UTTAM SINGH AND SONS vs UTTAR PRADESH STATE ELECTRICITY BOARD

THIS original petition is filed by M/s. Uttam Singh & Sons who runs a cold storage in Sultanpur, U.P. claiming a compensation of Rs. 35,62,066 against opposite parties U.P. State Electricity Board alleging deficiency in service. The case of the complainant is that he has an installed storage capacity for 18,500 bags of potatoes and the Company was established under the U.P. Regulation of Cold Storage Act of 1976 and the said licence was renewed for the period from 1.1.1997 to 31.12.1997by the District Magistrate, Sultanpur, U.P. The petitioner submits that due to heavy and illegal charges of electricity bill they decided not to run cold storage in 1997 itself. But in the month of April, 1997 when Ms. Mayawati took charge as Chief Minister, Government has taken a decision that all cold storages which were not functioning due to disconnection of electricity should be functional. It is stated that the complainant was compelled to run cold storage and though the capacity of cold storage was 18,500 bags of potatoes but total 15,254 bags of potatotes were stored in the said cold storage.

THE complainant also stated that electricity connection was restored in the name of Rajendra Pal Singh who is a partner of M/s. Uttam Singh Ice and Cold Storage on 16.4.1997, and cold storage had started functioning since then. On page 71 (Annexure No. 19), it is seen that there was disturbance of supply throughout from 21.4.1997 to 14.8.1997 and the complainant requested the Electricity Department to ensure continuous supply of electricity. The complainant alleges that due to failure of supply in electricity by the opposite parties, and solely due to non-supply of continuous electricity the stored potatoes completely got damaged and started smelling throughout the city. Since complainant firm is very close to Tehsil Office, Sultanpur, Sub-Divisional Magistrate, Sultanpur issued a notice to the complainant under Section 133, Cr. P.C. on 16.9.1997 (on page 74-Annexure 20) directing them to remove the damaged potatoes from the cold storage that it may cause serious diseases due to its pollution problem. Complainant approached Oriental Insurance Company for insuring potatoes but Insurance Company denied on the ground that potatoes cannot be insured if it is stored after 15th April, 1997 according to their standing order (Annexure No. 6A). There was a writ petition filed in Hon-ble High Court, Allahabad, Lucknow Bench relating to payment of earlier dues of electricity prior to 1997 and that wrongful billing was done by opposite parties. The Court directed on 5.7.2002 that the complainant paid Rs. 1,50,000 and for the rest of the amount dispute is pending before the said Court. It is further stated that District Magistrate, Sultanpur awarded compensation to 393 farmers; and the appeal against this award made by District Magistrate, Sultanpur is still pending in U.P. Cold Storage Tribunal, Lucknow.

IT is contended by the complainant that method of cooling of cold storage was changed unlike earlier method of cooling which required higher capacity of 150 HP and the capacity applied for 41 HP in 1997 through their partner Rajendra Pal Singh is sufficient capacity to take the said load of stored potatoes. It is alleged that opposite parties had not taken sufficient interest in improving power supply and due to their negligence, potatoes were damaged and it had become beyond control of the complainant''s company to continue to work and hence they had to shut the cold storage. As per Annexure 21, the complainant claimed deficiency of service by opposite parties and prayed for following amounts given as under: 1. Total 15254 bags weight each bag 80 kgs. were storedTotal weight 12203-20 qtls @ 130 per qtls 5,86,416.00 2. Storing Charges @ Rs. 70 per qtls. 8,54,224.00 3. Cleaning of damaged potatoes, disposing etc. @ Rs. 20 per bag 3,05,080.00 4. Washing etc. of chamber and cleaning 10,000.00 5. (a) Breakage of walls at ten places 6''x4'' and damage of insulation (b) Again the repair, plaster and labour charges : 5,000.00 Cement - 4480.00 Morang - 6000.00 drsLabour Charges - 6000.00 Coltar - 1000.00 Parh - 1000.00 Total Rs. - 18480.00 (c) Insulation 6''x4'' at 10 places charges of tharmokil labour and plaster charges etc. 10,000.00 6. Due to fall of damaged potatoes the floor insulation damaged wooden plants 70''x50'' damaged and other labour charges @ 5.00 per sq. ft. total 3500 sq. ft. 17,500.00 7. 70''x50'' re-insulation of floor, Bhusi, plaks, Tarkol, labour charges 1,12,000.00 8. Mental torture 1,00,000.00 9. 18% interest per annum 5,43,366.00 Total 35,62,066.00

LEARNED Counsel for the opposite parties'' arguments are as follows. (a) The complainant is not a consumer since the connection given in April 1997 was applied and given to Shri Rajendra Pal Singh in his personal capacity without mentioning that it is on behalf of M/s. Uttam Singh & Sons. The complainant was having electric connection which was permanently disconnected in the year 1992 for non-payment of dues amounting to Rs. 13,65,711.90. Thereafter the said firm never applied for said connection and hence the complainant''s partnership firm is not a consumer and has no locus standi to file the present petition for damages on account of hindrance in supply in 1997 viz., in the year 1997 the said electric connection was given to Darshan Singh in the capacity of partnership to Uttam Singh & Sons. Hence the complaint filed by Uttam Singh & Sons is not maintainable on the following grounds that- (b) The contention of the complainant is that he was forced to make the cold storage functional by the order of the Govt. is only a statement made from a newspaper report on page 15 Vol. 1 is not actually an order but a direction by Chief Engineer (Finance) N.C. Rastogi of U.P. State Electricity Board to all Anchalik Chief Engineers (Distribution) UPSEB regarding recovery of electric bill from cold storage which was decided by the Board that recovery should be made in equal monthly instalment from August 1997 to March 1998. This decision was taken since many cold storages were closed and electricity was disconnected due to nonpayment of bills. There was a problem of storing of the potatoes. This concession of instalment payment was given by the Govt. It is stated that complainant was not compelled to restart the unit by the Govt. (c) That the complainant manipulated to avoid the payment of dues of Rs. 13,65,711 as early in the year 1992 for which electric connection was permanently disconnected took advantage of taking the connection in the name of Rajendra Pal Singh only to avoid the earlier payment. (d) That the cold storage was started after 4-5 years of idling and was suddenly put into operation without any repair and maintenance. There is nothing on record to show that the said cold storage was repaired. (e) That the load applied for by Rajendra Pal Singh to run this same cold storage was 41 HP as against the earlier sanctioned load of 135 HP. The reason for lesser load is obviously to avoid the minimum guarantee charges and other dues, this load of 41 HP cannot be sufficient to store 15,254 bags of potatoes which were stored from April 1997. In the year 1979 for a storage capacity of 2951 cubic metres the complainant asked for electric connection of 150 HP and for the capacity of 4,260 cubic metres Rajendra Pal Singh applied for electricity load of 41 HP in 1997. This clearly shows that the complainant wanted to pay less dues to the Department. The complainant wanted to avoid payment of dues to the department and was taking advantage to avoid the minimum guarantee charges. In any case this 41 HP connection was also disconnected due to nonpayment of Rs. 1,44,360. We heard both the parties and perused the documents carefully. In view of the documents placed on record, it is clear that the complainant cannot be termed as a consumer under the Consumer Protection Act. The electricity connection has been given in the name of Rajendra Pal Singh in his personal capacity. As per document on page 5 of Vol. II the Executive Engineer B.K. Srivastava has sanctioned the load of 41 HP and on page 5 of Vol. II Rajendra Pal Singh''s agreement with the Electricity Board, confirms that it is in his personal capacity that a load of 41 HP was taken on 15th April, 1997 for a period of two years. It is also noticed during the arguments that the complainant has not produced any Govt. order directing him to restart the cold storage unit. Documentation between the complainant and the Oriental Insurance Company and their initial refusal to insure has also not been brought on record. Although it is mandatory for cold storage to have insurance according to U.P. Regulation of Cold Storage Act, 1976 with Rules 1978 together with U.P. Cold Storage Order, 1972 and Notification that complainant has to insure the agricultural produce under Section 23 which provides "that every licensee shall insure the agricultural produce stored in his cold storage against loss or damage by fire, breakdown (whether mechanical or otherwise) or such other like cause". He started functioning without getting insurance for his unit. It is difficult to agree with the complainant that he was compelled to start his unit by order of the Govt. as there is no evidence for the same. The complainant took the risk of starting a cold storage after a closure for a long period and later started it without getting it insured. At that stage when the Insurance Company denied to give insurance cover complainant could have requested tike same Govt. Department which had compelled him to start to exercise their power to insure under the rules the safety of the potatoes stored with the complainant. It is surprising to see how the complainant continued accepting potatoes for storage although it is seen from his ''own record that there was erratic power supply from day one in the month of April itself the complainant accepting potatoes. The actual aggrieved parties who stored potatoes with the complainant firm are not party to this complaint.

IN view of the above discussion, we find there is no merit in this petition. Although on other merits also it fails. It mainly fails on the fact that complainant is not a consumer and the complaint is not maintainable under the Consumer Protection Act and hence it fails.