BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU (ADDL. BENCH)

DATED THIS THE 8^th DAY OF MAY 2023

PRESENT

MR. RAVISHANKAR                        : JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI :          MEMBER

APPEAL NO. 1542/2014

V/s

O R D E R

BY SMT. SUNITA .C.BAGEWADI, MEMBER

This appeal is filed by the appellants/Opposite parties being aggrieved by the Order dated 22.03.2014 passed in CC.No.66/2012 on the file of District Consumer Disputes Redressal Commission, Uttar Kannada at Karwar and prays to set-aside the order and to allow the appeal in the interest of justice and equity.

2.     The brief facts of the case are as under:

        That the complainant had established an ice manufacturing plant for his self employment to earn his livelihood and he had obtained electricity connection bearing meter no.CHMP-7 on 28.11.1996 under type Rt-5.  Since he had suffered heavy loss he could not pay the electricity bill within time and as such he was due in a sum of Rs.2,18,777/- as on 04.01.2002.  This bill is inclusive of the consumption charges, fixed charges and arrears.  He could not pay the said amount because of financial crisis.  Therefore the OP has disconnected the electricity connection on 12.01.2002 and thereafter it was not reconnected.  The OP has adjusted security deposit of Rs.1,02,774/- as against the outstanding dues.  The balance amount payable by the complainant was Rs.1,15,503/-.  But the OP has issued a demand notice dated: 29/08/2011 claiming a sum of Rs. 4,22,257/-.  Further, on enquiry the OP has issued calculation sheet showing the outstanding dues as Rs.4,80,117/-.  The complainant however in order to avoid disconnection of electricity supply to his residential house, paid the amount under protest.  Thereafter he requested the OP several times to refund the excess amount paid by him under Sec.62(6) of the Indian Electricity Act 2003 as he was liable to pay only Rs.1,15,503/-.  But the OP has not refunded the excess amount.  Hence the complainant for the above relief’s on the allegations of deficiency in service. But he has not paid the disputed bill of Rs.1,73,105/- w.e.f. 28.11.1996 to 16.01.1997 and the month of May 1997 to July 1997 inclusive of Audit Short Claim. 

3.  The consumption charges of Rs.46,740/- for 9600 units till the date of disconnection were not paid by the complainant.  The consumption charges Rs.52,270/- for the month of December 2000 was also not paid by him.  The cheque issued by him was bounced.  He has also not paid the fixed charges and line minimum charges from the date of disconnection.  Thus after deducting the deposited amount of Rs.1,02,774/- he was due in a sum of Rs.1,00,320/- and the above said disputed amount of Rs.1,73,105/-.  The interest for the non paid disputed amount from 12/1998 to 10/2002 was worked out at Rs.1,46,582/-.  Hence a demand notice was issued to him claiming Rs. 4,20,007/-.  Since he had not paid the said amount the Op has issued letter in form no. B dated: 8/1/2004 for Rs.4,80,117/- inclusive of 5% penalty interest of Rs. 21,300/- and recovery fee of Rs.50/-.  There is no deficiency in service on the part of the OP.

4. Being aggrieved by the said order, the appellants/Opposite Parties have preferred this appeal on various grounds.

5.     After service of notice, the OP appeared through his counsel and filed return version and admitted that he had supplied the Electricity connection to the complainants Ice Manufacturing Plant and the complainant had paid regularly monthly bill up to 31.12.2001 and contended that the dispute payment he had not paid Rs.1,73,105/- w.e.f 28.11.1996 to 16.01.1997 and the month of May 1997 to July 1997 inclusive of audited short claim.  Further, contended that the consumption charges of Rs.46,740/- for 9,600 units till the date of disconnection were not paid by the complainant.  A consumption charges of Rs.52,270/- for the month of December 2000 was also not paid by the complainant.   Further, the cheque issued by him was bounced and he has also not paid the fixed charges and line minimum charges from the date of connection.   Hence, after deducting the deposited amount of Rs.1,02,774/- he has due sum of Rs.1,03,200 and above said disputed amount of Rs.1,73,105/-.  Further, the interest of non paid deposited amount from 12/1998 to 10/2002 was worth out Rs1,46,583/-.  Hence, a demand notice was issued to the complainant claiming Rs.4,20,007/-.  Since, the complainant had not paid the said amount the OP has issued a letter No.B dated 8.01.2004 for Rs.4,80,117/- inclusively 5% penalty interest of Rs.21,300/- and recovery fee of Rs.50/-.  Hence, there is no deficiency in service on the part of the OP and prays for dismissal of the complaint.

6.     After trial the District Commission had allowed the complaint in part.

 7.     Heard arguments from both sides.

 8.     Perused the Appeal Memo order passed by the District Commission, we noticed that it is not in dispute that the Respondent as availed Electricity connection from the  appellant for an Ice Manufacturing Plant and he has paid monthly bill regularly up to 31.12.2001.  It is also not in dispute that since he had suffered loss he could not pay Electricity bill well within time and there were due of Rs.2,18,277/- as on 04.01.2002.  It is not in dispute that due to pending bill, appellant has disconnected the Electricity connection dated 12.01.2002 and thereafter, it was not reconnected.  It is also not in dispute that appellant has adjusted security deposit of Rs.1,02,744/- as against the outstanding bill dues and balance was payable by the Respondent which Rs.1,15,503/-

9.      Perused the appeal memo, the appellant has raised the issue that the District Commission has failed to  note that the respondent is not a consumer within the definition of Sec.2(1)(d) of CP Act 1986.  Since, the Respondent has taken electricity connection for commercial purpose for running Ice Manufacturing Plant.  Therefore, complaint is not maintainable.

10.    Now, the point for our consideration before us that whether the District consumer Commission has a jurisdiction to entertain the complaint filed by the Respondent under CP Act?  On the above issue, we have perused the citation produced by the Appellant in which Hon’ble National Commission in judgment dated 13.07.2015-2016(NCJ)82(NC) Chandrakanth Annarao Dhabale v/s Deputy Executive Engineer MGVCL Koyali, Baroda in Revision Petition No.2332/2014 held that “Since, electricity which takes by Petitioner from Electricity Department is eventually used for commercial purpose, though no profit taken does not come within a term “Consumer” and complaint under CP Act is not maintainable.”  As per CP Act consumer means;

As per the Consumer Protection Act, 2019, the definition of ‘Consumer’ in Sec.2 (7) reads as under;

“CONSUMER” means any person who–

1. 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 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 obtains such goods for resale or for any commercial purpose; or

2. hires or avails of any service 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 service 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 service for any commercial purpose.

1. The expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

2. The expressions “buys any goods” and “hires or avails any services” includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.

11.    In present case the Respondent has obtained Electricity from appellant to run the Ice Manufacturing Plant with connected load of 98hpt+620 watt which was serviced on 29.11.1996 bearing  Meter No.HR.No.CHRP-7 with ECR/1500503/3*5 AMPS.   The Ice manufacturing plant run by the Respondent with Electricity taken that the appellant company is not being used for domestic purpose it is being used for industrial purpose means commercial purpose and CP Act clearly bars the activity for commercial purpose.  Even if the Respondent was not making any profit by Ice Manufacturing Plant, the service availed by Respondent shall be a service availed for a commercial purpose.   The Complainant/Respondent stated that he had availed service from appellant for his livelihood.  But, mere statement is not sufficient to prove that the Respondent has running the Ice Manufacturing Plant for his livelihood without relevant documents.  Hence, complaint filed by the Respondent in the District Commission do not fall under the definition of consumer as defined under CP Act.  Hence, considering the facts and discussion made here, we are of the opinion that the order passed by the District Consumer Commission is not just in proper and liable to be set aside. Accordingly, we proceed to pass the following:-

O R D E R

The appeal is allowed. The impugned Order passed by the District Commission is set aside.

Consequently, CC.No.66/2012 is dismissed with liberty to approach appropriate authority.

The amount in deposit shall be transmitted to the concerned District Consumer Commission to pay the same to the Appellant.

Send a copy of this order to both parties as well as concerned District Consumer Commission.

       sd/-                                                          sd/-

MEMBER                                  JUDICIAL MEMBER

SP*