National Consumer Disputes Redressal
National Insurance Company vs Khandappa H Mydoor on 28 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 1937 OF 2011 (From the order dated 08.04.2011 in First Appeal No.788 of 2008 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai) S. P. Rajan Son of V. S. Subramanian Prop. Mount Hermon Estate, Kamarajapuram Petitioner Opp. Uzhavar Market Coonoor 643 1010 versus 1. CSI Diocesan Council 256, Race Course Road Chennai 2. Rev. M. Dorai Bishop Chairman CSI Diocesan Council 256, Race Course Road Chennai 3. Rev. Andrew Moduram Vice President CSI Diocesan Council 256, Race Course Road Respondents Chennai 4. Rev. W. Samuel, Hony. Secretary All Saints Church (English Church) Post Office - Upper Coonoor 5. P.S. Swamidass, Hony. Treasurer CSI Diocesan Council 256, Race Course Road Chennai 6. Rev. H. Chella Rajan, Addis Pastorate Amman Kulam Coimbatore - 45 7. Prof. T. Manson CSI Diocesan Council 256, Race Course Road Coimbatore - 18 8. David Mangaldass, Treasury Officer CSI Diocesan Council 256, Race Course Road Coimbatore 18 or District Treasury Ootacamund, Nilgiris 9. J.D. Shekar, Correspondent Battery Point, Trichy Road Coimbatore 10. Dr. S. J. Jayapalan, Principal CSI Engineering College Ketti BEFORE: HON'BLE MR.ANUPAM DASGUPTA PRESIDING MEMBER For the Petitioner Mr. S. K. Giri Gowda, Advocate Pronounced on 28th May, 2012 ORDER
ANUPAM DASGUPTA This revision petition challenges the order dated 08.04.2011 of Tamil Nadu State Consumer Disputes Redressal Commission, Chennai (in short, the State Commission) in First Appeal no. 788 of 2008 in which too, the petitioner was the appellant. By this order, the State Commission dismissed the petitioners appeal and confirmed the order dated 23.09.2008 of the Nilgiris District Consumer Disputes Redressal Forum, Udhagamandalam (in short, the District Forum).
2. The petitioner, the complainant before the District Forum, stated in his complaint that he was a professional contractor engaged in felling of trees and trading of timber. He was engaged by the opposite parties (OPs) for felling/cutting, removing and clearing the timber and firewood from 1200 Eucalyptus trees over an area of 5 acres of the OPs after the latter had obtained necessary Government permission and accepted his bid price of Rs.8,75,000/- for the 1200 trees in response to their tender notice. He alleged that the OPs, however, allowed him to cut only 1048 trees against the contracted number of 1200 though he had paid Rs. 7,12,500/-. Alleging deficiency in service on the part of the OPs in illegally retaining the cut logs the value of which on 31.03.2003 was Rs.8,55,000/- because of which the complainant was not able to do his business (sic of) either selling the timber or selling the firewood, he prayed for an award of Rs.15,55,000/- with interest @ 18% per annum from 31.03.2003.
3. The OPs filed their written version and denied all the allegations while stating at the outset that the complainant did not fall in the category of consumer.
4. On appraisal of the pleadings, evidence and documents produced by the parties, the District Forum held the OPs guilty of deficiency in service and unfair trade practice, as a result of which the petitioner/complainant was prevented from performing his part of the contract which caused the him mental agony and suffering. However, against his claim of Rs. 5 lakh on this count, the District Forum awarded only Rs.25,000/- to the complainant as compensation and Rs.2000/- by way of cost.
5. Aggrieved by this order, the complainant went up in appeal before the State Commission which dismissed the appeal, as already noted above. It is against this order of the State Commission that the complainant has preferred this revision petition.
6. It is seen from the written version of the OPs/respondents before the District Forum that they had specifically opposed the maintainability of the complainant before a Consumer Forum on account of the ground that the complainant/petitioner was not a consumer under the provisions of section 2(1)(d) of the Consumer Protection Act, 1986 (hereafter, the Act). By some long, convoluted and almost incomprehensible arguments put forth in words that defy understanding, the District Forum, however, held that the complainant was a consumer and that there was deficiency in service on the part of the OPs.
7. In its impugned order, the State Commission also did not come to any finding on the status of the complainant as a consumer and merely concluded as under:
on perusal of the District Forums order and other materials from the records and as well as from the submissions made by the appellant, we feel that the District Forum has leniently considered the claim of the complainant instead of dismissing the complaint in toto and thereby we feel this appeal deserved no merits, in view of the facts and circumstances of the case, as discussed above.
8. I have heard Mr. S. K. Giri Gowda, learned counsel for the petitioner at the stage of admission of the revision petition.
9(i). Learned counsel for the petitioner was unable to explain as to how the OPs/respondents who, in fact, availed of the services of the petitioner/complainant as a contractor for felling of trees and carrying away the timber/firewood on payment of the agreed sum could themselves be service provider and how could they be accused of deficiency in service. He then argued that this was a case of a buyer of goods not being delivered the goods for which he had paid, inasmuch as the respondents prevented the petitioner from felling the remaining trees and carrying away their timber/firewood to which he was entitled. On a further question whether the purchase of goods by the petitioner from the respondents was not, as admitted in the complaint, for resale or commercial purpose, the learned counsel was again unable to give any answer.
(ii) In fact, from the complaint itself, it is abundantly clear that the petitioner/complainant was a professional contractor engaged in large scale commercial activities relating to timber/firewood for which he bid and received the order/contract in question from the respondents for the sum of Rs.8,55,000/-. There is thus no question of the respondents/OPs providing any type of service to the petitioner/complainant though he alleged deficiency in service on the part of the respondents/OPs in his complaint that would indeed be turning the definitions of service, service provider and consumer on their heads. Likewise, as he had purchased the goods in the shape of timber/firewood from the respondents/OPs clearly for resale/commercial purpose, he could also not be a consumer under the provisions of section 2(1)(d)(i) of the Act. There was, incidentally, neither any pleading nor any evidence that the petitioner/complainant did his activities for earning his livelihood through self employment.
10. Both the Fora below have thus clearly erred in entertaining the complaint/appeal of the petitioner who, by virtue of his own pleadings, cannot be held a consumer under the aforesaid provisions of the Act. Accordingly, the revision petition is dismissed in limine after setting aside the impugned order of the State Commission as well as that of the District Forum. The complaint is also dismissed, not being maintainable ab initio. No order as to costs.
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[Anupam Dasgupta] satish