Punjab

Ludhiana

CC/21/538

Chand Trehan - Complainant(s)

Versus

Nirmal Singh - Opp.Party(s)

Chand Trehan

17 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:538 dated 03.12.2021.                                                         Date of decision: 17.11.2023.

 

Chand Trehan S/o. Surjit Singh, R/o. 105-R, Model Town, Ludhiana-141001.                                                                                 ..…Complainant

                                                Versus

Sh. Nirmal Singh, Manager of Gurudwara Singh Sabha, Model Town, Ludhiana, Opp. Punjab & Sind Bank, Ludhiana.                                                                                                                                 …..Opposite party

Complaint Under section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Chand Trehan in person.

For OP                           :         OP Sh. Nirmal Singh with Sh. S.S. Gill,                                                     Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the mother of complainant expired on 24.12.2020 and in order to perform her last rituals (Barsi ceremony) to be held on 29.09.2021, two sisters of the complainant namely Rosy Sood and Sarita booked Singh Sabha Gurdwara on 12.09.2021. It was arranged to serve Kheer and Langer after prayer, to be prepared by Gurdwara Staff for which a sum of Rs.8000/- was paid in advance out of Rs.16,000/- to OP Nirmal Singh, Manager of Gurdwara who issued a receipt in this regard. The complainant stated that on 27.09.2020, the OP called his sister Rosy Sood and expressed his inability to serve langer in the hall as some VIP’s wanted to use the hall. When she resented the same, the OP agreed that their few guests would be served lunger out of the langer prepared for VIP family. However, on 29.09.2021, after prayer meet, the OP declared that only langer of Kheer was there and no other food is available due to which hot words exchanged between sisters of the complainant and Nirmal Singh. Rather Rs.3500/- was charged for plain kheer weighing just 2 KG without any nuts and condiments. Guests were served by nan chana in a nearby shop. According to the complainant, his family was in possession of shop No.7 out of seven shops in front of Singh Sabha Gurdwara which was being run by his mother. Shop No.5 & 6 were sold back to Gurudwara by the tenant about 5 years back and thereafter, Gurudwara members pressurized his mother to sell the shop. However, on refusal they started harassing the mother of the complainant. After death of his mother, the complainant occupied the said shop  and due to threats etc. he lodged a complaint with Commissioner of Police against the Gurdwara Staff.  After 29.09.2021, the complainant filed a complaint with Commissioner of Police against Nirmal Singh for not issuing receipt of Rs.3500/- for Kheer langer. The complainant sent a legal notice dated 09.11.2021 upon the OP but the same was returned unclaimed. Hence this complaint whereby the complainant has prayed for directing the OP to pay the claim amount of Rs.6,00,000/-.

2.                Upon notice, the opposite party filed written statement and assailed the complaint by taking preliminary objections on the ground lack of locus standi to file the present complaint; the OP being not service provider etc.   OP stated that the complainant is not power of attorney of the person who booked Gurudwara Sahib for Barsi.

                   On merits, the OP reiterated the crux of averments made in the preliminary objections. However, the OP admitted the booking of Gurudwara Singh Sabha on 12.09.2021 for purpose of Barsi to be held on 29.09.2021. The OP stated that there is no langer hall in Gurudwara and no one has to serve langer to the guests. No langer or kheer was served by Gurudwara Sahib. According to the OP, the complainant has not paid Rs.16000/- rather he paid Rs.8000/- i.e. Rs.3100/- for use of Darbar hall, Rs.3100/- for use of A.Cs., Rs.1100/- for path of Sukhmani Sahib and Rs.700/- for deg (Karah Prasad). Even he never called Rozy Sood on 27.09.2021 nor any kheer was prepared or served on 29.09.2021 by the employees of Gurudwara Sahib. No amount of Rs.3500/- was charged by the OP.  The OP has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of his Aadhar card, Ex. C2 is the copy of receipt of Rs.8000/- dated 12.09.2021, Ex. C3 is the copy of legal notice, Ex. C4 is the copy of postal receipt, Ex. C5 is the copy of unclaimed envelop, Ex. C6 is the copy of invitation for  bhog ceremony, Ex. C7 to Ex. C9 are the photographs  and closed the evidence.

4.                On the other hand, the OP tendered his affidavit Ex. RW1 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement and affidavit produced on record by both the parties.

6.                Admittedly, on 29.09.2021, the Bhog Ceremony of Smt. Sudesh Rani Trehan, mother of the complainant mentioned in invitation card Ex. C6, was to be held in the premises of Gurudwara Singh Sabha, Model Town, Ludhiana managed by the OP Nirmal Singh. The complainant has raised a dispute regarding non serving of langar by the OP after prayer meet of his mother.

7.                Before adverting to the case on merits, this is to be seen whether the complainant is a consumer of the OP or not. In this regard, Section 2(7) of the Consumer Protection Act defines the word “consumer”, which reads as under:-

                 “Consumer” means any person who:-

(i) of the Consumer Protection Act, 2019 the consumer means a person who 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 include any beneficiary of such service 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 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;”

Further Section 2(11) of the Consumer Protection Act defines the word “deficiency” which reads as under:-

“ ‘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 and includes-

1. any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
2. deliberate withholding of relevant information by such person to the consumer.”

Perusal of receipt Ex. C2 shows that an amount of Rs.8000/- was paid by and that was paid for Darbar Hall and Deg Seva. The Gurudwara is a religious place generally maintained by the devotees through its management committee. The devotees themselves donates or render gratuitous services to attain spiritual satisfaction. On the occasions of Gurupurabs, the people congregate at the Gurudwara. Even social occasions like marriages, bhogs etc. are also performed within the precincts. Barsi of mother of the complainant was one such occasion. The amount paid by the sister of the complainant cannot be termed to be money to be used for hiring services as no such services were provided in such religious place on payment basis. As per contentions of the complainant in the complaint, his sisters Rosy Sood and Sarita booked Gurudwara Singh Sabha managed by the OP but said Rosy Sood or Sarita have not raised any grievance nor they are complainant in the present complaint. Gurudwara Singh Sabha, Model Town, Ludhiana is a legal entity where Shri Guru Grandh Sahib Ji is placed in sanctum Sanctorum and as such, Gurudwara Singh Sabha was also a necessary party in the present complaint.

8.                Moreover, the complainant appears to be disgruntled tenant of the management of Gurudwara Singh Sabha and in order to went out his grudge, the present complainant appeared to have been filed by the complainant as the management of the Gurudwara and the complainant are at loggerhead with regard to eviction of tenanted shop in the premises of the Gurudwara. Moreover, there is no constructed hall to serve langar for the devotees. The initial burden of proving deficiency in service on the part of the opposite party was upon the complainant which he has failed to discharge by way of any cogent and convincing evidence.

9.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

10.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.            

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                        (Sanjeev Batra)

Member                                                         President

 

Announced in Open Commission.

Dated:17.11.2023.

Gobind Ram.