Per – Hon’ble Justice Mr. S. B. Mhase, President
Heard Adv. Mahesh Joshi on behalf of the Appellant and the Respondent, by name – Mr. Jaywant H. Lad, in person.
[2] This appeal is directed as against an order dated 26/7/2011, passed by the Central Mumbai District Consumer Disputes Redressal Forum in Consumer Complaint No.75 of 2011. The consumer complaint was allowed and the Appellant/ original Opponent is directed to pay to the Respondent/original Complainant, an amount of `14,990/- together with interest thereon @ 9% p.a. from 2/2/2009. It is further directed that by way of costs of litigation `3,000/- be paid to the Respondent/original Complainant and an amount of `5,000/- be paid by way of mental agony. These amounts were directed to be paid within a period of one month. Being aggrieved by this order, Appellant/original Opponent has preferred by this appeal.
[3] The Appellant is the original Opponent and the Respondent is original Complainant. For the sake of convenience they are referred to as the Opponent and the Complainant respectively.
[4] Opponent is a company providing telecommunication services. The Complainant is running a hair cutting saloon and in the said hair cutting saloon, the Complainant desired to install a PCO, STD & ISD booth, and therefore, the Complainant has taken a connection for providing this facility to the public at large. In order to avail this facility the Complainant has approached to one ZIP Telecom Company and said ZIP Telecom Company has installed the said PCO, STD & ISD booth. It appears that in order to get the said connection and install the said facility, the Complainant has deposited an amount of `14,990/- with the ZIP Telecom Company. Thereafter, the said connection was disconnected by the Opponent and at that time, the Complainant made demand of the deposit. Persons of the Opponent, who gave receipt while withdrawing some instruments from the premises of the Complainant, told the Complainant that he should approach the Opponent to get the amount. Inspite of correspondence, the Opponent did not pay the amount, and therefore, a consumer complaint was filed. The complaint has been allowed as stated above.
[5] First ground, which was tried to be made out by the Appellant/original Opponent, is that there is no privity of contract between the Opponent and the Complainant. It is submitted that the amount has been deposited with the ZIP Telecom Company and the ZIP Telecom Company is no more in existence, and therefore, the amount should be recovered by the Complainant from the ZIP Telecom Company and/or it is submitted that in absence of ZIP Telecom Company, the consumer complaint cannot be decided. We do not find any merit in the said submission because it is an admitted position that the PCO, STD, ISD booth was installed in the premises of the Complainant and the said telecommunication service was provided by the Opponent. If, there was no privity of contract between the Opponent and the Complainant, how and in what manner, the Opponent installed its telecommunication line in the premises of the Complainant. We asked this question to the learned counsel for the Appellant/ original Opponent, who admitted that the Appellant/original Opponent provided the services to the premises of the Complainant, and therefore, in absence of any contract such an installation, would not have taken place. On more queries, it was revealed that ZIP Telecom Company was providing installation of PCO, STD, ISD booth in the city and where-ever ZIP Telecom Company made proposal, the Opponent has provided a service line. Therefore, simplicitor there is a relationship of a principal and agent between ZIP Telecom Company and the Opponent. Now, only because ZIP Telecom Company is not in existence, that cannot lead us to draw an inference that there is no privity of contract between the Opponent and the Complainant. On the contrary, even if the agency is terminated the principal with whom there is a contract through an agent is liable in view of principle of vicarious liability. Subsequently, the Opponent has withdrawn the connection and taken the apparatus from the Complainant’s premises. What is important to be noted is that it is not a case of the Opponent that the ZIP Telecom Company has not deposited an amount of `14,990/- with the Opponent. Simply, the Opponent says that the Opponent is not liable to pay the amount. In absence of payment receipt or proposal form, the question remains how and in what manner and why the Opponent installed a telecommunication line in the premises of the Complainant. Not only that but the bills must have been submitted for the use of the said facility and those bills have been paid by the Complainant. For accepting the bills from the Complainant, the Opponent has a power but to refund the amount to the Complainant, the Opponent has no power. Such a somersault cannot be allowed to be taken by the Opponent, and therefore, what we find that there is no substance in the contention raised by the Opponent to the effect that there is no privity of contract between the Complainant and the Opponent. On the contrary, in view of the fact that the agent is no more in existence, the principal is responsible and that being the position, the Opponent is liable to pay the amounts, which was received by the Opponent through its agent, and therefore, the order of the District Forum as regards refund of money is thus, sustainable in law.
[6] Second ground, which was tried to be made out is that the premises where telephone booth was installed is a commercial premises and services were availed by the Complainant for ‘commercial purpose’, and therefore, it is not a ‘consumer dispute’ and the Complainant cannot be said to be a ‘consumer’ within the definition of the Consumer Protection Act, 1986. We do not find any substance in this submission also. It is to be noted that a consumer complaint has been filed by the Complainant himself. He is a person running a hair cutting saloon and he is a layman in respect of drafting a consumer complaint. A consumer complaint cannot be read as a suit and all the rigors of drafting & pleading cannot be applied to a consumer complaint under the Consumer Protection Act, 1986 and more so, when it is filed by a party in person. Even though there is no statement made in the consumer complaint that the Complainant is carrying out said commercial activity for his self-employment and earning his livelihood, that is not necessary in the facts and circumstances of the case. The Complainant is running a hair cutting saloon. Had his income from the hair cutting saloon being sufficient, he would not have considered installation of a telephone booth. What is important to be noted is that telephone booth is a public facility installed for earning his livelihood. The Complainant is a self-employed person. It is not the case of the Opponent that except the Complainant there are any other employees employed by him in his hair-cutting saloon or to run the telephone booth so as to say that it is a commercial activity. From the facts of the case it is clear that the Complainant had availed the services rendered by the Opponent for his personal employment and for earning his livelihood and thus, he is a ‘consumer’ within the definition of the Consumer Protection Act, 1986. Except these two points, no other point was argued before us. Thus, we find that there is no substance in the appeal and it deserves to be dismissed.
Hence, we proceed to pass the following order:-
ORDER
The appeal stands dismissed.
No order as to costs.
Amount, which was deposited by the Appellant/original Opponent at the time of filing of the appeal under Section-15 of the Consumer Protection Act, 1986 shall be paid to the Respondent/original Complainant after the limitation period to file a revision before the National Consumer Disputes Redressal Commission is over.
Pronounced & dictated on 24th August, 2011
