Heard learned counsel for the appellant. None appears for the respondent.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant had one PCO booth at Charichak,Boudh. It is alleged inter-alia that the telephone booth did not work properly on 22.11.2005 and 23.11.2005 because the service was disconnected by the OP. It is averred that the complainant has alleged before the OP No.4 but no action was taken. Therefore, the complaint was filed.
4. The OP filed written version that the complaint is not maintainable because there is agreement between the parties and the nature of dispute should be referred to arbitrator. It is also averred that the complainant has not informed OP No.4 at all. Without informing the OP, the case has been filed by the complainant. Moreover, it is averred that there is no deficiency in service on the part of the OPs. So, the complaint should be dismissed.
5. After hearing, learned District Forum has passed the following order:-
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“The OP No.4,J.T.O.,Purunakatak is directed to pay Rs.2,000/- (rupees two thousand) only to the complainant towards loss and mental tension sustained by the complainant within one month from the date of this order,failing which the complainant is at liberty to take steps against OP No.4 for realization of awarded amount. The complaint against OP No.1,2 and 3 are dismissed without cost. This case is disposed of accordingly.”
6. Learned counsel for the appellant vehemently opposed that the learned District Forum has committed error in law by not considering the written version with proper perspectives. According to him that the complainant has not proved any document to show that he has informed on 22.11.2005 to OP No.4. Thus, there is no cause of action to file complaint. He also submitted that there is arbitration clause in the agreement and that clause has not been pressed by the complainant. He also submitted that there is no deficiency in service on the part of the OP. Learned District Forum ought to have applied judicial mind to all these facts and law. Therefore, he submitted to set-aside the impugned order by allowing the appeal.
7. Considered the submission of learned counsel for the appellant, perused the DFR and impugned order.
8. It is revealed from the complaint that the complainant was running one PCO booth but it is not found that this PCO is actually used for personal use and not for commercial purpose. Moreover the complainant has not proved any sort of disconnection of telephone line on 22.11.2005. When the complainant has failed to prove that he has opened the PCO booth for earning his livelihood on self employment obviously the complainant has failed to prove himself as consumer under Section -2(1)(d) of the Consumer Protection Act. Moreover, there lies no cause of action to file the complaint case. The agreement shows that he has got clause of arbitration but the Consumer Protection Act can be pressed into service in addition to any other law for time being in force for the relief sought for. Therefore, U/S-3 of the Act shows that such agreement is not tenable.
9. In view of above discussion, we are of the view that learned District Forum has not applied judicial mind to the fact and law and the impugned order is liable to be set-aside and it is set-aside.
Appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
