Date of hearing – 3rd August 2015-08-04
Date of Judgment – Thursday, the 6th day of August, 2015.
JUDGMENT
The instant appeal under section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the instance of opposite party to impeach the order No.14 dated 11.10.12 passed by the Ld. District Consumer Disputes Redressal Forum, Unit-I, Kolkata (in short, ‘DCDRF’) in complaint case No.163 of 2011.
The respondent herein being complainant initiated a proceeding under section 12 of the Act against the appellant claiming himself to be a consumer and the opposite party as service provider alleging that he is a life-member of the opposite party for more than 40 years being his membership No. J-0980 on payment of one time requisite fees and used to avail different value-added service time to time as offered by the opposite party to its members. The aim and object of the opposite party is to provide different service to its member relating to their private cars. The complainant regularly availed this service offered by opposite party particularly in renewing car tax-token and driving licence and for that purpose the opposite party used to send reminders. The tax-token renewal of the complainant was due on 24.6.2010 but as the opposite party did not give any reminder, the complainant failed to renew his tax-token in time and for such fault on the part of the opposite party he had to make payment of penalty of Rs.3,480/-. Therefore, on the allegation of deficiency in service, the instant action has been initiated with the following prayers – viz. (i) to refund the penalty of Rs. 3480/-; (ii) to pay Rs.80,000 for compensation for the harassment and mental agony suffered by him and (iii) to pay Rs.10,000/- as litigation cost, etc.
The O.P i.e., Automobile Association of Eastern India (AAEI) did not appear before the Ld. DCDRF and quite naturally they did not resist the material allegations levelled by the complainant.
Relying upon the contents of the petition of complaint and documents , the Ld. DCDRF did not disbelieve the evidence brought before them by the complainant and allowed the case ex-parte directing the O.P to pay the amount of Rs.3,480/- along with interest @ 9% from the date of receipt till the realization and further directed to pay compensation of Rs.3000/-for harassment and mental agony and Rs.2000/- as litigation cost which prompted the O.P. to prefer the appeal.
The point arises for consideration in this appeal as whether or not the Ld. DCDRF was justified in awarding penalty, compensation and litigation cost by holding that the complainant is a consumer and the O.P. a service provider.
DECISION
Admittedly, the complainant is a life-member of O.P., i.e., The Automobile Association of Eastern India (AAEI) having its office at premises No. 13, Ballygunge Circular Road (renamed as Pramothesh Barua Sarani) P.S. Ballygunge, Kolkata-700019, having his membership No. J-0980. The materials on record also indicate that due to administrative lapses, specifically, technical problem of the O.P. the matter of payment of taxes could not be paid by the complainantin time which was scheduled to be paid on 24.6.2010. Ultimately, the complainant had to pay a sum of Rs.20911/- towards taxes of the car including Rs.3480/- as late payment penalty.
The Ld. DCDRF did not find any reason to discard the evidence led by the complainant but did not consider the point as to whether in accordance with the Memorandum of Articles of Association of the Automobile Association of Eastern India is there in relation between the parties as consumer and service provider exists. Ld. DCDRF did not assign any reason whatsoever as to how they arrived at a decision that being a service-provider the OP had deficiency to its consumer/complainant.
In course of advancing his argument Ld. Advocate for the appellant/opposite party has submitted that the respondent/complainant is not a consumer and the service provided by the appellant to its members on ‘no profit, no loss’ basis and as such the Ld. DCDRF is totally wrong in holding that a member being owner whereof can claim any amount towards personal and mental agony or that he can seek compensation against his own Association for deficiency in service. To fortify his submission, Ld. Advocate for the complainant has referred to a decision of Delhi High Court reported in III (2009) CPJ 244 (Delhi Gymkhana Club Ltd. –vs- Union of India), (ii) 1996 3CPR (NC44) (Director/Additional Director, U.P. State Employees Group Insurance Directorate –vs- Ram Devi Jhansi and 2003(3) CPR 206 (Smt. Rachpaul Kaur Bens –vs- Chandigarh Administration).
On the other hand, Ld. Advocate for the respondent placing a decision of Hon’ble Supreme Court of India reported in 2012 (IV CPJ I(SC)1 has submitted that the order passed by the Delhi High Court in connection with Delhi Gymkhana Club Ltd. (supra) has no manner of application in our case because the observation made therein would not be applicable in the facts and circumstances of the case. Ld. Advocate for the respondent have also cited another decision of National Consumer Disputes Redressal Commission, New Delhi reported in III(2004) CPJ (Yogeshbhai D. Shridhar –vs- Consumer Education & Research Society) and submitted that when in spite of receipt of notice the opposite party did not appear before the Ld. DCDRF and undermined authority of such quasi-judicial body, there is no merit in the appeal.
Upon hearing the Ld. Advocate for the respective parties and going through the decision referred hereinabove and the materials on record it reveals that the object of opposite party is to establish, maintain and conduct a Club for accommodation of members of the company and their friends and to provide a Club House and other conveniences and generally to afford to members and their friends all the usual privileges, advantages for his convenience and accommodation of the club. On going through the Memorandum & Articles of Association of O.P. we do not find any clause to indicate that the O.P. is to provide different services to its members relating to their private cars in exchange of money. If we have a look to the Articles of Association of O.P. it would come to surface that the object of the O.P. is not to earn money by any means. In fact, the O.P. is registered in terms of provision of section 23 of the Companies Act and the petitioner is a life-member of O.P. No.1 and there is no document to show that petition has paid money time to time to the O.P. for rendering service by them.
According to section 2(1)(d)(ii) of the Act, ‘consumer’ means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised. Again section 2(1)(o) provides that service means service any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financial insurance, transport, processing, supply of electrical or other energy, board and lodging or both, housing construction entertainment, amusement or the purvaying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
Therefore, it is quite evident that service is to be hired or availed for consideration but the service which is provided free of charge or under a contract of personal service is not included in the term ‘service’. A conjoint reading of section 2(1)(d) and 2(1)(o) of the Act clearly indicate that in order to be a consumer, the complainant has to show that he hired or availed the service for consideration. In our case, it is quite evident that the petitioner being a member of the Club contributed the fund out of which expenses and conducting of the Society is maintained. The object of inclusion of membership does not mean that the petitioner has become a consumer. In other words, the relation between the parties being consumer and service-provider does not exist because excepting the members others have no access to the facilities provided by the O.P:. It clearly signifies that the petitioner being member of the O.P./AAEI which has been formed to provide the privileges or advantages to its members, cannot be considered a service-provider.
Therefore, we are not in agreement with the observation of Ld. DCDRF that the relation between the parties as consumer and service provider exist and since there was deficiency in service the complainant is entitled to obtain an order of compensation in accordance with the provisions of Consumer Protection Act, 1986.
For the reasons aforesaid, we are constrained to interfere with the order impugned. In other words, since the impugned order is not sustainable in the eye of law, it is liable to be set aside.
In the result, the appeal is allowed on contest but without any order as to costs.
The Order No.14 dated 11.10.2012 passed by the Ld. DCDRF, Unit-I, Kolkata in CDF case No.163 of 2011 is hereby set aside.
