BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.276 of 2016.
Date of Instt.: 27.10.2016.
Date of Decision: 01.09.2017.
Rohtash son of Sh.Chatter Singh R/o village Post Office Akanwali, Tehsil and District Fatehabad.
..Complainant
Versus
1.M/s VIOM Networks Limited, (Formerly known as M/s. Wireless TT Info Services Limited), A company having its registered office at 5th flour, KLK Estate Haderabad 500001. 2. Its Circle Office at Jasmeet Nagar, Near Vita Milk Plant, G.T.Road Ambala City Haryana through its Authorized Signatory Mr.Vikas Honda Senior Manager or its Successor in interest.
..Respondents.
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh. Hari Singh Garhwal, Advocate for complainant.
Sh.U.K.Gera, Advocate for opposite party.
ORDER
This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Rohtash against M/s VIOM Network Limited, the opposite party.
2. In brief, the facts of the present case are that the complainant entered into an agreement with the respondents in respect of the plot of the complainant measuring 1111 sq.yards situated within the Lal Dora area of the revenue estate of Village Akanwali, Distt. Fatehabad for use of the premises for installing, maintaining and operating the tower and various allied activities relating to the business of the OPs for a period of 180 months. The contract was to be commenced from 01.09.2009 and a fee of Rs.3200/- per month was to be paid by the respondents to the complainant. The monthly fee was to be increased by 15% after expiry of five years. A sum of Rs.6400/- was deposited by the respondents with the complainant as refundable security.
On the basis of above referred leave and licence Agreement the respondents started their work. However, the respondents made payment of monthly fee only up-to 01.11.2011 and vide letter dated 01.06.2012 the respondents gave a notice for termination of the agreement. It is further submitted in the complaint that after 01.11.2011 neither any payment was made by the respondents nor they removed their equipments/machinery from the premises of the complainant. Therefore the respondents has violated the terms and condition of the contract agreement.
The complainant further submitted that he had served a legal notice dated 07.10.2014 to respondents through his counsel Sh.Hari Singh Garhwal, calling upon the respondents to remove the equipments as early as possible and to make the payment of licence fees of Rs.1,86,440/- up to October 2016. However, nothing has been done on the part of respondents. Hence, this complaint.
3. Respondents appeared through their counsel on 06.04.2017. However, no reply was filed by respondents despite taking several effective opportunities. So, their defence was struck-of on 06.06.2017.
4. In support of his case the complainant tendered in evidence his affidavit as Ex.C1 and documents as Annexure C2 to C5.
Ld. Counsel for the complainant in his arguments reiterated the averments as made in the complaint and further contended that in the present case the complaint falls within the definition of consumer as provided under the Consumer Protection Act, 1986. It is further contended by the Ld. Counsel that on account of violation of terms and conditions of the agreement between the parties by the respondents, the complainant has suffered a huge loss and as such he is entitled for recovery of the same and the complainant is also entitled for grant of compensation as he has suffered mental agony and physical harassment. The Ld. Counsel further prayed for acceptance of the complaint.
5. On the other hand the Ld. Counsel for the respondents vehemently rebutted the arguments advanced by the counsel for the complainant and further contended that the complainant does not fall within the definition of consumer and the present dispute is not a consumer dispute and as such this Forum has no jurisdiction to try and entertain the present complaint. The Ld. Counsel for the respondents further prayed for dismissal for the complaint.
6. We have examined the entire record placed on the case file and have also considered the arguments advanced by learned counsel of the parties. A perusal of the facts of the present case reveals that the OP had entered into a Leave and Lincence Agreement with the complainant in respect of a plot situated within the area of Lal Dora of village Akanwali, District Fatehabad. The said premises of complainant was to be used by OP for installation and operation of the tower for the business of OP for a period of 180 days commencing from 01.09.2009. The fee for use of the premises @ Rs.3200/- per month was to be paid by the OP, to the complainant. However, payment of licence fee was made by the OP to the complainant only up-to 01.11.2011 and thereafter sent a notice dated 01.06.2012 to the complainant for termination of the agreement. Aggrieved with the above action of the OP the complainant has filed the present consumer complaint for giving direction to the OP for making payment of Rs.1,86,400/- and removal of the equipments from the premises in question.
7. In the facts and circumstances as discussed above the main legal question for decision of this court arises as to whether the complainant falls within the definition of consumer or not as provided in Section 2(1)(d) of the Consumer Protection Act of 1986 or whether the present dispute is a consumer dispute or not.
The definition of consumer as provided in Section 2(1)(d) of the Consumer Protection Act, 1986 is reproduced as under.
(d) “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 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 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 purposes].
Therefore in view of Section 2(1)(d)(ii) of the ‘Act’ Consumer means any person who hires any service for consideration . A person who alleges himself to be consumer should have hired services for consideration. “Hire” means to acquire the temporary use of a thing or the services of a person in exchange for payment. In the instant case the complainant had provided the premises/land to the OP for installation and operation of tower for business. For use of the premises the OP had to pay Rs.3200/- per month to the complainant. Therefore, keeping in view the definition of consumer as provided in Section 2(1)(d)(ii) in the present case the OP is the consumer and not the complainant. Therefore, we are of the considered opinion that the complainant does not fall within the definition of consumer as provided under the Consumer Protection Act, 1986, as such the present complaint is liable to be dismissed on this ground alone. It is decided accordingly. However, the complainant is at liberty to approach at appropriate Court/forum if he so advised and in that eventuality, the period of litigation before this Forum shall not be counted towards the period of limitation for approaching appropriate court/forum. Exemption of time spent before this Forum is granted in terms of the judgment of the Hon’ble Supreme Court of India in the case titled “ Laxmi Engineering Works versus PSG Industrial Institute (1995) 3 SCC page 583. Copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.
(Raghbir Singh) President
(Ansuya Bisnoi) (R.S.Panghal) District Consumer Disputes
Member Member Redressal Forum, Fatehabad.
