BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    05^th DAY OF DECEMBER 2018

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to pay a sum of Rs.10,00,000/- being the loss incurred by the complainant, damages for causing mental agony, physical inconvenience, for loss suffered as stated in the paras, to pay a sum of Rs.5,000/- towards cost of the legal notice and Rs.5,000/- towards cost of the complaint  and to pay interest @ 18% p.a as the transaction is of commercial one from during year of 2010 till the date of actual payment or realization and such other reliefs.

2. The brief allegations made in the complaint are as under:

Complainant submits that, OP-1 is Electrical Power Connection Authority in North range of Peenya, Bangalore and same concern authority of OP-2 is the KPTCL area of Soladevanahalli Power Corporation Authority of said firm.  Complainant in order to run the firm has obtained power connection to the extent of 24 HP/KV sanctioned the OP-2 during the month of March 2010 vide meter No.DP1007 issued the sanction letter.  That inspite of sanction of the 24 HP/KV from OP-2 there is no supply of such a power to the complainant since from the day to till today and did not respond the complaint.  The complainant several time personally approached the authority of OP-2.  That at the time of sanctioned the power from OP-2 had assured that the said power is very high voltage and good service from the KPTCL and on their assurances to the complainant connection the said 24 HP/KV power from OP-2.  That since from the date of connection the said high power is not working properly and any time is low voltage the problems faced by the complainant are more fully described in detail as under:

Since from 2010 to 2015 high voltage service is not working and our work orders coming continuously everyday from so many firms.  Then complainant informed to OP-2 for getting the high voltage service.  But problem was not solved.

a) On 23.03.2015 the high voltage service failed to work orders and immediately the complainant informed to OP-1 vide complaint No.2654, regarding the above subject was forwarded to Soladevanahalli office.  The Soladevanahalli Junior Engineer Sri.Sampathkumar i.e., OP-2 he had done the inspection and found the low voltage and the same was brought the notice to Sri.Ashok Kumar and he was sent to approval to divisional office as per the information given to complainant.  But nothing has been materialized until now.

b) After two weeks again high voltage service is failed on 28.03.2015, the complainant approached the OP No.1 vide complaint section 1912 No.BON5F22101.

c) Again after one month, the same problem in low voltage arose and the complainant intimated the complaint/notice on 15.04.2015 and to previous engineer Sri.Nandish and also intimated through 1912 complaint on vide No.BNO5G33288.  OP-2 concern officer one Sri.Nandish was assured and problem has been solved to the complainant within 20/04/2015.

d) The complainant several times approached the OPs.1 & 2 but did not respond the complainant.  Every month he has to pay the electicity bill to KPTCL of Soladevanahalli.

e) The said connection the high voltage of power did not work properly since from during the year 2010 and the same problem aroused and the complainant was unable to utilize the said power and there is total failure of service the high voltage same in favour of the complainant.  The said fact was informed on 17.04.2015 to OP-1 to do and even their did not bothered to connection the high voltage to the complainant.

f) Thereafter legal notice was issued by the complainant to the OP-2 on 25.05.2015 calling upon them to comply the terms stated above within 15 days from the date of receipt of notice.  The notice was sent through to the OP-2 through RPAD as returned but speed post duly served.  The OP-2 received the speed post, after then the OP-2 written the letter and along with speed-post cover send to the counsel on 28.05.2015 and stating that the notice is not concern to authority.

Again notice was issued by the complainant to the OP-2 on 05.062015 by RPAD and speed post duly served.

That the OPs.1 & 2 have service the defected high voltage power to the complainant with false assurances that it works very efficiently.  Due to the said connection of power the complainant has suffered heavy loss and mental agony by connection of disconnect power, for which OPs.1 & 2 are liable to pay the complainant the loss suffered by way of damages/compensation.  The complainant several time communicate the mobile to OPs.1 & 2 but OPs.1 & 2 did not respond the complainant to till today.  That the services rendered by OPs.1 & 2 is very bad and there has been total deficiency of services in advising to service the above said high voltage power to the complainant and also OPs.1 & 2 are also not ready to service the power.  Therefore the services rendered by OPs.1 & 2 is very deficient and liable for payment of compensation to the complainant.  Hence the complaint.

3. In response to the notice issued, OPs appeared through their advocate and filed their common version contending in brief, as under:

That the complainant is not entitled for any prayer as claimed in the complaint and therefore the same is liable to be dismissed with exemplary costs.  The Karnataka Electricity Board as it then was hereinafter called as the Board, a Body Corporate constituted under the provisions of the Section 5 of the Electricity (supply) Act 1948.  The Board exercising powers under Section 49 and 79 (j) of the Electricity (Supply) Act, 1948, hereinafter called as the Act, has framed regulations called Karnataka Electricity Board Electricity Supply Regulation, 1988, hereinafter called as Regulations.  The Regulations have got statutory force.  In view of the provisions of Karnataka Electricity Reforms Act 1999, the Board was registered as a Company called Karnataka Power Transmission Corporation Limited, under the provision of Companies Act owned by the Government of Karnataka.  The Karnataka Power Transmission Corporation Limited continued to adopt the provisions of the Karnataka Electricity Supply Regulation, 1988, regulating the power supply.  Further under the provisions of the Karnataka Electricity Reforms Act 1999, KERC, a Body Corporate has constituted and the KERC has framed a code called KERC (Electricity Supply and Distribution) Code 2000-01 hereinafter called as the Code, regulating the supply and Distribution of Electricity in Karnataka by all the licenses.  The said Code has replaced the provisions of Regulations and however has saved in respect of certain matters taken place earlier to the introduction of the provisions of the Code.  Further the Government of Karnataka has formed five companies and they have been registered under the provisions of the Companies Act on regional basis to regulate the Power Supply and Distribution in Karnataka.  All the five companies to register under the companies Act are owned by the Government of Karnataka and one such company is BESCOM.  The subject matter involved in the complaint comes within the jurisdiction of BESCOM.  The Company is to sue and be sued by that name represented by its Principal Officer as required under the provisions of Order 29 Rule 1 and 2 of the Code of Civil Procedure.  That even according to the averments, the complaint is not maintainable as the same is barred by time.  Complainant is not a consumer even according to the averments of the complaint, the power supply availed for the purpose of commercial in nature and therefore, the complainant is not consumer within the meaning of Amended Act 62 of 2002.  The amended definition of consumer provides that; ‘but does not include a person who avails of such services for any commercial purpose’.  Therefore the complaint of the complainant is liable to be dismissed.

That the complainant availed power supply to an extent of 24 KV for the installation bearing R.R No.DT 1007 in the year 2010 and there is no complaint as alleged in the complaint as to the low voltage and however on 23.03.2015, the complainant wrote a letter to the OPs that the aforesaid installation getting low voltage supply and due to low voltage, he is unable to do hi work and accordingly, on receipt of the said letter OP-2 inspected the said installation and found there was a low voltage and therefore the estimate was prepared for change of the line to link line of LT line low voltage T.C No.82 to T.C No.248 in Soladevanahalli, O & M Unit, N-5 Sub-Division and the total estimate for the execution of the work of Rs.66,773/- and thereby the OP-1 has forwarded the same to the Executive Engineer (Ele), BESCOM, Peenya Division on 14.05.2015 for approval including after estimates and thereby the Executive Engineer has accorded approval of the estimate on 13.08.2015 and immediately the OPs have executed the work of Link Line between T.C No.82 to T.C No.248, which was completed on 17.08.2015 as such there is no low Voltage as alleged by the complainant in the above complaint and there is no deficiency of service on the part of the OPs in order to rectify the low voltage from the date of the complaint i.e., 23.03.2015 to rectify the same on 17.08.2015 and thereby there is no delay and/ or deficiency on the part of OPs and therefore, the contrary averments made by the complainant that, there is no supply of such a power to the complainant, since from the day to till today and does not respond the complaints are all false.  That the complainant several times personally approached the OPs are all false.  That the complainant has been enjoying the consumption of Electricity, since from the date of service and however, the complainant was made a complaint only on 23.03.2015 as to the low voltage and the same has been rectified by the OPs by providing alternative route and therefore, the contrary averments made in the complaint that from 2010 to 2015, high voltage service is not provided are all false and the other averments that, on account of the low voltage, the work orders coming continuously from so many firms, are nothing to do with the OPs and however the OPs are the Supply Company providing power supply as per their consumers requirements.  The other averments that, the complainant informed the 2^nd OP for getting service high voltage and problem was not solved are all false.  The complaint received by the OPs only on 23.03.2015 and even according to the averments of the complainant, the same has been rectified by the following due process of law and therefore the question of suffering loss by the complainant and mental agony does not arise and at any rare all are false.  Therefore, OPs are not liable to pay any damages/compensation as claimed in the complaint.

That the complainant has communicated with the OPs several times through mobiles are all false and without any basis and therefore the question of OPs responding does not arise and however the letter written by the complainant on 23.03.2015 and the same has been attended by the OPs rectifying the low voltage defect, as such there is no deficiency of service on the part of OPs and the contrary averments made in para-9 of the complaint that, the service rendered by the OPs.1 & 2 is very bad and there has been total deficiency of service are all false.  The OPs have taken action immediately, when they have received a complaint from the complainant and accordingly the same has been rectified by drawing alternative lines and therefore the averments made in the complaint that, the OPs.1 and 2 are not ready to service the power are all false, since there is no deficiency of service as such the OPs are not liable to pay any compensation as claimed in the complaint, even the complainant is not entitle to seek liberty to initiate appropriate legal action against the OPs.1 & 2 claiming compensation in the appropriate Forum, since the claim of the complainant towards expenses for correspondence and claim of damages claimed by the complainant on account of high voltage and for mental agony and / or litigation charges, even though he is not entitle for the same.  The complainant is not entitled to seek damages or loss as alleged in the complaint.  That the averments of the complaint clearing demonstrate that, the complaint is clearly barred by time, therefore This Forum will not get any jurisdiction to pass an award.  The complaint is misconceived and the same is liable to be dismissed.

For the reasons mentioned above, OPs pray for dismissal of the complaint with exemplary cost.

4. The complainant in support of his case tendered his affidavit evidence reiterating the allegations made in the complaint.  On behalf of OPs.1 & 2 one Sri.Ashok P, Executive Engineer (Ele) N-5 Sub Division, BESCOM, tendered his evidence by way of affidavit.  Both the parties have produced certain documents.  Written arguments have been filed.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1:-   The OPs have taken the specific contention stating that, complainant is not a ‘consumer’ as the power availed by the complainant is for the purpose of commercial in nature and therefore the complaint is liable to be dismissed directing the complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.  In the light of contention taken by the OPs, we placed reliance on the decision of the Hon’ble National Commission reported in 2018 (4) CPR 626 (NC) in a case of Chaitali Bhattacharjee Vs. Somnath Biswal and Ors.  The important point wherein stated as ‘a person entering agreement to buy a commercial space cannot be a consumer and hence complaint is not maintainable under the Act’.  We placed reliance on the another decision of the Hon’ble National Commission reported in 2018 (3) CPR 222 (NC) in a case of Nilabh Jain and Anr. V/s. M/s.Emaar Mgf Land Limited and Ors.  The important point wherein stated as ‘commercial users cannot maintain consumer complaint’.   In the instant case the service availed by the complainant from the OP is for the commercial purpose to his establishment Suma Engineers & Associates.  Further the complaint is lacking pleadings in respect of availing the said services for eaking his livelihood. 

8. In the light of the decision cited supra the complaint filed by the complainant is liable to be dismissed holding that complainant is not ‘consumer’.  The only option left open to the complainant to approach the competent court of law or proper Forum by taking assistance in a case of Laxmi Engineering Works V/s. P.S.G Industrial Institute (1995) 3 SCC 583 on the point of limitation.  Accordingly we answered point No.1.

9. Point No.2: In view of our findings on point No.1, holding that the complainant is not a ‘consumer’, hence this issue does survive for our consideration.

          10. Point No.3: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed holding that the complainant is not a ‘consumer’.  Option is left open to the complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same by invoking in a case of Laxmi Engineering Works V/s. P.S.G Industrial Institute (1995) 3 SCC 583 on the point of limitation.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 05^th day of December 2018)

MEMBER                                                              PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 04.01.2016.

Sri.Krishnamurthy R,

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 27.01.2016.

Sri.Ashok P.

Document produced by the Opposite party/s.

MEMBER                                                               PRESIDENT

Vln*