KISHORI LAL GHOSHI vs RAJKUMAR SAMAIYA

THIS is an appeal by an employee of the M.P. Electricity Board, Sagar against the order of District Forum, Sagar holding him personally responsible for disconnection of electric supply of the complainant and directing him personally to pay compensation to the complainant.

THE complainant contends that he was a tenant of one Makhanlal alias Munnalal till 8.10.1990 on which date he purchased the property in which his shop is situated. In this shop since 1980, an electric connection existed. This connection was taken by the complainant earlier as a tenant but from 8.10.1990 the complainant himself became the owner of the house. According to the complainant his neighbour Manoj Kumar was no in good terms with him and in order to harass the complainant he conspired with non-applicant No. 2 (Appellant herein) and got the electric supply of the complainant disconnected. Before disconnecting the electric supply, the M.P. Electricity Board (hereinafter called as ''MPEB'') sent a notice dated 25.11.91 to the complainant calling upon him to produce consent letter from Manoj Kumar as also to produce a lease-deed in favour of said Shri Manoj Kumar executed by the complainant, failing which the electric supply was threatened to be disconnected. The complainant sent a reply that he had become owner of the house and Manoj Kumar had to do nothing with the house. Again another notice dated 4.3.92 and a third notice dated 9.3.92 were served on the complainant and despite a reply having been filed, on 18.3.92 the M.P.E.B. disconnected the electric supply of the complainant. The complainant therefore, approached the District Forum, Sagar with his complaint.

The District Forum held that there was no reasonable cause for disconnection of electric supply but held only non-applicant No. 2 (Appellant herein) personally responsible and ordered payment of Rs. 200/- per day for the period of disconnection as compensation to the complainant. The appellant was also ordered to pay Rs. 500/- to the complainant and Rs. 500/- to the M.P.E.B. as expenses of the case.

WE have heard the learned Counsel appearing for the parties and have also perused the record. A look at the complaint shows that proper care while drafting the complaint has not been taken by complainant or his Counsel. The Opposite Parties as impleaded are Divisional Engineer, M.P.E.B. Cant, Sagar, Shri Kishorilal Ghoshi, Junior Engineer, M.P.E.B., Khurai, District Sagar and Divisional Engineer, M.P.E.B. Tahsil Beena, District Sagar. Actually, MPEB had to be impleaded as a party instead of three Officers who were impleased as Opposite Parties. WE find from the record that actually the case fought by the M.P.E.B. on behalf of the non-applicants and, therefore, the default would not be fatal. But all the same we would like to emphasis that proper care has to be taken by the complainants while impleading Opposite Parties so that they may not have to suffer ultimately while enforcing the order in their favour on the technical ground that the real Opposite Party has not been impleaded. In this particular case on the facts and in the circumstances as already pointed out M.P.E.B. has been sufficiently represented and it has not raised any such objection either. Since the M.P.E.B. has been totally exonerated by the District Forum and only the appellant a Junior Engineer has been held personally responsible for disconnection of electricity and consequently has been ordered to pay compensation from his own pocket, the main question arises is whether such direction could be given by the District Forum.

THE Consumer Protection Act, 1986 or the rules made thereunder do not specifically provide as to who would be the Opposite Party in case of a complaint. Section 2(1)(c) of the Act defines the term ''complaint'' as under:- "2. Definitions.- (1) In this Act, unless the context otherwise requires - (a) ---- (b) ----- (c) "Complaint" means any allegation in writing made by a complainant, that, - (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, with a view to obtaining any relief provided by or under this Act."

It is clear from the above definition that complaint could be as regards unfair trade practice adopted by a trader or defective supply of goods by a person who has sold them, a trader who has charged more than the lawful price for the product sold and person who has given services on hire if the services suffer from deficiency in any respect. Section 2(1)(q) of the Act defines the word ''trader'' as under:- "2(1)(q):;- "trader" in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof." The word "Manufacturer" has been defined in Section 2(1)(j) as under:- "2(l)(j) "manufacturer" means a person who, - (i) makes or manufacture any goods or parts thereof; or (ii) oes not make or manufacture any goods but assembles parts thereof made or manufactured by other and claims the endproduce to be goods manufactured by himself; or (iii) uts or causes to be put his own mark on any goods made or manufactured by any other manufacturer and claims such goods to be goods made or manufactured by himself."

Similarly, "defect" and "deficiency" have been defined in Section 2(1)(f) and 2(1)(g) respectively. They are reproduced hereunder:- "2(1)(f): "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or as is claimed by the trader in any manner whatsoever in relation to any goods." "2(1)(g): "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

THE combine effect of all the definitions is that a complaint can be lodged in respect of defect in any goods against a trader who has sold the goods or a person who has given services on hire. THE definition of ''trader'' and ''manufacturer'' would show that it does not include employees of the trader or manufacturer. THE definition of ''person'' also does not include employee of that person. In the definition of ''deficiency'' with which we are concerned in the present case, it is clearly provided that it means any fault, imperfection, shortcoming or inadequacy in the quality of performance which is required to be maintained or under any law for the time being in force or has been undertaken to be per formed by a person in pursuance of a contractor otherwise in relation to any service.

THUS, a complaint about deficiency could only be made against a person who has entered into a contract or has otherwise undertaken to provide the service. In the present case, the contract obviously is with the M.P.E.B. which is the supplier of electricity. Complaint could not therefore be entertainable against any of the employees of M.P.E.B. The appellant has not been shown to be the person who had contracted to supply electricity or who was under any law bound to supply electricity. He is merely an employee of the M.P.E.B. which only had undertaken to supply electricity. The complaint therefore, could not lie against the appellant. The District Forum has not given any specific reason as to why it has held the appellant personally liable and what is the evidence on which it has come to a conclusion that the appellant had deliberately caused harm to the complainant by unauthorisedly disconnecting the electric supply. The order is clearly illegal and deserves to be setaside as against the appellant. Actually, the appellant had filed affidavits before the Forum to show that the electric supply of the Complainant was disconnected by one Sujan Singh Lineman under the orders of Assistant Engineer and not under the orders of the appellant. The District Forum has ignored these affidavits.

We are, however, in agreement with the finding of the District Forum that there was a deficiency in service. An electric connection of long standing is disconnected on flimsy grounds. The guide-lines as regards the grant of connection put on record appear to be applicable while granting a new connection. There is not a word in it to support the action taken at the instance of the so called landlord, when the complainant had brought to the notice of the Officers of the M.P.E.B. that he was claiming to be the owner of the house now. Even otherwise, only because someone wrote to the M.P.E.B. that he has now become the land-lord of the premises, connection standing in the name of occupant of the house that too, for a decade, could not have been severed by the M.P.E.B. The M.P.E.B. is therefore clearly liable for the deficiency in service. However, the damages assessed by the Forum are exorbitant and based on no foundation at all. The Forum has in a cavalier fashing relied on the ipse dixit of the complainant that a loss of Rs. 200/- per day was suffered by the complainant only because of the disconnection of the electric supply. There is no concrete evidence to support the claim. Consumer Forums are not meant for doing charity to the consumers. They have to compensate the loss suffered by a consumer due to deficiency in service or defects in goods. A Consumer Forum has therefore to assess the loss on the same principles as it is assessed by a Civil Court though, without involving itself in the procedural technicalities involved in conduct of a civil suit. The necessity of legal evidence in support of a claim for compensation has not been done away with by the Consumer Protection Act, 1986. We are therefore unable to agree with the Forum that the loss suffered by the complainant because of the disconnection of the electric supply could be assessed at Rs. 200/- per day. We would instead grant a consolidated amount of Rs. 500/- as compensation to the complainant from the M.P. Electricity Board. The M.P. Electricity Board shall be free to recover this amount from any of it''s employees who is found to be responsible for the illegal disconnection after a due enquiry in the matter.

IN the result we set-aside the order of the District Forum and direct that the M.P. Electricity Board represented by respondents No. 2 and 3 shall connect the electric supply of the complainant, if not already restored, within l0 days from receipt of a copy of this order and pay compensation of Rs. 500/- to the complainant within the same period. There shall however, be no order as to costs specially in view of the fact that the M.P. Electricity Board was not directly impleaded before the Forum and has only been added in this appeal as a respondent. Appeal allowed.