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2003 DIGILAW 256 (UTT)

Uttaranchal Power Corporation Ltd. v. Hotel Relax

2003-11-11

K.D.SHAHI, LUXMI SINGH, SURINDER KUMAR

body2003
JUDGMENT This is an appeal by the Uttaranchal Power Corporation Ltd. against the judgment and order dated 07.07.2003 passed by the District Forum. Dehradun whereby the complaint of the complainant Hotel Relax was allowed and the appellant was directed to raise the bill on the basis of three months consumption and no surcharge shall be charged and rebate shall properly be given to the complainant. 2. The facts are not very intricate. Hotel Relax is a consumer of electricity supplied by the appellant. It is said that the appellant made an inspection on 18.04.1994 and found that C.T. of the meter is burnt. A note was prepared for the change of the C.T. It was changed on 23.09.1994. The bill for the electric consumption for the month of September 1994 was given to the complainant by the opposite party showing only 5852 units consumed. However, in this bill additional 13603 units were added to have been consumed between 18.04.1994 to 23.09.1994 and the bill was raised to the tune of Rs. 74,710.70/ -. It is said that the delay in changing of the C.T. of the meter is deficiency in the service of the Electricity Department and it is said that no additional bill could have been raised and the complainant should have been allowed rebate and no surcharge should have been charged on the disputed units. 3. The opposite party. i.e. the appellant, admitted the inspection on 18.04.1994, found the C.T. burnt and it is admitted that it was replaced on 23.09.1994. It is alleged that the meter was noticed having slow speed. On checking the C.T. was found burnt and therefore the bill was raised on the average use of the electricity for the 6 months. 4. The opposite party alleged: i) That the complainant is not a consumer. ii) He has taken the electricity just for commercial purposes. i.e. running of a hotel •for earning profits. Therefore, the complainant is barred before the consumer forum. iii) It is also alleged that the C.T. was found burnt and the bill was properly raised. 5. 4. The opposite party alleged: i) That the complainant is not a consumer. ii) He has taken the electricity just for commercial purposes. i.e. running of a hotel •for earning profits. Therefore, the complainant is barred before the consumer forum. iii) It is also alleged that the C.T. was found burnt and the bill was properly raised. 5. The Learned Forum after hearing the Learned Counsel for the parties in a very detailed judgment gave the finding in favour of the complainant and passed the following order: "The opposite parties are hereby directed to take the average of energy of the three months succeeding the change of C.T/meter (the C.T./meter has been changed on 23.09.1994 and then to determine the consumption of energy for the period the C.T. remained burnt and replaced i.e. from 16.08.94 to 23.09.1994 and raise the bill for the same for payment by the complainant. The fresh bill as directed be raised within one month from the date of this order and delivered to the complainant for payment who should pay the same within one week from the date of receipt. The Ops will then make admissible to the complainant all the rebates surcharge in the subsequent bills and if the same have already been paid to the Ops, the said amount shall be adjusted in his subsequent bills onward. The Opposite parties shall also pay to the complainant Rs. 5,000/- as compensation and Rs. 1,000/- as the costs of the litigation within two months from the date of this order." 6. Against this order the present appeal has been filed. We have heard the Learned Counsel for the parties and gone through the records. The first question is that whether this is a consumer dispute or not? To decide this question we have first to see whether the supply of electricity for commercial purposes was barred under the provisions of the Consumer Protection Act, on the date of the present complaint. 7. The complaint before the Forum was filed on 07.08.2001. The appellant has filed the written statement on 15.12.2001. 8. Everybody knows that there was a drastic change in the provisions of the Consumer Protection Act by the Amending Act No. 62 of 2002 which came into force on 15.03.2003. By this Amending Act. "That does not include a person who avails of such services for any commercial purposes" is included. 8. Everybody knows that there was a drastic change in the provisions of the Consumer Protection Act by the Amending Act No. 62 of 2002 which came into force on 15.03.2003. By this Amending Act. "That does not include a person who avails of such services for any commercial purposes" is included. Earlier only goods were in the purview. If any person purchased any goods for commercial purposes, he was not considered to be a consumer. By the Amending Act a person who hires services for commercial purposes shall also be excluded from the definition of the term consumer. 9. Amending Act of 2002 came into force on 15.03.2003. There is definite finding of the National Commission as reported in Shiv Shakti Co-operative Housing Society, Nagpur Versus M/s. Swaraj Developers and others reported in 2003 AIR SCW 2445, that the operation of the Amending- Act is only prospective which is not retrospective. Therefore, the old act alone shad apply I to the cases filed before 15.03.2003. 10. Definitely this complaint was filed before 15.03.2003 and as such if electricity is goods and it has been purchased for commercial purposes, the complaint shall not lie but if it is in the definition of service and it has been purchased for commercial purposes, nevertheless, the complaint shall lie because, such complaints have not been earlier excluded from being a consumer dispute. 11. For this to find out whether the supply of electricity is supply of goods or services, the Learned Forum has given a very detailed finding and has given a number of rulings. 12. Goods or services might have been defined in other Acts but definitely definition of services and goods have been given in the Consumer Protection Act also. 13. Goods as defined• in the Consumer Protection Act is the same as goods defined in the Sale of Goods Act. Goods have been defined in the U.P Sales Tax to mean every kind of movable property other than actionable claims, stocks, shares or securities; and includes growing crops, grass, trees and things attached to or fastened to anything permanently attached to the earth but which under the contract of sale are agreed to be severed, and includes any class of goods. 14. 14. A bare reading of the definition of goods and services in the Consumer Protection Act will show that supply of electricity or other energy has also been kept in the category of services. The legislature must be aware of the fact that if electricity was to be considered as goods it should not have been given it in the category of services. They did not keep supply of electricity in the category of goods. Supply of electricity or other energy is in the category of service and not goods, at least in the provisions of Consumer Protection Act. 15. The Learned Counsel for the appellant has relied upon two rulings of the Hon'ble Supreme Court. One ruling is the Commissioner of Sales Tax, Madhya Pradesh Versus Madhya Pradesh Electricity Board, Jabalpur reported in AIR 1970 Supreme Court 732 and the other ruling is State of Andhra Pradesh Versus National Thermal Power Corporation Ltd. reported in 2002 AIR SCW 1956. In both these rulings what was in dispute was definition of goods for the purposes of sales tax and electricity was to be seen in that light. The main question in these rulings was whether the supply of electricity energy is goods for the purposes of Sales Tax Act. Under Section D(1) certain goods were also kept in the category of declared goods as declared by Section 14 of the Central Sales Tax Act, 1956. 16. In the above two rulings Berar Sales Tax Act and Madhya Pradesh General Sales Tax Act were considered. We have not those Acts before us. As said above in both these rulings definition of goods has been considered only for the purposes of Sales Tax Act and not for the purposes of Consumer Protection Act. We have also said above that the definition of goods in both the Acts, i.e., Sale of Goods Act and Sales Tax Act is entirely different at least the term services are not said to have been defined in any of the Sales Tax Act. We have to take the definition only for the purposes of consumer Protection Act and not for any other purpose. 17. We have to take the definition only for the purposes of consumer Protection Act and not for any other purpose. 17. Now coming to the question whether Electricity is goods or services under Consumer Protection Act, the Learned Counsel for the appellant besides the above two rulings of the Supreme Court referred the decision of this Commission reported in 3 (2003) CPJ Page 139 Somu Steel Put. Ltd. Versus Uttaranchal Power Corporation. In this ruling there was a dispute relating to arrears of electricity bills where electricity was supplied for commercial a purposes? The complaint was filed after the enforcement of the Act. It was argued o that the case shall not lie before the g Consumer Forum. It was also held in this s case that supply of electricity may be goods or services but after the enforcement of the new Act in either case the complaint shall not lie before the Consumer Forum. There was no direct dispute whether the supply of electricity was goods or services. However, it has specifically been held in that case by this Commission that now as per the definition of the Act electricity is in the category of service and after the amendment service as well is also within the mischief of the Section. It was specifically held in Para 7 that it is immaterial whether the electricity is goods or services but if it has been obtained for commercial purposes, even not for resale, then also it shall come within the preview of the Bar Clause. It was specifically held in Para 12 of this judgment that supply of electricity is service under the Amendment Act of 2002. It is our own judgment but the view of the Hon'ble National Commission is very specific in the ruling of Manju Singh Chauhan Versus Madhya Pradesh Electricity Board CPJ 73 (NC). It has been specifically held by the National Commission that the Corporate bodies like the State Electricity Boards render service under Sec. 2(1) (o) of the Consumer Protection Act and that the sale of electricity is for consideration and supply of electricity on a continuing basis over a period of time against payment therefore is hiring of service under Sec. 2 (1) (d)(ii) of the Consumer Protection Act. 18. We lay emphasis on the wordings. 18. We lay emphasis on the wordings. "This Commission has considered this question in a number of cases previously and has given an opinion that supply of electricity is within the definition of service." We need not discuss the judgment of State Commissions in view of the decisions given by the National Commission which shall get precedence over the decisions given by any of the State Commission. 19. At any rate there is also the judgment of the Hon'ble Supreme Court which is a landmark judgment on Consumer disputes i.e. AIR 1974 Supreme Court Page 787 Lucknow Development Authority Versus M. K. Gupta. We have also said that the earlier two decisions referred by the Electricity Board are in relation to Sales Tax Act whereas the present ruling of Lucknow Development Authority is directly on consumer disputes and in this ruling in Para 4 the Hon'ble Supreme Court has specifically held in relation to Consumer Protection Act that supply of electricity or electrical energy is rendering of service. 20. It has been specifically held in this ruling that "A scrutiny of various definitions such as 'consumer', 'service', 'trader', 'unfair trade practice' indicates that legislature has attempted to widen the reach of the Act. Each of these definitions are in two parts, one, explanatory and the other expandatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep then its ambit is widened to such things which otherwise would have been beyond its natural import." It was held that hiring of service for electrical supply as well is amenable to the jurisdiction of the Consumer Protection Act. 21. In view of what has been said above we find that supply of electricity is hiring of services and it cannot be kept in the category of goods. Even if the Electricity Board supplies goods it renders I service in supplying the goods and if there f is any deficiency in rendering the service f that is cognizable by the Consumer Courts. According to the complainant in this case the change of C.T. after about 1 and a quarter month is deficiency in rendering service. It ought to have been changed as soon as it was detected to the Board. According to the complainant in this case the change of C.T. after about 1 and a quarter month is deficiency in rendering service. It ought to have been changed as soon as it was detected to the Board. There is no dispute regarding any electrical goods, meter or any other thing except the rendering of service not in time and not providing rebate and unnecessarily charging the surcharge. We therefore hold that the complainant is a consumer and 'his complaint is entertainable under the provisions of the Consumer Protection Act. 22. The next question, which was agitated, is that the complainant has got alternative remedy and he should have referred the matter to the electrical inspector or should have gone into arbitration. The provisions of the Consumer Protection Act are supplementary in nature, it is additional remedy provided to the consumers. There is absolutely no dispute regarding meter that the complainant should have gone to the electrical inspector. It has been held in the ruling reported in 1996 (3) CPJ Supreme Court N.K. Mehri Versus Share Air Engineers Pvt. Ltd., that the mere existence of an arbitration clause or an alternative remedy is not a bar to consumer proceedings. This view has also been fortified from the ruling reported in Canara Bank Versus Nuclear Power Corporation of India J.T. 1995 (3) SC Page 42 and 1999 (1) National Commission Udaipur Consumption Versus, Punjab Water Supply and Sewerage Board. If there is consumer dispute irrespective of alternative remedy the complaint shall he before the consumer forums. 23. As regards the changing of C.T. it has been done after 1 and a quarter months. It should have been changed immediately. There was regular checking and on these checking everything was found normal. It was inspected on 18.04.1994 firstly and after 18.04.1994 on 16.08.1994 it was found burnt. Therefore, the Department raised additional bill from 18.04.1994 to 30.09.1994 or more than 5 months on the ground that the entire electricity consumed had not been recorded in the meter. By a diagram the Learned Counsel for the Electricity Department exhibited that only one-third could have been shown in the meter. Therefore, for the two-third, which has not been shown, additional bill has been issued. We are surprised at this argument that only one-third was shown by the meter because the C.T. was burnt. By a diagram the Learned Counsel for the Electricity Department exhibited that only one-third could have been shown in the meter. Therefore, for the two-third, which has not been shown, additional bill has been issued. We are surprised at this argument that only one-third was shown by the meter because the C.T. was burnt. The Learned Forum has given in its judgment a chart of the electricity consumed by the complainant and that chart has not been disputed. The meter checking was on 18.04.1994 thereafter there was checking on 16.08.1994 on which the C.T. was found burnt. The dispute therefore arises from 18.04.1994. If the C.T. was not burnt before 18.04.1994 then the consumption should have been high before 16.08.1994 and should have increased by three times after 23.9.1994. But in October 1994 occupancy was only 42%, the consumption was only 4126 units. In November it was 4492 units occupancy was 50%. The meter has always shown the consumption according to the occupancy. It did not decrease in the period during which the C.T. was burnt. It did not increase after the C.T. was replaced. The chart is clear. The argument therefore that by the burning of the C.T. the consumption was shown only one-third is not correct and therefore this charge of additional units is purely illegal, unwanted and beyond the jurisdiction of the Electricity Board and if it could not have been charged, the claim of surcharge is also meaningless. 24. The next question is whether it should have been charged on the basis of the three months consumption or 6 months consumption, the appellant has given a number of rulings to say that it should be on the basis of 6 months. All these rulings are of the State Commissions while the learned Forum has referred the ruling of National Commission reported in Secretary Kerala State Electricity Board versus Hotel Maria where there was also a case of defective meter of a Hotel itself. It was said that the meter did not show the proper reading. The Hon'ble National Commission held that the order of the State Commissions that the proper direction was to take the average of energy of the 3 months succeeding the change of meter and then to determine the consumption of energy for the 6 months prior to the due of the bill was justified. The Hon'ble National Commission held that the order of the State Commissions that the proper direction was to take the average of energy of the 3 months succeeding the change of meter and then to determine the consumption of energy for the 6 months prior to the due of the bill was justified. The District Forum has passed the order in the same line as has been directed by the National Commission. The rulings of 6 months average given by the appellant of different State Commissions shall not get precedence over the ruling of the National Commission. 25. We have gone through the judgment recorded by the Learned Forum. The Learned Forum has given a very detailed and comprehensive judgment. After discussing each and every aspect of the case we need not repeat the same arguments. We are fully in agreement with the finding of the Learned Forum. 26. It was argued by the Learned Counsel for the Uttaranchal Power corporation that at the time of inspection a joint was found in the cable which was hidden in the wall that indicates malpractice by the complainant. May it be so, but neither any penalty has been imposed on the complainant for that not there is a case of additional charge or prosecution of the complainant. On that ground there is absolutely no case of any pilferage or theft of electricity and in the absence of any such case we have not to decide on that point. It was the duty of the Electricity Department to either change the cable or direct the complainant to change it. We have not been informed till date that the said cable has been changed or not but since there is no dispute of this type in this case, we have nothing to say about joint in the cable, neither that will affect the merits of this appeal. 27. This appeal has got no force and is to be dismissed. ORDER The appeal is hereby dismissed. Cost of the appeal shall be easy.