Chandigarh

StateCommission

A/270/2023

COL MS REKHI - Complainant(s)

Versus

MS INDIAN OIL CORPORATION - Opp.Party(s)

BRIG. B.S. TAUNQUE

30 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	270 of 2023
Date of Institution	:	06.10.2023
Date of Decision	:	30.01.2024

 

Col.M.S.Rekhi (Retd.) r/o # 2052, Housing Board Flats, Sector 47-C, Chandigarh -160047.

   …Appellant/complainant

V e r s u s

 

M/s Indian Oil Corporation, Punjab Office, Sector 19, Madhya Marg, Chandigarh through its General Manager.

 …..Respondent/opposite party

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present:-              Brig. B.S. Taunque (Retd.(, Advocate for the appellant.

                             Sh.Ashish Kapoor, Advocate for the respondent.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The appellant/complainant has assailed the order dated 24.08.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), vide which, consumer complaint bearing no.602 of 2021 filed by him was dismissed being not maintainable, while holding that he being service provider did not fall within the definition of consumer. Relevant part of the said order is  reproduced hereunder:- 

7. “…. From the plain reading of the contents of the complaint, it is observed that it is the complainant who is providing services to the OP and, therefore, he is a ‘service provider’ qua the OP and the OP may be a ‘consumer’ qua the complainant. The complainant, who is proprietor of agency under the name and style M/s Magic Eye Securities and Allied Services, empanelled by the Director General of Resettlement, is providing services of security to the premises of the OP. So the complainant cannot be held to be consumer qua the OP.
8.  In para 2 of the complaint itself, it is clearly mentioned that the OP approached the complainant for security of the premises of their Punjab Office in Sector 9, Madhya Marg, Chandigarh. Accordingly, the OP placed a work order for providing security services for their Punjab Office as also residential complexes in Chandigarh and Panchkula for the period from 01.09.2012 to 31.08.2013 for a total cost of Rs.25,34,124.60P.
9. Thus from the above reading, it is very clear that the OP had availed services of the complainant for a consideration of Rs.25,34,124.60P for providing security at OP’s Punjab Office at Sector 9 and residential complexes in Chandigarh and Panchkula.  Hence, it is clear that the complainant is a service provider and not the consumer of the OP because the OP has paid consideration amount to the complainant for availing the security services from the complainant. In para 12 of the complaint, it is stated that “the OP–Indian Oil Corporation is also a service provider and is involved in supplying fuels to the public throughout India and has many outlets in the City Beautiful Chandigarh”. So it is clear that the OP is service provider to its consumers in general i.e. OP is service provider qua its consumer only and not qua the complainant who is providing security services to the OP. Hence, the complainant is not a consumer of the OP because the complainant is providing service to the OP instead of the OP providing service to the complainant. The position is opposite in the present case because the complainant is providing service to the OP instead of availing services from it. Therefore, the present complaint is not maintainable in the eyes of law in view of definition as defined under Section 2(7) of the Consumer Protection Act, 2019. Though the complaint deserves to be dismissed with costs yet taking a lenient view, we do not impose any cost upon the complainant.
10. Keeping view the facts and circumstances of the present case, the complaint stands dismissed being not maintainable before this Commission. The office is directed to return the complaint along with documents annexed therewith to the complainant, after retaining its copy. The complainant is at liberty to get his grievances redressed through alternative remedy, permissible under law and the time spent herein may stand commuted/condoned for the purpose of limitation……”

2.           Before the District Commission, it was the case of the  complainant-appellant that  the OP- M/s Indian Oil Corporation placed a work order for providing security services for their Punjab Office as also residential complexes in Chandigarh and Panchkula for the period 1.9.2012 to 31.8.2013 for a total cost of Rs.25,34,124.60. On conclusion of the security services, the complainant submitted bills for payment in the months of June, July & August 2013 bearing Nos. 112/1OC/19- 12 dated 1.6.2013, 113/1OC/19-12 dated 1.7.2013 and 114/IOC/19-20 dated 1.8.2013 to the OP which were paid vide letter dated  16.09.2020  (Annexure C-2) after illegally deducting an amount of Rs.1162/- on account of TDS for which there was no provision in the agreement for providing security cover. Rs.17,050/- on account of security deposit was paid vide letter dated 12.2.2020 (Annexure C-3). The complainant vide registered letter dated 8.12.2020 (Annexure C-4) pointed out to the OP that he received the payment of Rs.75167.31 (including security deposit of Rs.17050/-) in September 2020 after a lapse of 7 years 3 months and as such requested to pay interest for the delayed period time @ 18% per annum to tune of Rs.98,093.34 and additional amount of Rs.25,000/- towards overhead expenses. According to the complainant, the total amount of the bills of Rs.75167/- including security, was liable to be refunded within a reasonable period of one month processing period but the OP failed to do so and no justification in that regard was given by it. Finally, the complainant got served the legal notice dated 19.06.2021(Annexure C-7) upon the OP which was replied vide letter dated 24.07.2021(Annexure C-8). The complainant sent rejoinder dated 28.07.2021 (Annexure C-9) to the said reply of the OP.  The OP was deficient in performing its part by deliberately withholding the payment of Rs.75,167/- for an unexplained period of 7 years and 3 months for no fault on the part of the complainant.  Hence consumer complaint was filed by the complainant before the District Commission seeking directions to the OP to pay interest on the amount of Rs.58,157/- alongwith interest  @ 18% from 1.6.2013 to 16.09.2020; to refund Rs.1162/- with interest from 01.06.2013; and compensation for mental agony and physical harassment as well as litigation expenses.
3.           The opposite party-respondent contested the complaint by filing written version, wherein various objections were taken to the effect that the complaint is time barred; that complainant is not a consumer as defined under Section 2(7) and 2(42) of the Act as the complainant is operating a full- fledged security agency under the name and style of M/s Magic Eye Securities and Allied Services, which was empanelled by the Director General of Resettlement; that the complainant was not only earning livelihood by running the security agency but he was also providing employment to more than 20 persons; that the complaint is also not maintainable in view of clause 20 of the work order dated 01-09-2012 which says that in case of any dispute, the decision taken jointly the Management and the Directorate General Resettlement will be final and binding. On merits, it has been stated that the work order dated 01.09.2012 has been duly signed by the complainant as proprietor of M/s Magic Eye Securities and Allied Services. It was further stated that the complainant had erroneously raised the bills with service tax as 3.09% against the service tax of 12.36% (including cess) in the respective periods. In fact, full rate of service tax  in force, during the period in question was 12.36% to be distributed in the ratio of 1:3 between the service provide and recipient of service. Since as per the work order condition, the bills were to be inclusive of service charges and service tax, hence the same were processed by back working on the payable amount in line with the work order. 
4.           In the rejoinder filed, the complainant reiterated all the averments contained in his complaint and controverted those, contained in the written version of opposite party.
5.           The contesting parties led evidence before the District Commission.
6.           The District Commission after hearing the contesting parties and on going through the material available on record dismissed the consumer complaint, in the manner stated above. 
7.           We have heard the contesting parties and gone through the material available on the record; including the written arguments filed by the appellant, very carefully.
8.           The moot question which falls for consideration before this Commission in this appeal is, as whether, the appellant falls under the definition of consumer or not? For coming to any conclusion, it is apposite to reproduce the definition of “consumer” and also “service”, as defined under Section 2 (7) and 2 (42) respectively of the CPA 2019 as under:-

“Consumer”:-

“ …..2 (7) "consumer" means any person who—

(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service 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 service other than the person who hires or avails of the services for 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 service for any commercial purpose.

Explanation. —For the purposes of this clause, —

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing….”

Service:-

“……..2. (42) "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 energy, telecom, boarding 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 free of charge or under a contract of personal service……”

9.           The conjoint reading of the section 2 (7) and 2 (42) of CPA 2019 makes it very clear that consumer means a person who buys any goods or hires or avails of any service on making payment of consideration being a potential user only but not for commercial purposes or free of charge or under a contract of personal service. However, in the instant case, it is clearly coming out from the record that the appellant-complainant has infact provided security services to the respondent-opposite party for their Punjab Offices as well as residential complexes in Chandigarh and Panchkula for the period from 01.09.2012 to 31.08.2013 against consideration of Rs.25,34,124.60Ps. payable by the opposite party.  Thus, neither the complainant is a potential user of any service nor has availed any services from the opposite party, whereas, on the other hand, he infact has provided service to the opposite party. Under these circumstances, it is held that the complainant who is a service provider cannot be termed as “consumer”. The District Commission was also right in holding so.
10.           In view of the above discussion, it is held that the order impugned passed by the District Commission dismissing the consumer complaint filed by the complainant, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
11.           For the reasons recorded above, this appeal being devoid of merit must fail and the same stands dismissed with no order as to costs. The order of the District Commission stands upheld.
12.           Certified copies of this order be sent to the parties, free of charge, forthwith
13.           The appeal file be consigned to Record Room, after completion and the record of the District Commission be sent back to it, forthwith.

Pronounced

30.01.2024

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

Rg.