Haryana

Karnal

CC/453/2019

Rakesh Kumar - Complainant(s)

Versus

Sub Divisional Officer (OP) Sub Division, Uttar Haryana Bijli Vitran Nigam Limited - Opp.Party(s)

Jatin Jain

12 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                          Complaint No.453 of 2019

                                                        Date of instt. 22.07.2019

                                                        Date of decision 12.10.2021

 

Rakesh Kumar son of Shri Mam Raj, resident of 790/10, Chand Sarai Mangal Colony, near Shiv Mandir, Karnal.

 

…….Complainant

Versus

 

Sub Divisional Officer (OP), Sub Division, Uttar Haryana Bijli Vitran Nigam Ltd., 7-12, Model Town City Karnal.

 

         …..Opposite Party.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              

 Argued by:Shri Satish Kamboj, counsel for complainant.

                   Shri Manoj, Kumar, counsel for opposite party.

 

                (Jaswant Singh President)

ORDER:                    

 

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the Opposite Party (hereinafter referred to as ‘OP’) on the averments that the complainant for his livelihood has installed an Atta Chakki at Jundla Gate Karnal. The complainant has no other source of income except this Atta Chakki. The complainant is holder of electricity connection bearing account no.5274120000 installed at his premises. The complainant is paying the electricity bill regularly since the date of inception of the connection, nothing is due towards the complainant. In the month of June, 2019 complainant received a bill for the period 30.04.2019 to 31.05.2019, vide which OP raised a demand of Rs.1,21,628/- wherein the current cycle charges were shown as Rs.16414.70/- and a sum of Rs.1,05,213/- has been added in the bill under the head of “sundry charge/allowances.” After the receipt of the said bill, complainant approached the OP to enquire about the such amount, but officials of the OP refused to explain as to why huge amount has been claimed in the said bill. Complainant also requested the OP to accept the current consumption charges i.e. Rs.16414/- but OP refused to accept the same and threatened that in case complainant failed to deposit the said amount, the electricity supply will be disconnected. Thereafter, complainant approached the SDO concern and requested to withdraw the said amount. On the request of complainant SDO made an endorsement to accept the part payment of said illegal amount. Since the OP had threatened the complainant for disconnection of the electricity supply, therefore, complainant deposited a sum of Rs.35,000/- i.e. Rs. 16415/- towards current cycle charges and Rs.18585/- were adjusted towards the said amount raised under the head of “sundry charges.”

2.             Further, OP claimed a sum of Rs.87918/- in the bill for the month of July, 2019 i.e. for the period 31.05.2019 to 30.06.2019 under the head “surcharge”. The aforesaid demand of Rs.1,05,213/- under the head of “sundry charges/allowances/ surcharge” is totally illegal and unauthorized and OP had no right to recover the said amount. While imposing an amount of Rs.1,05,213/- upon the complainant without any reason, OP has committed deficiency in service and have adopted unfair trade practice. Hence, complainant filed the present complaint.

3.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action; jurisdiction as the matter in controversy is regarding the commercial category connection and concealment of true and material facts. On merits, it is pleaded that in the connection like connection of complainant, the UHBVN used to charge fix charges at the rate of Rs.160/- per KW and connection of the complainant is having 49 KW load. Said charges were being charged from complainant and complainant used to pay the same to the OP but OP due to some oversight on the part of its official could not charge said fix charges from the complainant from 26.10.2015 to 28.02.2017. This mistake was pointed by the Internet Audit party on 13.05.2019, while checking the account of complainant and after auditing the account it has been observed that an amount of Rs.105213/- and according the amount in question has been claimed from the complainant which is quite legal and valid. It is further pleaded that since the complainant has not been paying the huge amount of the Nigam and as such the Nigam has been rightly and legally charging the surcharge on the amount due towards complainant. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A, bill dated 24.05.2019 Ex.CW1, receipt dated 23.05.2019 Ex.CW2, bill dated 10.06.2019 Ex.CW3, receipt dated 10.06.2019 Ex.CW4, bill dated 19.07.2019 Ex.CW5, checking report Ex.CW6 and closed the evidence on 26.11.2019 by suffering separate statement.

6.             On the other hand, OP tendered into evidence affidavit of Sandeep Kumar SDO Ex.OP1/A, Internal Audit Report half margin Ex.OP1, detail of account no.5274120000 Ex.OP2 and closed the evidence on 31.08.2021 by suffering separate statement.

7.             We have heard ld. counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant is running an Atta Chakki for his livelihood and an electricity connection was installed in it and complainant is paying electricity charges regularly. OP has issued a bill for the period from 30.04.2019 to 31.05.2019, vide which OP raised a demand of Rs.1,21,628/- wherein the current cycle charges were shown as Rs.16414.70/- and a sum of Rs.1,05,213/- has been added in the bill under the head of “sundry charge/allowances”. After receiving the bill, complainant approached the OP and requested the OP to accept the current consumption charges i.e. Rs.16414/- but OP refused to accept the same. On the request of complainant, SDO made an endorsement to accept the part payment of said illegal amount. Then complainant deposited a sum of Rs.35,000/- i.e. Rs. 16415/- towards current cycle charges and Rs.18585/- were adjusted towards the said amount raised under the head of “sundry charges.”  He further argued that OP illegally claimed a sum of Rs.87918/- in the bill for the month of July, 2019 i.e. for the period 31.05.2019 to 30.06.2019 under the head “surcharge”.  Learned counsel for complainant further argued that the alleged amount claimed by the OP for the period from 26.10.2015 to 28.02.2017 and as per Section 56(2) of the Electricity Act, 2003, the alleged demand of Rs.1,05,213/- under the head of “sundry charges/allowances/ surcharge” is beyond the period of two years and not binding upon the complainant. Hence, prayed for allowing the complaint.

9.             Per contra, learned counsel for OP, while reiterating the contents of the written version, has vehemently argued that the connection of the complainant is having 49 KW load. OP has charged the fix charges at the rate of Rs.160/- per KW, but OP due to some oversight on the part of its official could not charge said fix charges from the complainant from 26.10.2015 to 28.02.2017. This mistake was pointed by the Internet Audit party on 13.05.2019 while checking the account of complainant and after auditing the account, an amount of Rs.105213/-  has been claimed from the complainant which is quite legal and valid. Learned counsel for OP further argued that complainant used the aforesaid connection for commercial purpose and prayed for dismissal of complaint.

10.           The first question for consideration has arisen before us is that whether the complainant falls under the definition of consumer or not?

11.             The word ‘consumer’ has been defined under Section     2 (7) of Consumer Protection Act, 2019 is reproduced as under:-

(7) "consumer" means any person who— (i) 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

(ii) 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.

Explanation;- For the purpose of this clause, ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning livelihood by means of self employment.

12.           In support of his version regarding complainant used the Atta Chakki for his livelihood placed reliance upon in case titled as Nakoda Machinery Pvt. Ltd. Versus John Crasta & Anr. in Revision Petition no.3517 of 2016, decided on 21.09.2021 and M/s Renuka Poultry Farm Versus M/s State Bank of India in revision petition no.750 of 2020 decided on 12.10.2020.  The said case laws are fully applicable to the facts of the present case.

13.           The complainant has specifically mentioned in his complaint that he has installed the Atta Chakki for earning his livelihood and he has no other source of income. This version of the complainant has not been rebutted by the OP by leading any evidence. Hence, this plea taken by the OP is having no force.

14.           Keeping in view the ratio of the judgment, facts and circumstances of the present complaint, we are of the considered view that the work of complainant is not fall under the definition of commercial purpose.

15.           Admittedly, the complainant was having an electricity connection in his Atta Chakki and some amount was outstanding towards the complainant of that account. It is also an admitted fact that the amount which was outstanding towards the complainant on account of electricity connection of Atta Chakki, could not be paid by him.

16.           Complainant has produced the electricity bills dated 24.05.2019 Ex.CW1, bill dated 10.06.2019 Ex.CW3 and bill dated 19.07.2019 Ex.CW5. After perusal of the electricity bills  found that OP first time demanded sum of Rs.105213/- as arrears vide bill dated June/2019. The said amounts relates to the year 26.10.2015 to 28.02.2017.

17.           For the first time, in the electricity bill dated June/2019 the amount of Rs.105213/- has been shown as arrear. This amount related to the year of 26.10.2015 to 28.02.2017 and this amount has been demanded by the OP from the complainant for the first time in June/2019, vide bill Ex.CW3.  As per section 56(2) of Electricity Act, 2003 no sum due from any consumer under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity. Section 56 (2) of the Electricity Act, 2003, wherein it has been mentioned as under:

 

Notwithstanding anything contained in any other law for the time being in force, no sum  due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became  first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the license shall not cut off the supply of the electricity.”

18.           The similar view has been taken by the Hon’ble High Court in case titled as Uttar Haryana Bijli Vitran Nigam Limited and others Vs. Permanent Lok Adalat and another in CWP-6219-2019 (O&M), date of decision 08.03.2019.

19.            Thus, in view of Section 56(2) of the Electricity Act, 2003, the demand of Rs.105213/- raised by the OP from the complainant for the first time in June/2019 is not justified.

20            Further, OP has taken a plea that due to some oversight on the part of its official could not charge said fix charges from the complainant. If any wrong act done by its official, complainant cannot be blamed. Hence, this plea taken by the OP has no force. Thus, the act of the OP for demanding of the arrear to the sum of Rs.105213/- amounts to deficiency in service.

21.           In view of above discussion, we allow the present complaint and direct the OPs not to charge Rs.105213/- and any surcharge accrued thereupon from the complainant. In case any amount out of demanded amount is deposited by the complainant, same may also be refunded or adjusted in the account of the complainant. We further direct the OP to pay Rs.15000/- to the complainant on account of mental agony and harassment suffered by him and for litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:12.10.2021                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

(Vineet Kaushik)          

                     Member