Per Shri B.A.Shaikh, Hon’ble Presiding Member.

1.      This appeal is filed by the original opposite party (which is herein after referred to as appellant) feeling aggrieved by the order dated 10/01/2011 passed by District Forum, Nagpur in consumer complaint bearing No.270/2010, by which the following directions have been given.

i)        The complaint is partly allowed. (ii) It is declared that the opposite party (appellant) rendered deficient service. (iii) The opposite party (appellant) shall pay to the original complainant (respondent herein) compensation of Rs.1000/- for physical and mental harassment and litigation cost of Rs.500/-. (iv) The above order be complied with within a period of 30 days from the date of receipt of copy of the order.

2.      To-day we have heard advocate appearing for the appellant. The respondent is already proceeded ex-parte. This Commission passed detailed order on 18/07/2017 in this appeal giving reasons for proceeding ex-parte against the respondent. It is seen as per that order that notices were issued thrice by this Commission to the respondent, which were received by him through one Shalini Choudhari. The said notices were issued to the respondent on his same address given in the complaint as mentioned in the impugned order. The learned advocate of the appellant also produced copy of the execution application filed under section 27 of Consumer Protection Act, 1986,  in support of his submission that same address is given by the original complainant/respondent herein in the execution application No.35/2013, upon which three notices were issued in this appeal to the original complainant/respondent. Therefore holding that the notices have been duly served to the respondent, we proceeded ex-parte against him as per order dated 18/07/2017. Thus as the respondent is proceeded ex-parte, we after hearing the appellant’s advocate, proceeded to decide the appeal on merit.

3.      The case of the original complainant/respondent herein as set out in his complaint filed before the District Forum in brief is as under.

          The respondent  herein  resides at Nagpur on the address given in the complaint. He had sent an application dated 05/01/2010 by speed post to the appellant for obtaining information under the provisions of the Right to Information Act, 2005. However the appellant refused to accept the same. Hence he made complaint to the State Information Commissioner, Nagpur against the appellant. He also sent alongwith that complaint the closed envelop  containing above application, which was received back by the respondent here in. The learned State Information Commissioner, Nagpur forwarded that closed envelop to the appellant on 20/01/2010 for providing information to the respondent. However, after receipt of the same, the respondent did not provide the information within 30 days to the respondent. The learned State Information Commissioner, Nagpur imposed fine of Rs.500/- on Tahasildar of Nagpur for not providing the information in one case and it was so published in the local news paper. After reading the said news in the news paper, the appellant provided unsatisfactory, insufficient, incorrect, misleading and illusory information on 03/04/2010 to the respondent/original complainant. Thus said information was complied beyond 30 days. Hence the appellant rendered deficient service to the respondent. Therefore the respondent in the aforesaid consumer complaint filed before the District Forum claimed compensation of Rs.95,000/- for physical and mental harassment and litigation cost of Rs.5000/-. Thus he claimed total Rs.1,00,000/- from the appellant.

4.      The original O.P./appellant appeared before the District Forum and resisted the said complaint by filing reply. The appellant raised a preliminary objection that the respondent does not fall within the definition of consumer given under section 2(1)(d) of Consumer Protection Act, 1986 and therefore complaint is not maintainable before the District Forum. Moreover, a separate Act namely Right to Information Act 2005 is enacted for seeking information from the Information Officer and if the said information is not provided then there is provision of appeal under section 19 of the said Act and hence on this ground also the complainant does not fall within the meaning and consumer defined in Consumer Protection Act, 1986. It is submitted that the application sent for seeking information by the respondent was not received by the appellant. However after receiving that application from learned State Information Officer vide letter dated 20/01/2010, the appellant provided the information on 03/04/2010 to the respondent. The delay was occurred in furnishing said information because the said information was sought for regarding the employees of the General Administration Department and accordingly the respondent was already given intimation on 11/02/2010 that some time was required for furnishing the information and after getting that information it was supplied to him on 03/04/2010. The appellant has no knowledge as to whether the Information Commissioner has imposed fine of Rs.500/- on Tahsildar for not supplying information in one case. It is denied that the appellant furnished unsatisfactory, incorrect, insufficient, misleading and illusory information on 03/04/2010 to the respondent. The said information was supplied as sought for by the respondent. The respondent has not availed any service from the appellant and therefore there is no question of deficiency in service and claiming compensation of Rs.95,000/- and litigation cost of Rs.5000/- from the appellant. On these grounds the appellant had prayed in its reply that the complaint may be dismissed with cost.

5.      The original complainant/respondent herein filed rejoinder to the complaint after the reply was filed by the appellant. In short he reiterated his aforesaid case in the rejoinder and relied on the decision of the Hon’ble Supreme Court in the case of Lucknow Development Authority……v/s ……M.K.Gupta, reported in III (1993) CPJ 7 (SC).

6.      The District Forum below after hearing both parties and considering evidence brought on record passed the impugned order on 10/01/2011. The District Forum under the impugned order relied on the decision of the Hon’ble National Commission in Revision Petition No.1975/2005 in the case of Dr.S.P.Thirumala Rao……V/s…… Municipal Commissioner, Mysore City Municipal Corporation, Mysore, in which it is held that the complaint is maintainable under Consumer Protection Act. The Forum came to the conclusion that it has got no jurisdiction to decide as to whether the information supplied is incorrect, misleading or insufficient. However the District Forum also concluded that there is delay in furnishing the information and it constitutes deficiency in service on the part of the appellant and therefore District Forum directed the appellant to pay compensation of Rs.1000/- for physical and mental harassment and litigation cost of Rs.500/- to the original complainant/respondent herein.

7.      The learned advocate of the appellant mainly relied on the decisions of the Hon’ble National Commission in the following two cases in support of his submission that aforesaid decision referred to in the impugned order is of the year 2009 and that in the subsequent recent decisions of the Hon’ble National Commission it is held that the complaint filed under Consumer Protection Act is not maintainable against the information sought for from Public Information Officer (PIO) under Right to Information Act, 2005.

8.      The Hon’ble National Commission in the case of Kali Ram……v/s……State Public Information Officer-Cum-Deputy Excise and Taxation Commissioner, reported in IV (2013) CPJ 300 (NC) held that complainant can not be considered as a consumer as defined under Section 2(1)(d) of Consumer Protection Act since there is remedy available for complainant to approach appellate authority under Section 19 of Right to Information Act, 2005 and therefore complaint before the District Forum is not maintainable.

9.      Sanjay Kumar Mishra……v/s……PIO, State Information Commissioner  (SIC) and another, reported in I (2015) CPJ 335 (NC). In that case also Hon’ble National Commission observed that mere payment of consideration in the form of fee and additional fee coupled with supply of information being seemingly covered within definition of service, is not conclusive. Right To Information (RTI) Act is complete code in itself. Person seeking information under provisions of RTI Act cannot be said to be Consumer vis-à-vis the Public Authority concerned or CPIO/PIO nominated by it. It has been further observed in the said case that Consumer Fora are Courts for the purpose of Section 23 of RTI Act. Any other interpretation will open two parallel machineries, for enforcement of same rights created by special statute, which could not have been the legislative intent, particularly when RTI Act is special law vis-à-vis Consumer Protection Act. It is therefore held that no complaint by a person alleging deficiency in service rendered by CPIO/PIO is maintainable before Consumer Forum. 

10.    It is also pertinent to note that the aforesaid case of Dr.S.P.Thirumala Rao……V/s…… Municipal Commissioner, Mysore City Municipal Corporation, Mysore relied on in impugned order by the District forum is also referred to in both the aforesaid subsequent  decisions of the Hon’ble National Commission and after considering the same the Hon’ble National Commission held that the complaint filed under Consumer Protection Act, 1986 is not maintainable as against the information sought for under Right to Information Act. We find that both the decisions relied on by the learned advocate of the appellant are squarely applicable to the facts and circumstances of the present case. Therefore we find substance in the submission of the learned advocate of the appellant that the District Forum erred in entertaining and partly allowing the complaint under Consumer Protection Act, 1986.

11.    Thus we hold that the original complainant/respondent herein can not be considered as a consumer under the Consumer Protection Act since special remedy is available to the original complainant to approach the appellate authority under section 19 of Right to Information Act, 2005. Moreover we also hold that mere payment of consideration in the form of fee for obtaining information under Right to Information Act, 2005 can not attract the definition of service given under section 2(1)(O) of the Consumer Protection Act as held by the Hon’ble National Commission in the aforesaid case of Sanjay Kumar Mishra……v/s……PIO, State Information Commission (SIC) and another, I (2015) CPJ 335 (NC).

12.    We thus find that the District Forum below has not considered in right perspective the provisions of Consumer Protection Act, 1986 vis-a-vis the provisions of Right to Information Act, 2005 and erred in holding that the appellant is a service provider and it rendered deficient service to original complainant/respondent herein by not furnishing the information within statutory period of 30 days and therefore the impugned order can not sustained under law and it deserves to be set aside.

// ORDER //

i)The appeal is allowed.

ii)The Impugned order is set aside.

iii) The complaint stands dismissed.

iv) No order as to cost in this appeal.

v) Copy of this order be furnished to both parties free of cost.