BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 14/05/2010

Date of Order : 05/05/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 296/2010

Between

And

O R D E R

A. Rajesh, President.

1. The facts of the complainant's case are as follows :

The complainant is the Managing Director of Eminent Sea Foods Private Ltd., a company registered under the Companies Act. The company is an SSI unit registered under the Ernakulam District Industries Centre, Government of Kerala. Initially for the period from 13-04-1994 to 21-07-1996, the company had been a low tension consumer and the SSI unit was entitled to pay electricity charges only at pre-1992 tariff. Since the 1^st opposite party denied pre-1992 tariff, the complainant and similar others approached the Hon'ble High Court of Kerala. The Hon'ble High Court vide order dated 13-11-1998 directed the concerned that the complainant need to pay pre-1992 tariff only. Accordingly, the complainant was entitled to get refund of Rs. 1,74,564/- as on 13-11-1998 from the 1^st opposite party. The 1^st opposite party neither repaid the amount nor adjust the same against the payments due. The LT status of the complainant's unit had subsequently undergone a change for the period from 22-07-1996 to 30-06-1999. The 1^st opposite party converted the LT status of the complainant as HT with effect from 29-10-1996. The complainant's unit had again become LT consumer only the connected load limit of LT consumer was raised to 150 KVA from 01-07-1999. However, the 1^st opposite party did not issue the classifications, despite the order of the Hon'ble High Court and went on collecting electricity charges under HT rates. In the mean time, the 2^nd opposite party issued an exaggerate penal bill to the tune of Rs. 25,62,667/- pretending to be as per the direction of the Hon'ble High Court. The opposite party failed to consider the refund of excess amount of Rs. 27,78,400/- as on 31-03-2005. Without issuing any specific demand in March 2006, the 2^nd opposite party disconnected the power supply with effect from 12-10-2006. Again on 11-09-2007, the 2^nd opposite party raised a bill for Rs. 67,550/-. In fact, the 2^nd opposite party was not supplying electricity after the disconnection in 2006 March. Again, the complainant approached the Hon'ble High Court. The Hon'ble High Court re-delegated the complainant to Consumer Grievances Redressal Forum. The Consumer Grievances Redressal Forum did not appreciate the case of the complainant in the right perspective. The complainant approached the State Electricity Ombudsman and the Hon'ble Ombudsman passed an order dated 30-01-2009. In consequence of the order the 1^st opposite party issued another bill for Rs. 18,19,701/- abiding by the order of the Hon'ble Ombudsman. At that point of time, the complainant was only liable to pay Rs. 5,19,931/- and he was entitled to get an amount of Rs. 9,10,584/- from the 1^st opposite party. The complainant had to approach the Hon'ble High Court again. At that juncture, the 1^st opposite party again issued a revised bill for Rs. 7,67,850/- stating that some typographical error had crept in their penal bill. The 1^st opposite party is liable to comply with the order of the Hon'ble Ombudsman. The stoppage of power to the complainant has been a gross act of deficiency in service and unfair trade practice on the part of the opposite parties. The complainant is entitled to get a compensation of Rs. 20 lakhs from the opposite parties and also entitled to get the electricity connection restored. This complaint hence.

2. The version of the opposite parties is as follows :

The complaint is not maintainable either on facts or on law. The complainant started the manufacturing unit under SSI Scheme. The complainant's eligibility for pre-1992 tariff has been under dispute before different legal Forums. The Hon'ble Electricity Ombudsman vide order dated 30-01-2009 had allowed the complainant's submission for granting a sum of Rs. 1,74,564/- towards pre-1992 tariff concession as per Judgment in O.P. No. 9158/1998 of the Hon'ble High Court of Kerala. In compliance of the order of the Hon 'ble Ombudsman, the opposite parties had granted a sum of Rs. 1,74,564/- towards pre-1992 tariff concession and the same has been deducted from the total arrears due for realisation from the consumer. The company of the complainant has a LT service connection and subsequently, he applied for HT connection since the total connected load exceeded 100 KVA. The HT agreement was executed on 22-10-1996. Later, the complainant tried to convert his connection from HT to LT tariff for that he had to clear the dues if any. The complainant failed to remit the dues and also failed to give willingness to surrender the transformer to the opposite parties. For the above reasons, the connection from HT to LT tariff did not materialise. The Hon'ble High Court vide judgments in O.P. No. 1298/2001, O.P. No. 19751/2000, W.P. (C) 734/2005 and W.A. 1264/2006 had directed the opposite parties to revise all the bills raised for any period after 01-08-1999 applicable to LT SSI tariff within one month. Thus, a demand notice for a sum of Rs. 25,62,667/- had been issued specifying the due date on 09-10-2006. The Hon'ble High Court vide order dated 19-01-2005 in I.A. No. 883/2005 in W.P. (C) 734/2005 had directed the opposite parties to restore the connection provided the complainant remits Rs. 75,000/-. Although, the complainant remitted the amount only on 05-12-2005 reconnection was given by the opposite parties. Since the complainant did not remit the electricity charges from November 2004 onwards, the service connection was disconnected on 15-10-2006. The complainant claimed a sum of Rs. 58,57,947/- from the opposite party without any statutory backing or eligibility. As per the direction of the Hon'ble High Court, the complainant approached the Consumers Grievance Redressal Forum, and thereafter, went in appeal before the Hon'ble Electricity Ombudsman. The opposite party has fully complied with the direction of the Hon'ble Electricity Ombudsman. So, the instant complaint is barred by principles of res-judicata. The opposite parties request to dismiss the complaint.

3. During the proceedings, this Forum allowed I.A. No. 261/2010 filed by the complainant to restore the disputed electricity connection vide order dated 01-12-2010. The opposite parties preferred revision before the Hon'ble Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram. The Hon'ble State Commission dismissed the revision vide order in Revision Petition No. 15/2011 dated 24-03-2011. Against the order of the Hon'ble State Commission, the opposite parties preferred W.P.C. No. 13166/2011 (U) before the Hon'ble High Court of Kerala. The Hon'ble High Court of Kerala disposed off the W.P.C. vide Ext. A11 dated 24-01-2012 with the following directions :

“Ext. P8 order of the District Consumer Dispute Redressal Forum concludes as follows :

“The petitioner/complainant is directed to comply with the usual formalities for re-connection except the payment of arrears which is subjudice in this Forum.”

3. There cannot be an interim order of this nature after postponing the adjudication of the exact amount due to the Electricity Board. The consumer can aspire for an interim order for reconnection only if substantial amounts are paid to the Electricity Board towards the dues claimed. The question whether the consumer is entitled to refund from the Electricity Board which is liable to be adjusted towards the dues has to be considered in the main complaint pending. Exts. P8 and P9 orders are quashed and the District Consumer Dispute Redressal Forum is directed to expedite the proceedings. C.C. No. 296/2010 pending on the file of District Consumer Dispute Redressal Forum, Ernakulam shall be disposed of within a period of two months form the date of receipt of a certified copy of this judgment.”

This Forum received the certified copy of the above order on 05-03-2012.

4. In obedience of the order of the Hon'ble High Court of Kerala prompt steps were taken and the complainant was examined as PW1 and Exts. A1 to A18 were marked on his side. The 2^nd opposite party was examined as DW1 and Exts. B1 to B12 were marked on their side. Both sides filed argument notes. Heard the learned counsel for the parties.

5. The points that came up for consideration are :-

1. Whether the complainant is a consumer and the complaint is maintainable in this Forum or not?

2. Whether the complaint is barred by res-judicata?

3. Whether the complainant is entitled to get a compensation of Rs. 20 lakhs from the opposite parties?

4. Whether the opposite parties are liable to pay costs of the proceedings to the complainant?

6. Point No. i. :- At the outset, the opposite parties raised the question of maintainability of the complaint. The opposite parties vehemently contended that since the complainant's industrial unit is a commercial venture and the complainant has availed the service of the opposite party for commercial purpose he is not a consumer as per the provisions of Section 2 (1)(d) of the Consumer Protection Act.

7. Per contra, the counsel for the complainant contended that since the dispute involved in this complaint is for the period prior to the amendment in Section 2 (1) (d) of the Consumer Protection Act with effect from 15-03-2003 and the erstwhile Section 2 (1)(d) is applicable to the complainant. He relied on the decision rendered by the Hon'ble Apex Court in Karnataka Power Transmission Corporation and Another Vs. Ashok Iron Works Pvt. Ltd. and another 2009 (3) SCC 240 : AIR 2009 SC 1905. It is pertinent to note that even according to the complainant as per his complaint, the cause of action for this complaint arose on 30-01-2009. Para 20 of this complaint reads as follows :

“The cause of action for this claim arose on 30-01-2009, when the State Electricity Ombudsman settled the disputes submitted to its jurisdiction, on 11-02-2009, when the complainant received a copy of the Order No. P 25/08/152, dated 30-01-2009 of the State Electricity Ombudsman, on 01-12-2009 when the KSEB issued the letter No. HTB-6/3213/430, demanding remittance of Rs. 18,19,701/- with a threat of Revenue Recovery Action, on 15-12-2009 when the KSEB demanded payment of Rs. 7,67,858/- which included items not covered under the Order No. P 25/08/152 dated 30-01-2009 of the State Electricity Ombudsman and thereafter in Thoppumpady Village, Kochi Taluk of Ernakulam District, within the territorial jurisdiction of this Honourable Forum; where the complainant has his business premises and the opposite parties are carrying out their business, within the jurisdiction of this Honourable District Forum.”

8. The definition of a consumer as per Section 2 (1) (d)(ii) is as follows :

“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 him exclusively for the purpose of earning his livelihood, by means of self-employment:”

9. During evidence PW1, unequivocally and unambiguously deposed before the Forum which goes to show that his industry was a commercial venture. It is to be noted that the complainant does not have a case in confirmation in the complaint that he has availed the service of the opposite party for earning his livelihood by means of self-employment. The Hon'ble Supreme Court in Economic Transport Organization Vs. Cheran Spinning Mills (P) Ltd. and another 2010 CTJ 36 (SC) (CP), held in para 25 that, “we may also notice that Section 2 (1) (d) of the Act was amended by Amendment Act 62 of 2002 w.e.f. 15-03-2003, by adding the words “but does not include a person who avails of such services for every commercial purpose” in the definition of consumer. After the said amendment of the service of the consumer had been availed for any commercial purpose, then the person availing the service will not be a consumer and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment”

10. In view of the categorical admission in the complaint and the legal proposition, we are only to hold that Section 2 (1)(d) amended with effect from 15-03-2003 is applicable in the instant case. So, we are not to rely on the decision submitted by the learned counsel for the complainant. Though our sympathy is with the complainant a farmer Major of Indian Army who is leading a peaceful retired life since law and justice come before sympathy, we are only to hold that the complainant is not a consumer as per Section 2 (1)(d)(ii) of the Consumer Protection Act.

11. Point No. ii. :- Secondly, the learned counsel for the opposite parties vehemently and vigorously challenged the maintainability of this complaint on another count that is the principles of res-judicata. According to the counsel, the complainant has sought for the same reliefs before the Consumer Grievance Redressal Forum, Ernakulam as well as the State Electricity Ombudsman. According to the opposite parties, the remedy of the complainant against Ext. A5 order of the Ombudsman is under Section 142 of the Electricity Act read with Regulation 27 (6) of the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulation 2005. Legally, the complainant ought to have approached the Kerala State Regulatory Commission to get Ext. A5 order executed instead he opted to file this complaint for reasons of their own.

12. The Hon'ble High Court of Kerala has observed in Ext. B3 order as follows :

“”Having regard to the fact that technical issues and accounting constitute the fundamental dispute between the parties, it is abundantly appropriate that the matter gains attention of the CGRF since technical personnel are involved in that Commission, as is apparent from the Board order dated 25-02-2006, by which, the CGRF was constituted under authority under Section 42 (5) of the Act. The mere fact that the CGRF is chaired by an officer in the rank of a Deputy Chief Engineer makes no difference because CGRF is a statutory authority and any decision or view of any officer superior in rank in the service of the Board will and should have no impact whatsoever on the powers and rights of the CGRF while it enters the process of resolution of disputes in exercise of authority under Section 43 (5) and (6) of the Act. When such statutory remedies of efficacious nature are available, the visitorial jurisdiction of this Court under Article 226 of the Constitution of India need not be extended.”

13. Since complicated, complex and technical issues are involved person who are acquainted in this field alone can resolve the various points highlighted by the complainant, then only this Forum or any other authority can squarely come to a conclusion whether there is deficiency in service or unfair trade practice on the part of the opposite parties. Since a considered and detailed order has been passed by the Hon'ble Ombudsman, the remedy of the complainant does not lie in this Forum as per Regulation 27 (b) of the Kerala State Electricity Regulatory Commission (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2005, read with Section 142 of the Electricity Act. Regulation 27(b) reads as follows :

“Non-compliance of awards/orders/directions of the Consumer Grievance Redressal Forum and Ombudsman by Distribution Licensee shall be considered as non-compliance of the provisions of Electricity Act 2003 and the Regulations made thereunder and Kerala State Regulatory Commission shall proceed accordingly.”

Section 142 of the Electricity Act reads as follows :

“Punishment for non-compliance of directions by Appropriate Commission, - In case any complaint is filed before the Appropriate Commission by any person or if that Commission is satisfied that any person has contravened any of the provisions of this Act or the rules or regulations made thereunder, or any direction issued by the Commission, the Appropriate Commission may after giving such person an opportunity of being heard in the matter, by order in writing, direct that, without prejudice to any other penalty to which he may be liable under this Act, such person shall pay, by way of penalty, which shall not exceed one lakh rupees for each contravention and in case of a continuing failure with an additional penalty which may extend to six thousand rupees for every day during which the failure continues after contravention of the first such direction.”

However, for no reasons or so advised, the complainant is before the wrong Forum.

14. In view of the aforesaid discussions, we have no hesitation to hold that this complaint is barred by the principles of res-judicata as rightly contended by the counsel for the opposite parties. Above all, the co-operation systematically extended by the learned counsel for the opposite parties, who appeared before us during trial has been of invaluable help to this Forum to come to this considered conclusion, we appreciate it voluminously. Since the remedy of the complainant lies elsewhere as mentioned above, we are only to close the proceedings with liberty to the complainant to approach the appropriate authority to get his grievances redressed, if advised so.

15. Point Nos. iii. and iv. :- The above points having been considered and met adequately, the matter of compensation and costs does not arise. The proceedings in this complaint stands closed with liberty of the complainant to approach the appropriate authority.

Pronounced in open Forum on this the 5^th day of May 2012.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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