Order-5.
Date-22/02/2017.
Parties file hazira.
Two petitions are posted for hearing today – one relates to direction upon the OPs to restore the outgoing facility and for continuation of the total mobile services of the mobile connection being mobile No.9830034325 and other relates to the petition challenging the maintainability of the case.
Let us first taken up the petition for restoration of mobile connection dated 01-12-2016.
In filing the petition it is stated by the complainant that the complainant has been using the subject mobile number since long. On 16-10-2016, the outgoing service of the said mobile connection was arbitrarily stopped by the OP. It is also stated that an amount of Rs.83611-96 was arbitrarily generated while the representative of the complainant visited Sweden. It is also stated that the reputation and business of the complainant is adversely affected. The complainant has prayed for restoration of the mobile connection.
In filing written objection by the OP it is denied that any amount was arbitrarily charged or mobile connection was arbitrarily stopped by the OP as alleged. It is stated that the complainant was travelling abroad and utilizing the Mobile Connection without any internet roaming back and he has been charged according to the ‘Standard Pay Go’ rates.
Heard Ld. Lawyers of both the sides. Considered.
Ld. Lawyer for the OP during argument has stated that the mobile connection is already restored and she has also filed the bill dated 07-12-2016 and, thereafter, Ld. Lawyer for the complainant however, submits that he has no knowledge whether mobile connection is restored or not. From the averment of the complainant it appears that the mobile connection was snapped on 16-10-2016 but we find that the complainant using the subject mobile connection even thereafter as is evident from the bill for the period 27-11-2016 to 26-12-2016. The interim petition for restoration of connection, as such, becomes infractuous when the complainant is enjoying the mobile connection in question. The interim petition as such, is not entertained.
Let us take up the petition for non-maintainability dated 10-01-2017 field by the OPs. In filing the petition it is stated that the instant complaint is not maintainable in as much as the complainant herein is a company and the said connection provided by the OP1 was being used by the complainant Company for commercial purpose.
No written objection is filed against the said petition from the side of the complainant.
We have perused the petition of complaint and other materials on record. The instant case as we find has been filed in respect of a dispute regarding the alleged inflation of a bill and wrongful withdrawal of the outgoing facility of the mobile connection along with the internet connection by OP1. In Paragraph 1 of the complaint the complainant has stated that it is a company incorporated under Companies Act, 1956. Therefore, admittedly the complainant is a juristic person and not a natural person. The complainant has admitted that the connection was in the name of the company and the company was using the mobile connection. In Para 5 of the complaint the complainant has stated that the mobile number allotted by the OP1 has been given to one Mr. Ujjal Sinha Roy for official use. Therefore, admittedly the representative of the complainant has been using the mobile number for office i.e. commercial or business purposes. In paragraph 17 of the complaint the complainant has also stated that the mobile number in question obtained from the OP1 had been incorporated and used in its business purpose. So, we find that the complainant was using the mobile connection for trade and commerce. From the complaint petition it is amply clear that the complainant was using the service of OP1 for commercial purpose and not for any other purpose.
The definition of Consumer is envisaged u/s.2(1)(d) of C.P. Act and on plain reading of the aforesaid definition, it would be seen that the definition itself carves out an inbuilt explanation to the effect that if the services of the OP are hired or availed for commercial purpose then the hirer of the service would not fall within the definition of the consumer.
Considering the averment in the petition of complaint and materials on record it can clearly be concluded that complainant is not a consumer within the meaning of Section 2(1)(d) or ‘complainant’ within the meaning of Section 2(b) of C.P. Act, 1986.
According to Section 2(1)(m) of the C.P. Act, ‘person’ includes
- A firm whether registered or not;
- A Hindu undivided family;
- A co-operative society,
- Every other association of persons whether registered under the Society Registration Act, 1860 (21 of 1860) or not.
A plain reading of the aforesaid definitions of ‘consumer’ and ‘person’ makes no bone of contention of the fact that apart from an individual human being, only the aforementioned four categories have been brought under the fold of the 1986 Act, other not.
It appears from the cause title of complaint case that the complainant happens to be a Pvt. Ltd. Company. Pvt. Ltd. Companies are being run by Board of Directors of the company and it is given as such that such a Company and its Board of directors enjoy distinct entity, separate from each other; more so, as the same does not fall amongst the aforementioned categories or organizations. We are afraid, the complainant cannot be treated as a ‘consumer’.
We think that the complaint, as such, is not maintainable and is liable to be dismissed.
Consequently, the case merits no success.
Hence,
Ordered
That the complaint be and the same is dismissed on contest against the OPs being not maintainable in C.P. Act, 1986 as amended.
