Date   : 13.12.2012.

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

1.       This appeal is filed by the Assistant Engineer, M.S.E.D.C.Ltd., Majalgaon, Dist.Beed who was original opponent, challenging the judgment and order dated 17.3.2007 passed by Dist.Forum, Beed in C.C.No.03/05.  The respondent was the original complainant (herein after referred as “complainant”).

2.       Respondent/Org.Complainant`s case before the Forum below in a nutshell is that he being an educated unemployed person with the intention to start his own business to earn livelihood for his family, he purchased “pulses mill” from it`s earlier owner namely Shri.Gokulchand Parasram Navander.  That, earlier this mill was under permanent disconnection of electric supply and hence he obtained new connection on 16.9.2003 by clearing earlier outstanding dues of Rs.45,000/- on 7.8.2003 and also on payment of security deposit of Rs.1 lakh on 16.8.2003. That, he was given consumer number as IP 5831 and meter number 158800.  It was contended by complainant that till December 2003 due to non-availability of raw-material, he could produce only 500 quintals of pulses.  However as meter No.158800 was faulty he was given exorbitant and incorrect bill of Rs.2,35,540/- on 20.01.2004 showing unit consumption as 64485 for the period of one month from 30.11.2003 to 30.12.2003.  Therefore, he had filed complaint about the said bill on 8.1.2004 with  the appellant company.  Accordingly, the meter bearing No.158800 was replaced by new meter bearing No.50231.  However instead of issuing further bills as per meter reading the appellant continued to issue wrong and excessive bill.  That, on non-deposition of those incorrect and excess bills, the electricity supply was disconnected on 21.4.2004.  However so as to start the mill he deposited Rs.60,000/- against the said bill under protest and accordingly his electric supply was restored.

3.       It was further contended by complainant that inspite of his request for issuing correct bill, no steps were taken by appellant and continued to issue incorrect bill and also demanded illegally Rs.14,000/- towards new meter though he had already paid cost of first meter.  That, he paid Rs.5,000/- each on 10.5.2004, 28.6.2004 and 26.8.2004 i.e. total Rs.15,000/- towards incorrect bills as there was a threat of disconnection of supply of electricity from the appellant.  It was also contended by the complainant that meter No.50231 though was working properly was again replaced by new meter 158787, which was found to be faulty.  That, on the basis of said faulty meter another incorrect and exorbitant amount of bill of Rs.3,36,540/- was issued on 8.11.2004 and when he had been to the appellant on 30.12.2004 to file complaint about the said bill, he was threatened to disconnect his electric supply. Thus cause of action occurred on 30.12.2004 and he filed complaint before Dist.Forum seeking direction to cancel electric bill issued on 8.11.2004 and on earlier dates and to issue corrected bill after deducting amount paid earlier.  It was also sought to supply him proper meter and not to disconnect his supply and also to pay him Rs.50,000/- as compensation.

4.       Appellant appeared before the Forum and resisted the claim vide written version dated 31.8.2004. It was contended by appellant that bill dated 20.01.2004 for Rs.2,35,540/- was for the period of 4 months from Sept.2003 to December 2003 and not for one month and hence same was for actual consumption of unit of 64485.  It was further contended that till April 2004 the bill of Rs.3,28,775/- was outstanding to the complainant against which he had paid only Rs.75,000/-.  It was also averred that meter No.50230 was changed as there was doubt of showing less reading than actual consumption and hence new meter No.158787 was installed. The said meter was not faulty as alleged. He further contended that complainant had tampered seal of meter No.158787 for which he was penalized for Rs.2000/-.  That, the bill dated 8.11.2004 for Rs.3,36,540/- was also issued as per consumption including arrears.  He thus contended that complaint being false be dismissed with cost.

5.       District Forum after going through the record and hearing the parties partly allowed the complaint.  By way of it`s impugned judgment and order the Dist.Forum below has cancelled the electric bills dated 20.01.2004 also 08.11.2004 and directed the appellant to install well conditioned meter.  It was also directed to pay compensation of Rs.40,000/- towards damages and Rs.3000/- towards cost of complaint with interest @ 7% p.a. within a period of one month.

6.       Aggrieved by the said impugned judgment and order present appeal came to be filed in this Commission by original opponent.

7.       The appeal was finally heard on 16.10.2012 and further  on 2.11.2012.  On 16.10.2012 Adv.Shri.S.N.Tandale was present for appellant but none was present for respondent. Hence Adv.Shri.S.N.Tandale was heard and appeal was fixed for judgment on 2.11.2012. However, during the pendancy of judgment it was brought to the notice by Adv.Bhavthankar for respondent that appeal was shown to be posted for  final hearing on 16.12.2012 as per board displayed on internet and hence he could not remain present on 16.10.2012 and requested for giving him opportunity of hearing. Accordingly, with the consent of appellant`s advocate Adv.Shri.S.N.Tandale, the request of Adv.Shri.Bhavthankar for respondent was granted and he was heard on 2.11.2012 and appeal was reserved for judgment.

8.       Adv.Shri.S.N.Tandale submitted that the complainant is not a consumer as “pulse mill” for which he has obtained electric connection is being run for commercial purpose. It was further argued that bills dated 20.01.2004 and 08.01.2004 have been correctly issued. However, since complainant did not clear these bills the arrears  accumulated due to interest and other charges on delayed payment, which is a fault on the part of complainant.  However, Dist.Forum failed to consider defence as taken by the appellant and wrongly passed the impugned judgment and order which be quashed and set aside.

9.       On the other hand, Adv.Shri.Bhavthankar for the respondent submitted that the new connection was given to the complainant by allotting meter bearing No.158800 which was faulty and on the basis of said faulty meter the bill dated 20.01.2004 of incorrect and exorbitant amount of Rs.2,35,240/- showing unit consumption as 64485 was issued to the complainant.  That, although subsequently this meter was replaced by new meter the said defective bill dated 20.01.2004 was not corrected and appellant continued to issue incorrect and excessive bill which is evident from the bill dated 8.11.2004 for amount of Rs.3,36,540/-. The learned counsel Shri.Bhavthankar therefore contended that Dist.Forum has rightly passed the impugned judgment and order which be confirmed.

10.     We have perused material documents placed before us as well as oral submissions as advanced by both the counsels. At the very outset, we find it necessary to consider and decide the point as to whether complainant falls within the purview of definition of consumer as defined U/s 2(1)(d)(ii) of ‘Consumer Protection Act’.  It is an admitted fact that electric supply is obtained by complainant from appellant for the “pulses mill” which is an industry.  The complainant in his complaint although has made pleading that he had purchased said pulses mill in order to earn livelihood for himself and his family but is silent on the point that whether industry is being run through self-employment.

11.     The plain reading of the explanation given U/s 2(1)(d)(ii) of the ‘Consumer Protection Act’, a person buying goods and availing services for “commercial purpose” can also be a consumer provided the said commercial activity is for “earning his livelihood” by means of “self-employment”.  In the present case as mentioned above though the complainant has claimed that services availed from appellant for the said industry are for earning his livelihood, it has not been pleaded nor proved by the complainant that the said industry is being run through self-employment. Hence complainant cannot be covered under the said explanation and result is he cannot be treated as consumer as defined U/s 2(1)(d)(ii) of ‘Consumer Protection Act’.  Therefore his complaint is not tenable under ‘Consumer Protection Act’.  However, Dist.Forum though has given finding that the complainant is consumer of appellant it has not touched the above said aspects and thus erred in considering the complainant as consumer.  It is also to be noted that though this point was not raised by the appellant before the Forum below, however the same being  the statutory provision, unless the status of the complainant is decided as consumer, the District Forum below should not have entertained the complaint.

12.     This bench of Maharashtra State Commission, Mumbai has also taken the same view earlier in appeal No.703/07 decided on 7.5.2012 in M.S.E.D.Co.Ltd. –Vs- Syed Ayas Syed Nizamuddin.  We also rely on similar case pertaining to “Sumo Steel Pvt.Ltd. –Vs- Uttaranchal Power Ltd. reported in 2003(III) CPJ 139, 2004(I) CLT 405 Uttachanchal State Commission, in which it was held by State Commission, Uttaranchal that, complainant had availed services of opponent for commercial purpose and therefore  complaint should not lie before the District Forum. The impugned judgment and order as passed by the Forum below is thus bad in law.

13.     In view of aforesaid facts and observations we are therefore left with no option but  to quash and set aside the impugned judgment and order without going into merit of the case. In the result, we pass the following order.

                                                O   R    D    E    R

1.     Appeal is allowed. 

2.     The 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 judgment be issued to both the parties.

Pronounced on 13.12.2012