KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHPAURAM APPEAL NO. 329/2002 JUDGMENT DATED: 5.10.07 PRESENT JUSTICE SRI.T.M.HASSAN PILLAI : PRESIDENT SMT.A.RADHA : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER 1. The President, Ramavarma Club, Thevally.P.O., Kollam. : APPELLANTS 2. The Secretary, Ramavarma Club, Thevally.P.O., Kollam. (By Adv.David Koshy) 1. Nizar, S/o Abdul Rahim, Vadakkekalavara, : RESPONDENTS Punnathala, Kollam. (By Adv.K.Muraleedharan Pillay & Sharmila O.V.) 2. M/s Laser Industries, 8-454-B1, Palakkadu road, Kuniamuthur, Coimbatore-8, Tamilnadu. SRI.S.CHANDRAMOHAN NAIR The order that is assailed before us has been passed by the CDRF, Kollam in OP.74/2000, wherein and whereby the first and second opposite parties were directed to pay to the complainant, the sum of Rs.31,000/- as compensation. A further sum of Rs.1000/-(Rupees One thousand) also was ordered to be paid as cost. 2. The grievances voiced in the complaint in short are that, the complainant who is a close friend and associate of one Baiju, who is a member of Ramavarma Club, Kollam visited the club on 20.6.99 at about 8 PM with the said Baiju. It is alleged that they have paid the guest fee and were sitting on the first floor of the club building; outside the bar hall and at about 9.45PM a water heater which was fixed on the northern end of the wall of the first floor of the building burst out as a result of which, a portion of the water heater and its inner tank hit against the right hand of the complainant. Serious injuries including fracture to the right humeras were sustained by the complainant and he was taken to the District Hospital, Kollam. Plaster was cast on the right hand of the complainant which was later cut and removed on 17.9.99 only. Alleging deficiency of service on the part of the opposite parties, the complaint was filed, praying for a compensation of Rs.1,00,000/- (Rs.One lakh) together with Rs.2000/- as cost of the proceedings. 3. In the version filed jointly by the first and second opposite parties, the main contention was that the complainant was not a consumer. The club had no provision to receive guest fee from anybody and that the complainant did not come to the club with the said Baiju. The averment of payment of guest fee was denied by them. However it was admitted that, on 20.6.99, one water heater that was fixed in the club premises was burst and some bodily injuries were sustained by the complainant. The reason for the bursting of the water heater was explained as manufacturing defect of the water heater, and as such no deficiency could be fastened on the 1st and 2nd opposite parties and they prayed for dismissal of the complaint. The 3rd opposite party in its version had denied the allegation of manufacturing defect as raised by the 1st and 2nd opposite parties and it contended that the complaint was not maintainable as against it. 4. The forum below accepted the complaint and found that the complainant was a consumer and finding deficiency of service on the part of 1st and 2nd opposite parties awarded Rs.31,000/- as compensation, on various heads. 5. We have heard the counsel for the appellant. There was no representation for the respondent. However the lower court records were available for our perusal and were considered by us. 6. The counsel for the appellant vehemently challenged both the findings of the forum. The learned counsel argued that the complaint was not at all maintainable as the complainant was not a consumer of the opposite parties. The complainant had neither paid any guest fee nor did he avail any service to the opposite parties. Apart from the pleading that he has paid guest fee, there is no material on record, or any evidence to show that he has paid guest fee. Moreover the allegation that the opposite parties offered the service is also refuted by the appellants. It was argued that Ext.D1, did not provide for allowing a person to pay guest fee and if the guest fee was paid the complainant ought to have produced the receipt in support of his pleading before the lower forum. 7. The finding with regard to deficiency of service and compensation is also challenged by the learned counsel for the appellants. In fact the sustainability of the order as such is challenged before us. It is the specific contention of the learned counsel for the appellant, that, when the complaint itself fails, the question of awarding compensation does not arise at all. The forum has failed in appreciating the case in its proper perspective and has passed the order without any basis and without any evidence. 8. We find force in the arguments for the learned counsel for the appellants 1 and 2. Though it is the admitted fact that the complainant had sustained injuries due to the bursting of the water heater, our anxious consideration is bestowed on the question whether the complainant is a consumer or not. Learned counsel’s main argument also is centered on this point. It is true that no evidence is forthcoming to show that the complainant has paid the guest fee as pleaded in the complaint. It is stated in the complaint that, the complainant and the said Baiju, who is a member entered the club building after having paid the guest fee (para 4 of the complaint). If the guest fee is paid naturally there will be a receipt for it. The complainant has no case that he was not given receipt, though the guest fee is paid. Moreover it is his very case that he entered the club with his close friend and associate Mr.Baiju, who is a member of the club. The said Baiju is not examined, to prove that he entered the club with the complainant after paying the fee. In the aforesaid circumstances, we cannot uphold the finding of the forum, that the complainant is a consumer, section 2(1)d (ii) defines a consumer, and it reads as follows: (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 purpose]” Hence it is clear that for any service, some consideration should be there, either fully paid, or partly paid or promised to be paid. In the case on hand, the complainant could not prove that he has neither paid any consideration nor the services of the first and second opposite parties were availed of by him. So the conclusion warranted on the basis of the materials placed before us, is that the complainant’s case is devoid of any merits, and the order passed by the lower forum is liable to be upturned. In the result the appeal is allowed setting aside the order dated 15.4.2002 in OP.74/2000. The complaint is dismissed. In the nature and circumstances of the case there is no order as to costs. JUSTICE SRI.T.M.HASSAN PILLAI : PRESIDENT SMT.A.RADHA : MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER | 
