ORDER Per Justice Sham Sunder , President This appeal is directed against the order dated 27.03.2009, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only),vide which it dismissed the complaint filed by the Complainant(now appellant). 2. The Complainant was associated with Mehta Advocates , as an Advocate, and had to visit that office, situated in Kothi No.81, Sector-19-A, Chandigarh. It was stated that due to the re-carpeting of road, in front of the said office/Kothi, the level of the same (road) had been raised, which became a permanent hazardous barrier for ingress and egress to the said house. On 21.5.2008, the complainant, while coming out of the said house, due to newly raised level of the road, fell down, and got injured on the ankle of his right foot, and sustained a hairline fracture. He had to take bed rest, which affected his work, at the office, as well as in the Courts. He had to spend Rs.2350/- on his treatment at Sangam Hospital. It was further stated that the complainant did not fully recover from the said injury. It was further stated that the complainant had to suffer on account of inefficient and irresponsible working and negligence, on the part of the OPs. It was further submitted that the OPs were deficient, in rendering service to the public, in general, and particularly to the complainant. When the grievance of the complainant was not redressed, left with no other alternative, he filed a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only). 3. The OPs, in their reply, pleaded that the complainant was not a consumer, qua them, as re-carpeting of the road was got done in the discharge of their statutory functions, and they had not rendered any service to anybody, much less to the complainant, for consideration, nor he (complainant) had hired their service for consideration for re-carpeting the road. It was further pleaded that, as such, the complaint was not maintainable under the Act. It was admitted that the internal road(V-6 road) from Kothi No.81 Sector-19A, Chandigarh was got re-carpeted by the OPs on 16.10.2006. It was denied that due to re-carpeting of the road it had become a permanent hazardous barrier at the ingress and egress point of House NO.81, Sector 19A, Chandigarh. It was stated that due to low level of the ramp of the house of Kothi No.81, Sector-19-A, Chandigarh, than the channel meant for drainage of water, along the roadside, in front of the said house, there was a gap between the road and the house. It was further stated that with the laying of 25mm thick layer of semi dense bituminous concrete for re-carpeting the road, the level of the road increased uniformally, in front of every house. It was further stated that thickness of the road was only increased by 25mm which did not cause any hindrance, to the ingress and egress of the occupants and visitors to the said house. It was further stated that the alleged mishap took place as the ramp of the said house was faulty as the same was at a lower level. It was further stated that the alleged mishap did not take place due to re-carpeting of the road. The remaining averments were denied, being wrong. 4. The parties led evidence. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint. 6. Feeling aggrieved, the instant appeal, was filed by the Appellant/Complainant 7. The appeal related to the year 2009. When it was fixed for arguments on 2.5.2011, neither the complainant himself, nor any legally authorized representative, on his behalf, came present for addressing arguments. Since, the appeal had already grown more than two years old, we were of the considered view, that no further adjournment, was justified, and the appeal was required to be disposed of on merits, after hearing the Counsel for the respondents, and, on going through the evidence and record, as also the grounds of appeal, the written submissions dated 3.12.2009 submitted by the appellant, and the order of the District Forum. 8. We have heard the Counsel for the respondents, and have gone through the evidence and record, the impugned order of the District Forum, the written submissions and the grounds of appeal. 9. An application for placing, on record, some photographs was filed by the appellant by way of additional evidence. These photographs were very much in the knowledge and possession of the appellant at the time of leading evidence in the District Forum. In the application, it was stated that the same were misplaced some where. Such an explanation is not satisfactory. Even otherwise, these photographs, are not at all essential for the decision of the appeal, in a satisfactory manner. Even the authenticity of these photographs, can also not be vouchsafed. The application, thus, being devoid of merit, is dismissed. 10. In the written submissions dated 3.12.2009 submitted by the appellant, he submitted that he fell within the purview of consumer. It was further submitted, in the written submissions, that the payment of taxes by the citizens constitute consideration for maintenance of Roads, in a proper manner, by the Municipal Corporation, the service provider. It was further submitted, in the written submissions, that due to deficiency in rendering service that the appellant suffered hairline fracture and spent Rs.2350/- on his treatment, and, as such, was entitled to the compensation claimed under various heads, in the complaint. It was also submitted in the written submissions that the District Forum was wrong in dismissing the complaint. 11. The Counsel for the respondents , submitted that, the appellant did not fall within the definition of ‘consumer’ as he did not hire the services of the OPs/respondents, for consideration, nor they rendered him any service, with regard to the re-carpeting of road for consideration. He further submitted that the mere fact that taxes are paid by the citizens, to the government with which the departmental works are executed, by the government, or the Corporation, did not mean that the appellant fell within the purview of a ‘consumer’. He further submitted that since the appellant was not a consumer of the OPs/respondents, the question of any deficiency, in service, on their part, did not at all arise. He further submitted that there was no negligence, on the part of the OPs/respondents, in executing the work. He further submitted that, as such, the appellant was not at all entitled to any compensation. He further submitted that the District Forum was right in dismissing the complaint. 12. The first question, that arises for consideration, is, as to whether, the complainant fell within the definition of ‘consumer’ as defined under Section 2(1)(d) and whether re-carpeting of the road by the OPs, being in the discharge of their statutory functions, without any consideration, having been paid to them, by the appellant, fell within the definition of service as defined in Section 2(1)(o) of the Act. We are of the considered opinion that the Municipal Corporation, even though, being a statutory body, is not out of the purview of the Act, as settled in Lucknow Development Authority Vs M.K.Gupta reported as III(1993)CPJ 7(SC). However, for bringing him within the definition of a consumer, it was for the complainant to prove that he had hired the services of Municipal Corporation, for consideration, because it is clearly laid down in Section 2(1)(d) of the Act that a hirer of service is not a consumer, if he hires the service, without paying any consideration. In this case, admittedly no consideration was paid by the complainant, to the OPs/respondents, for the purpose of re-carpeting the road aforesaid. No doubt, in the grounds of appeal, as also in the written submissions, submitted by the appellant, it was stated that the maintenance of roads is done by the Municipal Corporation, with the taxes collected from the public and the complainant, being a part and parcel of the public, having paid the requisite taxes, fell within the definition of a ‘Consumer’. In Indian Medical Association Vs V.P.Shantha &Ors. 1995 SCC(6)651, the principle of law, laid down, was to the effect that the definition of ‘service’ in Section 2(1)(o) of the Act, can be split up, 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 provisions of facilities, in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both housing transport, processing, entertainment amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service, free of charge, or under a contract of personal service. The National Commission in Consumers Unity and Trust Society, Jaipur Vs State of Rajasthan, 1991(1) CPR 241, held that the payment of taxes/cess (defined as a tax/levy) cannot be regarded as consideration for service rendered by the Government, and the same principle applies to taxes paid to the Municipal Committee. Similar principle of law was laid down in Municipal Committee Gurgaon Vs Harish Kumar & another 1993CPC 537, The Director of Public Instructions (Scools) Pb Vs Sh.Surinder Mohan (1997)(1)CPC187 and Bihar School Education Board Vs Suresh Prasad Sinha 2009(3)CPC 217(SC). For the particular service i.e. for re-carpeting the road, during a particular period, the complainant did not pay any consideration to the OPs/respondents. Under these circumstances, it can not be held that the complainant, being a part and parcel of the public, having paid taxes to the Government, or the Municipal Corporation, the statutory function whereof, was to maintain roads, in a proper manner, fell within the definition of a consumer. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since the appellant has not been held to be a consumer, the question of any deficiency, in service, on the part of the OPs, did not arise at all. 13. In the grounds of appeal, reliance was placed by the appellant on the decision dated 5.2.2009 rendered by the District Forum in Consumer Complaint No.1097 of 2008 titled as Ravinder Lal Vs Municipal Corporation and others. In the first instance, it may be stated here, that the judgment of the District Forum, is not binding on the State Commission, and, as such, reliance thereon by the appellant, was completely misplaced. Not only this, the said order of the District Forum has already been set aside in Appeal No 145 of 2009 decided on 5.4.2010. On account of this reason, the decision of the District Forum no longer survives. No help, therefore, can be drawn, by the appellant therefrom. 14. Alongwith the written submissions, reliance was placed by the appellant, on a number of cases, as under, in support of his plea that he fell within the purview of a consumer. In Accounts Officer & another R.P. No.355 of 2004 decided on 10.4.08 , decided by the National Commission it was held that consumer of electric energy, provided by the Electricity Board or a Private Co., is a consumer, within the purview of the Act, as he is rendered service by the service provider, on payment of electricity consumption charges. In Kishore Lal Vs Chairman Employees State Insurance Co. (2007)4 SCC 579, it was held that medical services rendered by the ESIC, to the employees, are not free of cost, but the expenses are borne out, from the contributions, made by the Employees, and, as such, they are consumers under the Act. In Municipal Corporation Chandigarh Vs Sushil Kumar Mahajan & Ors III(2006)CPJ 219(NC), the respondents were allotted the plots, in an open auction, in 1996 and 25% bid money was received by the Estate Office. The Estate Office also committed to provide roads, drinking water and other basic facilities, but it failed to provide the same, though the possession of the plots was given. In these circumstances, deficiency of service, was found, and interest @ 12% p.a. was granted, on the deposited amount, till the facilities aforesaid were provided. In Nagar Palika of Hisar Vs Nathu Ram Goel of Hisar (1993 CPC 487), no plea, in the written statement, was taken that the respondent/complainant, was not a consumer, nor raised before the District Forum. It was, thus, held that no such objection could be taken, in the first appeal. In Smt. Usha Rani Aggarwal & Ors Vs Nagar Palika Haldwani (2006(2)CPC 717(NC), despite payment of Rs.200/- as consideration for cleaning work of septic tank, it was not cleaned by the Nagar Palika. It was held that the Nagar Palika was deficient, in service, and compensation was granted. In Municipal Corporation of Hyderabad & Ors.Vs Abdul Azeez (2007)CPJ 15(NC), Abdul Hamid son of the complainant paid Rs.250/- towards swimming pool fees. The swimming pool was being maintained by the Municipal Corporation. The M.C. did not provide Guards and other safeguards. The son of the complainant died, while swimming. The M.C. was held negligent and deficient in service. Compensation was accordingly awarded. The facts of the cases, mentioned in this para, are clearly distinguishable, from the facts of this case. In the instant case, a specific objection, was taken, in the written reply, that the complainant did not fall within the definition of consumer and, as such, the complaint was not maintainable. In the cases mentioned, in this para, the services were availed of by the complainants, for consideration, and, as such, they were held to be consumers. In the instant case, as stated above, the M.C. discharged its statutory functions. Its services were not hired by the complainant for consideration. The complainant was, thus, not a consumer, and the complaint was not maintainable. No help can be drawn by the appellant, from the principle of law, laid down, in these cases. 15. The next question, that falls for consideration, is, as to whether on account of re-carpeting of the road, especially in front of the house aforesaid, there was any hindrance in ingress and egress to the same, as a result whereof, the appellant allegedly sustained injury. It was for the complainant to prove this factum. The re-carpeting of the road was done in the year 2006, whereas, the alleged injury was received by the complainant in 2008 i.e. after two years of such re-carpeting. For two years, the occupants of the house in question or the visitors, did not raise any grievance, nor noticed any hindrance in having ingress or egress to their house. In case, any hindrance had been created, on account of re-carpeting of the road in 2006, for ingress and egress to the house, in question, then the complaint would have been made by the occupants thereof, or the visitors to the same, immediately when it was re-carpeted. The complainant or other occupants of the house slept over the matter for about two years is beyond one’s imagination. This clearly goes to show that no hindrance was ever caused for ingress and egress to the house in question, but for certain undisclosed reasons the OPs were dragged into litigation. Even, no other member of the public, suffered any injury, on account of such re-carpeting. No affidavit of the doctor, who examined the complainant, was produced, on record. In the absence of such an affidavit, the copies of medical record produced on the file, could not be taken into consideration. The District Forum, was, thus, right in holding that since the injury did not allegedly occur, on account of re-carpeting, the complainant was not entitled to any compensation. Not only this, the complainant claimed speculative damages and highly exaggerated compensation in the complaint to the tune of Rs.2,32,350/-. According to the complainant, he only spent Rs.2350/- on his treatment in Sangam Hospital. For the minor amount of Rs.2350/- which was allegedly spent by the complainant, on his treatment, he claimed such an arbitrary and exaggerated sum, as compensation, though he has not been held to be a consumer. 16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.3000/-. 17. Certified Copies of this order be sent to the parties, free of charge. 18. The file be consigned to the record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
