National Consumer Disputes Redressal
Foreigner Regional Registration ... vs Sri Bijay Kumar Barnwal on 1 June, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1555 OF 2017 (Against the Order dated 23/06/2017 in Complaint No. 395/2016 of the State Commission West Bengal) 1. FOREIGNER REGIONAL REGISTRATION OFFICER, KOLKATA NETAJI SUBHASH CHANDRA BOSE, INTERNATIONAL AIRPORT, KOLKATA ...........Appellant(s) Versus 1. SRI BIJAY KUMAR BARNWAL S/O. LATE SRI D.L. BARNWAL, R/O. 8, ABDUL LATIF LANE, POST OFFICE-ASANSOL (S) DISTRICT-HARDWAN, PIN CODE-713301, WEST BENGAL ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Appellant : Mr. Pradeep Kumar Jha, Advocate For the Respondent : Mr. M.R. Sarbadhikari, Advocate
Dated : 01 Jun 2018 ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This appeal is directed against the order of the State Commission, West Bengal dated 23.06.2017 vide which miscellaneous application no. MA No. 20 of 2017 filed by the appellant / opposite party was disposed of.
2. Briefly put, the facts relevant for the disposal of the appeal are that respondent / complainant filed consumer complaint on the allegations that he alongwith his family members booked flight tickets on flight ( dragon airways) vide flight no. KA 169 dated 02.05.2016 for journey from International Airport Kolkata to Hong Kong. Before boarding the flight, the complainant and his family members passed through immigration counter of Kolkata Airport. The concerned official of immigration authority appended 'cancelled' seal at a certain place on the passport of the complainant whereas passports of other family members travelling alongwith the complainant were stamped at proper place. Because of wrong stamping on the passport, the complainant was not allowed to enter Hong Kong resulting in harassment and humiliation as well as financial loss in terms of the ticket charges as also the business. The complainant thus filed consumer complaint in the State Commission.
3. The appellant / opposite party on being served with the notice of the complaint filed MA No. 20 of 2017 challenging the maintainability of the complaint on the ground that appellant performs sovereign regulatory functions of the government of India on behalf of Ministry of Home Affairs. Therefore, it cannot be termed as service provider. Even otherwise, the appellant -Authority had not charged any consideration for the aforesaid statutory functions. Therefore, in view of definition of term 'consumer' as envisaged under section 2 ( 1) (d) of the Consumer Protection Act, 1986 ( in short, the Act), the complainant cannot be termed as 'consumer' and, as such, had no locus standi to maintain the consumer complaint.
4. The State Commission on hearing the parties on application dismissed the same.
5. Counsel for the appellant has contended that impugned order of the State Commission is not sustainable for the reason that State Commission has committed a grave error in rejecting the plea of the appellant that as the appellant performs sovereign regulatory functions of the Government of India, he cannot be termed as service provider as envisaged under the Act. It is further submitted that State Commission has failed to appreciate that appellant had not charged any consideration nor any consideration is payable in future by the complainant for performing sovereign regulatory functions at Immigration Authority. Therefore, the complainant is not covered under the definition of 'consumer' as defined under section 2 (1) (d) of the Act.
6. In order to appreciate the contention of counsel for the appellant, it would be useful to have a look on the definition of term 'consumer' as envisaged under section 2 (1) (d) of the Act. Since the complaint has been filed on the allegations of deficiency in service, I am concerned with clause 2 (1) (d) (ii) of the Act, which is reproduced as under:
(d) "consumer" means any person who--
(i) xxxxxxxxxxxx (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."
7. On bare reading of the above, it is clear that consumer would mean a person who buys or hires service for consideration and would include the beneficiary of such service. In the instant case, in order to be covered under the definition of term 'consumer', the complainant has to show that he had paid consideration for immigration service rendered by the official of the appellant / opposite party. Stand of the complainant is that price of the ticket include taxes, which obviously, are consideration for the service rendered by the appellant / authority. Aforesaid point of controversy is a mixed question of law and fact, which require evidence for determination. Therefore, in my opinion, the State Commission has committed an error in dismissing MA No. 20 of 2017 moved by the appellant / opposite party for dismissal of complaint without giving liberty to the parties to lead evidence. The impugned order, therefore, cannot be sustained.
8. In view of the discussion above, I allow the appeal and set aside the order dated 23.01.2017. State Commission is directed to decide the pleas raised in MA No. 20 of 2017 at the final stage on the basis of evidence adduced by the parties. Parties to appear before the State Commission on 10.07.2018.
......................J AJIT BHARIHOKE PRESIDING MEMBER