This is a complaint filed under Section 12 of the Consumer Protection Act for an order directing the opposite party to pay Rs 77,000/- as compensation with interest.<br /> <br /> The facts of the case in brief are as follows. The opposite party No.1 asked the complainant to apply for loan under Special Employment Programme. The complainant submitted application for the loan on 19.12.2002 . The Ist opposite party promised that they would pass the loan within one month through the 2nd opposite party On 30.1.2003 the second opposite party asked for documents and complainant submitted the same before the 2nd opposite party . The 2nd opposite party promised to give the loan within one week. But complainant received no reply from the 2nd opposite party . Complainant frequently visited both parties and they promised to pass the loan before Vishu and directed the complainant to make all arrangements for inauguration of the unit on Vishu day. The complainant accordingly made all arrangements for the inauguration of the unit. But the complainant received a letter from the first opposite party informing him that his application will be considered only after 15.4.2003. The complainant again waited with great expectation. In the letter the 2nd opposite party directed the complainant to open a S.B. account and thus he started a S.B. account with the 2nd opposite party bank . But at last on April end the complainant received copy of a letter sent by the 2nd opposite party to first opposite party stating that the application for the loan of the complainant was rejected. The opposite party no.1 has not intimated this fact to the complainant . It was much later the first opposite party informed the complainant that his application was rejected. Believing the words of the opposite party, complainant made all arrangements to start the tyre retrading unit and on rejection of loan he suffered great loss both economical and mental. The opposite party’s contention that the Patanur is outside the service area of second opposite party cannot be considered since the proposed unit is at Koodali panchayat IX/290, within the service area of second opposite party. The second opposite party purposefully rejected the application merely saying that the project is not vialble. The rejection caused irreparable injury to the complainant. Hence this application.<br /> <br /> The first opposite party filed version contending the following.. The complaint is not maintainable either in law or on facts. The residence of the complainant does not come under the service area of second opposite party bank. It is not correct that complainant is an unemployed and educated. The first opposite party has not given assurance to give financial assistance. It was assured to give loan within one month is also not correct .The opposite party instructed the complainant to make necessary arrangements for inauguration of the unit on Vishu day and accordingly the complainant made arrangements for inauguration etc are also not correct. The first opposite party informed that the loan amount will be paid immediately after Vishu is also not correct. The complainant opened the S.B. account with the direction of first opposite party. First opposite party informed the complainant about the rejection of proposal on 28.4.2003. The complainant has not come with clean hands.<br /> <br /> The second opposite party filed version denying the allegation of the complainant. The contention of the 2nd opposite party in brief are as follows. The complaint is not maintainable either in law or on facts. The complainant is not residing within the area of the 2nd opposite party. The claim that he is an unemployed man and aged 46 are not correct. The 2nd opposite party did not assure the complainant to give any financial assistance. The complainant submitted the application before the Ist opposite party in December 2002. The loan proposal of the complainant dated 25.1.2003 was received by 2nd opposite party on 30.1.2003 and a card was sent to the applicant to call on this opposite party for preliminary discussion. There was no commitment by the bank for sanctioning the loan at any stage. The 2nd opposite party did not promise to pay the loan amount within one week. The complainant was not instructed by the opposite party to make arrangements for the inauguration of the unit on Vishu day. On 12.3.2003 letter was sent to first opposite party informing that the proposal will be processed only after 15.4.2003 due to the3 year end work. Copy of this letter was sent to the complainant also. Account opened with the bank was also not under the instruction of the 2nd opposite party. The 2nd opposite party received letter dated 25.1.2003 along with project report and quotations of the complainant on 30.1.2003. It was only a request from the Ist opposite party with a stipulation that ‘ if no information is received within 3 months from the date of this letter the Ist opposite party and the complainant will treat the application as rejected’ . There was no direct contact between the complainant and 2nd opposite party. The proposal was never accepted. Hence the question of informing the complainant and giving hope to complainant never arose. The complainant is not residing within the operative area of the 2nd opposite party The application was rejected as ‘ project not vialble’ and this was informed to Ist opposite party and the copy sent to the complainant. The complaint has no merit and not bonafide.<br /> On the above pleading, the following issues are framed for consideration..<br /> 1. Whether the complainant is a consumer and complaint is maintainable?<br /> 2. Whether there is any deficiency in service on the part of the opposite parties and whether the complainant is entitled for the relief as prayed in the complaint?<br /> 3. Relief and cost.<br /> <br /> The evidence consists of the oral evidence of PW1 and Exts. A1 to A3 on the side of the complainant. Opposite party 1 did not give oral or documentary evidence. The 2nd opposite party filed affidavit and adduced oral evidence as DW1 and marked documents Exts. B1 to B7.<br /> <br /> ISSUE No.1. <br /> Admittedly the complainant applied for a loan under special employment programe to start a tyre retrading unit . The application was rejected on the ground that the project was not viable. Before going into other details it is necessary to come into a conclusion from the very outset that whether the complainant is a consumer or not and whether a person merely applying for a loan in white paper will become a consumer under the Provisions of Consumer Protection Act.. Under Section 2(1)(d) of the Act 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 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.)”. The definition makes it clear that there should be a consideration for the service without which the person availing service will not become a consumer. The contention of opposite party 1 “<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> has not been challenged by the complainant at any stage of the proceedings. PW1 in his cross examination by opposite party deposed “<br /> <br /> <br /> Thus complainant admits that no payment made in connection with the loan. There is nothing to show that the complainant availed service on payment of any consideration. The complainant has a case that he has opened the S.B. account with the 2nd opposite party bank in connection with the loan. It is true that complainant opened such an account with the bank. But it is on 24.5.2003. The proposal of the complainant was rejected on 28.4.2003. PW1 deposed that “<br /> <br /> <br /> <br /> <br /> <br /> <br /> It means that the complainant admits the rejection of his proposalof loan application is known to him in the last week of April. Then the question arose what prompted the complainant thereafter to open an account with the 2nd opposite party Thus opening up of account in any way does not amount to payment of consideration in availing service of the opposite party. Hence the complainant failed to establish that he is a consumer. Hon: Supreme Court in its decision made it clear unequivocally that the Service means service of any description which is made available to potential users and includes the provisions and facilities in connection with the banking, financing, insurance etc, but does not include the rendering of any service free of charge or under a contract of personal service (1996(2)CPJ(SC)32. Thus there is no difficulty to come into a conclusion that service free of charge excluded from the purview of the Act to claim any damage. In view of the above discussion, we are of opinion that the complainant is not a consumer and the complaint is not maintainable.<br /> <br /> ISSUE No.2 & 3: <br /> In view of our finding on issue No.1, consideration of other issues does not arise.<br /> <br /> In the result, there is no substance in holding the complaint as maintainable and , is therefore dismissed. There shall be no order as to costs. <br /> <br /> Sd/- MEMBER Sd/-MEMBER Sd/-PRESIDENT <br /> <br /> APPENDIX<br /> Exhibits for the complainant<br /> 1. Letter dt. 30.1.2003 sent by the 2nd opposite party .<br /> 2. Letter dt. 12.3.2003 sent by the 2nd opposite party<br /> 3. Letter dt. 28.4.2003 sent by the 2nd opposite party<br /> Exhibits for the opposite party<br /> B1. Copy of the letter dt. 25.1.2003 sent by the Ist opposite party to the 2nd opposite party.<br /> B2. Copy of the letter dt. 12.3.2003 sent by the 2nd opposite party to the complainant.<br /> B3. Letter dt. 10.11.2003 sent by the 2nd opposite party to Lead District Manager, Syndicate Bank,Kannur.<br /> B4. Letter dt. 12.11.2003 sent to the 2nd opposite party by Lead District Office,Syndicate Bank, Kannur.<br /> B5. Copy of the Savings Bank Account opening form of the complainant dt. 24.5.2003.<br /> B6. Copy of identity card of the complainant.<br /> B7. Copy of declaration filed by the complainant.<br /> <br /> Witness examined for the complainant<br /> PW1. Complainant<br /> Witness examined for the opposite party<br /> DW1.. K.V.Narayanan<br /> Forwarded/by order <br /> SENIOR SUPERINTENDENT<br /> <br />