PER VINEETA RAI, MEMBER  

1.      Being aggrieved by the order 23.05.2008 of the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) in Complaint No. C-07/3, two cross appeals have been filed by BSES Rajdhani Power Ltd (hereinafter referred to as the Opposite Party) and Shri Yogesh Bihari Lal Gupta (Original Complainant before the State Commission) respectively. Since the facts and the parties in both appeals are common/similar arising out of the same consumer complaint, it is proposed to dispose of these appeals by one common order by taking the facts from First Appeal No. 367 of 2008. 

2.      FACTS :

          Complainant had applied for a 5 KW commercial electricity connection to Opposite Party on 01.10.2005.  As no response was received to this request till 20.10.2005 he visited the office of Opposite Party on 21.10.2005 wherein he was informed that huge arrears amounting to lakhs of rupees were outstanding in respect of the premises in the name of one R.S. Salooja, who was previous owner of the building which was in clear violation of Section 4(ii) of the Electricity Act.  On 24.01.2006 Complainant filed a complaint before the Consumer Grievances Redressal Forum (CGRF) of the Opposite Party but the CGRF vide its order dated 18.05.2006 though convinced of the deficiency in service on the part of Opposite Party granted a meager compensation of Rs.1000/- with instructions to the Opposite Party for immediate recovery of the arrears from the earlier consumer.  Aggrieved by the lesser compensation awarded by the CGRF, Complainant filed an appeal before the Electricity Ombudsman who vide its order dated 13.11.2006 enhanced the compensation to Rs.5000/- and imposed penalty of Rs.500/- on the Opposite Party for its failure to process the application as per rules.  Complainant, who had prayed for much higher compensation i.e. (i) penalty of Rs.1000/- per day to be imposed on the Opposite Party w.e.f. 01.11.2005 till realization; (ii) to make good of the rental losses etc.; (iii) damages for harassment, torture and mental agony in addition to various other monetary reliefs, therefore, approached the State Commission on grounds of deficiency in service and specifically requested the State Commission to direct the Opposite Party to pay him Rs.25,82,500/- as specified below :

3.      Opposite Party on being served filed a written rejoinder resisting the compensation sought by the Complainant.  It was stated that Complainant had already exhausted his remedy as provided under the Electricity Act, 2003 by filing a complaint before the CGRF and thereafter filed an appeal before the Electricity Ombudsman against the order of the CGRF, which appeal was also disposed of by the Ombudsman vide its reasoned order dated 13.11.2006.  Therefore, having exhausted the remedies provided under the Electricity Act, the Complainant is estopped from agitating in respect of same dispute under the Consumer Protection Act, 1986.  Moreover, Complainant is indulging in forum shopping which has been deprecated by the Courts. It was also contended that the Complainant is not a ‘consumer’ as he had admittedly applied for an electricity connection for commercial purposes.  It was also stated that the Opposite Party had explained to the Complainant regarding pre-conditions for grant of electricity connection which the Complainant had failed to comply.

4.      The State Commission after hearing the parties and on the basis of evidence produced before it concluded that the objection of the Opposite Party that the Complainant having once exhausted his remedies under the Electricity Act, 2003 cannot therefore seek a remedy under the Consumer Protection Act, 1986 is devoid of substance since the Hon’ble Supreme Court in a number of cases, including Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi [1996 (6) SCC 385], had inter alia concluded that the remedy under the Consumer Protection Act, 1986 is in addition and not in derogation to any other law.  The State Commission further observed that the Complainant had suffered at the hands of the Opposite Party since as submitted before the State Commission after having installed the connection, Opposite Party again withdrew it without any notice, which smacks of vendetta. The State Commission, therefore, granted a lump-compensation of Rs.50,000/-.

5.      Both parties have filed present First Appeals.  Respondent-Complainant has sought enhanced compensation.     

6.      Learned Counsel for Opposite Party was present.  Despite service none was present on behalf of the Complainant.  Since service is complete, the case is heard ex-parte.     

7.      Learned Counsel for the Opposite Party contended that the State Commission erred in entertaining the complaint since the Complainant had already exhausted the remedies available to him under the Electricity Act, 2003 by filing a complaint and thereafter by filing an appeal under that Act.  Learned Counsel for the Opposite Party brought to our notice an order of this Commission in Jharkhand State Electricity Board & Anr. Vs. Anwar Ali [II (2008) CPJ 284 (NC)], wherein this Commission had clearly ruled that a consumer has an option to file a complaint either under the Consumer Protection Act, 1986 or under the Electricity Act, 2003 against an order passed under Section 126 of the Electricity Act.  He has to select one of the two Fora for his remedies and no complaint can be entertained by the Consumer Fora against the final order passed by the Appellate Authority under Section 127 of the Electricity Act.  In the instant case, the consumer had filed an appeal under Section 127 of the Electricity Act and had, therefore, exhausted his option to file a complaint before the State Commission on the same ground.  It was also pointed out that the Complainant was not a ‘consumer’ since the electricity connection was for a commercial purpose and, therefore, as per provisions of the Consumer Protection Act, the instant case was not admissible.   

8.      We have heard learned counsel for the Opposite Party and have also gone through the evidence on record, including the relevant provisions of the Electricity Act, 2003.  We agree with the contention of the Opposite Party that the complaint filed by the Complainant under the Consumer Protection Act, 1986 is not maintainable in the instant case in view of the fact that after being aggrieved by the order passed by the CGRF under Section 126 of the Electricity Act, 2003, Complainant had an option either to file an appeal under Section 127 of the Electricity Act before the Electricity Ombudsman or to approach Consumer Fora under the Consumer Protection Act and Complainant chose to file an appeal under Section 127 of the Electricity Act.  The order passed in appeal under that Act, therefore, attained finality and he could not subsequently approach the State Commission under the Consumer Protection Act, 1986.  This matter has been settled in terms of our own judgment in Anwar Ali (supra).  Apart from this, we note that Complainant in his written complaint before the State Commission has clearly stated that he had applied for a 5KW commercial connection to Opposite Party.  Since under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 a person who avails of service for any commercial purpose is excluded from the definition of ‘consumer’, the consumer (Complainant in the instant case) cannot seek remedy as a ‘consumer’ under the provisions of Consumer Protection Act and, therefore, on this ground also the complaint is not maintainable. 

9.      As pointed out by the learned Counsel for the Opposite Party, the Courts including the Hon’ble Supreme Court in Chetak Constructions Ltd. Vs. Om Prakash And Ors. [(1998) 4 SCC 577], have commented adversely on the practice of forum-shopping.  In Chetak Constructions (supra), the Hon’ble Supreme Court has specifically observed as follows :

“We certainly, cannot approve of any attempt on the part of any litigant to go “forum-shopping”.   A litigant cannot be permitted “choice” of the “forum” and every attempt at “forum-shopping” must be crushed with a heavy hand.”

10.       In view of the above facts and respectfully following our own judgment as also the Hon’ble Supreme Court, we are unable to uphold the order of the State Commission and, therefore, set aside the order of the State Commission.  First Appeal No. 367 of 2008 filed by the Opposite Party is allowed and First Appeal No. 369 of 2008 filed by the Complainant stands dismissed.