IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 16thDAY OF October 2019
Present: - Sri.E.M.Muhammed Ibrahim, B.A, LLM. President
Smt.S.Sandhya Rani. Bsc, LLB ,Member
Sri.Stanly Harold, B.A.LLB, Member
I.A.No.204/2018
IN
CC.No.178/2017
- M/S HCL Learning Ltd.,
(A subsidiary of HCL Info systems Ltd.)
806, Siddharth,96, Nehru Place,
New Delhi, 110019:Petitioners/Opposite parties
- M/s HCL Infosystems Ltd.,
Midland Arena, 4/84, 84 A, 84 B#
Marottichuvadu Junction,
Edappally, Cochin 682 024.
V/s
K.Sivadasan, : Respondent/Complainant
House No.22, Mundackal West,
Kollam
[By Adv.Sreenadh S.]
FAIR ORDER
Sri.Stanly Harold, B.A.LLB, Member
The above I.A is a petition filed the 2nd opposite party in CC.No.178/2017 praying to hear the maintainability of the case as a preliminary issue and to dismiss the complaint as not maintainable.
The averments in the complaint in short are as follows.
The complainant is the Chairman/founder of Nehru Memorial Model School situated at AttupuramKadakkal P.O., Kollam. According to the complainant, the aforesaid school is possessing high standards of education and fame among the general public for the last so many years.
The Nehru Memorial School has decided to promote the standard of the school to a very high profile, for which providing technological exposure to the
students and proposed to implement a Digi school at the school. The opposite parties by voluntarily claiming that they are the pioneer in the ICT Market approached with their proposal for the implementation of smart class. At the time of proposing the smart class, the opposite parties made the complainant to believe that they will provide high standards of services for their products and the services. The complainant by believing the undertakings as true and trust worthy, decided to avail the services of opposite parties and an agreement with effect from 01.06.2011 to 30.06.2016 was executed between the complainant and opposite parties.
The opposite parties installed the Digi School set up at the school in the year 2011. However in the middle of August 2011 the smart class system stopped working and the same was informed to opposite parties as such they detected major defeats in the system of Digi school been apparent, and get convinced by the opposite parties they had not taken effective efforts to rectify the same. On one occasion Senior technician of the opposite party visited the site and noted the entire defect but that was in vain and frequently they promised to replace the entire system. Opposite parties utterly failed to provide necessary services as assured by them to the complainant. Complaint had paid on amount of Rs.3,64795 to opposite parties and is entitled to get back the same. The smart class was not working for a period of 25 month’s till date on 16.12.2016 . In these circumstances the complainant issued legal notice but there was no response from the opposite parties. Hence complaint.
The opposite parties resisted the complaint by filing a detailed version, and the 2nd opposite party filed the present I.A challenging the maintainability of the complaint. In support of the I.A. the 2nd opposite party filed an affidavit by swearing as follows. The complaint will not come under the purview of consumer dispute envisaged in 2(1) of Consumer Protection Act in 1986 that the present controversy involved in the complaint is not a consumer dispute and the aforesaid school runned by the complainant is engaged in commercial activities, that the complainant is not availing the goods and services in issue exclusively for the purpose of livelihood, by way of self employmentthat the complainant Nehru Memorial School run a large business will not come under the ambit of consumer. It is also contended that the complaint is of a civil nature and triable by a civil court and outside the ambit of the Consumer Protection Act. The relief sought for is decree for realization of money and not compensation for any deficiency in service.
The respondent complainant resisted the I.A by filing detailed objection raising the following contentions. The petition is not maintainable either in law or on facts. The complainant is the Chairman of Nehru Memorial School which is not engaged in any commercial Activity. The said school is managed by Nehru Memorial Educational and Charitable Trust registered under the Travancore Cochin Charitable Trust Act which was established for the upliftment of society at large. The service rendered by the school is purely charitable and not commercial hence would come under the definition consumer. The present complaint filed by the complainant is his capacity as the chairman founder of Nehru Memorial Model School . The present complaint is filed seeking relief against the opposite parties for the unfair trade practice and gross deficiency in service on their part. This Forum is having ample jurisdiction to entertain the above complaint and the respondent further prays to dismiss the IA with their costs.
In the light of above pleadings points arise for consideration are.
1. Whether the complainant is a consumer as defined U/s 2(1) d of the Consumer Protection Act.
2.Whether a complaint can be filed by the chairman of a trust under the provisions of Consumer Protection Act in 1986.
3. Whether the complaint is maintainable?
Point No.1
According to the petitioner the complainant School Nehru Memorial Model School is exclusively engaged in commercial activities, and availed the products from the opposite party for use in such commercial activity and therefore the complainant cannot to be said to be availing goods and services exclusively for the purpose of earning his livelihood, by means of self employmentwe find force in
the above allegation of the petitioner. The pleadings in the complaint would indicate that it is unaided school running from the fee collected from the students. Hence the said school is commercial undertaking running a large business. In the circumstances the complaint would not come under the term consumer as defined under Section 2 (1) Consumer Protection Act 1986.This point is answered accordingly.
Point No.2
Yet another ground urged is that, the said Nehru Memorial Model School is registered under the provisions of Trust Act and a Trust would not come under the purview of the provisions of Consumer Protection Act 1986.
The learned counsel for opposite party by relying on the dictum laid down in (Pratibha Pratistan and others Vs Canara bank and others reported in KHC 2017(2) 420 has argued that this forum is not having Jurisdiction to entertain a complaint filed by the chairman of a trust. According to the learned counsel for the 2nd opposite party “A trust or a chairman of a trust would not come within the meaning complainant as defined under Section 2(b) of the Consumer Protection Act”. Admittedly the school has been run by the complainant in the capacity of the chairman Nehru Memorial Education and Charitable Trust registered under the Travancore Cochin Charitable Trust Act. It is quiet clear from the definition of a complainant under section 2(b) of the Consumer Protection Act that it does not include a trust or anybody representing a trust. In view of the dictum laid down in the above decision it is cristal clear that a trust or the chairman on behalf of the trust cannot invoke the provisions of the Consumer Protection Act. A trust also would not come within the definition of consumer. In the circumstance we are inclined to hold that the complaint filed by the chairman of the trust is not maintainable. The point answered accordingly.
Point No.3
In the result complaint stands dismissed being not maintainable.
No costs.
Dictated to the Confidential Assistant Smt.Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Forum on this the 16thday of October 2019.
E.M .MUHAMMEDIBRAHIM:Sd/-
S.SANDHYA RANI:Sd/-
STANLY HAROLD:Sd/
Forwarded/by Order
Senior Superintendent
