VINOD MINERALS vs SUPERINTENDENT ENGINEER, RAJASTHAN STATE ELECTRICITY BOARD

THE unsuccessful complainant has filed this appeal against the order dated 1.2.92 passed by the District Forum, Ajmer, in complaint case No. 574/90. THE District Forum, Ajmer, dismissed the complaint on the preliminary ground that the complainant-appellant is not a consumer as envisaged by Section 2(1)(d) of the Consumer Protection Act, 1986 ("the Act" herein). As the only point involved in the appeal is whether the District Forum was right and justified in holding that the complainant is not a consumer. It is not necessary to give a detailed resume of facts leading to this appeal.

SUFFICE it to state that the complainant filed a complaint under Section 12 of the Act for the reliefs mentioned in the last para of the complaint. It was alleged that the complainant had got electric power connection from the opposite parties-respondents. Its account No. F73-75 at Babhatpura Industrial Area, Nasirabad, Ajmer. The complainant had got 180 H.P. KWH electric connection and KWH meter was also installed by the opposite parties-respondents. The complainant got one capicitator of 47 KVB at the instance of the opposite parties so that the power supply may remain under control. The complainant received a bill of June, 1990 by which a sum of Rs. 455.63 was demanded as power factor surcharge. The complainant has challenged, it as an illegal demand. Other grounds were also taken for challenging the demand made by the opposite partiesrespon-dents. The case of the complainant was that the service of the opposite parties suffered from deficiency and, therefore, the complaint was filed for the reliefs mentioned in the complaint. The opposite parties-respondents contested the complaint on various grounds. A defence was taken by the opposite parties that it was the duty of the complainant to maintain the power factor and in case it failed to do so it was liable to pay 10% surcharge. The District Forum heard the arguments on the question whether the complainant is a consumer on 31.1.92 and passed the impugned order dismissing the complaint holding that the complainant is not a consumer as defined under Section 2(1)(d) of the Act. Against the dismissal as aforesaid the complainant has come up in appeal.

We heard Mr. Arjun Karnani, Advocate, for the appellant and Mr. R.K. Sharma, Advocate, for the respondent and carefully considered the complaint a nd the version of the case in the light of the submissions made by them. It was strenuously contended by the learned Counsel for the complainant-appellant that the District Forum committed a serious error when it held that the complainant is not a consumer. He invited our attention to Samsher Khan v. Rajasthan State Electricity Board (Appeal No. 54/92, decided on September 15,1992) and submitted that the view taken by the District Forum is contrary to what has been decided by the State Commission. Mr. R.K. Sharma supported the order under appeal, "consumer" is defined in Section 2(1)(d) of the Act, which is as under :- ''"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 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 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."

ACCORDING to Section 2(1)(d)(i) of the Act if any consumer buys any goods for consideration either for resale or for any commercial purpose, he is excluded from the definition of the consumer. It is not the case of the opposite parties-respondents that the complainant-appellant has bought the goods of the opposite parties-respondents. The opposite parties respondents were only to render service by releasing the electric connection in favour of the complainant-appellant and the grievance of the complainant-appellant is that that service which it has hired for consideration suffered from deficiency inasmuch as illegal demand has now been raised against it and as no amount was outstanding and that amount in question cannot be recovered from it. Some other reliefs were also claimed based on the ground that the service of the opposite parties suffered from deficiency. In Section 2(1)(d)(ii) of the Act the expression "commercial purpose" has not been used. It, therefore, follows that the complainant is a consumer for it has hired the services of the opposite parties-respondents for consideration and as alleged the services rendered by it suffered from deficiency. The District Forum, Ajmer, has mismanaged the case when it dismissed the complaint on the ground that the complainant-appellant is not a consumer. It only took into consideration Section 2(1)(d)(i) of the Act which deals with consumer of goods and not for service. The expression ''commercial purpose'' has been used in Section 2(1)(d)(i) of the Act. The complainant was dismissed on the preliminary ground that the complainant is not a consumer. We have not agreed with .the view taken by the District Forum. The order under appeal cannot be sustained and it has to be set aside and the case has to be remanded to it for fresh decision in accordance with law keeping in view the provisions contained in Section 14(2) and (2A) of the Act after affording an opportunity of hearing to all concerned. As the complaint was dismissed on the preliminary ground it shall be tried by the District Forum in accordance with the provisions contained in Section 13(2) of the Act. The result is that the appeal succeeds and the order dated 1.2.92 passed in Complaint Case No. 574/92 by the District Forum, Ajmer, is set aside and the case is remanded as indicated above. In the circumstances of the case, the parties are left to bear their own costs of the appeal. Appeal succeeds.