State Consumer Disputes Redressal Commission
The Government Of Tamil Nadu Madurai ... vs Tmt. Pechiammal Bodinaickanur Taluk, ... on 22 March, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru S. SAMBANDAM MEMBER II F.A.NO.16/2009 (Against order in CC.NO.38/2008 on the file of the DCDRF, Theni) DATED THIS THE 22nd DAY OF MARCH 2011 1.
The Government of Tamil Nadu Through the District Collector Madurai Road, Theni
2. The District Supply Officer District Collectors Office Madurai Road, Theni
3. The Taluk Supply Officer Taluk Office, Bodinaickanur Theni District Appellants/ Opposite parties Vs. Tmt.
Pechiammal W/o. Late Sankarapandian No.13/ 2nd Street, VOC Nagar Bodinaickanur Bodinaickanur Taluk, Theni District Respondent/Complainant The Respondent as complainants filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.15000/- alongwith compensation of Rs.15000/- lakhs and cost. The District Forum allowed the complaint.
Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.21.8.2008 in OP.No.38/2008.
This petition coming before us for hearing finally on 07.03.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
Counsel for the Appellants/ Opposite parties : M/s. K.K.Senthilkumar Counsel for the Respondent/Complainant : M/s. V. Balaji M. THANIKACHALAM J, PRESIDENT
1. The opposite parties, in OP.No.38/2008, on the file of District Forum, Theni, having suffered an adverse order, have come before this commission, for redressal.
2. The respondent, in this appeal as complainant, approached the District Forum, seeking direction for the issuance of a family ration card, as well as for compensation, alleging that as the citizen of India,, she is entitled to the benefits of social legislation, including the issuance of the family card, for the purchase of the rations, that though she was owning a family ration card in 2003, that was not renewed by the authorities, that despite the fact, she applied the new ration card in 2005, and 2007, the opposite parties taking indifferent attitude, failed to issue ration card, thereby prevented the complainant from purchasing ration materials causing mental agony, and therefore direction should be issued, as prayed in the complaint.
3. The opposite parties, questioning the maintainability of the consumer complaint, before the consumer forum, as well as questioning the jurisdiction, resisted the complaint, interalia contending, that the complainant alone, failed to renew the ration card issued, for the period 1998-2003, that in the year 2000, when the Government had issued gas stove, the complainant approached, and obtained, no ration card certificate, availed the benefits, that when she had applied once again, after verification, ration card was issued on priority basis on 18.2.2008, and for the mistake committed by the complainant, she cannot accuse the opposite parties, maintaining a consumer complaint, thereby praying for the dismissal of the complaint, denying the other averments also.
4. The District Forum, without considering the fact, whether the complainant is a consumer, and whether the complaint is maintainable before the consumer forum, taking a strange view, that the Government is bound to provide the benefits of the social legislation to the complainant also, has come to the further conclusion, that the functionary under the statutory power, cannot claim immunity, violating the provisions, and in this view, even the public officer should come within the jurisdiction of the consumer forum. In this view, finding fault, as if the opposite parties alone have committed deficiency in service, directed to pay a compensation of Rs.10000/- with interest thereon at 12% p.a., with cost of RS.5000/-, in view of the admitted fact, that during the pendency of the case, ration card was issued to the complainant, which is challenged by the opposite parties, on various grounds, in this appeal.
5. The complainant was originally owning a ration card 1998-2003, for 5 years. Such a card holder, is entitled to renew the card, approaching the authorities concerned, not in dispute. This complainant, who claims al the privilege of the social legislation, being the citizen of this democratic country, failed to renew the ration card, and it is not the duty of the authorities concerned, to come and renew the ration card, to each and every door. Thus the complainant having failed in her duty, when the Government of Tamil Nadu has extended free gas facilities, she approached the authorities concerned to issue a certificate, as if she has not given ration card, which was complied with.
On that basis, she obtained free gas stove also. Then in the year 2005, it is said, she had applied for ration card, as seen from Ex.A1.
But unfortunately, no ration card was issued. Thereafter, as seen from Ex.A2, on 24.9.2007, another application was given, which was enquired, and as stated in the written version, on priority basis, ration card was issued to the complainant on 18.2.2008. Thus it is seen, though the opposite parties have failed to issue a ration card, based upon Ex.A1, for which reasons are not given subsequently, they have issued the ration card, based upon Ex.A2. Therefore, the grievance of the complainant, who failed to renew her ration card, on her own, appears to be imaginary, and unfortunately the District Forum, finding fault with the officials, not understanding the scope of the Consumer Protection Act, has slapped a penal order in nature, which deserves to be erased, in our considered opinion, for want of jurisdiction, as rightly urged on behalf of the appellants. In this context, we have to see, whether the complainant is a consumer, and whether the opposite parties are the service providers, as defined under the Consumer Protection Act, then only the Consumer Forum can go to the aid of a consumer, issuing direction to the opposite party, who failed to perform their service, having received the consideration, not otherwise.
6. It is not the case of goods sold or purchased for consideration, as defined under Sec.2(1)(d) of the Consumer Protection Act, and if at all the complainant should attempt to come under Sec.2(1)(d)(ii) of the Act. This sub clause says a consumer means, any person, hires or avails of any service for consideration, thereby including any service, where there is no consideration. Service is also defined under Sec.2(1)(d)(o), where some of the organizations or departments under the control are included, where we find the Civil Supplies department is not included, though they are the guardian of Consumer Protection. Therefore, if any authority under this department, assuming have committed any dereliction of duty, or deficiency in service, they cannot be brought under the umbrella of Consumer Protection Act, since there is no consideration for the service rendered, or to be rendered by the opposite parties. In the absence of consideration, or in other words, when the authorities are performing their duties under statutory obligations, they will not come within the four walls of service provider, or who rendered service, etc., as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act. Unfortunately, the District Forum, without considering this aspect, viz. whether the public offices, under the civil supplies could be brought under the Consumer Protection Act, or not, relying upon the decision of the Apex Court in Ghaziabad Development Authority case, in our considered opinion, has committed an error or even we would say illegality, which could be seen from the facts of the case. That case relates to building activities, and the authorities concerned therein, were created under the statute. As indicated above, in the definition service, housing construction is included. Therefore, despite the fact, that they are public authorities, conferred with statutory power, when they commit dereliction of duty, the Apex Court has observed, that they cannot claim immunity, which principle cannot be extended as such to the opposite parties, since admittedly they are all Government Department, directly involving in the uplift of the society, performing statutory obligations under the Acts and Rules, without any consideration. Therefore, we are of the considered opinion, that the service expected to be rendered by the opposite parties, will not come within the meaning of Consumer Protection Act, and in this view, neither the complainant could be called as a consumer, nor the opposite parties could be called as a service provider, and the consequential result, should be complaint itself is not maintainable.
7. As seen from the Civil supplies, Consumer Protection Rules, within 30 days of the application, inspection should be completed, and after inspection for eligible candidate, if application approved, the matter should be sent for printing family card. Here there was some delay, cannot be disputed, though that was at later point of time rectified. If that delay should be taken as deficiency in service, there should be consideration and hiring the service for consideration. The learned counsel for respondent/ complainant would contend, that at the time of filing the application, the opposite parties have collected fees, apart from court fees in the application, and the fee should be construed as consideration for rendering service. Except submission made by the learned counsel for the respondent, we find no materials, for the payment of any fee, for applying the family ration card, and if at all they should have charged minimum amount, say Rs.5/- or so in the application, probably for the registering the name of the complainant, and to bring her to the road, in order to provide ration card, proceeded by enquiry, that will not taken as payment of consideration, for the service to be rendered.
After verification, if the value of the card is charged, that will not form part of consideration, since for the material if at all, the cost should have been quantified. Except Ex.A1 to A5, no other documents, proving payment of anyother consideration was produced before us, so as to say that the complainant availed or hired the services of the opposite party, in order to bring them under Sec.2(1)(d)(ii), which are excluded from Sec.2(1)(d)(o).
8. As seen from the civil supplies, and Consumer Protection Act, if there was a delay, if at all the complainant should have approached the higher authorities, for which provisions are made, and it seems, she has not done so. Instead of approaching the authorities, pointing deficiency, taking advantage of the consumer protection act, we would say, opposing the law, this consumer complaint came to be filed, which was unfortunately accepted by the District Forum, for which we cannot give our recognition. The observation of the District Forum, the act of the opposite parties, causing delay in providing ration card, amounts to deficiency in service, cannot be taken as correct, and it will not bring the opposite parties, within the meaning of service provider, or trader, so as to exercise jurisdiction upon them, by the consumer forum.
9. The learned counsel for the respondent himself fairly brought to our notice, the decision of the State Commission, Chandigarh, wherein it is held, in a similar case of this nature, the complainant therein cannot be brought under the definition of consumer, and the opposite parties cannot be brought under the umbrella service provider, further concluding, no consumer dispute had arise, which should follow the jurisdiction of the forum could not be invoked, which principle is well applicable, for the reasons assigned by us supra.
10. The learned counsel for the respondent also brought to our notice, the decision of this commission in Tmt. R. Rajasundri & Another Vs. District Social Welfare Officer, Cuddalore District & Ors. Reported in II (2004) CPJ 236, where the complainant claimed some amount, under the Women Welfare scheme, known as Moovalur Ramamirtham Ammaiyar Ninaivu Thirunama Udhavi Thittam, wherein this commission has held, under the principles of natural justice, and equity, the complainant is entitled to some amount, and exgratia compensation was ordered, nothing more, which case will nto come to the aid of the respondent/ complainant here, that too considering the fact, ration card was issued. As indicated above, the complainant was the defaulter, in not renewing the ration card, and knowing that no ration card was available, availed the social beneficial scheme, then alone applied for the card, that was complied with, and therefore granting compensation, appears to be perverse in nature, which deserves to be uprooted, for which the appeal deserves acceptance.
11. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.38/2008 dt.21.8.2008, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S.SAMBANDAM M. THANIKACHALAM MEMBER II PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Government department/ Ration card