This complaint coming up before us for hearing on 05-03-12               in the presence of Sri K.S. Chandramouleswara Rao, advocate for the complainant and of Sri N. Chalapathi Rao, advocate for opposite parties, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint under section 12 of the consumer protection act seeking a direction to the opposite parties to continue him as a member of the said Vruddhula Ashramam (home for the aged) and to provide proper diet to the complainant and the other members and prepare menu in consultation with members and Rs.25,000/- as damages and for costs.

2.   In brief the averments of the complaint are hereunder:  

        The 2^nd opposite party is Manager of Chebrolu Hanumaiah Vathsalya Vruddhula Ashramam (1^st opposite party) which was registered under the Societies Registration Act vide Regn.No.200/96.   The complainant on 21-09-10 joined as a member of the said Ashramam being issueless and wife predeceased him.   At the time of joining the complainant deposited Rs.25,000/- while undertaking to pay Rs.2,500/- per month towards maintenance.  There are about sixty old people in three categories who has to pay Rs.4,500/-, Rs.2,500/- and Rs.1,500/- pm.   The day to day affairs of the said Ashramam are being looked after by its Secretary and Manager.  The Management of the said Ashramam used to serve curry of bottle gourd and sambar of the same in the night frequently.  Vexed with the routine curry and the slices in the sambar the complainant and some other inmates protested.  In fact, the complainant and other inmates suggested that they have no objection even if they serve any other cheaper curry of different variety day to day and requested the management to prepare the schedule of menu for a week.   The complainant and one Gali Gangarao retired BDO., were staying in room No.10. On 07-04-11 the management of the said Ashramam called the complainant to office room and necked out the complainant from his room and denied his stay.  In that background the complainant moved the Human Rights Authority (1^st Addl. District Court, Guntur).  On receipt of notice both opposite parties gave false written explanation.   The learned authority under Human Rights Act felt that it had no power over private organizations and advised the complainant to leave the said Ashramam if felt inconvenience. The                1^st opposite party on 26-05-11 gave reply requiring the complainant to vacate and collect his deposit amount.  The opposite parties are acting contrary to the objects of society and its byelaws inspite of collecting huge amounts from the complainant and other inmates.   Thus the opposite parties committed deficiency of service.   The complainant on account of the attitude of the opposite parties suffered mental agony and harassment at old age and estimated it at Rs.25,000/-.   The complaint therefore be allowed.

3.      The contention of the opposite parties in brief is thus:

        Chebrolu Hanumaiah Vathsalya Vruddhula Ashramam is being run without any profit and is a non profit service organization.   All inmates of the said Ashramam are being looked after well with love and affection taking care of their every need.   The complainant was causing much inconvenience to the inmates of the said Ashramam deviating from discipline. The complainant is addicted to all vices. The complainant used to go to horse races and club for playing cards.   The complainant used to return in late hours.  Thereby the opposite parties warned the complainant not to indulge in such illegal activities and advised him to obey rules of the said Ashramam.   As there was no change in his attitude, after discussing the issue in the general body the opposite parties asked the complainant to vacate the premises in order to maintain discipline in the said Ashramam.  The explanation and the order passed by the 1^st Addl. District Court are self explanatory and the complaint is barred by principles of resjudicata.    The opposite parties after receiving notice from the complainant informed his brother-in-law to take back all his belongings including deposit.   The assurance of the complainant in his legal notice dated 19-05-11 that he would abide by the rules of admission was not accepted by the President.   The complainant is not a consumer and there is no contract for service between the complainant and the opposite parties.   The office bearers did not receive any salary.   The opposite parties did not commit any deficiency of service.   The Forum has no jurisdiction to entertain the complaint.   Rest of the allegations contra mentioned in the complaint are false. 

4.   Exs.A-1 to A-8 and Exs.B-1 to B-13 on behalf of complainant and opposite parties were marked respectively.

5.  Now the points that arose for consideration in this complaint are:

        1.   Whether the complainant is a consumer?

        2.  Whether this Forum has jurisdiction to entertain the                             complaint?

        3.  Whether the opposite parties have committed deficiency of                   service?

        4.  Whether the complainant is entitled to compensation?

        5.  To what relief?

1. Admitted facts in the case are these:

1. The complainant was a member of Sri Chebrolu Hanumaiah Vathsalya Vruddhula Ashramam.
2. The complainant deposited Rs.25,000/- with the said Ashramam at the time of his joining (Ex.A-1).
3. The complainant used to pay monthly charges.
4. There was exchange of notices between the parties to the complaint Exs.A-7&8 (=Ex.B9&10).
5. The complainant approached Human Rights Authority (1^st Addl. District Court, Guntur).
6. After hearing both sides the Human Rights Authority passed an order on 28-04-11 (Exs.A-5&6).
7. The opposite parties offered refund of Rs.25,000/- to the complainant.
8. The complainant vacated the said Ashramam.

7.   POINTS 1 & 2:-    The opposite parties are charging Rs.4,500/-, Rs.2,500/- and Rs.1,500/- pm., from the inmates of the said Ashramam.  Chebrolu Hanumaiah Vathsalya Vruddhula Ashramam may be running it without any profit.   But the said Ashramam is not rendering service free of charge.   Under those circumstances the contention of the opposite parties about the status of complainant as a consumer and jurisdiction of this Forum is devoid of merit.   We therefore opine that the complainant is a consumer and this Forum has got jurisdiction to entertain the complaint.    For the above discussion, we answer this point against the opposite parties.

8.   POINTS 3&4:- 

        In Indian Airlines vs. S.N. Sinha 1991 (2) CPR 213 it was held

                “The provision of food is one of the amenities provided to the passengers in return for payment of the fare for the journey and it forms an essential part of the service rendered by the Airline for he consideration received by it in the form of the price charged for the ticket.   Any defect in the food supplied must therefore be regarded as a deficiency in the service rendered by the Airline”.    

9.     In Kishorilal vs. Chairman, ESI Corporation, AIR 2007 SC 1819 it was held

        “A 3-Judge Bench of this Court in Indian Medical Association (supra) has extensively considered the provisions of the CP Act and particularly what shall be a ‘service' within the meaning of Section 2(1)(o) of the said Act. The Court was considering whether the service rendered by the doctors would fall within the purview of the CP Act, it being a service rendered for the charges; and whether the patients, who are treated by the doctors, are ‘consumers' as defined in Section 2(1)(d) of the CP Act. The Court said that the definition of service' in Section 2(1)(o) can be split into three parts: the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, whereas the exclusionary part excludes rendering of any service free of charge or under a contract of personal service.

                The exclusionary part in Section 2(1)(o) excludes from the main part service rendered (i) free of charge; or (ii) under a contract of personal service. The expression 'contract of personal service' in the exclusionary part of Section 2(1)(o) must be construed as excluding the services rendered by an employee to his employer under the contract of personal service from the ambit of the expression ‘service'.

                There is a distinction between a 'contract of service' and a ‘contract for service'. A ‘contract for service' implies a contract whereby one party undertakes to render service e.g. professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas a ‘contract of service' implies relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. A contract of service is excluded for consideration from the ambit of definition of ‘service' in the CP Act, whereas a contract for service is included”.

10.   The service between the complainant and the opposite parties is a contract for service but not contract of service as contended by the opposite parties. 

11.   Burden is on the complainant to establish that the opposite parties committed deficiency of service.   The complainant in para-6 of his complaint mentioned the deficiency of service as mentioned infra:

        “To the badluck of the complainant and most of the inmates, the above said Manager and the Secretary began serving same variety of curry bottle gourd (sorakaya) and the ‘sambar’ in the night is also with the same slices of bottle gourd.   Vexed withy the routine curry and slices in the sambar, the complainant and some other inmates protested against and in fact positively suggested that they had no objection if they serve any other cheaper curry but of different variety from day to day and also asked the management to prepare the schedule of menu for the week. Instead of responding positively, the said Secretary and Manager became authoritarian, highhanded and assertive, in that they wanted to cut the complainant and other protestors to their size under the threats of directing them to quite.   The said incident took place on 07-04-2011 at 5.00 pm by calling the complainant to the office room and the opposite parties checked out the complainant from his room in the said “vruddhasramam” and accordingly the complainant was denied his stay and he came out consequently”.   

12.  The contention of the opposite parties is that the complainant coined the allegation after receiving reply from the opposite parties and the allegations did not find place in the earlier litigation and notice.

13.   Prior to filing this complaint exchange of notices took place between the complainant and the opposite parties, the complainant put up an application before the Human Rights Authority.   Ex.A-7 (=Ex.B-9) is the copy of notice issued by the complainant to the 2^nd opposite party on 19-05-11 through an advocate.  The relevant portion in the said notice is extracted below for better appreciation:

                “While so, my client joined in the Ashramam on 21-09-10 by paying a deposit of Rs.25,000/- and monthly payment of Rs.2,500/- per month and room No.10 is allotted to my client and another.   My client was regularly paying the monthly amount of Rs.2,500/- and also paid the said amount, for the month of April, 5^th 2011.   But to my client’s surprise, you the Secretary of Ashramam told my client on 07-04-11 to vacate the Ashramam and when, my client asked you, why you are asking him to vacate you replied in a negligent manner, why should, I give explanation or reasons for which my client is not deserved and got him vacated by evening on 07-04-11.

                Subsequently, my client met the President of the Ashramam by name P. Sankara Rao and told him what happened till today, my client is not aware of the reasons why he was sent out by you, as he did not commit any mistake to his knowledge, and as such mentally worried and he is anxious to join in the room No.10 as early as possible as his belongings like medicines, clothes and doctor’s prescriptions are left in the Room and also ready to follow the Rules of Admission”.      

14.   Ex.A-5 is copy of complaint given to the Human Rights Authority by the complainant on 11-04-11.  The relevant portion in Ex.A-5 is extracted below for better appreciation:

15.   The complainant either in Ex.A-5 or A-7 did not mention about the opposite parties serving the same curry for days together.   What was mentioned in Exs.A-5 and A-7 did not find place in the complaint.   The contention of the opposite parties about the complainant making false allegations in the complaint is corroborated by Exs.A-5 and A-7.   Therefore the contention of the opposite parties is having considerable force. 

16.   The learned Human Rights Authority passed an order on                28-04-11 (on the reverse of EX.A-5 = Ex.B-8) and it reads as follows:

          “The Petitioner, Manager and Secretary of                              Sri Chebrolu Hanumayamma Vatsalya Ashramam were present and the Manager and Secretary submitted reply stating that the Institution is being run with service motive and they are looking after all the inmates including the petitioner with all love and affection taking care of their every need and that the petitioner has been causing inconvenience, deviating from the discipline of the Ashramam.

                From the submissions of both sides, it is evident that the said Ashramam is a service organization.  Therefore if any inconvenience is felt by the petitioner, option is left to him to leave the Ashramam.  In the circumstances, I find that no interference is called for in the affairs of the said Ashramam, which is a service organization.

                Hence, the petition is closed”. 

17.   To substantiate his contention the complainant on 31-01-12 filed affidavit of one Thadiboina Kondamma w/o Bosu said to have been worked as a sweeper till May, 2011 in the said Ashramam.  The said affidavit disclosed that the complainant had an altercation with the 2^nd opposite party on serving of bottle gourd curry.

18.   In view of the recitals in Ex.A-5, A-7 the allegations made in the complaint constituting deficiency of service cannot be accepted.  Therefore no reliance can be placed on the affidavit of the said Kondamma.   The contention of the opposite parties that the complaint is an improvised version from the earlier one is having considerable force.   For the discussion made supra, we opine that the opposite parties did not commit any deficiency of service and as such the complainant is not entitled to any compensation.  We therefore answer these points against the complainant. 

19.  POINT No.5:-  In view of our findings on points 3 & 4, the complaint is dismissed without costs.   

          Typed to my dictation by Junior-Steno, corrected by me and pronounced in the open Forum dated this the 15^th day of  March, 2012.

MEMBER                                             MEMBER                                             PRESIDENT

APPENDIX OF EVIDENCE

   DOCUMENTS MARKED

For Complainant:

For 1^st opposite party : 

                                                                                                                       PRESIDENT