Date of Filing: 07-05-2015 Date of Final Order: 15-03-2016
The brief facts of the complaint as culled out from the record is that the Complainant, Dipak Dey is owner of the ABS Construction (Govt. Contractor and Order Suppliers) at Alipurduar. In course of the construction work at Toofanganj, Dist Cooch Behar, the Complainant took temporary electric connection from the office of the O.P. No.2, The Assistant Engineer, W.B.S.E.D.C.L., Toofanganj bearing No. TEMP/08-09/35 Cons. No. T99076 for ABS Construction by depositing Rs.15,370/- for Application Fees, Service Connection charges and Temporary Security Deposit for 05 KW and the O.P. No.2 issued three separate receipts bearing No.007291, 007292 & 007293.
After the completion of construction work, the Complainant approached the O.P. No.2 to disconnect the temporary electric connection and accordingly, the O.P. No.2 disconnected the said electric connection. There was no dues and liabilities on behalf of the Complainant to release the security deposit and other charges for Rs.15,370/-. On 30/04/2010 the Complainant filed an application to the O.P. No.2 along with copy of quotation and three original receipts issued from the office of the O.P. No.2 which were acknowledged by the O.P. No.2 on 07/05/2010 under seal and signature. Thereafter, the Complainant enquired over telephone regarding to release the said amount on several occasion also he personally went to the O.P. No.1 & 2 to get back the said amount but except assurance nothing yielded out from their end. On 26/11/2013 the Complainant sent a letter to the O.P. No.2 which was acknowledged by this O.P on 29/11/2013 vide receipt No.926 also the copy of the said letter has been received by the O.P. No.1 on 30/11/2013. In spite of that both the O.Ps did not take any initiative to make payment to the Complainant lying with the O.P. No.2 which amounts to negligence and deficiency in service on the part of the both O.Ps. On 12/03/2015 the Complainant sent notice to the O.P. No.1 & 2 through Advocate, Mr. Kaushik Dhar and it was received by the O.Ps on 16/03/2015 but till now the O.P. No.1 & 2 did not make any payment of the said amount. The Complainant being a bonafide customer of W.B.S.E.D.C.L, the said amount deposited by the Complainant for temporary connection cannot be withheld in any manner by the O.Ps. Till date nothing has been intimated to the Complainant as to why the said amount has been withheld by the O.Ps. Thus the Complainant suffered from mental pain & agony and facing much inconvenience by such activities from the part of the O.Ps also there was deficiency in service and unfair trade practice adopting by the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to release the security deposits and other charges with interest @ 10% P.A from the receiving date of papers by the O.P. No.2 on 07/05/2010 in favour of the Complainant and also to pay (i) Rs.30,000/- for unfair trade practice adopting by the O.Ps, (ii) Rs.30,000/- as compensation for mental pain, agony for wrongful act and deficiency in service of the O.Ps and (iii) Rs.5,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
On behalf of the O.Ps, the O.P. No.2, The Assistant Engineer, W.B.S.E.D.C.L., Toofanganj has contested the case by filing written version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the complainant has no cause of action to being this case. The main contention of the O.Ps is that after completion of construction work as per instruction of the Complainant, temporary electric connection of the Complainant was disconnected and he was requested to pay all outstanding bill of the said connection and to take refund of the security deposit of Rs.15,000/-. But the Complainant did not pay the outstanding bill for the said temporary electric connection amounting to Rs.2,310/-.
On the other hand, the Complainant has failed application before the W.B.S.E.D.C.L authority claiming refund of the security amount. The O.P. No.2 stated in their W/V that before payment of final outstanding bill, the Complainant has no locus standi to claim the security amount of Rs.15,000/-.
It is the case of the O.Ps that whenever the Complainant contacted with this O.P, this O.P always requested him to pay the outstanding electric bill to get refund of the security deposit. After receiving the communication from the Complainant, this O.P took all necessary measures to return back the security amount in favour of the Complainant. But now the total system of Receipt & Payment is controlled/operated by computer software, so some times has been elapsed to trace out the total records of the Complainant. Thereafter this O.P contacted with the Complainant over telephone and requested him to take refund of security amount from the office of the O.P. No.2 but the Complainant neglected to do so.
It is the further case of the O.Ps that the Complainant is a valuable customer of the W.B.S.E.D.C.L authority. As such with a view to redress the present dispute on 16/10/2015 has deposited an A/C Payee cheque of Rs.14,066/- vide No.648880 dated 14/10/2015 drawn on State Bank of India, Cooch Behar before the Ld. District Forum, Cooch Behar infavour of the Complainant after deducting the final outstanding bill of the Complainant in respect of the said temporary electric connection and the Complainant has already been received the said cheque. So, nothing has been suffered by the Complainant as stated by him in his complaint as he did not pay the final outstanding bill to the W.B.S.E.D.C.L authority. This O.P has also paid the interest of Rs.927/- and Rs.449/- upon the deposited amount to the Complainant. Therefore, there was no deficiency in service on the part of the W.B.S.E.D.C.L authority. As such the Complainant is not entitled to get any relief and/or compensation as he claimed.
Ultimately, the O.Ps, W.B.S.E.D.C.L authority has prayed for dismissal of the case with cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by repudiating the claim of the Complainant and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.
Point No.2.
The Offices of the O.P company are situated within the jurisdiction of this District as well as under the jurisdiction of this Forum and total valuation of this case is far less than maximum limit of Rs.20,00,000/-.
So, this Forum has territorial and pecuniary jurisdiction to try this case.
Point No.3 & 4.
Undisputedly, the Complainant, Sri Dipak Dey availed temporary connection from the office of the O.P. No.2 bearing No. TEMP/08-09/35 for his construction works and after completion of work the said connection has been disconnected by the O.P. No.2 as per request of the Complainant.
The point of the dispute is that the Complainant deposited Rs.15,370/- for obtaining electric connection and after disconnection pursue to the O.P for refund the said security amount. The O.P did not pay any heed towards the request made by the Complainant for getting back the amount of Rs.15,370/-.
Annexure-“1” reveals that the Complainant deposited Rs.15,370/- to the O.P Company on 08/09/2008.
Annexure-“2” is the Money Receipt of Rs.15,370/-.
Annexure-“3” reveals that the Complainant preferred an application to the O.P. No.2 for releasing the security money on 30/04/2010.
Annexure-“4” & “A-4” the letters dated 26/11/2013 to the O.P. No. 2 for releasing the security money.
Annexure-“5” is the Legal Notice to the O.P. No.2, send by the Complainant’s Advocate.
Admittedly, one temporary electric connection was installed by the O.P, West Bengal State Electricity Distribution Company Ltd., Toofanganj Division being application No. TEMP/Com/35, dated 08/09/2008.
It is the case of the O.P. No.2 that admittedly, the Complainant deposited security money of Rs.15,370/- against the said connection bearing No. Temp/Com/35 dated 08/09/2008. The said connection was disconnected as per instruction of the Complainant. After disconnection of the said line, the Complainant preferred an application for refunding the security deposit. The O.P. No.2 clearly stated in W/V as well as evidence on affidavit that the Complainant did not pay the final electric bill for the said temporary electric connection for which the Complainant has no locus standi to claim the said security amount.
It appears that the O.P to settle the present dispute, deposited a Cheque bearing No.648882 dated 14/10/2015 of Rs.14,066/- in favour of the Complainant on 16/10/2015 and the Complainant received the same on 19/11/2015 with objection.
During the course of argument, the Ld. Agent for the Complainant argued that though the Complainant is entitled to get full amount of security deposit, the O.P only pay Rs.14,066/- by adopting unfair trade practice and the Complainant is entitled to get the full amount with compensation.
Besides, the Ld. Agent for the O.P vehemently argued that the present case is not maintainable before this Forum as the Complainant is not a consumer because the Complainant took the said electric connection for commercial purpose for his construction work at Toofanganj.
Annexure-“1” is the “Quotation” it appears that the Application No. Temp/Com/35 that means the said connection was temporary commercial connection.
On a meticulous reading of the documents made available in the record, we did not find any scrap of papers/any electric bill from which it appears that the said connection was domestic one.
Furthermore, the Complainant in his complaint also in evidence frankly stated that he took the said connection for his construction work in business purpose. Nowhere the Complainant mentioned that the said business was only for his earning livelihood by means of self employment.
Thus, it is very much clear that the Complainant had an electric connection for commercial purpose and therefore, he did not come within the meaning of “Consumer” as defined in Section 2(1)(d)(ii) of C.P. Act, 1986. The Section 2(1)(d)(ii) of C.P. Act, 1986 be read as under:-
- 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 user of such goods 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 purpose).
Explanation – For the purpose 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.
From a bare reading of the Section aforesaid it is clear that person(s) availing services for “commercial purpose” do not fall within the meaning of “Consumer” and cannot be a “Complainant” for the purpose of filing a “Complaint” before the Consumer Forum.
The Ld. Agent for the O.P cited a ruling reported in (2013)CJ 921(SC) where in a similar case Hon’ble State Commission observed and attracts Section 2(15) of the Electricity Act, 2003 where “Consumer” has been defined as under :-
Section 2(15) “Consumer” means any person who is supplied with electricity for his own use by a licensee or the Govt. or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Govt. or such other person, as the case may be.
From a bare reading of the said Section, we find that the “Consumer” as defined under Section 2(15) includes any person who is supplied with electricity for his own use by a licensee and also includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, irrespective of the fact whether such person is supplied with electricity for his own use or not. Per contra under Section 2(1)(d) of the C.P. Act, 1986 those who were supplied with electricity for commercial purpose and those who do not avail services for consideration, irrespective of electricity connection in their premises do not come within the meaning of “Consumer”.
Thus, in the light of foregoing discussion it is well derived that the present complainant is not a Consumer as per C.P. Act 1986 and the Point No.1 is decided against the Complainant.
The O.Ps also taken plea for not refunding the security deposit as the last bill was not paid by the Complainant. The Complainant fails to file any electricity bill/Xerox copies of bill or receipt of payment of entire electricity bill. Thus, the Complainant failed to prove that he paid the last bill to the O.P Company.
The Ld. Agent for the O.Ps argued that as the last bill is outstanding then the O.P. Company rightly deducted the said amount before payment of security money for which the O.Ps have no deficiency in service.
Thus, on four corners it is established that the Complainant failed to prove the deficiency in service on the part of the O.Ps also the Complainant is not a consumer for which he is not entitled to give any relief.
ORDER
Hence, it is ordered that,
The present Case No. CC/40/2015 be and the same is dismissed on contest. No order as to costs.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
President in- charge President in- charge
District Consumer Disputes District Consumer Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar
Member
District Consumer Disputes
Redressal Forum, Cooch Behar
