Haryana

Karnal

CC/147/2019

Usha Rani - Complainant(s)

Versus

Superintendent Engineer, UHBVNL - Opp.Party(s)

S.D.Chaudhary

13 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.  147 of 2019

                                                          Date of instt.11.03.2019

                                                          Date of Decision 13.02.2020

 

Usha Rani wife of Shri Stish Kumar Sharma, resident of house no.602, Sector 4, housing Board, Karnal.

                                                 …….Complainant.

                                              Versus

 

Superintendent Engineer, UHBVNL, Sector-12, HUDA, Urban Estate, Karnal 132001.

                                                                        …..Opposite Party.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……President. 

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri S.D. Chaudhary Advocate for complainant.

                  Shri Amit Gupta Advocate for opposite party.

                                              

                   (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that the complainant owns a shop i.e. shop no.5, In Dayanand Colony, on the road joining sector 12 with Kunjpura Road. The complainant had already obtained the electricity connection in his shop. The shop was on rent with Shri Akash Deep, who vacated the shop in 2013, after civil litigation for vacation of the shop, thereafter the shop was lying vacant and remained closed under lock. The said tenant paid the electricity charges and deposited the amount of Rs.8000/- on 30.05.2011, Rs.13,0000/- on 29.10.2011, Rs.6500/- on 09.07.2012 and Rs.8000/- on 09.04.2013. After the year 2013, the shop remained closed and was never opened, nor the electricity was at all consumed by anybody, the complainant had already informed the OP through a written application, to disconnect the electricity meter temporarily, since she had to go abroad near her son. However, the electricity department in connivance with the said tenant, against whom the complainant had obtained vacation and recovery order, qua, shop, from the court of law. The OP did not disconnect the electricity connection intentionally. The OP also disconnect the meter without any notice or information to the complainant and issued bill of Rs.2,29,194/-. The complainant approached the OP for correction of the bill. The OP corrected the bill and after making correction and adjustment an amount of Rs.1,65,588/- were demanded by the OP. The demand of Rs.2,29,194/- or Rs.1,65,588/- after correction is wholly illegal, against rules and law, unwarranted, as in case the bill was not paid they should have disconnect the meter of the complainant. In this way there was deficiency in service on the part of the OP. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action and concealment of true and material facts. On merits, it is pleaded that the electricity connection in question is a non-domestic connection, which was installed at a shop owned by the complainant, that instead of occupying the said shop herself, the complainant has been giving the said shop on rent and earning income from the same. It is an established principle of law that a person holding a non-domestic supply connection, used for commercial purpose, is not a ‘consumer’ as defined in the Consumer Protection Act nor any dispute with regard to a non-domestic/commercial electricity connection, or a connection installed on a commercial establishment is covered under the definition of a ‘consumer dispute’ as defined in the Consumer Protection Act. It is further pleaded that the complainant, who is the owner of a shop situated at Daya Nand Colony, Karnal had obtained a NDS (Non Domestic Supply) electricity connection bearing account no.7965220000, having a sanctioned load of5KW. The complainant never occupied the shop in question herself and the same has been given on rent by the complainant. The complainant has been irregular in paying the electricity charges in respect of the electricity connection installed at the shop in question and after April, 2013 the complainant failed to deposit any amount towards payment of the electricity bill due in respect of the electricity connection. It would not be out of place to mention here that even if no business is being transacted from a particular property, the owner/consumer of the electricity connection installed at the said premises is required to pay electricity charges, at least on the minimum basis, as per rules of the Nigam. The complainant has falsely alleged that after she got the shop in question vacated from the tenant, she had applied for ‘temporary disconnection’ of the electricity connection installed at the shop in question. It would not be out of place to mention here that the connection in question is a NDS connection installed at a shop and the same cannot be ‘temporarily disconnected.’ Since no request for disconnection of the electricity connection was ever received with the OP, the electricity connection in question continued to be operational/active and regular bills in respect of the said connection were issued by the OP. Since the complainant failed to pay the amount due in respect of the electricity connection, after all adjustments, an amount of Rs.2,29,194/- (as on 31.12.2018) remained outstanding against the complainant. Since the amount due against the electricity connection was not paid by the complainant, the electricity connection was disconnected, however, in view of the order passed by this Forum, the electricity connection in question has been restored, after the deposit an amount of Rs.77,160/- against the amount due towards her. However, a huge amount continues to be outstanding against the complainant in respect of the electricity connection in question. It is further pleaded that an amount f Rs.1,65,588/- is the principal amount due against the electricity connection. However, after accounting for the surcharge etc. payable by the complainant on account of non payment of the electricity bill regularly, the total amount due against the electricity connection in question as on 31.12.2018, works out to be Rs.2,29,194/-. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Complainant tendered into evidence her affidavit Ex.CW1/A and documents Ex.C1 to Ex.C11 and closed the evidence on 13.09.2020.

4.             On the other hand, OP tendered into evidence affidavit of Rajiv Dhillon Ex.OP1/A and documents OP1 to Ex.OP34 and closed the evidence on 13.01.2020.

5.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             The case of the complainant in nutshell is that she is owner of shop no.5, Dayanand Colony, Kunjpura Road, Karnal. She had installed an electricity connection in the said shop. The said shop was on rent with one Shri Akashdeep, and got vacated the same in the year 2013. Thereafter, shop was lying vacant and remained closed under the lock and no electricity was at all consumed by anybody. Complainant moved an application for disconnecting the electricity connection as she has to go to abroad. When she returned, she found that the meter was removed by the OP without any notice and issued bills totaling amounting to Rs.2,29,194/-. Said bill is illegal against the rules and law and in this way, OP is deficient in service.

7.             On the other hand, the case of the OP in nutshell is that the complaint is not legally tenable under the provision of Consumer Protection Act. It is the case of the complainant herself that the electricity connection in question is a ‘non-domestic’ connection, which was installed at the shop owned by the complainant, that instead of occupying the said shop herself, the complainant has been renting out said shop to one Akashdeep. It is an established principle of law that a person holding a non-domestic supply connection, used for commercial purposes, is not a ‘consumer’ as defined in the Consumer Protection Act. Since no request for disconnection of the electricity connection installed at the premises of the complainant, was ever received with the OP, the electricity connection in question continued to be operational/active and regular bills in respect of the said connection were issued by the OP. Since, the complainant failed to pay the electricity bills, after all adjustments, an amount of Rs.2,29,194/- (as on 31.12.1998) remained outstanding against the complainant. For non-payment of the electricity bills, the electricity connection was disconnected. The complainant has deposited Rs.77,160/- against the amount due towards her in compliance of the order passed by the Forum

 8.            Learned counsel for the OP submits that the complainant has got installed a non-domestic electricity connection in the aforesaid shop. It is an established principle of law that a person holding a non-domestic supply connection, used for commercial purposes, is not a ‘consumer’ as defined in the Consumer Protection Act. Further, the aforesaid shop has been rented out by the complainant to one Akashdeep. The connection installed on a commercial establishment is not covered under the definition of ‘Consumer’.

9.             Pre-contra, the learned counsel of the complainant submits that it is not disputed that the complainant had rented out the said shop and the said shop has got been vacated by the complainant in the year 2013 for earning her livelihood for self employment, as she has no other sources of income. Moreover, there is no dispute with regard to the electricity bills for the period till the shop was rented out by the complainant and the dispute arisen after the shop was vacated by the complainant and thus the complainant is the ‘consumer’ defined in the Consumer Protection Act.

10.            The question is arises as to whether complainant falls under the definition of ‘consumer’ or not as defined in the Act?

8.             Section 2(i)(d) of the Act defines ‘consumer’.

1. “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
2. {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;

Explanation- For the purposes 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 his livelihood by means of self employment.”

11.         A bare perusal of the provision of Section 2(i)(d) reveals that for the purposes of this Act a “Consumer” means: (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promises, or partly paid and partly promises, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (ii) but does not include a person who buys such goods for resale or for any commercial purpose.

12.            The expression “commercial purpose” is not defined in the Act as such. In common parlance, the term ‘commercial’ indicates that when the goods are bought by a person not for his direct consumption but used for profit making, it may be said that goods are used for commercial purpose. However, the Explanation added later to Section 2(d)(i) by Ordinance/Amendment Act, 2003, excludes one category of profit making exercise from the purview of ‘commercial purpose’, namely, when the goods bought by a person are used ‘exclusively for the purpose of earning his livelihood by means of self-employment.

13.            The ambit of this exception is circumscribed by three conditions: one, the goods bought by a person are used for “earning his livelihood”, two, the usage of the goods bought is “by means of self-employment”, and three, such an activity must be undertaken ‘exclusively’ for earning livelihood by means of self-employment.

14.            Whether a person would fall within the definition of ‘consumer’ or not would be a question of fact in every case. ‘Livelihood’ means securing necessities of life and ‘self employed’ means a situation in which an individual works for himself or herself instead of working for an employer that pays a salary or a wage. A self employed individual earns his or her income through conducting profitable operations which they operate directly.

15.            The complainant got the abovesaid shop vacated by filing a Rent Petition before the Rent Controller on the ground of personal necessity. In the rent petition, the complainant has specifically taken a plea that she needs the abovesaid shop for the purpose her livelihood as she has no source of income.

16.            In view of the above discussion, it is held that the complainant falls within the purview of ‘consumer’ as defined in Section 2(i)(d) of the Act because the complainant got installed the electricity connection in the abovesaid shop in order to earning her livelihood and the plea taken by learned counsel for the OP that complainant has obtained the electricity connection for commercial purpose and he is not a consumer as defined under the consumer Protection Act, is not tenable    

17.            The complainant moved an application dated 06.01.2014 (Ex.C2) to the OP for temporary disconnecting the electricity connection installed in her shop. The OP has issued electricity bills Ex.OP3 to Ex.OP34 from the month February, 2015 to October, 2019. In all the bills, it is specifically mentioned by the OP that ‘In case the bill is not paid within 7 days of due date the supply shall be liable to be disconnected without any further notice.’  Since, the electricity bill from the year 2015 had not been deposited by the complainant, why the OP had not disconnected the electricity supply of the complainant as per their guidelines. Furthermore, the complainant had also moved an application Ex.C2 to the office of OP for temporary disconnecting the connection installed in the abovesaid shop. Despite that, the OP has failed to do the needful.

18.            As per the version of the OP bills amounting to Rs.2,29,194/- is pending as on 31.12.2018 and due to non-payment, the electricity supply of the complainant has been disconnected. The complainant has deposited Rs.77,160/- as bills upto October, 2013. After October, 2013 the complainant has not consumed the electricity supply as the shop was remained closed/locked. Thus, we are of the considered view that the OP has issued the bills in question illegally. Hence, it is well proved that the act of the OP amounts to deficiency in service and unfair trade practice while issuing the bill after the month of November, 2013.

19.            Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP not to disconnect the electricity connection of the complainant and issue the subsequent bills on the basis of current consumption. We further direct the OP to pay Rs.15,000/- to the complainant on account of mental agony and harassment suffered by her  and for the litigation expenses.  This order shall be complied within 30 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: 13.02.2020                                                                      

                                                                      President,

                                                              District Consumer Disputes

                                                               Redressal Forum, Karnal.      

 

 

         (Vineet Kaushik)         (Dr. Rekha Chaudhary)

            Member                         Member