PLJ 2010 Lahore
108
Present: Syed Mansoor Ali Shah, J.
CHIEF EXECUTIVE FESCO, FAISALABAD and 2 others--Appellants
versus
NAYAB HUSSAIN--Respondent
FAO No. 312 of 2009, heared on 6.10.2009.
Punjab Consumer
Protection Act, 2005 (II of 2005)--
----Ss. 31 & 33--Maintainability of complaint before
consumer Court--TO fix damages and award--Jurisdiction--Lack of electricity was
causing problem and that adjacent houses have the paid service--Respondent was
being deprived of the same--Application for residential electric connection was
not being decided--Lack of electricity was causing problem--Complaint was filed
before Consumer Court which was decided in favour of complainant--Challenge
to--Question of maintainability--Jurisdiction of Consumer Court is different
from constitutional jurisdiction--Making an application for electric connection
does not make the applicant a consumer and the slow response in deciding the
application does not fall under the definition of service for the purpose of
Consumer Protection Act--Services in-question is a supply of energy or
electricity--Validity--Any administrative step prior to start of actual service
is not service and does not fall within the fold of CPA--Consumer Court is to
identify a consumer availing service and then if the service is defective, the
Consumer Court is to fix damages and award the same--Consumer Court cannot
issue a mandamus as has happened in the present case--Held: Where slow response
on the application for electric connection was considered to be a matter
pertaining to service--Complaint before consumer Court was not
maintainable--Appeal allowed.
[Pp. 113 &
114] D
Punjab Consumer
Protection Act, 2005 (II of 2005)--
----Ss. 2(c)(k) & 33--Application for electric
connection was kept pending and later on at the time of hearing of instant
appeal--Complaint was filed before Consumer Court which was decided in favour
of respondent/ complainant--Challenge to--In order to invoke the jurisdiction
of the Consumer Court, the complainant must first qualify to be a
consumer--Held: Respondent/complainant applied for electric connection and his
application kept pending and later on at the time of hearing of instant appeal,
the respondent, admittedly, was served with a demand notice, which respondent
was not able to deposit--At the filing of complaint or during the hearing of
instant appeal, respondent never attained the status of consumer--Further held:
No relationship of service between the service provider and the respondent
consumer. [P. 113] A
Punjab Consumer
Protection Act, 2005 (II of 2005)--
----Ss. 13 & 31--Applied for electric connection and
his application kept pending--Complaint was filed before Consumer Court--Lack
of electricity was causing problem and that adjacent houses have the said
service--Validity--U/S. 31 the Consumer Court can stop the defective or faulty
service until it achieves the required standard--Appellant in the matter of a
basic utility like electricity have no concessional policy for the low-income
group of the society and are treating the posh society of the city at per with
low income housing within the city--Held: Electrification will not be allowed
unless the entire Housing Scheme is first approved in order to discourage
mal-practices--Unfortunately, the respondent has limited choice and has to foot
the capital cost of a transformer to get electricity for his house or else wait
till the entire area is electrified through a proper electrification
scheme--Appeal was allowed. [Pp. 113
& 114] B, E & F
Punjab Consumer
Protection Act, 2005 (II of 2005)--
----S. 2(k)--Services--Applied for electric
connection--Service actually means the supply of energy, which is missing in
instant case--Held: No electrical energy is being supplied to respondent,
hence, no services are being availed by respondent. [P. 113] C
Mian Ashiq Hussain, Advocate for Appellants.
Mr. Saeed-ul-Hassan Jaffery, Advocate for Respondent.
Date of hearing: 6.10.2009.
Judgment
Brief facts are that a complaint was filed before the Consumer Court by
the respondent on 6.6.2009, complaining that his application for a residential
electric connection made on 13.4.2009 was not being decided. The complaint
further stated that lack of electricity is causing problem and that adjacent
houses have the said service, but the respondent is being deprived of the same.
The said complaint was decided vide order dated 1.9.2009 in favour of the
respondent in the manner reproduced as under:
"Accordingly, the defendants shall now issue demand
notice to the consumer/claimant within a period of fifteen days, where after,
on deposit of charges of installation by the claimant, the electricity
connection shall be installed at the claimant's premises within a period of 15
days restraining myself to grant damages for mental torture and agony as there
is no medically recognized psychiatric illness, medical disorder slip from
recognized medical practitioner, hence, there is no liability for emotional
distress or grief. However, the defendants shall pay legal expenses to the
claimant Rs. 10000/- as they have unnecessarily dragged him in this litigation.
And they shall also pay local commissioner's fee Rs.1500/- already born by the
claimant, total Rs. 11,500 to the claimant. The non-compliance of the order,
shall be dealt with u/S. 32(2) PCPA 2005. The claim is disposed of accordingly.
File be consigned to the record room after its due completion."
2. Counsel for the
appellants submits that the complaint was not maintainable before the Consumer Court
under the Punjab Consumer Protection Act, 2005. He argued that the respondent
is not a "Consumer" under Section 2(c) of the said Act. Further, no
"Services" have been rendered to the respondent under Section 2(k) of
the Act and, therefore, no damages could have been calculated or imposed on the
appellants under Section 13 or 31 of the Act. As a result, the Consumer Court had
no jurisdiction to pass the impugned order.
3. The learned
counsel for the appellants contends on merits that the area of the respondent
is adjacent to Mohallah Sajjadnagar, which is not within the purview of the
Electrification Scheme of WAPDA and no Electrification Scheme of WAPDA has yet
so far been framed for this area, therefore, no electricity services (or
electric supply) has been extended to the respondent. However, counsel for the
appellants frankly submits that in case the respondent applies for the said
connection, that can be extended to the respondent. It is stated that the
cheapest connection is for 10 KVA and costs around Rs. 1,44,000/-.
4. Counsel for the
respondent submits that he had applied for electric connection on 13.4.2009 but
was not being issued with a demand notice; but now admits that he was served
with demand notice of
Rs. 1,44,000/- on 15.9.2009 (perhaps after the decision
of the Consumer Court
on 1.9.2009) which the respondent is not in a position to deposit. Counsel for
the respondent repeatedly argued that houses adjacent to the house of the
respondent have been extended electric connection and discriminatory behaviour
has been extended to the respondent. Respondent also referred to the report of
the local commission prepared under the order of the Consumer Court, which was read out by the
counsel in the Court. The report confirmed that other properties adjacent to
the house of the respondent have been given electric connection.
5. Arguments
heard.
6. Attending to
the question of maintainability first.
7. The preamble to
the Punjab Consumer Protection Act (PCPA) states:--
"Preamble:--Whereas, it is expedient to provide for
protection and promotion of the rights and interests of the consumers, speedy
redress of consumer complaints and for matters connected therewith. "
8. Consumer is
defined in Section 2(c) of the PCPA as under:--
"Consumer" means a person or entity who--
(i) buys or
obtains on lease any product for a consideration and includes any user of such
product but does not include a person who obtains any product for resale or for
any commercial purpose; or
(ii) hires any
services for a consideration and includes any beneficiary of such
services;" (emphasis supplied).
9. Services are
defined in Section 2 (k) of the PCPA as under:--
"Services"
includes the provision of any kind of facilities or advice or assistance such
as provision of medical, legal or engineering services but does not include--
(i) the rendering
of any service under a contract of personal service;
(ii) the rendering
of non-professional services like astrology or palmistry; or
(iii) a service, the
essence of which is to deliver judgment by a Court of law or arbitrator."
10. Damage is
defined in Section 2(d) of the PCPA as under:--
"Damage" means all damage caused by a product
or service including damage to the product itself and economic loss arising
from a deficiency in or loss of use of the product or service;
11. Section 13 of
the Punjab Consumer Protection Act, 2005 states:--
"Liability for faulty or defective services.--
A provider of services shall be liable to a consumer for
damages proximately caused by the provision of services that have caused
damage."
12. Section 31 of
the Punjab Consumer Protection Act, 2005 states:--
Order of Consumer
Court.--
If, after the proceedings conducted under this Act, the
Consumer Court is satisfied that the products complained against suffer from
any of the defects specified in the claim or that any or all of the allegations
contained in the claim about the services provided are true, it shall issue an
order to the defendant directing him to take one or more of the following
actions, namely--
(a) to remove
defect from the products in question;
(b) to replace the
products with new products or similar description which shall be free from any
defect;
(c) to return to
the claimant the price or, as the case may be, the charges paid by the
claimant;
(d) to do such
other things as may be necessary for adequate and proper compliance with the
requirements of this Act;
(e) to pay
reasonable compensation to the consumer for any loss suffered by him due to the
negligence of the defendant;
(f) to award
damages where appropriate;
(g) to award
actual costs including lawyer's fees incurred on the legal proceedings;
(h) to recall the
product from trade or commerce;
(i) to confiscate
or destroy the defective product;
(j) to remedy the
defect in such period as may be deemed fit; or
(k) to cease to
provide the defective or faulty service until it achieves the required standard."
13. Perusal of the
above provisions shows that in order to invoke the jurisdiction of the Consumer Court, the
complainant must first qualify to be a "Consumer". To be a Consumer
under the said Act, a person must hire the "Service" for a certain
consideration from the service provider. In case there is no Service being
availed by the complainant and no consideration being paid in return for the
said service, the complainant does not qualify to be a Consumer and, therefore,
the matter goes outside the fold of the said Act.
14. In the present
case, the respondent applied for electric connection and his application kept
pending and later on at the time of hearing of this appeal, the respondent,
admittedly, was served with a demand notice, which the respondent was not able
to deposit. At the filing of the complaint or during the hearing of this
appeal, the respondent never attained the status of "Consumer". So,
in this case, there is no relationship of Service between the service provider
and the respondent Consumer. He has not availed of the service from the
appellants/service provider and, therefore, is not a consumer under the said
Act.
15. Under Section
13 of the Act, the appellant provider is liable to a Consumer for damages for
defective services. Similarly under Section 31, the Consumer Court can stop the defective or
faulty service until it achieves the required standard. Definition of Service
under Section 2(o) of the Consumer Protection Act, 1986 of India is more
elaborate and wholesome. The said definition includes supply of electrical
energy as part of the definition of Service and is reproduced hereunder:--
"Service" means service of any description
which is made available to potential users and includes 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."
16. The above
definition supports the argument that Service actually means the supply of
energy, which is missing in this case. In the present case electric supply had
yet to be extended and, therefore, no electrical energy is being supplied to
the respondent hence no services are being availed by the respondent.
17. Making an
application for electric connection does not make the applicant
a consumer and
the slow response
in deciding the application does not fall under the
definition of "Service" for the purposes of the Act. The main role of
the provider needs to be seen. Applicant is an energy provider and, therefore,
the services in question is a supply of energy or electricity. Any
administrative step prior to the start of actual Service is not Service under
the Act and does not fall within the fold of the CPA.
18. Jurisdiction
of the Consumer Court
is different from the constitutional jurisdiction. A Consumer Court is to identify a
Consumer availing service and then if the said service is defective, the Consumer Court is
to fix damages and award the same. Consumer Court cannot issue a mandamus as
has happened in the present case. Where slow response on the application for an
Electric Connection was considered to be a matter pertaining to Service. I,
therefore, agree with the submission of the counsel for the appellants that the
complaint of the respondent before the Consumer Court was not maintainable.
19. On the factual
plane, appellants do not have an Electrification Scheme for the area in
question (an area adjacent to Mohallah Sajjadnagar). In the absence of a proper
Scheme if there is a request for electric connection, the same can be honoured
if the capital cost of the connection is borne by the applicant. As stated
above, the appellants are willing to extend the electric connection as also
confirmed by the counsel for the respondent. Subject to charges, respondent has
already received demand notice of Rs. 1,44,000/- in this regard. I inquired
from the counsel of the appellants whether there is a Scheme for
electrification of a low-income community, which costs less. Appellants
confirmed that there is no such Scheme prepared by the appellants. It is sad to
know that the appellants in the matter of a basic utility like electricity have
no concessional policy for the low-income group of the society and are treating
the posh society of the city at par with the low-income housing within the
city.
20. Counsel for
the appellants has also placed on record a Housing Scheme Policy dated
19.4.2008, which states that electrification will not be allowed unless the
entire Housing Scheme is first approved in order to discourage mal-practices.
Unfortunately, the respondent has limited choice and has to foot the capital
cost of a transformer to get electricity for his house or else wait till the
entire area is electrified through a proper Electrification Scheme.
21. In view of the
above, this appeal is allowed and the impugned order dated 1.9.2009 is set
aside. No order as to costs.
(R.A.) Appeal
allowed.
