(Delivered on 13/10/2016)

PER MR. JUSTICE A.P.BHANGALE, HON’BLE PRESIDENT.

1.      When  this appeal  was adjourned on 08/09/2016 it was by way of last chance  for final hearing. It was listed today accordingly.

2.      Heard submissions advanced by the advocate of the appellant. According to the learned advocate of the appellant, the respondent was carrying on activity of stone crushing since 1993. He had obtained electric connection for commercial purpose. The respondent  was not regular in making payment of electricity charges  on that ground its supply was disconnected on 22/08/2001 and that there was  permanent disconnection  effected on 12/12/2001. He had filed  consumer complaint bearing No. 32/2005 before the learned District Consumer Forum, at Buldhana. That complaint was dismissed on  merit on 28/06/2005 after learned District Consumer Forum considered all the contentions  advanced by  the learned advocates of representing parties. Despite dismissal of the complaint  on merit, another complaint is filed by the respondent  which is obviously barred by  provision of limitation as contemplated  under  the Consumer Protection Act, 1986, the complaint  is required to be filed  within two years from the  date cause of action. It was not so filed  within period of two years as permissible.  There was no application for condonation of delay. The learned District Consumer Forum passed  order dated 28/05/2007 in consumer  complaint No. 43/2007 whereby despite  facts that earlier complaint was dismissed  on merits the consumer complaint bearing No. 43/2007 was allowed whereby appellant was   directed to restore the  electricity connection  of the complainant  within one month from  the date of receipt of the order and  also appellant was directed to pay compensation  in the sum of Rs. 10,000/- and to give  amended electricity bill to the complainant. Litigation cost  in the sum of Rs. 750/- was also directed to be paid  to the complainant.

3.      The learned advocate of the appellant submitted that  the electricity supply in respect of  disconnection   of complainant  its pertaining  to  2001. Considering the definition of the term ‘consumer’  as contemplated under section 2(i)(d) as it stood provision prior  to amendment  made in  2003, the electricity supply was for commercial purpose and therefore the complainant would not have been treated as coming within the definition of the “consumer”.  Thus there was no the consumer  in the eye of law in respect of  electricity  connection taken  for commercial purpose  for business of  crushing  stones, its complaint could not have been allowed. Furthermore even on the basis  of  principle of res-judicata  as stated  under section 11 of the Civil Procedure Code, which is substantial  procedural provision  when complaint of the complainant  was dismissed  earlier on merit in consumer complaint No. 32/2005 by judgment and order dated 28/06/2005, decided by the learned District Consumer Forum, Buldhana, the  another  complaint on the basis  of same cause of action  could not have been entertained again.

4.      The submission advanced on behalf of the learned advocate of the appellant in contravened as no one appeared on behalf of the respondent though last chance was granted for to contest this appeal. For these reasons, the appeal is allowed and impugned judgment and order is set aside. The complainant may adopt appropriate remedy in law though the complaint could not have been entertained under the Consumer Protection Act, 1986. Appeal is disposed of accordingly.