Mohammad Haseeb Ahmad vs Maharashtra State Electricity Board

AS per the averments made in the Complaint, complainant/petitioner was given electricity connection by the respondent-Board for running a stone crusher in the year 1994. It is stated that the petitioner started the stone crusher in the year 1995 and regularly paid the electricity bills till 2003. Petitioner received a bill from the respondent which was sent without proper reading/ record of the meter. Being suspicious, petitioner lodged an oral complaint with the Electricity Authorities but in vain. Thereafter, petitioner lodged a complaint with the Authorities in the year 2004 stating that the electric line was not working but the concerned Electricity Authorities, on 22.2.2004, replaced the non-functional meter of the petitioner in his absence and lodged a complaint with the Police stating, inter alia, that the petitioner was indulging in theft of electricity for the past 3 years. Petitioner received a bill of Rs. 4,63,332 on 25.2.2004, which was not paid. Due to non-payment, the electricity supply of the petitioner was disconnected without prior notice. Being aggrieved, petitioner filed the Complaint before the District Consumer Disputes Redressal Forum, Parbhani and Hingoli (for short ''the District Forum'').

ON being served, respondent-Board filed its Written Statement stating that the petitioner is not a ''consumer'' under Section 2(1)(d) of the Consumer Protection Act, 1986 (for short ''the Act'') as the electricity connection had been taken for commercial purpose, i.e., for running a stone crushing machine. That the complainant was stealing the electricity and the criminal proceedings were still pending and, therefore, the Consumer Forum was not competent to try the Complaint. That the electricity connection was disconnected due to non-payment of the bill which had been issued to the complainant. Thus, denying the allegations made in the Complaint, it was prayed that the Complaint be dismissed.

DISTRICT Forum, after taking into consideration, the pleadings as well as the evidence led by the parties, dismissed the Complaint.

AGGRIEVED by the Order passed by the District Forum, petitioner filed an Appeal before the State Consumer Disputes Redressal Commision, Maharashtra (for short ''the State Commission''), which has been dismissed primarily on two grounds. Firstly, that the Complaint was not maintainable as the petitioner had taken the electricity connection for commercial purpose, i.e., for running a stone crusher; that the electricity connection was taken to carrying out commercial activity designed to earn profit and services availed of for commercial activities were excluded from the definition of ''consumer'' under Section 2(l)(d) of the Act. Secondly, that the Complaint was not maintainable as the respondent-Board had initiated criminal proceedings against the petitioner for theft of energy, which were still going on.

BEING aggrieved, petitioner/complainant has filed the present Revision Petition.

COUNSEL for the petitioner has placed on record a copy of the Order of District and Sessions Court, Parbhani in Special Case No. 51 of 2006 dated 26.7.2007 by which the petitioner has been acquitted of the charge of theft of energy. The stand taken by the respondent-Board in the Written Statement before the District was that the Complaint was not tenable as a case of power theft had been lodged against the petitioner which was still pending. Respondent has not led any independent evidence to show that the petitioner was guilty of theft of energy. Since, the petitioner has been acquitted of the charge of theft by the Criminal Court, we need not examine the point regarding the maintainability of the Complaint on the ground of theft of energy as the respondent has not proved the theft of energy by leading any independent evidence.

COUNSEL for the petitioner, relying upon a Judgment of this Commission in Harsolia Motors v. National Insurance Company Limited, I (2005) CPJ 27 (NC)=First Appeal No. 159 of 2004, dated 1.4.2004, contends that where goods purchased or services hired are not directly intended to generate profit, would not be for a commercial purpose. That the petitioner did not purchase electricity for any commercial purpose. We do not find any substance in this submission. The decision in Harsolia Motors case (supra), would be of no assistance to the petitioner as the only question before the Commission was whether the insurance policy taken by the commercial unit would be held to be hired for service for commercial purpose and thereby excluded from the purview of the Act. The facts of the said case were totally different. In the said case, this Commission, after taking into consideration the Case Law, came to the conclusion that taking of the insurance policy is for protection of the interest of the assured in the articles for goods and not for making any profit or trading for carrying on commercial purposes. The present case is totally different. In this case, petitioner has taken the electricity connection for running a stone crusher which was a commercial activity meant to generate profit. The said case will have no applicability to the facts of this case.

SECTION 2(l)(d)(ii) was amended by an Act of 62 of 2002 which came into force with effect from 15.3.2003 and the same reads as under: "(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 purposes; Added by Act 62 of 2002 w.e.f. 15.3.2003. [emphasis supplied] In the Explanation, an exception has been created which reads as under: 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(l)(o) defines service as under: "Service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

THE point in issue in the present case is squarely concluded by a decision of the 3-Judge Bench of this Commission in Consumer Complaint No. 155 of 2008 and other connected cases decided on 17.12.2009. The issue before the Bench in the said case was: "whether a person who has purchased goods for commercial purpose after coming into force of the Amendment Act 62 of 2002 w.e.f. 15.3.2003 would fall within the ambit of consumer when he avails of services in the nature of warranty attached to the goods purchased."

After examining the issue threadbare, it was held as under: "According to Section 2(l)(d)(i) of the Act the consumer does not include a person who obtains such goods for resale or for any commercial purpose. According to Section 2(1)(d)(ii) a person who avails of such services for any commercial purpose would not fall within the ambit of consumer. In order to qualify as consumer the complainant in OP No. 155/08 for the first time in the written submissions came out with a case that the complainant had bought windmills exclusively for the purpose of earning his livelihood by means of self-employment. It was also stated for the first time in the written submissions that the present commercial ventures require the involvement of complainant with assistance/help of few employees and hence the complainant is clearly a consumer in view of the aforesaid explanation. There are no pleadings to this effect in the complaint and obviously on the basis of pleadings in the complaint it is clearly established that the complainant had entered into a contract of supply WEGs as also to erect and commission the same for commercial purpose. Besides this, if any services are availed for commercial purpose, the same would not come within the ambit of definition of consumer. This aspect has been dealt with by a Bench of this Commission of which one of us (R.K. Batta, J.) is a party, in Meera Industries, Howrah v. Modern Constructions, Howrah (R.P. No. 1765/07). In the said judgment the definition of consumer under Section 2(l)(d) and the definition of service under Section 2(l)(o) has been referred and the matter has been examined in connection with the deficiency in service during the warranty period. The short controversy therein was that when the goods are purchased for commercial purpose, whether the purchaser would be a consumer during the warranty period in terms of Section 2(l)(d)(ii) of the Act. In the said judgment various judgments of this Commission prior to the amendment were examined. It was held: "In so far as purchase of goods, which is covered by Section 2(l)(d)(i) is concerned, a person who purchases goods for commercial purpose is not a ''consumer''. However, insofar as hire or availing of services is concerned, after amendment, which came into force on 15.3.2003, any person who avails of such services for any commercial purpose has been excluded from the ambit of service. We have scanned through the judgments of this Commission, which primarily rely upon judgments of this Commission in Amtrex Ambience Ltd. v. M/s. Alpha Radios and Anr., I (1996) CPJ 324 (NC), and Jay Kay Puri Engineers and Anr. v. Mohan Breweries and Distilleries Ltd., I (1998) CPJ 38 (NC). Both these judgments relate to pre-amended Section 2(1)(d)(ii) of the Act. The other rulings of the Commission which are primarily based on the said rulings are namely, Meera and Co. Ltd. v. Chinar Syntex Ltd., 2004 CTJ 1086 (CP) (NCDRC), Dr. Vinjai Prakash Goyal v. The Network Limited, III (2005) 206 (NC), Super Computer Centre v. Globiz Investment Pvt. Ltd., III (2006) CPJ 256 (NC), Jindal Drilling and Industries Ltd. v. Indocon Engineers Pvt. Ltd. and Anr., III (2006) CPJ 264 (NC), East India Construction Co. and Anr. v. Modern Consultancy Services and Ors., II (2006) CPJ 289 (NC), Pearlite Liners Ltd. v. Thermo Jarrell Ash Corporation and Anr., IV (2006) CPJ 375 (NC), and Larsen and Toubro Ltd. and Ors. v. Sunder Steels Limited and Ors., I (2009) CPJ 256 (NC). In all these judgments, it is held that even if a consumer purchases goods for a commercial purpose, yet in so far as warranty attached to the goods is concerned, he would still be a consumer if some defect is found during the warranty period. All these judgments relate to goods purchased prior to amendment to Section 2(l)(d)(ii) of the Act. None of these judgments have considered the effect of amendment to Section 2(l)(d)(ii) of the Act. All the decisions of this Commission, which have been rendered, are with reference to the provisions of unamended Section 2(l)(d)(ii) of the Act where hiring or availing of services for commercial purpose had not been excluded. In these judgments, the position after amendment to Section 2(l)(d)(ii) of the Act, which came into effect from 15.3.2003 by which, a person who avails of such services for any commercial purpose is excluded has not been considered. Warranty, which comes along with purchase of goods is nothing but service attached to the goods during the period of warranty. Therefore, even the service availed for commercial purpose is purely excluded from the scope and ambit of consumer. In view of the above, we are of the opinion that whether a customer buys goods for commercial purpose and avails of services attached to the goods in the nature of warranty, he cannot be considered to be a consumer even for the purpose of services during the warranty period in view of the amendment to Section 2(d)(ii) of the Act, which came into force w.e.f. 15.3.2003. In view of this, the complainant cannot be held to be a consumer with reference to the services attached to the warranty and the complaint is not maintainable."

In an another judgment of this Commission in Jayant Kumar Sahu v. Dr. Prasanna Kumar Patel, II (2006) CPJ 71 (NC)=2006 CTJ 324 (CP) (NCDRC), to which one of us (B.K. Taimni, Member) was party, cognizance of amendment to Section 2(l)(d)(ii) of the Act w.e.f. 15.3.2003 was taken, it was observed that service rendered for commercial activity has been excluded w.e.f. 15.3.2003. However, before that date service rendered for commercial purpose was within the ambit of Consumer Forum. In view of the above, the complaint in OP No. 155/08 cannot be considered as consumer so as to maintain complaint under the Consumer Protection Act. Complaint is accordingly dismissed on this account with no order as to cost."

IT has been held that buying of goods and services for running commercial activity, stands excluded from the purview of the Act after the amendment of Section 2(l)(d)(ii) with effect from 15.3.2003.

FACED with this, learned Counsel for the petitioner contended that the Explanation to Section 2(l)(d)(ii) of the Act, excluded, from the ambit of commercial purposes, any goods purchased by the consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose.

PETITIONER, in his Complaint, had not stated that he had taken the electricity connection for running the stone crusher for the purpose of earning his livelihood by means of self-employment. No evidence had been led to that effect either before the District Forum or before the State Commission. Before us, the petitioner has filed an Affidavit along with certain documents to show that he had undertaken the business of running the stone crusher for self-employment by taking the help of 7 persons, out of which, 4 were temporary and on day-to-day basis. Whether the business was being run for self-employment, is a question of fact, which had to be alleged and proved by the petitioner by leading evidence before the District Forum which was not done. No evidence can be lead on a fact which was not alleged. The Affidavit filed at this belated stage, after a lapse of 7 years, before this Commission, stating that the petitioner had undertaken the business of running the stone crusher for self-employment, cannot be entertained. The fact that the business was being run by way of self-employment was in the knowledge of the petitioner all through but no explanation has been given as to why this fact was not alleged and proved before the District Forum. The fact that the petitioner had undertaken the business of stone crushing exclusively for earning his livelihood is merely an after-thought to fall in the exception created by the Explanation to Section 2(l)(d)(ii) of the Act but it cannot be entertained at this belated stage.

RESPECTFULLY following the law laid down by the 3-Judge Bench of this Commission, we endorse the findings laid down by the State Commission that the Complaint was not maintainable.

FOR the reasons stated above, we find no merit in this Revision Petition and dismiss the same leaving the parties to bear their own costs. Revision Petition dismissed.