Order No. 10 Dt. 20.06.2007
In essence, the petitioner’s allegation is that on 30.07.2006 the electric pole near the shallow machine was disconnected and even through several letters the O.Ps. have not taken proper steps to restore the electrical connection without any reasonable cause provoking the petitioner to institute the present case for the reliefs as have been mentioned in the petition of complaint.
All the four O.Ps. contest the present case by filing a joint written version denying therein material allegation about making disconnection of electricity by the O.Ps. it has further been narrated therein that one Sk. Ziaul Haque disrupted the power supply to the petitioners STW connection by damaging two electric P.C.C. electric poles of W.B.S.E.B. and remove three span-wire which is an incident between Ziaul Haque and the petitioner for which Station Manager, Chanchal Group Electric Supply lodged a complaint at Chanchal P.S. vide G.D.E. No. 1170 dated 24.08.2006 and in such circumstances O.P.s prayer is for dismissal of petition of complaint.
On pleadings of both parties the following points have been emerged.
- Whether the petitioner is a ‘Consumer’ in terms of Sec.2(1)(d) of the Act?
- Whether the O.Ps. suffer from any deficiency?
- Whether the petitioner is entitled to get any relief as prayed for?
DECISION WITH REASONS
Point No.1
Sec.2(1)(d) of Consumer Protection Act. defines the ‘consumer’. There is a frustrated endeavour on the part of the O.P.s relying on the later part of the aforesaid provision, that if a person obtains goods for a resale or for a any commercial purpose then he cannot be treated as ‘consumer’ and if that be so, the Act. would not be attracted. It has been observed by their Lordship in 1995 CTJ 289 (SC)(CP) wherein it has been held that effect from 18.06.1993 is clarificatory in nature (Amendment Act 50 of 199) and the definition of the Sec. ‘ Consumer’ in 2(1)(d) of the Act. is always a question of fact to be decided in the facts and circumstances of each case.
After going trough the salutary observation one has to establish by leading cogent and convining evidence that a person is a consumer or a person engaged in commercial activities so as to convey that he is not a consumer.
Having gone through the testimony of both the P.W. – 1 and O.P.W. – 1 it is clear that no contention has been raised and no evidence has been led to substantiate that the complainant is not a consumer.
That a-part, it has come in evidence of P.W. – 1 that the petitioner extends irrigation facility to the adjoining fields through the shallow tube well and in exchange thereof the petitioner receives a portion of usufructs in line of money and thus, the petitioner extends irrigation facility for self-employment and cannot be branded as a non-consumer. The petitioner, is engaged in supplying water, can be disqualified to come within the definition of ‘consumer’ as termed in 2(1)(d) of the Act. Our Apex Court in many cases have been pleased to observe that the Explanation reduces the question, what is a ‘commercial purpose’ is a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. In the instant case the shallow machine has been used for the purpose of learning livelihood by the petitioner and for taking usufructs by the adjacent field owners to satisfy his livelihood.
This point is thus disposed of.
Point No.2.
Let us now see as to whether the service alleged to have been rendered by Chanchal Group Electric Supply suffers from deficiency. The word ‘Service’ has been defined in Cl.(o) of Sub-Sec.(1) of Sec.2 of the Act. It means “service of any description which is made available to potential users and includes the provision of facilities in connection with ……….. supply of electrical or other energy…………………..”
In this case the petitioner has examined one Subodh Sarkar as P.W. – 1 who is the son-in-law of the petitioner who appears to have sated, “adjoining areas were also supplied irrigation facility from the petitioner’s shallow machine.”; and has further been constrained to admit that one Ziaul Haque disturbed power supply to the petitioner and has further been constrained to admit in course of cross-examination at Page 2, “ ……………….due to grudge Ziaul Haque has caused damage of electric poles and of the electric wires of the said machine. ”
In the facts and circumstances stated hereinabove can it be said that the O.P.s have disconnected electric supply to the petitioner’s shallow machine ? It further appears that a co-villager has been examined in this case as PW-2 who has also corroborated that the quarrel between Ziaul Haque and the petitioner has resulted disruption of electric poles and his statement runs as follows:
“ ……………it is fact that I have come to know about the quarrel between the two. Because of such quarrel Ziaul Haque has caused damage to the electric poles and the electrical wire. ” In course of examination of the record it appears that OPW-1 has stated about lodging of GD against Ziaul Haque (Ext-B).
On consideration of the facts and circumstances of the case discussed hereinbefore by no stretch of imagination can it be said that there was any ‘service’ in respect of disruption of electric supply to the petitioner by Chanchal Group Electric Supply and in that view of the matter it can also not be said that such service suffers from deficiency which disposes of the present point in the negative.
Point No. 3
In the result, the case fails.
Proper fees have been paid.
Hence, Ordered
that Malda D.F. Case No. 20/2007 stands dismissed on contest with no order as to cost.
Let a copy of this order be given to both the parties free of cost.
