Karnataka

Belgaum

CC/134/2014

Chief Executive Officer of Belgaum District Co-Op Union Ltd - Complainant(s)

Versus

The Managing Director Of HESCOM Ltd - Opp.Party(s)

S.R.Sakri.

14 Mar 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

 

: ORDER :

 

          The complainant has filed complaint against Opponent U/s.12 of C. P. Act alleging deficiency in service for disconnecting electricity for his premises to RR No. 33/166.

          2) Opponents appeared through counsel and filed their objection.

 

          3) In support of the claim of the complainant, complainant has filed his affidavit by way of evidence and some documents are produced. On the other hand the opponents have also filed their affidavit and have produced some documents.

 

          4) We have heard the argument of complainant and opponents. Perused the records.

 

          5) Now the point for our consideration is that whether the complaint has proved deficiency in service on the part of the opponent and entitle to the reliefs sought?

 

          6) Our finding on the point is in negative, for the following reasons.

:: REASONS ::

 

          7) On the perusal contents of the complaint and affidavit filed by the complainant, the complainant has alleged that the complainant is a Co-operative Union Ltd., and the opponents is a supplier of electricity to the complainant and there is no other alternative energy source other than the opponent company and the complainant is regular in clearing the bills and never been defaulter and the building is provided with electricity RR No.33/166. The complainant further alleges that the union is providing the details as to registration of society’s and indulged in imparting training to the students, co-operative institution and department of co-operative. The complainant further alleges that on 28/11/2013 he received notice for the arrears of electricity bill for the meter RR No.33-805 to the extent of Rs.1,32,334/- and that the complainant is involved in vigilance police station crime No.305/2010 and there is a order by the 1^st additional District and Session Court, Belgaum under special case No.145/2010 and accordingly the complainant was socked the to receive the order and immediately rushed  to court and obtained the certified copy and came to know that the special case is against one Sri. Parshuram alias Babu Sahadev Chougale and the allegation against him was for violation of the line and committed offence. The complainant further alleges that the case has been dismissed on 2/12/2011 against the said Chougale the address is shown in the cause title of the case, who is neither the employee or the tenant of the Union and not connected to the premises or the meter. The complainant further alleges that there are no arrears listed from 2010 till date against the meter No.33/166 and entire bills are cleared of till November 2013 and the officers of the respondent without understanding the meaning and sprit of the order have trespassed the premises of the complainant and cut off the meter of the entire premises without valid order by violating all the norms and conditions and cause harassment and have cut of electric supply to the RR No.33/166 instead of RR No.33-805. The complainant further alleged that the bill issued for the month of February 2014 stands for Rs.649 only but still you have cut on the power of the complainant, and the Union is neither a party to the proceedings nor it has been called as witness in the case and cutting the meter line is unfair trade practice on the part of the opponents. The complainant further alleges that he got issued legal notice to the respondent to restore the connection for meter No.33/166 at CTS No. 150, Bhandur Galli, Belgaum, and called the opponents to pay damages of Rs.1,000/- and restore the meter. The complainant further alleges there is no another alternative source of energy and has to approach the opponents only for the supply of electricity and the opponents has played unfair trade practice and complainant left no other alternative to approach this Hon’ble Forum. Hence that amounts to deficiency of service on the part of opponents as contemplated under the provision of the C. P. Act,1986.

 

          8)  The opponents No.2 and 3 filed their objection and objection filed by opponent No.2 & 3 is adopted by the opponent No.1. On perusal of the objection of opponents, the opponents admitting certain facts and denying certain facts of the complaint. The opponents contends that the complaint is false concocted and created etc. and liable to be dismissed and the complainant is the cooperative Union and electricity supply from our Company is partly true and incorrect. The opponents further contends that the bills for every month are cleared off and there is no dues and arrears of any month are totally false and denied by the opponents and also that the contents of para No.3 of the complaint that he was shocked on receipt of notice of arrears for the meter bearing No.33-805 to the extent of Rs.1,33,334/- are partly true and partly incorrect and para No.4 and 5 of the complaint are false and same are misleading and para No.6 of the complaint that there are no arrears 2010 till date and same are cleared till November 2013 are false and specifically denied. The opponents further contends that after verification of the order the officers of the respondents without understanding the meaning and spirit of the order have tress passed into the premises of the complainant without valid order are false and denied and further that electricity meter No.33/166 was cut off in place 33-805 and violated the terms and conditions and there is unfair trade practice on part of the opponents are denied and false etc., Further the opponents denied the contents of para No.9 to 13 and contend that the complainant through their tenant availed electricity connection installation RR No.33-805 to run the shop and the electricity connection is still standing in the name their tenant and the tenant has not informed the HESCOM to disconnect the electric connection and continued with allowing another tenant of the complainant to commit the electric theft with instigation of earlier tenant against the rules and regulation of HESCOM. The opponents further contends that the tenant of the complainant had obtained the shop premises on rent from the President of cooperative Union Ltd., on lease deed dated 21/1/1992 to 3/3/2006 and the tenant of the complainant allowed and instigated another tenant to commit the theft of electricity and also not informed about the disconnect of electricity installation which is standing in the name of the tenant and does tenants are jointly and severally are liable to pay Rs.1,26,009/- with interest at 18% P.A. and the crime case is concerned about criminal liability that the both the tenants have colluded with each other and consumed electricity and have to pay the electricity bill. It is further contended that on 19/6/2010 squad of Hescom visited letout of complaint premises as per the deed dated 1/7/2007, the lease deed executed by the complainant on 21/1/1992, when the squad visited the premises the disc of the meter was not rotating and was tapped the service wire behind the meter board by the tenant of the complainant, and theft of electricity was taken place within the premises of the complainant and the complainant allowed the tenant to stay in the premises and the opponent issued two notice to tenant and requested to pay the arrears of Rs.1,32,334/- and the theft of electricity is within the knowledge of the complainant and the complainant is suppressing the true and material fact before the forum and there is no deficiency of service on the part of the opponents and the complainant caused financial loss to the Hescom and the complaint is liable to the dismissed.

 

          9) The complainant and the opponents have filed their affidavits in the form of evidence and certain documents are produced by both the parties. The first document produced by the complainant dated 28/11/2013 is the notice to the Manager of the complainant for remittance of arrears of Rs.1,32,334/- for meter bearing No.33-166. The another document is the judgement passed by Hon’ble Ist Additional Session Judge, Belgaum and the next document is electricity bill dated 2/3/2014 and legal notice issued by the complainant to the Assistant Executive Engineer, Belgaum and reply given by the opponents for the legal notice. On the other hand, the opponents have produced document dated 27/12/2013, 2/1/2014, Consumer History statement and copy of SND Code. On perusal of the documents and also the objection and its contends filed by the opponents, the contents of the objection that the complainant holds the tenant in his premises are not at all been denied by the complainant in his affidavit and also that the opponents have issued notice to the complainant in regards to arrears and the notice dated 27/12/2013 which reads that the complainant after receipt of arrears notice as requested for 10 days time to pay the same and after non payment the opponents have taken steps to disconnect the connection to the RR No.33.166. The another point is here with the noted that though the crime case filed was against the 3^rd party, according to the complainant the Parashuram Chougale is not connected to the complainant Cooperative Union Ltd., but it is to be noted that the opponents have taken up specific contention that the tenant in the premises of the complainant has illegally allowed the 3^rd person to use the electricity by cutting the connected wire to the meter and after the raid the opponents officer disconnected the electricity to the complainant cooperative with due notice. In this regard the complainant has not at all mentioned or denied in his affidavit that they have not tenanted anyone in the premises and they have no knowledge in this regard.

 

          10) The important point is here to be noted that, the document styled as Consumer History Statement from April 2012 to March 2015 wherein the RR No.33;166 shown on the left side of the statement in 2^nd column and the nature of the connection at the last line of the column is mentioned as “Commercial” and the name of the consumer is the Belgaum cooperative Union Ltd., who is the complainant in the present case. First of all we have to see that whether the complainant is a consumer as per the provisions of Consumer Act, because the statement produced by the opponents shows the nature of connection as one of commercial. Therefore the complainant will not fit within the definition of the consumer hence on this count itself the complaint is not maintainable before the forum.

 

11) In the case on hand, from the material on record, it is crystal clear that the opponents have given electricity connection to the complainant for the commercial purpose. The definition of consumer provided in the Act reads as under:

“ 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 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 payments, 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 purpose)

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 his exclusively for the purpose of earning his livelihood, by means of self employment.’’

By reading of the above provision the consumer in the present complaint has taken commercial connection to his Cooperative Union Ltd., and as also lease the premises. Therefore the commercial purposes for which the complainant does the business will not fall under the provision of the Consumer Protection Act. Hence the complainant is out of purview of definition of consumer.

          12) The opponents have relied upon the ruling reported in 2005 (4) KCCR 2594 decided in between;

The executive Engineer, KPTCL now GESCOM, Bidar and others V/s. Ishwaramma and Another.

          “Electricity Act, 2003-Section 145-………….The district consumer forum ordering restoration of the electricity supply is without jurisdiction in view of Section 145 of the Electricity Act, 2003-The provisions of Section 145 of the Electricity Act would oust the jurisdiction of the Civil Court as well as any other forum in adjudicating the claim of the petitioners.’’

 

          The decision referred supra oust the jurisdiction of this forum in regards to disputes between the Consumer and Electricity board as in this case also the disputes is regards to recovery of arrears as noted supra, hence the complainant has to approach the proper authority as per the Electricity Act 2003 Section 145. Therefore the complainant on this point also cannot maintain a complaint before the forum and is not a consumer as per the provisions of the consumer Act and the complaint is not maintainable before the forum.

          13)  Taking into consideration of the facts, evidence on record and the discussion made here before deficiency in service and unfair trade practice on the part of the opponents have not been proved.

          14)  Accordingly, following order.

ORDER

          The complaint is dismissed as not maintainable. No order as to cost.

 

        (Order dictated, corrected and then pronounced in the open Forum on this 14^th day of March 2016)

 

Member            Member                       President

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