed to the appellant  to pay to the respondent Rs.1000/- towards mental agony and Rs.1000/- towards cost of complaint.

5.       Aggrieved by the said judgment and order, present appeal is filed in this commission which was finally heard on 14.2.2013.  Adv.Shri.A.S.Shelke present for the appellant whereas Adv.Shri.Amit Yadakikar was present for respondent.  We heard both the counsels at length and appeal was reserved for orders.

6.       Learned counsel Shri.A.S.Shelke present for appellant submitted that respondent was not a consumer as per provision of Section 2(d) of Consumer Protection Act.  However Dist.Forum has entertained and decided the complaint which was bad in law. He further contended that said assessment bill was given for unauthorized use of electricity for construction purpose which was sanctioned for commercial purpose. He submitted that rates of electricity for commercial purpose are less than those of construction work.  Thus the bill assessed U/s 126 of Electricity Act 2003 at Rs.12,24,367/- was just and proper.  However Dist.Forum without considering this aspect has erroneously passed the impugned judgment and order and cancelled said bill and also directed to pay compensation  to  the respondent.  He therefore requested to set aside the impugned judgment and order.

7.       On the other hand, learned counsel Shri.Amit Yadakikar for the respondent submitted that while obtaining electric connection it was made abundantly clear that connection was required for the construction of administrative building at Latur through it`s letter 1.11.2007.That, the “no objection” given by Sectional Engineer of P.W.D.Division Latur for obtaining said electric connection towards the construction work vide letter dated 6.10.2007 was also produced before the appellant  electricity company.  He therefore contended that the purpose for which electric connection was demanded, for the same purpose was being used. Therefore there was no any unauthorized use of said electricity.  In  the quotation given to the respondent, the appellant had mentioned the said use for commercial purpose. He contended that from respondent`s side nothing was concealed. He also submitted that assessment bill was issued U/s 126 of Electricity Act was also not as per provisions laid down under the said section. He contended that appellant  has to give provisional bill and after hearing objection if any issue the final bill.  However, in the instant case no such procedure was followed by appellant company and hence he contended that the judgment and order passed by Dist.Forum canceling  the said bill was quiet proper and same be confirmed.

8.       We have carefully considered the papers before us and also oral submission of learned counsel of both the parties. We find that the basic issue before us to decide is whether respondent is a “consumer” as per provisions given U/s 2(1)(d)(ii) of the Consumer Protection Act 1986 as the Dist.Forum has neglected this vital aspect. Respondent/org. complainant is doing its business of construction work in the name of M/s Rudrani construction Company.  It is an admitted fact that the said company had obtained electricity connection in the name of M/s Rudrani Company for business purpose. Although the respondent in it`s complaint has mentioned that respondent was doing business of construction work for the purpose of livelihood of himself and of family.  However it is not clarified that for whose livelihood the said business of construction work is being carried out.  The explanation to the Section 2(1)(d)(ii) states that, “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”.  Respondent being a private limited company cannot fall under this exception.  The commercial activity as carried out by it cannot be said to meant for it`s earning livelihood by means of self-employment.

9.       In this connection we rely on the ratio involved in the judgment and order passed by Hon`bel National Commission on 14.3.2012 in revision petition No.3517/07 in case of M/s MCS Computer Service Pvt.Ltd. –Vs- M/s Allena Auto Industries Pvt. Ltd. 2012(2) CPR 6(NC).  In this case it is observed by Hon`ble National Commission that, “respondent is a private limited company  and commercial activities carried out by it cannot be for its earning livelihood by means of self employment.  Company has to act through somebody and question of livelihood and self employment under these circumstances would not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for its share holders. Question of his livelihood by means of self-employment would not arise”. Thus in view of the ratio involved in the above said citations is quite applicable to the present case and hence respondent being not a consumer it`s complaint ought not to have been entertained by Dist.Forum below.

10.     In fact from the perusal of the impugned judgment and order it is seen that the Forum below has made reference to the objection taken by appellant electrical company regarding status of respondent as consumer U/s 2(1)(d) of the ‘Consumer Protection Act’.  However without discussing and deciding this issue which is mandatory, the Dist.Forum has directly dealt with merits of the case and passed the impugned judgment and order though the complaint was not maintainable.  We have therefore no option but to quash and set aside the impugned judgment and order.  In such a situation we are of the view that as not to deal with the merits of the case as respondent is not  a “consumer” and it`s complaint is not maintainable. In the result, we pass the following order.

                                                 O   R    D    E     R

1.                 Appeal is allowed. 

2.                 Impugned judgment and order passed by Dist.Forum is hereby quashed and set aside.

3.                 Complaint stands dismissed.

4.                 No order as to cost.

5.                 Copies of the order be sent to both the parties.

Pronounced on 13.03.2013.