Haryana

Ambala

CC/454/2010

M/S MAHALUXAMI ICE FACTORY - Complainant(s)

Versus

UHBVN LTD - Opp.Party(s)

SANJEEV KUMAR

08 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.    : 454  of 2010

Date of Institution       :   21.10.2010

Date of Decision         :   08.07.2015

M/s Mahaluxmi Ice Factory, Court Road, Near OBC Bank Ambala City, through its Prop. Sunil Dutt.                                                                                                                                                                                                                                     ……Complainant.

                                                                                                       Versus

U.H.B.V.N. Ltd .,through S.D.O Operation,Sub Division ‘East’ , UHBVN Ambala City.

                                                                                                            ……Opposite Party.

Complaint Under Section 12 of the Consumer Protection Act

CORAM:        SH. A.K. SARDANA, PRESIDENT.

                        SH. ANIL SHARMA, MEMBER.                       

Present:          Sh. Sanjeev Kumar Yadav, Advocate for complainant.

                        Sh. Sarvjeet Singh, Advocate counsel for Ops.                         

ORDER.

1.                     Present complaint under section 12 of  the Consumer Protection Act, 1986 (hereinafter in short called as the ‘Act’)  has been filed by the complainant alleging therein that he is having an electricity connection bearing no. MP-53 and paying the electricity bills regularly to the OP.  The complainant being the proprietor of the firm received bill on 19.10.2010 for the month of Sept.2010 amounting to Rs.61,624/- and  surprised to see the highly inflated bill in question. The complainant enquired the matter with the OP and came to know that a penalty of Rs.26,961/- + 558/- has been  imposed on account of slow meter.  It has been further submitted that prior to imposing penalty, the OP has neither checked the meter nor issued any prior notice and this act of OP is arbitrary, illegal and violative of rules and regulations of Deptt.  Moreover no any opportunity of hearing  has been afforded to complainant prior to issuing of the impugned  Bill dated 18.10.2010 which amounts to deficiency  in service and unfair trade practice on the part of OP and caused the complainant mental & physical harassment. In the end, complainant has requested for acceptance of the complaint as per prayer clause.  

2.                     Upon notice, OP appeared through counsel and filed written statement raising preliminary objections qua non-maintainability of complaint as the electricity connection in question pertains to commercial purpose and thus ousting the complainant from the ambit of consumer.  On merits, the OP has urged that electric connection of the complainant was checked by M & P Divisioin of UHBVNL on 26.8.2010 and the meter was found slow by 9.34% in the presence of the proprietor of the firm i.e. Sunil Dutt  and he signed the checking report in token of correctness of facts stated therein.  Therefore, the penalty was imposed on account of slow meter   calculating the difference of consumption @ 9.34% for which difference of 5582 units was rightly charged and thus there is no deficiency in services on the part of OP. Hence the complaint is liable to be dismissed with costs. 

3.                     In evidence, the counsel for complainant tendered affidavit of Sunil Dutt as Annexure CX alongwith documents as Annexures C-1 to C-3 and closed the evidence on behalf of complainant whereas on the other hand, the counsel for OP tendered in evidence affidavit of Sh.Vishwanath, LM as Annexure RW1/A and affidavit of Sh.S.K.Sharma, SDO as Annexure RW2/A alongwith documents as Annexures R-1 & R-2 and closed the evidence.

4.                     We have heard the Ld. counsel for the parties and gone through the record very carefully. The first and foremost question which arises for consideration before the Forum is that “whether the complainant, who is using the electricity connection  for commercial purposes for Ice-factory falls within the ambit of definition of the ‘consumer’ as per Section 2 (1)(d)  of Consumer Protection Act,” which reads as under:-

                        2(1)(d) “Consumer” means any person who-

1. 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 & partly promised, or under any system of deferred payment, when such services are availed of with the approval of first mentioned person but does not include a person who avails of such services  for commercial purpose;

Explanation- For the purposes of this clause, “commercial purpose” does not include use by a person of goods brought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.

 

5.                     At the very outset, it  has been admitted by the complainant in para no.1 of the complaint that he is running an Ice factory under the name & style of M/s Mahaluxmi Ice Factory but complainant has nowhere mentioned in his complaint that he is running the said firm/factory exclusively for the purpose of earning his livlihood by means of self-employment.  The explanation added to Section 2(1)(d) of the Act stipulates that the commercial purpose does not include use by a person of the goods brought and used by him and services availed by him exclusively for the purpose of earning his livlihood by means of self employment meaning thereby that every business either run by an individual or a group of persons does not mean to run the business for earning of livlihood rather the same may be for profit earning unless specifically mentioned established as particularly incorporated in the Explanation added to section 2(1)(d) of the Act.  In the instant case, the complainant is running a factory with the help of workers wherefrom the sense of commercial purpose automatic reflects as held in the judgment rendered by the Hon’ble Supreme Court of India in case titled as “Luxmi Engineering Works Vs. P.S.G. Industrial Institute, 1995 (II) CPJ- Pg.1 (S.C.)” wherein it has been observed by the Hon’ble Apex Court as under:-

                        “The National Commission appears to have been taking a consistent view that where a person purchases goods ‘with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit’ he will not to be ‘consumer’ within the meaning of Section 2(1)(d)(i) of the Act.”

                        Therefore, the complainant, who had hired the services of opposite parties for commercial purpose is not a consumer of the OP within the meaning of Section 2(1)(d)(ii) of the Act and thus complaint filed by him is not maintainable before this Forum. So, in view of the above discussion and findings, we have no option except to dismiss the present complaint and thus the same is hereby dismissed with no order as to costs.  However, the complainant is granted liberty to approach the appropriate Forum/Court if so desires and in such a case, he can claim the benefit of the provisions of Section 14(2) of Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act. Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room.

 

ANNOUNCED: 08/07/2015                                                                  Sd/-                 

                                                                                                   (A.K. SARDANA)

                                 PRESIDENT            

 

 

                                                                                                             Sd/-

                         ( ANIL SHARMA)

                                                                                                        MEMBER