BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
THURSDAY, the 12th Day of October, 2017.
F.A.No.5/2017
M.Danasegar,
S/o Late Muthukrishnan,
AW-6, Govt. Staff Quarters,
Lawspet, Puducherry. ………… Appellant
Vs.
The Executive Engineer,
Buildings & Roads (Central) Division,
Public Works Department,
Puducherry. …………… Respondent
(On appeal against the order passed in Un-Numbered Consumer Complaint of 2017, dated 13.06.2017)
Un-Numbered Complaint of 2017
M.Danasegar,
S/o Late Muthukrishnan,
AW-6, Govt. Staff Quarters,
Lawspet, Puducherry. ………… Complainant
Vs.
The Executive Engineer,
Buildings & Roads (Central) Division,
Public Works Department,
Puducherry. ……… Opposite Party
O R D E R
This appeal is directed against the order of the District Consumer Disputes Redressal Forum (‘District Forum’ for short) in Un-Numbered Consumer Complaint of 2017, dated 13.06.2017.
2. The complainant therein is the appellant herein and the opposite party therein is the respondent herein.
3. The parties are arrayed in the same position as they have been arrayed before the District Forum
4. On presenting the complaint before the District Forum, the Registry has taken a view that the complaint is not maintainable on the ground that the complainant is not a consumer and that the complaint preferred against the opposite party is not maintainable. The complainant thereafter re-presented the papers stating that he is a consumer and that he can maintain a complaint against the opposite party. Thereupon, the matter has been placed before the District Forum. The District Forum, after notice to the complainant, passed the order which has been challenged in the present appeal.
5. The case of the complaint before the District Forum was that he is a Government Servant working as L.D.C. When he was working in Rajiv Gandhi Government Women and Children Hospital, Puducherry, the Medical Superintendent falsely alleged that he was unauthorisedly absent and she wrote to the Under Secretary (Housing) for vacating the complainant from the Government Quarters, which was allotted to him. On that basis, the Under Secretary (Housing) by its oreder dated 30.11.2012 cancelled the allotment of quarters. He wrote for revoking the order of cancellation. However, after a lapse of 20 months, the opposite party issued a notice dated 06.08.2014, for which the complainant sent a reply dated 19.08.2014. But, an order of eviction was passed against him on 15.10.2014. Therefore, the complainant preferred appeal before the learned Principal District Judge, Puducherry, who set aside the said order. The complainant was in occupation of quarters on payment of licence fee and hence he is a consumer. In view of the order of eviction, he was subjected to physical and mental agony and there was deficiency of service on the part of opposite party. Therefore, he has preferred a complaint before the District Forum.
6. The District Forum, as stated already, by its order dated 03.02.2017 hold that the complainant is not a consumer, which was challenged herein.
7. The complainant, before the District Forum, relied on the decision rendered by the Hon’ble National Consumer Disputes Redressal Commission (‘National Commission’ for short) in R.P. No.2809 of 2005, dated 08.03.2007 in the case “K.K.Miglani Vs. Assistant Engineer, CPWD, New Delhi”.
The facts of the said case is that the revision petitioner was allotted a Government accommodation since he was a Government Servant. The Government quarter was not in proper condition. Iron grills, doors were missing. In spite of payment having recovered from K.K.Miglani, Government department failed to provide two doors. Because of falling of piece of ceiling it caused damage to the Washing machine. Therefore K.K.Miglani filed consumer complaint in which similar objections were raised by Central Public Works department. District Consumer Forum held that payment of license fee amounts to consideration. District Consumer Forum further held that K.K.Miglani is a Consumer. District Consumer Forum hold that there was deficiency on the part of CPWD in not maintaining the Government accommodation in good condition. District Consumer Forum allowed the consumer complaint and directed CPWD to pay sum of Rs.5000/- by way of compensation and Rs.1000/- by way of cost of the litigation.
CPWD did not prefer any appeal. Complainant K.K.Miglani however preferred Appeal No.232/2005 before Delhi State Commission for enhancement. State Commission dismissed the appeal. Therefore K.K.Miglani carried the matter to the National Commission.
National Commission allowed the revision application and enhanced the compensation from Rs.5000/- to Rs.50,000/-. National Commission in para 26 of the judgment observed that it was the duty of the officers of CPWD to have routine check at the premises before handing over the same to the complainant. National Commission has observed in para 17 of the judgment that maintenance was required to be carried out periodically by the O.P. There was no reason to delay fixing of grills to the doors for more than six months. There was no reason not to visit premises and find out whether the ceiling was damaged which required repairs.
In para 18 of the judgment, National Commission observed that it is apparent that there is negligence in discharge of duties by the O.P. and deficiency in service for which O.P. is required to pay adequate compensation to the complainant.
8. On this judgment, the District Forum in its order held,
“The facts and circumstances in the above said case of the Hon'ble National Commission, New Delhi, are entirely different from the facts and circumstances. In this Complaint, the complainant prays for compensation payable by the opposite party for having passed an order of eviction agains him from the Quarters illegally and for the reason of the said order of eviction having been set aside by the Hon'ble Principal District Judge, Puducherry in the appeal filed by him against the order of eviction."
9. We are unable to accept the view taken by the District Forum on the said Judgment. In the said judgment, the Hon'ble National Commission has clearly upheld the order of the District Forum wherein it has been held that payment of licence fee amounts to consideration. The complainant preferred appeal before the State Commission which set-aside the order of the District Forum. The same was challenged by the complainant in a revision before Hon'ble National Commission. In that circumstances, the Hon'ble National Commission while setting-aside the order of State Commission, has upheld the order of the District Forum. The Hon'ble National Commission has further held that there is negligence in the discharge of the duties of the opposite party and that the opposite party was required to pay adequate compensation. Therefore, in our considered view, the said judgment is squarely applicable to the facts of the case herein.
10. The other judgment that has been cited by the complainant, which has been considered by the District Forum, is in respect of the order passed by the State Commission, Mumbai, Maharashtra in First Appeal No.687/2008, dated 17.04.2009 between “Public Works Department Officials Vs. Ratan Sanduji Hivrale (Government Servant) In the said judgment, the above referred State Commission after considering the decision of the Hon’ble National in the case of K.K.Miglani, has held that the respondent therein is a consumer and that the dispute raised in the complaint is a consumer dispute, the District Forum has every right to entertain and decide the consumer complaint. It is further held
“Relying on the decision of National Commission, we find no hesitation to hold that respondent is a Consumer and the dispute raised in the complaint is a consumer dispute. District Consumer Forum has every right to entertain and decide such type of consumer complaints.
The Government quarter is allotted to the respondent being Government servant not free of charges. Appellants recover rent and service charges from the respondent for use and occupation of Government quarter. The Public Works department is under obligation to maintain and keep the Government quarters in habitable condition. Payment of rent and service charges is a consideration paid by the respondent.”
11. The facts of the said case were that the respondent therein, Government Servant, was provided with government accommodation. He found that the electrical supply wiring was broken, fan was not working, etc. Though it has been brought to the notice of the authorities concerned, the same has not been rectified. Hence, he moved the consumer forum. The opposite party therein has resisted the complainant saying that the respondent is not a consumer. However, the District Forum held that the complainant is a consumer and held that the opposite party has to pay compensation. The said order has been upheld in the above said decision , as set forth earlier..
12. On the said judgment, the District Forum has held that the case therein is related to the provisions of amenities in the quarters but, whereas, the present case completely differs and the facts and circumstances are different.
13. We are entirely in disagreement with the view taken by the District Forum. The question that arose before the District Forum was ‘whether the complainant is a consumer or not?’ Therefore, the said finding rendered by the District Forum is not correct.
14. Yet another case cited by the complainant/party-in-person, which was set out in the order of District Forum, is the judgment of the Hon’ble Apex Court reported in AIR 1995 SCC(6) 651, The question that arose before the Hon'ble Apex Court was
“………… whether and, if so, in what circumstances, a medical practitioner can be regarded as rendering ‘service’ under Section 2(1)(o) of the Consumer Protection Act, 1986. Connected with this question is the question whether the service rendered at a hospital/nursing home can be regarded as ‘service’ under Section 2(1)(o) of the Act. These questions have been considered by various High Courts as well as by the Nation Commission….”
15. While dealing the said issue, the Hon’ble Apex Court has held as follows:
“It is necessary to bear in mind that the Act has been enacted “to provide for the protection of the interests of “consumers” in the background of the guidelines contained in the Consumer Protection Resolution passed by the U.N. General Assembly on April 9, 1985. These guidelines refer to “achieving or maintaining adequate protection for their population as consumers” and “encouraging high levels of ethical conduct for those engaged in the protection and distribution of goods and services to the consumers”. The protection that is envisaged by the Act is, therefore, protection for consumers as a class. The word “users” (in plural), in the phrase ‘potential users’ in Section 2(1) (o) of the Act also gives an indication that consumers as a class are contemplated. The definition of ‘complainant’ contained in Section 2(b) of the Act which includes, under clause (ii), any voluntary consumer association, and clauses.”
16. It has been further held that services rendered under the Act ,
“Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be “service” and the recipient a “consumer” under the Act.
17. On the said decision, the District Forum found that the decision of the Hon’ble Apex Court do not come to the rescue of the complainant herein. The order of the District Forum is extracted below:
“30. By the exclusionary part in Section 2(1)(o) of the Act, the contract of personal service has been excluded from the purview of “service’ defined in Section 2(1)(o) of the Act, where a relationship of master and servant exists between the master and the servant, i.e. to say the Government as Master and the Govt. servant as servant. Any service rendered by the Govt. Servant to the Government is not service within the definition of ‘service; in the Consumer Protection Act and vice versa”
18. Even this order passed by the District Forum is erroneous. Learned Principal District Judge, Puducherry has not, no doubt, held that the order of eviction is illegal, improper, etc. However, the fact remains that the order of eviction passed against the complainant has been set at knot by the learned Principal District Judge, Puducherry. In our considered view the District Forum has not considered the matter in proper perspective.
19. The other decision that has been cited by the complainant which has been relied on by the District Forum is the decision of the Hon'ble High Court of Madras in W.P.No.4225/2013, dated 30.04.2013 in the case "Sachidhanandham Vs. The District Collector, Thiruvannamalai". Even in the above decision, the Hon'ble High Court, Madras permitted the petitioner therein to file appropriate civil suit for damages claiming compensation for mental agony and loss sustained by him. On this judgment, the District Forum has held that the Hon'ble High Court, Madras in the said judgment did not pass an order of eviction which was challenged to give an opportunity to the writ petitioner for claiming damages and hence the said judgment is not applicable to the facts of the case on hand.
20. We are unable to accept even the said view taken by the District Forum. Though the facts thereon cannot be strictly applicable to the present case on hand. The Hon’ble High Court, Madras has clearly held that the revision-petitioner thereon can claim damages for mental agony suffered by him. The complainant herein has approached the District Forum claiming compensation, which the District Forum failed to take into consideration.
21. Thereupon, the District Forum relying on Section 2(1)(o) of the Act, held that the services rendered by the Government towards Government Servant cannot come within the definition of ‘service’, as defined under the Act. We are unable to accept the views taken by the District Forum. The judgments cited above will clearly establish that the complainant/party-in-person, who has been allotted accommodation on getting licence fees, is undoubtedly, a consumer and he can maintain complaint before the District Forum being a consumer when there is deficiency of service of the opposite party.
22. One more aspect that has to be seen is that the District Forum has taken all efforts in rejecting the complaint without even numbering and without ordering notice to the other side. In our considered view, the said decision taken by the District Forum is not in proper perspective.
23. The learned Government Pleader for the opposite party relied on the decision of the Hon’ble National Commission reported in (2008) 4 CPJ 184 in the case “Adwatia Prasad Biswal Vs. J.Bag and Another”, that is a case wherein the complainant has filed revision-petition before the Hon’ble National Commission against the respondent Estate Officer before the District Forum alleging deficiency in service on the part of the latter in not issuing certified copy of the order passed by the Estate Officer. It has been held therein that,
“ In our view the decision of this Commission in the above referred case cannot be squarely applied to the facts and circumstances of the present case. In the case in hand, the proceedings under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 were initiated against the petitioner and an order of eviction was passed against him. Copy of such eviction order was duly dispatched/served on the petitioner and that is why the petitioner invoked the jurisdiction of the High Court to seek a stay of the said order. No doubt, the petitioner had applied for certified copies of the order/documents by suo motu depositing a certain amount as fee for certified copies but nothing has been brought on record to show that the office of the Estate Officer had prescribed any such fees for issuing certified copies. Prescription of particular fees/charges by means of statutory requirements, as in the case of Courts and various other authorities, is to be distinguished from the depositing of fee/charge by a particular person out of his own volition. It would not amount to charging of consideration for the service to be rendered or rendered by a public authority. We, therefore, do not subscribe to the view that the Estate Officer or the subordinate staff in that office was rendering service to the petitioner for consideration within the meaning of Section 2(1) (o) of the CP Act, or for that matter, the petitioner could be brought within the ambit of term consumer under Section 2(1)(d). In any case the copies applied for by the petitioner were supplied to him and the so-called delay in supply had not occasioned into any loss or damage to the petitioner because, as per the petitioner’s own showing, the appeal filed by him before the District Forum without certified copy of the impugned order passed by the Estate Officer was duly considered and dealt with by the appellate authority.
24. In our considered view, the said order passed by the Hon’ble National Commission will not be applicable to the facts of the present case. The complainant has taken a stand that the certified copy of the order passed by the Estate Officer is not furnished and hence it is deficiency of service. The above extracted order clearly shows that the Estate Officer has not prescribed any fee for issuing certified copy and that the complainant voluntarily paid the fees for certified copy of order. In that circumstances it has been held that the service rendered by the Estate Officer or his subordinates are not service rendered to the complainant within the meaning of Section 2(1)(o) of the Act. Further, I has been found by the Hon’ble National Commission that the complainant has filed an appeal without the impugned order but was considered and dealt with by the appellate authority. Hence, the said judgment will not come to the rescue of the complainant herein for the simple reasons that the order of eviction was set-aside by the learned Principal District Judge, as Appellate Authority under the Act
25. Considering the totality of the circumstances, we are of the view that the order of the District Forum is liable to be set aside and accordingly set aside with a direction to the District Forum to number the complaint and decide the matter on merits after issuing notice to the other side. We are making it very clear that the observation made herein is only for the disposal of the matter primarily holding that the complaint is maintainable before the District Form. Both parties are at liberty to let in evidence to substantiate their case.
26. Before the District Forum complainant has filed two documents and before this Commission he has filed an application for reception of documents and those documents could be considered by the District Forum.
Dated this the 12th Day of October, 2017
(Justice K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
