This case has arisen out of an application U/s 12 of the Consumer Protection Act, 1986.
The case of the complainant is that the O.P is a businessman dealing in plying motor vehicle by carriage school student & he executed an agreement with the parents of St. Xavier’s school students, in 1st & 2nd shift, firstly executed on 01.01.2014 for one year, then on 01.01.2015 for the session 2015-2016 & as per agreement O.P as a driver himself ply the vehicle & 13 number of passenger was carrying daily in his vehicle and he himself pick up the students from their home with special care at a fixed fare.
That on 03.12.2015 O.P pick up Arnab Mazumdar son of the complainants and other 12 students from their house to St. Xavier’s Eng. Medium School at Halim Chawk, Kishanganj by his vehicle bearing No:W.B74Y/0487 and on the way of return by vehicle being No:W.B60J/3208 plying unskilled druggist driver who drove the vehicle rashly met with an accident causing death of 07 students including driver of the vehicle. For that Chakulia P.S Case No:22/16 dated 22.01.2016 U/s 406, 420, 120B was started. Due to deficiency and negligence in service and breach of contract complainants pray for compensation of Rs.5,00,000/- for death of their son, litigation cost, if any etc.
O.P/Ajit Roy contested the case by filing W.V denying the case of the complainants stating that no such agreement in between the parents of the student and the O.P was made at any point of time whereby it was settled that O.P being the driver as well as the owner of the vehicle would drive the same personally for taking the students to the school in two shifts & O.P never put his signature in any agreement as alleged and if there is agreement purporting to be bearing the signature of the O.P then the same is forged and created for the purpose of realizing money from the O.P taking advantage of the accident as alleged. The O.P has no relation with the parents of the students which will be crystal clear from the fact that during the Session 2015-16 the vehicle involved in the accident was not the vehicle of the O.P so there was no question of appointing of driver by O.P. On the date of incident O.P took the student from the house of the complainant by his vehicle is totally false & fabricated.
That the alleged accident took place due to the fault of the driver as alleged by the complainant, so there was no negligence or deficiency of service on the part of the O.P as the O.P had no obligation to give any service to the complainant & if the complainant wants to get any compensation then he should have approached the MACT Tribunal & amount for compensation will be given by the actual owner of the offending vehicle or the Insurance Company, if any. The instant complaint is misconceived, civil in nature and this Forum has got no jurisdiction to entertain the case. He prays for dismissal of the case.
Points for consideration is:-
- Whether there was any negligency and deficiency in service on the part of the O.P which gives cause of action to file the complaint and the complainants are entitled to get the claim?
D e c i s i o n w i t h r e a s o n s:-
Utpal Mazumdar, complainant No:1 for himself as well as on behalf of his wife Rimpa Das (Mazumdar) complainant No:2, submits memo of evidence by affidavit and examined as P.W.1 and he has filed original copy of agreement dated 01.01.2014(replaced by filing certified copy thereof on his prayer) bearing signature of Utpal Mazumdar father of student Arnab Mazumdar in Sl No:11 along with the signature of guardians of other 14 students (in all 15) and signature of first party/vehicle owner Labanya Roy & agreement continued for the session 2015-16 bearing signature of Utpal Mazumdar father of Arnab Mazumdar in Sl No:1 along with signature of guardians of other 12 students (in all 13, Exhibit-1 series). Though O.P signed his name as Ajit Roy in W.V, evidence of O.P.W.1 and other places but in cross-examination he admits that “myself is Labanya Roy @ Ajit Roy and in the agreement vehicle owner name found written Labanya Roy(alia Ajit Roy).
P.W.1 filed xerox copy of DL self attested/signed by Ajit Roy with Mob No:9733122085 & vehicle No:W.B74Y/0487 with holder’s signature Labanya Roy on the reverse marked Exhibit:2. Fee book issued by St. Xavier’s Eng. Medium School, Halim chawk, Kishanganj, Bihar in name of Arnab Mazumdar, S/o:Utpal Mazumdar and 04 numbers pay slip vehicle fare with student’s name Arnab Mazumdar signed by Ajit Roy dated 08.05.2015, 04.07.2015 for June 2015, 05.08.2015 for July 2015, and 04.09.2015 for Aug 2015 are depicted.
As per agreement the driver Labanya Roy, who is also owner of vehicle named Bolero, No:W.B74Y/0487 will carry the students of St. Xavier’s from directive places of Chakulia (nearest point of Main road from respective homes of students) to school in two shifts.
1st Shift: 1st shift will depart from Chakulia at about 6:30 am which will consist of LKG and UKG students. 1st shift’s student will depart from school for home through the said vehicle at 11:30 am or as per school schedule for LKG & UKG.
2nd Shift: 2nd Shift will depart form Chakulia at 8:00 am for St. Xavier’s school, which will consist of class 1 & above it students. 2nd Shift student’s will depart from school at 1:30 pm or as per school schedule, duty of whole session=12 months, fare of whole session =10XRs.22,000/-=2,20,000/-.
The driver & vehicle owner will be responsible and answerable to the guardians, concerned authorities and officials for any kind of incident, such as kidnapping, missing, harassment or accidents etc until the students are not handed over to their respective guardians.
By continued agreement dated 01.01.2015 only fare of whole session was revised =10XRs.15,925/- per month=Rs.1,59,250/-, other descriptions remain same.
Therefore, the fact as made out in Para 08 of O.P’s W.V that no such agreement in between the parents of the student and the O.P was made at any point of time whereby it was settled that O.P being the driver as well as the owner of the vehicle would drive the same personally for taking the students to the school in two shifts & O.P never put his signature in any agreement as alleged and if there is agreement purporting to be bearing the signature of the O.P then the same is forged and created for the purpose of realizing money from the O.P taking advantage of the accident and the O.P has no relation with the parents of the students, held false.
The O.P took the specific defence that the application U/s 12 of C.P.Act, 1986 is barred by Law as the parties has/had not consumer relation. Ld. Advocate for O.P argued on this point referring Section 2 (1) (d) (ii) which runs as:- “Consumer” means any person who-
[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who
[hires or avails of ] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [ but does not include a person who avails of such services for any commercial purpose;]
[Explanation-For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;].
Considering agreements as a whole we are of the opinion that the O.P being driver as well as owner of Bolero vehicle No:W.B74Y/0487 entered into a contract and agreed to give services to the guardians of the students of said school for the purpose of earning his livelihood by means of self-employment, so the guardians of the students are held consumer under aforesaid section of C.P.Act of 1986.
Complainant’s case is that on 03.12.2015 O.P picked up Arnab Mazumdar son of the complainants and other 12 students from their house to St. Xavier’s Eng. Medium School at Halim Chawk, Kishanganj by his vehicle bearing No:W.B74Y/0487 and on the way of return by vehicle being No:W.B60J/3208 plying by unskilled druggist driver who drove the vehicle rashly met with an accident causing death of 07 students including driver of the said vehicle & for that Chakulia P.S Case No:22/16 dated 22.11.2016 U/s 406, 420, 120B was started.
In his maintainability petition O.P stated that the fact remains one pathetic road accident took place near Rampur Chawk under P.S Chakulia on 03.1202015 and in respect of that accident one written complaint was lodged at Chakulia P.S on 22.01.2016 & the vehicle involved in the accident was driven by Md. Jafar Alam being No:W.B 60J/3208 & O.P or his vehicle being No:W.B74Y/0487 was not involved in any way with that accident.
Further O.P denied the complainant’s plea stating that he took the students from their houses by his vehicle on 03.12.2015, adding further that the vehicle involved in the accident was not his vehicle so there was no question for appointing of driver by him.
Utpal Mazumdar/P.W.1 in cross-examination stated that the Police case was started on the basis of F.I.R, that he has not mentioned the name & address of the owner of the vehicle of the alleged accident, that at present he cannot say the name & address of the owner of that vehicle which was involved in the accident & he admits that one Md. Jafar Alam was driving that vehicle on that particular date & time and that he has not filed the copy of that Police case (F.I.R etc).
For arguments sake if it assumed to be correct that on 03.12.2015 on the way of return from said school Md. Jafar Alam picked up the students to drop them to their houses by another vehicle being No:W.B60J/3208, the owner of vehicle being No:W.B60J/3208 ought to have been made a party, in order to ascertain who engaged that vehicle and the driver Md. Jafar Alam for the said act, as the driver Md. Jafar Alam is no more.
Fact remains the O.P bind himself by aforesaid contract to carry/pick up the students from the school on the way of return and to drop them to their respective houses dated 03.12.2015, like other days, which he failed to comply, held negligency and deficiency in service.
Ld. Advocate for the O.P argued that the remedy available to the complainants was breach of contract, comes within the purview of the Contract Act, and the dispute is civil in nature, without jurisdiction of Consumer Commission.
Section 2 (1) (g) runs as:- “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
(O) “service” means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other agency, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service fee of charge or under a contract of personal service;
In Marine Container Services South Pvt. Ltd Vs Go Go Garments, AIR 1999 SC 80, the respondent was pursuing the remedy available to it under the provisions of the Consumer Protection Act and had claimed that it had hired the services of the appellant and there was deficiency in rendering such services. The District Forum before which the respondent had instituted the claim, had found in favour of the appellant, both on the basis of Section 230 of the Contract Act as also on the issue of limitation. The State Forum on appeal upheld the decision of the District Forum. On further appeal the National Commission took the view that Section 230 of the Contract Act applied only to suits instituted before a regular Civil Court and not to complaints under the Consumer Protection Act. According to the National Commission, the protection given to an agent U/s 230 was available only when the action arose out of or in relation to the enforcement of a contract. While setting aside the order of the National Commission and restoring that of the State Commission, the Supreme Court held that the Contract Act applied to all litigants before the Commission under the Consumer Protection act. Whether in proceedings before the Commission or otherwise, an agent is entitled to invoke the provisions of Section 230 of the Contract Act and if the facts found support him, his defence based thereon cannot be brushed away.
The power and jurisdiction of the Commission is to award compensation U/s 14 (1) (d) of the Act as it has been made applicable to the Commission by sub-rule (b) of rule 19 of the rules framed under the Act. Clause (d) of sub section 1 of section 14 is extracted below:
“……… to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party.”
Thus The provisions of Section 14 (1) (d) are attracted if the person from whom damages are claimed is found to have acted negligently and such negligence must result in some loss to the person claiming damages. In other words, loss or injury, if any, must flow from negligence.
The complainant submits xerox copy of certificate of birth of his son Arnab Mazumdar DOB. 10th August 2009. In cross-examination P.W.1 stated that at present (on 14.02.2019) I do not recall whether I have filed death certificate of my deceased son. He had opportunity to submit/file death certificate of Arnab Mazumdar till date but did not submit, for the reason best known to him, rather by withholding the same adverse presumption can/may be drawn against his claim.
P.W.1 admits that Motor accident claim case was filed by several persons (guardians of the students) but he has not filed such a case before the Tribunal. He has filed xerox copy of PM report of Nilotpal Das, S/o:Nilambar Kr. Das & Tandra Das. Tandra Das/P.W.2 in cross-examination admits that she has filed one MAC Case at Islampur Court for the accident of her son Nilotpal Das and another guardian of other persons also filed MAC case, but she does not know whether complainant filed any MAC case for the death of their son Arnab Mazumdar or not. P.W.2 tried to involve vehicle being No:W.B74Y/0487 as offending vehicle & accident happened by unskilled druggist driver of said vehicle, which is clear denial of complainant’s case, and in fact dislodge complainant’s claim.
Under above facts and discussion, we are of the opinion that though there was negligence or deficiency in service on the part of the O.P for the accident dated 03.12.2015 but as the complainants failed to prove that loss or injury, if any, was caused to him/them, no claim of damages/compensation under the Act was maintainable.
In the result the case fails.
Hence, it is
O R D E R E D
that the C.C-36/2017 be and the same is dismissed on contest against the O.Ps but without any cost.
Let a copy of this order be given to the parties free of cost.
