State Consumer Disputes Redressal Commission
Pathankot Excavators vs Bharat Sanchar Nigam Limited on 20 July, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
First Appeal No.70 of 2017
Date of Institution: 31.01.2017
Date of Decision : 20.07.2017
Pathankot Excavators, Gurdaspur Road, Pathankot through its
partner Rajeev Gupta.
.....Appellant/complainant
Versus
1. Bharat Sanchar Nigam Ltd., Near Kali Mata Mandir, Pathankot,
through its Deputy General Manager.
2. Bank of India, near Bus Stand Pathankot through its Branch
Manager.
......Respondents/opposite parties
First Appeal against the order dated
28.10.2016 of the District Consumer
Disputes Redressal Forum, Gurdaspur.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Gurcharan Singh Saran, Judicial Member
Present:-
For the appellant : Sh.Vikas Sharma, Advocate
For respondent No.1 : Sh.Rajesh Gupta, Advocate
For respondent No.2 : Ms. Meena Malhotra, Advocate
GURCHARAN SINGH SARAN, JUDICIAL MEMBER
ORDER
The appellant/ complainant has filed this appeal against the order dated 28.10.2016 in Consumer Complaint No.150 of 2016, passed by the District Consumer Disputes Redressal Forum, Gurdaspur (hereinafter referred to as 'District Forum'), vide which the complaint filed by the complainant was disposed of with the observation that the outcome of criminal FIR investigation should be First Appeal No.70 of 2017 2 waited to check whether it was negligence of the complainant or opposite parties.
2. A complaint was filed by the complainant who is running its business under the name and style of Pathankot Excavators, Gurdaspur Road, Pathankot which is a partnership firm and that it is doing the business for self-employment and earning its livelihood. Complainant was having a Mobile No.94172-09347 issued by opposite party No.1 and it was regularly making payments of the bills. He was having Account No.635030100003010 with opposite party No.2. On 15.12.2015, the sim of the above said mobile number was suddenly blocked by opposite party No.1 without any reason, intimation or notice to the complainant. The login password and transaction password of the said mobile was also blocked on 15.12.2015. The complainant contacted opposite party No.1 and it was told that duplicate sim has already been issued to the above said mobile number. He was shocked and surprised how it happened without the knowledge of the complainant who never made any request to opposite party No.1. It was further submitted that after the issue was raised with opposite party No.1, it agreed to issue another sim to the complainant on depositing the original sim, ultimately the phone of the complainant was reactivated. The complainant approached opposite party No.2 on 18.12.2015 to settle the matter and it was noticed that two transactions of Rs.6,02,000/- each and one transaction of Rs.12,05,000/- total amounting to Rs.24,09,000/- had been debited to the account of the complainant illegally and unauthorizedly on 15.12.2015. Opposite party No.2 told that they had received back the RTGS of Rs.12,05,000/- and it is safe with the First Appeal No.70 of 2017 3 Bank but the remaining amount of Rs.12,04,000/- till date has not been credited to the account of the complainant. All this happened during the period when the mobile number of the complainant was suddenly blocked and later on it was reactivated. Alleging deficiency in service on the part of the opposite parties, the complaint was filed before the District Forum and seeking directions against the opposite parties; to pay a sum of Rs.12,04,000/- alongwith interest at the rate of 18% per annum; to pay Rs.3,00,000/- as compensation on account of mental agony, harassment and pain.
3. Complaint was contested by opposite party No.1, who filed its reply taking preliminary objections that the complaint is not maintainable in this form; no cause of action has accrued to the complainant; the complainant has filed a false complaint by concocting a false story; the complaint is bad for non-joinder of necessary parties and that complainant is running business on commercial basis, therefore, the District Forum had got no jurisdiction to entertain this complaint. On merits, it was denied that the complainant was doing the business for self employment to earn his livelihood. The complainant -firm had written a letter dated 14.12.2015 to opposite party No.1 referring that Mr.Deepak Kumar Singh was working in their organization and he has lost the sim, therefore, it gave him a new sim on the same number and that the company had no objection. On the basis of above mentioned application, a new sim on the same number of the company was issued as per rules with no delay on behalf of this opposite party. This opposite party has nothing to do with SMS facility between the complainant and opposite party No.2. This opposite party had no First Appeal No.70 of 2017 4 knowledge regarding blockage of SMS facility and login passwords. When complainant contacted this opposite party a new sim was issued on the same number on the written request of the company. It was also referred that two sims were already issued for the same number on the request of the Firm with different locations and at different times. At Chandigarh firm requested to BSNL to issue a new sim with the excuse that the previous one had been lost. FIR copy and Aadhaar Card copy of Sh.Varinder Gupta, authorized signatory is attached with the request. They got issued the same sim after verifying the identity of Sh.Rajiv Gupta. Therefore, there was no deficiency in service on the part of this opposite party. Complaint is without any merit and it be dismissed.
4. Opposite party No.2 in its reply submitted that the complainant is having an A/c No.635230100003010. This opposite party had no role to play in blocking of the Mobile No.94172-09347. However, login password and transaction password for the net facility were only blocked by the complainant after the alleged fraudulent transaction. The complainant approached opposite party No.2 on 18.12.2015 to settle the matter. Thus, they noticed that total amount of Rs.24,09,000/- have been debited from the account of the complainant on 15.12.2015 and complainant was told by opposite party No.2 that the RTGS of Rs.12,04,000/- was not credited to the Bank account of the complainant because it was credited to the beneficiaries account. It was submitted that there was no loss caused to the complainant on account of their act or any deficiency in service on the part of opposite party No.2. Complaint is without any merit and it be dismissed.
First Appeal No.70 of 2017 5
5. Before the District Forum, the parties led their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence the documents as Ex.C-1 to Ex.C-11. On the other hand, opposite party No.1 tendered the affidavit of Sh.Raj Kumar Soni as Ex.OPW-1/A alongwith the documents Ex.OP-1/1 to Ex.OP-1/9, whereas opposite party No.2 tendered in evidence the affidavit of Sh.Mohit Badyal, Manager Credit as Ex.OP-2/1.
7. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, the complaint filed by the complainant was disposed of as referred above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
9. We have heard Sh. Vikas Sharma, Advocate, learned counsel for the appellant/complainant and Sh.Rajesh Gupta, Advocate, learned counsel for the respondent No.1 and Ms.Meena Malhotra, Advocate, learned counsel for respondent No.2, and perused the record.
10. The first point taken by the learned counsel for the respondents/opposite parties is that the complainant is not a consumer. Therefore, consumer complaint itself is not maintainable before the District Forum. He has further referred the definition of consumer as defined under Section 2(1) (d) of the Act. The same is reproduced hereunder:-
"2 Definitions.
(1) In this Act, unless the context otherwise requires, -
(d) "consumer" means any person who, -First Appeal No.70 of 2017 6
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;[but does not include a person who avails of such services for any commercial purposes].
Explanation: For the purposes of sub-clause (i), "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood, by means of self-employment;
11. It was also argued that the complainant itself has stated in his complaint that the complainant is running its business under the name and style of Pathankot Excavators, Gurdaspur Road, Pathankot and that the complainant is doing business for self employment and earning its livelihood. A copy of partnership deep has placed on record as Ex.C-1 and Sh.Rajiv Gupta and Ms.Rashmi Gupta are its partners. Whether a partnership firm can be consumer? A partnership firm cannot be a consumer, it has been so held by the Hon'ble National Commission in 2013(3) CPR, Pg 465 titled as M/s Nav Bharat Press (Raipur) through its partner Vs. M/s Sahara Prime City Limited through its Authorised Officer & Ors. This plea was not rebutted by the counsel for the appellant/complainant. First Appeal No.70 of 2017 7
12. Sequel to the above, we dismiss the appeal being without merit as the complainant is not consumer, without prejudice of its rights to avail appropriate remedy in appropriate Forum/Court.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (GURCHARAN SINGH SARAN) JUDICIAL MEMBER July,20, 2017 parmod