ORDER
(Per: Mrs. Veena Sharma, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by the appellants-opposite parties against the order dated 14.03.2011 passed by the District Forum, Haridwar in consumer complaint No. 289 of 2010, thereby the District Forum has allowed the consumer complaint and has directed the opposite parties-Electricity Department to recover the amount of electricity which consumed in the period of one year according to the Electricity Act, as admitted by the counsel for the Electricity Department.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that Shree Neelkanth Sewa Trust-complainant No. 1 is a public charitable trust having its office at New Delhi and Sh. Om Prakash Gupta-complainant No. 2 is the trustee and General Secretary of complainant No. 1. The property of the complainant No. 1 is Dharamshala (lodge) named Neelkanth Dham is situated at Haridwar. The said Dharamshala has not been running for commercial purpose. The opposite party No. 1-U.P.C.L. is a licensee to supply the electricity to Dharamshala of Shree Neelkanth Sewa Trust and the opposite party No. 2 is an Executive Engineer of opposite party No. 1. Shree Neelkanth Sewa Trust has taken an electricity connection No. 698/101/053297 of 40 kw from the opposite party No. 1 and paid all the electricity bills to the opposite party No. 1. In the year 2008 the Electricity Department installed a new meter in the Dharamshala of Shree Neelkanth Trust with connection No. CINO121012B121000000000003781 and all the bills of electricity sent by the opposite party No. 1 were paid by Shree Neelkanth Trust. In the month of August, 2009, the officials of Electricity Department again installed another meter in the premises of said Dharamshala. No intimation was given to the complainants before installation of this meter. On 10.11.2009, the officials of Electricity Department took away the meter from the premises of Dharamshala. Later on the Electricity Department had sent electricity bills for the month of November, 2009; December, 2009; January, 2010; February, 2010; March, 2010 and April, 2010 to the complainants, which were paid by the complainants time to time. In the month of May, 2010, the Electricity Department had sent a bill of electricity consumption alongwith a bill of Rs. 3,84,943/-. The complainants received this bill in the month of June, 2010. After receiving the said bill, the local officials of the complainants had visited in the office of Electricity Department to know about the said demand of Rs. 3,84,943/-. They were told that this amount of arrear is demanded due to slow readings of old electricity meter, which was installed in the premises of Dharamshala. The local officials of the complainants requested the opposite parties that they have not tempered the said meter and also requested to supply the statement about the demanded amount of electricity consumption. The opposite parties apprised that the estimated demand was an arrear of consumption of electricity between 01.01.2008 to 10.11.2009. The officials of the complainants requested to deposit the electricity bill besides the amount of Rs. 3,84,943/-, but it was refused by the opposite parties and also threatened to disconnect the electricity connection, in case the said amount is not deposited. The complainants have pleaded that the meter installed in the Dharamshala was intact and it was tested in lab, there is no tempering in the meter by the complainants. In case the meter was slow, according to the opposite parties, even then no estimation can be done for the period of more than one year. Demanding any arrear from 01.01.2008 comes in the deficiency of service on the part of the opposite parties. The opposite parties are not entitled to get Rs. 3,84,943/- from the complainants. The complainants are ready and willing to pay the bills of electricity on the basis of meter reading. The cause of action of the consumer complaint arose in the month of June, 2010, when the complainants received an electricity bill for the month of May, 2010 and again on the date when the local officials of the complainants visited in the office of opposite parties and requested to reconsider and review the electricity bills sent by the opposite parties. Thus, there is deficiency in service on the part of the Electricity Department, therefore, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The opposite parties have filed written statement before the District Forum, Haridwar and pleaded that Shree Neelkanth Sewa Trust is a charitable trust, even then only V.I.Ps and special persons are allowed to stay in their Dharamshala and general public is not allowed to enter. This Dharamshala is not used for public purpose. A 40kw electricity connection is sanctioned in the said Dharamshala, but during checking by check meter it was found that the old meter of electricity connection was running slow, therefore, from the date of installation of the meter till the date of consumption, a demand notice was sent to the complainants, which is within Rules and Regulations of the Electricity Department. It is wrong to say that the bill of arrear amount cannot be sent for a period of more than one year. This rule is only effective where the duration of consumption is not certain. This bill of arrear was sent to the complainant for a period when the meter was installed up to last consumption of electricity. The complainants were informed about this arrear, who were ready to deposit the same, but after some legal advice the complainants did not deposit the amount of arrear and filed a consumer complaint. The opposite parties have never threatened to the complainants about disconnection of the electricity connection from the premises of the Dharamshala. To demand an arrear from the complainants does not come within the purview of the deficiency of service. This is not a consumer dispute because the Electricity Department has only demanded arrears and no penalty has been imposed alongwith electricity bills. The tariff plan for Dharamshala and charitable institution and hospitals has been fixed by the Electricity Department.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 14.03.2011. Aggrieved by the said order, the opposite parties have filed the present appeal.
5. We have heard learned counsel for the parties and have also perused the record.
6. Learned counsel for the appellants has submitted that the District Forum has failed to appreciate that the respondents were not a consumer within the meaning of Section 2(d)(ii) of the Consumer Protection Act, 1986, as was using electricity for the Trust and earning profits. The respondents have hired the services from the appellants for commercial purposes and at commercial tariff. They were having a load of 70 kw. which cannot be used by the respondents merely for earning their livelihood by self-employment. Learned counsel argued that there was no material before the District Forum to prove that the respondents were not using the electricity or did not hire the services for commercial purpose. It is having 70 kw. load and it cannot be for earning livelihood by self-employment. The respondents are entertaining tourists on payment and providing all the facilities and are earning money. The respondents did not file any evidence to controvert this fact. Learned counsel also argued that the District Forum has failed to appreciate that the remedy under the electricity laws is provided under the Electricity Act, 2003 itself and Regulation made by the Regulatory Commission, which are statutory. The Electricity Act and the Regulations made by the Uttaranchal Regulatory Commission is in itself is complete code, and the remedy is provided under Section 42(5) of the Act. The remedy under the Consumer Protection Act is merely an additional remedy and is not in derogation of the Electricity Act, 2003. The District Forum has failed to appreciate that the slowness of the meter and preparation of the assessment bill is not a consumer dispute, nor there is any deficiency in service on the part of the appellants. If there is any grievance, the consumer can have it redressed before the CGRF. The appellants are under obligation to keep the meter correct and to check the functioning of the meter, check meter is installed, it may be upon any doubt or in a routine way. The period from which the meter became slow, is determined by comparing to the reading of the check meter and the old meter and its period. The check meter was installed by the order of the G.M. as mentioned in the Sealing Certificate dated 24.08.2009 in addition to the existing meter in the presence of the representative of the respondents. The sealing certificate bears signatures. The District Forum has not appreciated that the old meter is slow the bill for uncharged units was sent to the respondents and it was given 7 days’ notice to file the objections against the bill dated 08.05.2010, which was based on check meter report. The respondents did not file objections, nor filed complaint before the Consumer Grievance Redressal Forum, Dehradun against the said bill. Hence, the said bill became final and could not be challenged before the District Forum. The District Forum cannot act as appellate authority over the preparation of the bill.
7. On the other side, the learned counsel for the respondents has submitted that this is not unauthorized use of electricity and the appellants can only charge for the period of 12 months under Section 126(5) of the Electricity Act, 2003.
8. There is no dispute with regard to the fact that Shree Neelkanth Sewa Trust was sanctioned an electricity connection of 40kw. by the appellants-UPCL, which was later on upgraded up to 70kw. There is also no dispute that the respondents were paying the electricity bills regularly. The only dispute between the parties is that the bill sent by the appellants to the respondents on the basis of check meter is correct or not.
9. Section 2(d)(ii) of the Consumer Protection Act, 1986, which reads as under:-
(d) "consumer" means any person who—
(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 purposes;
10. The respondent No. 1, which is also known as Neelkanth Dham and is having huge premises which is being used for stay of certain persons on large scale. This premises is having an electricity connection of 70 kw. This fact speaks for themselves that Shree Neelkanth Sewa Trust is not used for livelihood by self-employment, rather services of UPCL are hired and availed for commercial purpose at commercial tariff. The electricity connection sanctioned by UPCL in favour of respondents is not for domestic use of electricity. Therefore, the respondents do not come within the definition of ‘consumer’ under Section 2(d)(ii) of the Consumer Protection Act, 1986. The electricity connection of 70kw. is used for commercial purposes. The principle of res ipsa loquitor, i.e. the fact speaks for itself, is applicable in this case. So far the assessment is concerned, Section 126(5) of Electricity Act speaks that if the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if, however, the period during which such unauthorized use of electricity has taken place cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection.
11. In the present case, the Electricity Department-appellants had installed a check meter on 01.01.2008 in the premises of Neelkanth Dham-respondent No. 1, therefore, the period of unauthorized use of electricity is certain, i.e. from 01.01.2008 to 10.11.2009 when the check meter was removed from the premises and a notice of demand was sent by UPCL to the respondents, which was the difference of readings in the old meter and the check meter. As the period for unauthorized use of electricity or due to the slowness of the meter is certain, therefore, according to the provisions of Section 126(5) of Electricity Act, 2003 “if the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place”. A notice sent by the Electricity Department to the respondents for arrear of Rs. 3,84,943/- was never challenged by the respondents in the office of Executive Engineer, UPCL within 7 days’ of time as mentioned in the demand notice. The respondents have also not challenged the said notice of arrear on the basis of readings in check meter in any Appellate Authority. The respondents themselves have stated in the consumer complaint that if the version of appellants-opposite parties is correct, even than the appellants are entitled to recover the arrear for a period of one year only. The period for unauthorized use of electricity on the basis of slow meter is certain and, therefore, the appellants have demanded an arrear from the respondents-complainants for certain period, i.e. from 01.01.2008 to 10.11.2009.
12. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which cannot legally be sustained. Therefore, the impugned order passed by the District Forum is liable to be set aside and the consumer complaint is liable to be dismissed. Consequently the appeal is fit to be allowed.
13. For the reasons aforesaid, the appeal is allowed. The impugned judgment and order dated 14.03.2011 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 289 of 2010 is dismissed. No order as to costs.
