Case: Karnataka Power Transmissn.Corp.Ltd&amp;Anr Vs. Ashok Iron Works Pvt. Ltd

2. As the principal arguments have been advanced in Civil Appeal No. 1879/2003, we take up the facts of that appeal which are thus, briefly put. M/s Ashok Iron Works Private Limited (for short, `the company) is a Private Limited Company and engaged in the activity of manufacture of iron products. The company applied for the supply of electrical energy (2500 KVA) to the Karnataka Electricity Board (now Karnataka Power Transmission Corporation and hereinafter referred to as `KPTC). The application made by the Company was cleared by the Single Window agency and supply of electric energy 1500 KVA was sanctioned. The company is said to have deposited an amount of Rs. 8,40,000/- on 1st February, 1991 as per demand. KPTC did not commence supply of electricity as agreed upon and that necessitated the company to approach Karnataka High Court for a direction to KPTC to supply the sanctioned energy. On 16th April, 1992, the High Court directed KPTC to supply electrical energy as per sanction forthwith and subsequently, time for supply of electricity was extended by the High Court upto 21st July, 1992. KPTC raised an additional demand of Rs. 8,38,000/- from the company and further demand in the sum of Rs, 1,34,000/-. The company is said to have deposited the said amount. However, the actual supply of the power commenced in the month of November, 1992. The company accordingly filed a complaint under the Consumer Protection Act, 1986 (for short, `the Act, 1986) before the Consumer Disputes Redressal Forum, Belgaum claiming damages in the sum of Rs. 99,900/- for delay in supply of electricity. The complaint was contested by KPTC, and, inter alia, preliminary objection was raised that complaint was not maintainable as the complainant was engaged in commercial activity and electricity being goods; sale of goods to a commercial consumer for a commercial purpose was outside the scope of the Act, 1986.3. As there were several complaints wherein identical objection pertaining to the maintainability of such complaints was involved, all these complaints were taken up and disposed of together by the District Forum by a common order dated 10th September, 1993. The District Forum was persuaded by the objection raised by the KPTC and it held that the complaints were not maintainable.4. The company challenged the order of the District Forum in appeal before Karnataka State Consumer Disputes Redressal Commission (for short, `State Commission). Few other appeals from the common judgment dated 10th September, 1993 also came to be filed before the State Commission. The State Commission vide its order dated June 15, 1995 set aside the order of the District Forum and held that complaints were maintainable being covered by the definition of "Consumer" under the provisions of the Act, 1986.5. KPTC challenged the order of the State Commission by filing a revision petition before the National Consumer Disputes Redressal Commission (for short, "`National Commission"). It appears that initially revision petition was dismissed in default but later on, on the application of restoration made by KPTC, the revision petition was restored but it was dismissed in view of its decision dated 23rd November, 2001, in the case of M/s Welmelt Steel Cast Pvt. Ltd. v. Karnataka State Electricity Board. It is from this order that appeal 1879/2003 by special leave arises.As the principal arguments have been advanced in Civil Appeal No. 1879/2003, we take up the facts of that appeal which are thus, briefly put. M/s Ashok Iron Works Private Limited (for short, `the company) is a Private Limited Company and engaged in the activity of manufacture of iron products. The company applied for the supply of electrical energy (2500 KVA) to the Karnataka Electricity Board (now Karnataka Power Transmission Corporation and hereinafter referred to as `KPTC). The application made by the Company was cleared by the Single Window agency and supply of electric energy 1500 KVA was sanctioned. The company is said to have deposited an amount of Rs. 8,40,000/- on 1st February, 1991 as per demand. KPTC did not commence supply of electricity as agreed upon and that necessitated the company to approach Karnataka High Court for a direction to KPTC to supply the sanctioned energy. On 16th April, 1992, the High Court directed KPTC to supply electrical energy as per sanction forthwith and subsequently, time for supply of electricity was extended by the High Court upto 21st July, 1992. KPTC raised an additional demand of Rs. 8,38,000/- from the company and further demand in the sum of Rs, 1,34,000/-. The company is said to have deposited the said amount. However, the actual supply of the power commenced in the month of November, 1992. The company accordingly filed a complaint under the Consumer Protection Act, 1986 (for short, `the Act, 1986) before the Consumer Disputes Redressal Forum, Belgaum claiming damages in the sum of Rs. 99,900/- for delay in supply of electricity. The complaint was contested by KPTC, and, inter alia, preliminary objection was raised that complaint was not maintainable as the complainant was engaged in commercial activity and electricity being goods; sale of goods to a commercial consumer for a commercial purpose was outside the scope of the Act, 1986.3. As there were several complaints wherein identical objection pertaining to the maintainability of such complaints was involved, all these complaints were taken up and disposed of together by the District Forum by a common order dated 10th September, 1993. The District Forum was persuaded by the objection raised by the KPTC and it held that the complaints were not maintainable.4. The company challenged the order of the District Forum in appeal before Karnataka State Consumer Disputes Redressal Commission (for short, `State Commission). Few other appeals from the common judgment dated 10th September, 1993 also came to be filed before the State Commission. The State Commission vide its order dated June 15, 1995 set aside the order of the District Forum and held that complaints were maintainable being covered by the definition of "Consumer" under the provisions of the Act, 1986.5. KPTC challenged the order of the State Commission by filing a revision petition before the National Consumer Disputes Redressal Commission (for short, "`National Commission"). It appears that initially revision petition was dismissed in default but later on, on the application of restoration made by KPTC, the revision petition was restored but it was dismissed in view of its decision dated 23rd November, 2001, in the case of M/s Welmelt Steel Cast Pvt. Ltd. v. Karnataka State Electricity Board. It is from this order that appeal 1879/2003 by special leave arises.

Reasoning:
We do not think so. Although title of Section or marginal note speaks of "the sale of electricity by the Board to persons other than licensees" but the marginal note or title of the Section cannot afford any legitimate aid to the construction of Section. Section 49 speaks of supply of electricity to any person not being a licensee upon said terms and conditions as a Board thinks fit and for the purpose of such supply free uniform tariffs. This Court has already held in Southern Petrochemical Industries (supra) that supply does not mean sale. As a matter of fact, the company has brought its case to be covered by Section 2(1)(d)(ii) and not 2(1)(d)(i) as the dispute raised by the company is with regard to non-performance of the services for consideration within time frame. For the purposes of the maintainability of the complaint, therefore, what is important to be seen is whether there is deficiency in service within the meaning of Section 2(1)(d)(ii). Under Section 2(1)(o) of the Act, 1986, `service means service of any description which is made available to potential users and includes the provision of facilities in connection with supply of electrical or other energy. "Deficiency" under Section 2(1)(g) means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. As indicated in the definition of `service, the provision of facilities in connection with supply of electrical energy is a service. Supply of electricity by the Board or for that matter KPTC to a consumer would be covered under Section 2(1)(o) being `service and if the supply of electrical energy to a consumer is not provided in time as is agreed upon, then under Section (2)(1)(g), there may be a case for deficiency in service.d counsel urged that the definition `service is of limited nature and is limited to the providing facilities in connection with electricity. According to him, the facility is an expression which facilitates the supply of electricity to an installation and the definition of service does not cover supply of electricity.This contention of the learned counsel is founded on erroneous assumption that supply of electricity is a sale of electricity and the use of expression `supply is synonym for `sale. We have already noticed above, which we need not repeat, that supply of electricity to a consumer by KPTC is not sale of electricity. The expression `supply is not synonym for `sale. We reiterate what has been stated by this Court in Southern Petrochemical Industries Co. Ltd. (supra) that supply does not mean sale. The expression `but does not include a person who avails of such services for any commercial purpose inserted in Section 2(1)(d)(ii) by the Act 62 of 2002 is not applicable in the facts and circumstances of the present case since the controversy relates to the period prior to amendment.In what we have discussed above, the complaint made by the company before the District Forum cannot be said to be not maintainable and we hold, as we must, that complaint is maintainable.26. In so far as Civil Appeal No. 7784/2002 is concerned, the complainant (appellant herein) is a sole proprietor of Techno Batteries which is a battery charging unit. According to the complainant, for the power supplied by Karnataka Electricity Board (now `KPTC ) charges payable are under "Power-Tariff, L.T.-5" but in the Bill dated 6th March, 1990, a sum of Rs. 22,628.40 was demanded as "Audit Short Claim" on the ground that the charges payable for the consumption of electricity by the complainant are under Tariff-Schedule L.T.-3 and not L.T. -5. The complainant moved the District Forum at Bangalore challenging the demand. The District Forum allowed the complaint vide its order dated 22nd February, 1994. KPTC preferred an appeal before the State Commission. The State Commission by its Order dated 19th June, 1997 allowed the appeal on the ground that the complainant was not a consumer within the meaning of Section 2(1)(d) of the Act, 1986 and consequently, it set aside the order of the District Forum. Aggrieved by the order of the State Commission, the complainant preferred Revision before the National Commission. The Revision Application came to be dismissed as the complainant was not present and also because the National Commission was satisfied with the order passed by the State Commission. This appeal arises from the Order dated 1st December, 2000, passed by the National Commission.27. In view of the discussion already made by us above while dealing with contentions (ii) and (iii) in Civil Appeal No. 1879/2003, it has to be held that the complaint by H.V. Balchandra Rao is covered under Section 2(1)(d)(i)(ii) of the Act, 1986.