Punjab

StateCommission

A/11/1101

PSEB - Complainant(s)

Versus

Satnam Singh - Opp.Party(s)

Vishal Chaudhri

16 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No. 1101 of 2011

 

                                                Date of Institution:  18.07.2011.

                                                Date of Decision:           16.02.2015.

 

1.      Punjab State Power Corporation Limited (P.S.P.C.L) through its Managing Director, The Mall, Patiala.

2.      The S.D.O., P.S.P.C.L., Sub Division Sarhali Kalan, Division   Patti, District Tarn Taran.

                                                     …..Appellants/opposite parties

Versus

 

Satnam Singh S/o Gurdev Singh, proprietor of M/s Sokhi Ice Factory, Sarhali Kalan, District Tarn Taran.

                                                     ….Respondent/complainant

 

First Appeal against order dated 29.04.2011 passed by the District Consumer Disputes Redressal Forum, Tarn Taran.

Quorum:-

 

     Shri J. S. Klar, Presiding Judicial Member.

             Shri Vinod Kumar Gupta, Member.     

 

Present:-

 

     For the appellants       :     Sh. Vishal Chaudhri, Advocate

For the respondent      :     Sh. Updip Singh, Advocate.

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

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                           ORDER                                 

                    The appellants (opposite parties in the complaint) have directed this appeal against the respondent herein (complainant in the complaint) challenging the order dated 29.04.2011 passed by the District Consumer Disputes Redressal Forum Tarn Taran (in short, “the District Forum”), vide which, the complaint of the complainant was partly accepted.

2.           The complainant Satnam Singh has instituted this complaint under Section 12 of The Consumer Protection Act, 1986 (in short the "Act") against the opposite party/respondent on the allegations that he has an electricity connection in the name of M/s Sokhi Ice Factory at village Sarhali Kalan Tehsil and District Tarn Taran, which has been installed by the OP. The said factory is being run and operated by the complainant by his self employment with the assistance of his father. That electricity connection was released in March 2008, bearing account no.MS-44. In the above Ice Factory, the CT meter of 5.5. capacity was installed at the time of installation of it and the meter of the same capacity was to be installed, but rather a meter of 10.5 ratio was installed and the actual consumption was recorded by the OP by applying multiplier one instead of 0.50. It continued for a long time and ultimately on the request of complainant, the necessary correction was made therein in November 2009 by replacing the meter of appropriate capacity ibid. Earlier multiplier was applied 1.0, but on 11.02.2009, it was charged as 0.50 in a correct manner and complainant was, thus, forced to make payment of an excess amount of Rs.2,74,593/- towards consumption charges and Rs.28,472/- as electricity duty and total amount of Rs.3,03,065/-, as raised by the OP. It is a case of unfair trade practice and negligence on the part of the OP. The complainant is entitled to refund thereof. The electricity connection has been installed in the factory premises along with the transformer in a room specifically constructed for the purpose and meter has been installed along with CT meter in iron boxes and keys of said iron boxes remained in the custody of OP. The OP checked the above connection on 03.06.2010 with a team and meter was taken out from the iron box with intact seals. Without any laboratory test of the meter from the meter testing report of OP. A false spot report was prepared recording the consumption of 30.94% and in this regard notice, vide memo no.815 dated 02.07.2010 was issued to the complainant for making payment of alleged amount of Rs.2,24,204/- within 15 days period from the said date. The demand raised by the OP is null and void and is liable to be quashed. The report of recording less consumption has been prepared by simply stating that meter was installed at poll by the checking authority and the consumption has been recorded by the said meter, which was more than the consumption recorded in the meter in iron box at the Ice Factory of the complainant. The complainant, thus, prayed that OP be directed to refund the amount to the complainant along with interest @ 18% per annum, raised by notice dated 02.07.2010 and demand notice be quashed. The complainant further prayed for compensation of Rs.50,000/- and Rs.10,000/- as costs of litigation against the OP.
3.           Notice of this complaint was served upon the OP by the District Forum. OP appeared and contested the complaint of the complainant raising preliminary objections that complaint is not maintainable for non-joinder of necessary parties. That the deposited account is medium supply (M.S.) for running the Ice Factory, which is a commercial/industrial purpose and the jurisdiction of the Consumer Fora is barred. Notice under Section 126 of the Electricity Act was served upon the complainant, demanding the assessed amount as per Rules and Regulations by the OP. The meter of the complainant was checked on 03.06.2010 by Additional S.E. Enforcement-II Jalandhar along with Additional S.E., M.M.T.S. Batala, Additional S.E. (Operation) Patti and S.D.O. Sub Division Sarhali under the directions of higher authorities. It was found by the checking team that meter of the complainant was giving 30.94% less consumption, spot checking report was also prepared on the spot about it. The remedy of the complainant lies before the special court under Section 154(5) of Electricity Act 2003 only. On the basis of said checking report, a provisional assessment order was issued to the complainant, vide memo No.815 dated 02.07.2010 along with calculation sheet. The amount of Rs.2,24,204/- is required to be deposited by the complainant for less consumption charges in the above Ice Factory. The complaint was resisted on merits by the OP by pleading that complainant undertook to abide by all terms and conditions of supply as well as Electricity Act, as amended from time to time. The demand raised by the OP was asserted to be legal on account of less consumption of the electricity meter of the complainant, installed in his Ice Factory. The OP prayed for dismissal of the complaint of the complainant by controverting his averments.
4.           The complainant tendered in evidence his affidavit
   Ex.C-1 along with documents Ex.C-2 to C-29 and closed the evidence. In rebuttal of this evidence, the opposite party tendered in evidence affidavit of Satnam Singh A.S.E. Ex.RW-2/A, along with documents checking report Ex.R-1 and checking test report loading report Ex.R-2 and closed the evidence.  On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant partly by directing the OP to work out the consumption by applying correct formula from the installation of meter irrespective of the lesser capacity and to settle the claim of the complainant. It quashed the demand of Rs.2,24,024/- raised by the OP from complainant, vide memo no.815 dated 02.07.2010. Dissatisfied with the order of District Forum, the OP now appellants have preferred the instant appeal against the same.
5.           We have heard the learned counsel for the parties and have also examined the record of the case. The first contention of the appellants is that the complainant is a receiver of supply of electricity connection for running an Ice Factory, which is for commercial purpose, as such the complainant is not consumer under the Consumer Protection Act, 1986. On the other hand, the counsel for the respondent in this appeal submitted that the complainant is a consumer, as he carries on the work by self employment himself exclusively to earn his livelihood. The Consumer Protection Act, 1986 was amended in the year 2002 by Act 1962 of 2002 w.e.f 15.03.2003. The explanation appended to Section 2(d) of the Consumer Protection Act, sets out that commercial purpose does not include use by a person of goods bought and used by him service availed by him exclusively for the purpose of earning is livelihood by means of self employment. There is pleading of the complainant as well as his affidavit on the record that he carries on this Ice Factory without the help of employees by means of self employment exclusively for earning his livelihood. Consequently, in view of above referred explanation, we turn down the submission of the appellants that the complainant is not a consumer particularly when complainant has pleaded and so stated in his affidavit is Ex.C-1 on the record.
6.           Now, we proceed to adjudicate this appeal on the basis of its merits. The complainant tendered various bills Ex.C-2 to
   Ex.C-24 on the record. The contention of the complainant is that multiplier 1.00 was applied instead of multiplier 0.50 by the OP. The disputed demand notice was raised by the OP, vide memo no.815 dated 02.07.2010 along with calculation sheet. The complainant himself admitted that the necessary correction of the multiplier was made in November 2009 by replacing the meter of appropriate capacity in his above factory and this is admitted in para no.3 of the complaint by the complainant. Ex.C-25 is the application of complainant to the OP stating that the multiplier was corrected w.e.f. November 2009 and he has paid the assessed bill of that period. Ex.C-26 is the calculation about it. The affidavit of Sukhwinder Singh, S.D.O. RW1/A is on the record stating that the demand notice No.815 dated 02.07.2010 was served upon the complainant demanding assessed amount of charges from the complainant. He further stated that the Enforcement team checked the electricity connection of the complainant on 03.06.2010 and found that meter was giving 30.94% less consumption than actual consumption. Spot inspection report was also prepared about it and he stated that only special Court is competent to adjudicate this matter and not the Consumer Fora. Affidavit of  Satnam Singh, A.S.E. Ex.RW-2 is on the record to the effect that the meter was checked in the presence of the complainant by the checking team and due entry was made of this checking report, which is Ex.R-1. He further stated in this affidavit that he has seen the data download report dated 03.06.2010, which is signed by him. He further stated that complainant duly signed the spot checking memo Ex.R-2. As per the checking report Ex.R-1 prepared in the presence of complainant after checking accuracy of the meter, which is lab checking in field of the meter in question by the OP. On account of less consumption of the meter, the data on the basis of this report is Ex.R-2. The OP is certainly entitled to recover the charges as per the inaccuracy of the meter in recording the exact consumption of the units. The District Forum has not taken this fact into account, while deciding the complaint. We cannot ignore the report of the checking, whereupon, the demand notice in question was raised by the OP from the complainant. The forceful submission of the complainant is that the meter should have been checked in the M.E. Lab and hence, the demand is not sustainable. We are not impressed with it. It is checking of meter in field lab by the checking team, which was found recording less consumption than actual consumption.
7.           In view of our above discussions, we find that the order of the District Forum cannot be sustained in this appeal. The order of the District Forum under challenge in this case merits reversal. By accepting the appeal of the appellants, the order of the District Forum Tarn Taran dated 29.04.2011 is set aside and complaint filed by the complainant stands dismissed accordingly.
8.           Arguments in this appeal were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.        The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

February 16, 2015.                                                             

(MM)