KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.700/09 JUDGMENT DATED 8.7.2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.M.K.ABDULLA SONA -- MEMBER The District Welfare Fund Inspector, Kerala Toddy Workers Welfare Fund Board, Near Upasana Hospital, Kollam Dist. -- APPELLANT Reptd. by District Welfare Fund Inspector, S.Anith. (By Adv.C.R.Sudheesh) Vs. 1. K.V.Ullas Padiyezhathu Madom, Kannimelcherry,Kavanadu.P.O, Kollam Dist. 2. The Deputy Tahsildar (R.R.Kollam) -- RESPONDENTS 3. The Village Officer, Sakthikulangara Village, Kollam. (R1 By Adv.M.C.Sajulal) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER Appellant was the first opposite party and respondents 1 to 3 were the complainant and opposite parties 2 and 3 respectively in CC 247/06 on the file of CDRF, Kollam. The complaint therein was filed alleging deficiency in service on the part of the opposite parties in not releasing the Bank Guarantee of Rs.24,000/- and also for initiating Revenue Recovery proceedings against the complainant for realization of the welfare fund due under the Kerala Toddy Welfare Fund. The opposite parties entered appearance and denied the alleged deficiency in service. The first opposite party contended that the R.R. proceedings were initiated for realization of the Welfare Fund due from the complainant with respect to the persons employed in the Toddy Shop of the complainant. It was also contended that no Bank Guarantee was given by the complainant in favour of the opposite parties. Thus, the opposite parties prayed for dismissal of the complaint, as the complainant is not a consumer as defined under the Consumer Protection Act. 2. Before the Forum below, the complainant was examined as PW1 and P1 to P5 were marked on his side. On an appreciation of the evidence on record, Forum below passed the impugned order dated 30th September 2009 directing the opposite party to release the bank guarantee of Rs.24,000/- with interest at the rate of 18% per annum from the date of termination of the license till the date of payment of the Bank Guarantee with a further direction to pay compensation of Rs.5000/- and cost of Rs.1500/-. Hence the present appeal by the first opposite party therein. 3. We heard the learned counsel for the appellant/first opposite party and the first respondent/complainant. The counsel for the appellant submitted that the complainant is not a consumer as defined under the Consumer Protection Act, 1986 and that the appellant/first opposite party had not received any Bank Guarantee from the complainant. It is further submitted that the R.R. proceedings were initiated against the first respondent/complainant for realization of the welfare fund due from the complainant. It is further submitted that the Bank Guarantee had been released to the complainant in the light of the order passed by the Hon.High Court in W.P ( C) No.29862/2005 (E); but even there after the complainant failed to remit the Welfare Fund due under the Toddy Workers Welfare Fund. Thus, the appellant prayed for setting aside the impugned order passed by the Forum Below. On the other hand, the first respondent/complainant supported the impugned order passed by the Forum below and argued for dismissal of the present appeal. 4. First respondent/complainant was a licensee to run the Toddy Shop No.32 Inchavilla Njarakkal, Perinadu,. Appellant/ first opposite party is the Inspector, Kerala Toddy Welfare Board; that the opposite parties 2 and 3 are the Deputy Thahasildar, Revenue Recovery and the Village Officer, Sakthikulangara respectively. There is no material available on record to show that the complainant being the licensee to run the aforesaid Toddy Shop is a consumer under the opposite parties 1 to 3. It is to be noted that the opposite parties 1 to 3 in CC.247/06 are the Government Officials who are deputed to discharge their official functions. The first opposite party was concerned about the collection of the Welfare Fund under the Toddy Workers Welfare Fund Scheme. He was acting as the Inspector of Kerala Toddy Welfare Board. The opposite parties 2 and 3 were authorized to initiate Revenue Recovery proceedings against the complainant. The R.R. proceedings were initiated at the instance of the first opposite party for collection of the Welfare Fund due from the complainant. Admittedly, the complainant was a defaulter in remitting the Welfare Fund due under Kerala Toddy Workers Welfare Fund. So, the 1st opposite party was officially bound to initiate R.R. proceedings for recovering the Welfare Fund due from the complainant. There is nothing on record to show that the complainant availed any service of the opposite parties on consideration. There is also nothing on record to show that the complainant purchased any goods from the opposite parties. It is crystal clear that the complainant has not availed any service or has not purchased any goods from the opposite parties 1 to 3. Thus, the complainant cannot be considered as a consumer as defined under the Consumer Protection Act, as far as the opposite parties 1 to 3 are concerned. But unfortunately, the Forum below has not considered the relevant aspect of the case as to whether the complainant is a consumer coming within the ambit of the Consumer Protection Act. Hence we have no hesitation to hold that the complainant is not a consumer under the consumer Protection Act and that the dispute in the said complaint is not a consumer dispute. On that sole ground, the complaint in CC.247/06ought to have been dismissed by the Forum below. 5. The definite case of the complaint (first respondent herein) is that he had given Bank Guarantee of Rs.24,000/- to the Asst. Excise Commissioner, Kollam. The aforesaid Bank Guarantee was given by remitting the sum of Rs.24,000/- in District Treasury, Kollam. Admittedly, the said Bank Guarantee was offered by the complainant and accepted by the Asst. Excise Commissioner, Kollam for granting license to the complainant for running the Toddy Shop No.32 of Perinadu. There is no case for the first respondent/complainant that he had given any Bank Guarantee to the appellant/first opposite party or the other two opposite parties. So, the prayer to get the Bank Guarantee released cannot be allowed in the present complaint in CC.247/06 filed against the opposite parties 1 to 3. It can be concluded that the Asst. Excise Commissioner, Kollam was a necessary party to get such a relief. But, we have already held that the complainant is not entitled to get the Bank Guarantee released because of the fact that the complainant is not a consumer. It is also to be noted that the Asst. Excise Commissioner, Kollam accepted the Bank Guarantee for the purpose of issuing license to the complainant. So, the acceptance of the Bank Guarantee cannot be treated as a service rendered to the complainant on consideration. It is to be noted that the collection of license fee is part of the official duty vested with the Asst. excise Commissioner, Kollam. So, the prayer to get the Bank Guarantee released cannot be granted in a consumer complaint. More over, the complaint filed without impleading the Asst. Excise Commissioner, Kollam who received the Bank Guarantee is also not maintainable. 6. Admittedly, the first respondent/ complainant was bound to remit the Welfare Fund under the Kerala Toddy Welfare Board. He was bound to pay Rs.36,750/- to the appellant/first opposite party by way of his contribution to the Welfare Board constituted under the Kerala Toddy Workers Welfare Fund. The first opposite party initiated R.R. proceedings for recovery of the Welfare Fund. The R.R proceedings were initiated through opposite party 2 and 3 (respondents 2 and 3). It is after the R.R. proceedings the complainant remitted Rs.21908/-. He was bound to remit balance of Rs.13969/- towards the Welfare contribution. He was also liable to pay the said amount with 18% interest. So, the opposite parties are perfectly justified in initiating the RR proceedings against the first respondent/complainant for the recovery of Welfare Fund due under the Toddy Workers Welfare Fund. So, the complainant is not entitled to get the RR proceedings cancelled. 7. The complainant moved the Hon. High Court by preferring a writ petition as W.P ( C) No.29862/2005 (E). The aforesaid writ petition was ordered by the Hon. High Court vide order dated 25.10.05, and thereby release of the Bank Guarantee was ordered with a condition that the said amount is to be utilized for remitting the Welfare Fund due from the complainant under the Kerala Toddy Workers Welfare Fund Scheme. The appellant has produced the concerned orders passed by the Asst. Excise Commissioner and the District Treasury Officer, Kollam releasing the bank Guarantee furnished by the complainant. It is to be noted that even after getting the bank guarantee released, the complainant failed to remit the Welfare fund of Rs.13969/-with the interest thereon. Thus, in effect, the first respondent/complainant committed default in making payment of the Welfare fund due from him under the Toddy Workers Welfare Fund. The first respondent/complainant neglected to remit the Welfare Fund legitimately due to the appellant/first opposite party. So, the complaint in CC.247/06 is liable to be dismissed. The Forum below miserably failed to consider the relevant aspects of the case. The impugned order passed by the Forum below is liable to be set aside. Hence we do so. In the result, the appeal is allowed. The impugned order dated 30th September 2009 passed by CDRF, Kollam in CC.247/06 is set aside. The parties are directed to suffer their respective costs through out. M.V.VISWANATHAN --JUDICIAL MEMBER VALSALA SARANGADHARAN -- MEMBER M.K.ABDULLA SONA -- MEMBER s/L | 
