AI Structured Summary
Not yet generated for this judgment
Judgment
Dr. S. M. Kantikar, Presiding Member
The present First Appeal is preferred under Sec. 19 of the Consumer Protection Act, 1986 against the order dated 11.07.2018 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short "State Commission").
Brief facts relevant for disposal of the case are that the complainant had taken an electric connection of 130 KVA in the year 2013. The complainant had been regularly paying the bills. It is stated that after a long gap of four years, the OP sent a demand notice vide letter No. 3752 dated 22.12.2017 for Rs. 37,25,673/-, wherein it was mentioned that the previous bills were on the basis of MF- 2 instead of MF - 4 . So, the difference amount as mentioned above was demanded. Being aggrieved by the act of demanding dues after two years, which was against Sec. 56 (2) of Electricity Act 2003, the complainant filed a complaint in the State Commission.
The State Commission, vide order dated 11.07.2018, dismissed the complaint with the following observation:
In view of averments made in complaint it is apparent that the complainant M/s Sheetla Granite Daharra is firm having partners and the electric connection in question has been obtained by it for commercial purpose to run machine for crushing stones. As such the complainant is not a consumer as defined in Section (2)(1)(d) of the Consumer Protection Act , 1986 .
In complaint the complainant has simply said that it has started crushing of rocks through the machine for earning its livelihood. It has not been stated in complaint that the business of crushing of rocks through machine has been started for the purpose of earning livelihood by means of self employment. In complaint it has also not been averred that complainant firm and its partners were unemployed and business of firm has been started for self employment. As such the explanation of Section 2(1) (d) of the Consumer Protection Act 1986 is not applicable on complainant in view of averments made in complaint. The view expressed above finds support from the judgment of Hon'ble National Commission rendered in the case of Shweta Sharma V/s M/s BPTP Limited reported in 2018 (1) CPR 244 (NC).
Learned Counsel for the complainant has referred following case laws.
Kerala State Electricity Board and another V/s Yeshu Adimandar (Died) Thr. Legal Heir - II (2016) CPJ 238 (NC).
Sri Venkateswara Syndicate V/s Oriental Insurance Company Limited and another - II(2010) CPJ I (SC) .
In view of discussion made above case laws referred by learned Counsel for the complainant are not applicable on facts of present case.
In view of conclusion drawn above complainant firm is not a consumer as defined in Section 2(1) (d) of the Consumer Protection Act 1986 and the complaint filed by it is not maintainable under the Act. As such complaint is dismissed with liberty to the complainant to approach competent court according to law.
(extract from the State Commission's Order)
Being aggrieved by the order of the State Commission, the complainant has filed the present First Appeal.
We have heard the learned counsel for the appellant and perused the material on record.
Multiplication factor of energy meters is a very important ingredient in the calculation of actual energy consumed. The OP had mistakenly calculated the bill on the basis of MF-2 when it was to be calculated on the basis of MF-4. So, the OP is entitled to the remaining amount. Moreover, it is seen that the complainant is not a consumer. The complainant, being a firm having partners and doing the job of crushing of rocks through a machine cannot be taken to be self- employed and doing it for livelihood. The Consumer Protect Act , 1986 specifically only excludes persons who buy goods exclusively for the purpose of earning their livelihood , by means of self- employment. The Hon'ble Supreme Court in Paramount Digital Colour Lab v. Agfa India Private Limited, as reported in III (2018) CPJ 12 (SC) held that the Court has to look at the dominant purpose for which the purchase is made in order to decide whether it was for a 'commercial purpose'. In the present matter, electricity was taken from the OP to run the machine for crushing the rocks. The firm was run to procure profit. This prima facie shows that the complainant was undertaking a commercial activity.
On the basis of the foregoing discussion, we hold that the complainant is not a 'consumer' as per the provisions of Consumer Protection Act, 1986. Therefore, the present appeal is dismissed.
Per Hon'ble Mr. Dinesh Singh, Member
The complainant firm, M/s Sheetla Granite Daharra, is in the business of crushing rocks through machinery. The State Commission, vide its impugned Order dated 11.07.2018, had dismissed its complaint, filed against an electricity distribution co., holding that it was not a 'consumer' under the Act 1986.
Here we may refer to section 2 (1) (d) (i) & (ii) of the Act 1986:
Section 2 (1) (d) (i) & (ii):
"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 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 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 purposes of earning his livelihood by means of self-employment.
Section 2 (1) (d) (i) & (ii) specifically stipulate "but does not include a person who obtain such goods for resale or for any commercial purpose" and "but does not include a person who avails of such services for any commercial purpose".
The Explanation to section 2 (1) (d) stipulates that " "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment."
The Explanation to section 2 (1) (d) is clear. "exclusively for the purposes of earning his livelihood by means of self-employment" in the Explanation has to be adjudged rationally and logically with the due understanding and significance of "exclusively" and "livelihood" and "self-employment". Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothised towards anyhow allowing anyone in.
A bland averment in the complaint, loosely articulated in the language of the Explanation to section 2 (1) (d), as has been made by the complainant firm in the instant case, is not sufficient to hold a person as 'consumer', when the facts speak otherwise. The averment has to be clear and categorical, and, in a case of the present specificities, has to be established through facts, which onus the complainant firm has failed to discharge.
The State Commission has passed a well-appraised and well-reasoned Order, and rightly determined that the complainant firm is not a 'consumer' within the meaning of section (2) (1) (d) of the Act 1986.
We also make it clear, in the present context, that section 2 (1) (d) (meaning of 'consumer') and section 3 (additional remedy to consumers) have to be understood in conjunction and perspective. It has to be noted that denial to avail additional remedy in consumer protection fora to a person who is not a 'consumer' does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a 'consumer' to agitate his case in any other appropriate forum / court.
We explicitly clarify that we have not gone into the merits of the dispute between the opposing sides. The complainant firm is, thus, free to agitate its case in any appropriate forum / court as per the law (but consumer protection fora established under the Act 1986 are not for it).
With this brief examination, and with observations as in paras 14 and 15 above, the appeal is dismissed.