BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^st  January 2014

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.67/2013

(Admitted on 8.3.2013)

Smt.Vijayalaxmi Pai,

Wo Purushottam Pai,

Mahalasa House,

Kariyala Road, Darbe,

Puttur Taluk, D.K.                                                  …….. COMPLAINANT

(Advocate for Complainant: Sri Harish Kumar.B)

          VERSUS

Puttur Town Municipality,

Represented by the Chief Officer.         ……OPPOSITE PARTY

(Opposite Party: Exparte)

**************

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant stated that, the opposite party is the local administrative body of Puttur Town established under Karnataka Municipalities Act 1964 and residing within the administrative jurisdiction of the opposite party and stated that the complainant is a consumer.  On 16.1.2012 at about 8 PM after shopping the complainant reached to the place i.e. Syndicate Bank  by walk on the footpath.  There was obstruction in the footpath maintained by the opposite party and hence she has step down to the damaged interlock by the side of footpath as there was no other alternative way for the pedestrians to walk.  While the complainant was walking on the damaged interlock she fell down and sustained severe injury and also ankle of her right leg was fractured then she was admitted at Girija Clinic, Puttur and treated till 20.1.2012 and spent Rs. 60,228/- towards medical expenses and stated that since the opposite party not maintained the footpath and due to their negligence the complainant suffered. Hence the complainant filed the above complaint   under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay Rs.60,228/- as medical expenses and to pay compensation and cost of the proceedings.

II.        1. Version notice served to the Opposite Party by R.P.A.D. Opposite Party not appeared nor represented to the case till this date but sent objection statement by post wherein, the opposite party denied the entire allegations alleged in the complaint and stated that the place where the complainant is fallen down there is no problem/obstacles  to walk on the foot path and there is no deficiency of services on the part of the opposite party and prayed for dismissal of the complaint.

III.       1.  In support of the complaint, Smt. Vijayalaxmi Pai (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and produced certain documents. On behalf of Opposite Party nor appeared nor represented the case but filed objections through post.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant is a consumer and complaint filed by the complainant is maintainable?

2. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

                        We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                                     Point No.(i):  Negative.

                                    Point No.(ii) to (iv): As per the final order.           

REASONS

IV.       1.  POINT NO. (i):

    In the instant case, the 1^st point arise for our consideration is that, whether the complainant is a consumer and this FORA has jurisdiction to entertain this type of complaint and the above dispute is a consumer dispute.  According to the complainant, she is a consumer and this dispute is a consumer dispute and opposite party is bound to give the above said service by repairing the road.  In the instant case, the complainant contended that  the opposite party stating that they have not kept the footpath in walkable order and interlocks were lying down on the foot path thereby she is fell down etc etc.

In case of like this nature the complainant individually cannot maintained the complaint against the opposite party because this authority is constituted for a specific purpose of giving relief individual disputes of a person who has hired the services of another and whose general in service as resulted his loss to him or her.  To file this type of complaint against deficiency in service he or she should be a consumer who has hired the service by paying some consideration for which he/she are promised of any service. No doubt she might have paid the tax but payment of tax is not a ground to claim the status of consumer or her complaint as consumer dispute or any failure on the part of the Town Municipality which is discharging its statutory obligations cannot be considered as deficiency in service.

However, in a case decided by the National Commission in the Mayor, Calcutta Municipal Corporation V/s Tarapada  Chatterjee & others in R.P.No.136 of 1993  case, that the payment of tax cannot be considered as consideration, the complaint is not maintainable. 

Another case in Kerala High Court in decision Thrissur Municipal Corporation vs Ummer Koya Haji  in 2006(3)KLT 897 has held that providing roads etc is a statutory function and just because taxes are collected by the citizen, he does not become a consumer as defined under Consumer Protection Act.  So that the repair of the roads are the obligation or discretionary function or statutory functions of the corporation /municipality as provided in Section 58 or 59 of the Karnataka Municipal Counsel Act   and amount collected by way of tax cannot be considered as consideration. Hence the dispute raised by the complainant is not a consumer dispute nor she is a consumer and hence the complaint deserved to be dismissed. No order as to cost.

            In the result, we pass the following:

ORDER

The complaint is dismissed. No order as to cost.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 6 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of January 2014)

PRESIDENT                           MEMBER                             MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – SMT Vijayalaxmi Pai (CW1) – Complainant.

Documents produced on behalf of the Complainant:

Doc.No.1: Medical bills (9).

Doc.No.2: Photographs (4)

Doc.No. 3: Acknowledgement.

Doc.No. 4: 29.10.2012: Copy of the legal notice.

Witnesses examined on behalf of the Opposite Party:

RW-1:  -nil-

Documents produced on behalf of the Opposite Party:      

- Nil -

Dated:31-01-2014                                                PRESIDENT