No. 6/17.02.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant through Mr. Barun Prasad, the Ld. Advocate and Respondent No. 1 through Mr. Ram Narayan Vyas, the Ld. Advocate are present.

This appeal is by the O.P. No. 1 against the judgement and order dated 28.04.2010 by the CDF Unit – I in Case No. 259/2007.  The complaint case was filed by one Rai Bahadur Bissessurlal Motilal Halwasiya Trust represented by its Trustees numbering seven persons alleging that pursuant to the quotation of the O.P. No. 1 the Complainant placed order for outside painting of the walls of the premises in question on the terms and conditions inter alia providing guarantee for such painting work by the ICI Limited in writing for a period of three years.  The Complainant after expiry of more than one year from the date of completion of outside painting work of the said premises in question alleged in writing to the said O.P. No. 1 that the outside painting work has not been of super quality and the said painting has washed out from most of the walls and patches have appeared in border areas.  In spite of making of such allegation for several times the O.Ps have failed to rectify the defects.  The complaint case thus filed has been allowed by directing the O.P. No. 1 to carry out immediate outside repainting of the premises in question and also to pay a compensation of Rs.50,000/- for causing harassment to the Complainant a sum of Rs.5,000/- by way of litigation cost which sums will carry an interest @ 10% per annum if the same is not paid within 45 days from the date of making of the said order.

The O.P. No. 1 has assailed the said judgement and order of the Forum below on two fold grounds.  First, the complaint case by the Trust is not maintainable as per definition of consumer as given in Section 2(i)(d) read with Section 2(i)(m).  Second, in the absence of cogent evidence as to the defect in the outside painting of the premises in question the Forum below ought not to have passed the impugned order.

So far as the first point is concerned reliance has been placed upon the decision of the Hon’ble National Commission reported in IV (2007) CPJ 33 (NC).  In paragraphs 40 to 44 of the said decision it has been held as under :

40.     On behalf of the opp. parties, it has been pointed out that the complaint filed by the Trust is not maintainable, and, in any case, the complaints are not filed by all the Trustees.

41.     In our view, this submission is required to be accepted because, under the Consumer Protection Act, 1986, complaint can be filed by a consumer.  Under Section 2(1)(d) ‘consumer’ is defined to mean ‘any person’ who buys goods or hires or avails of any services for consideration.  The word ‘person’ is also defined under Section 2(1)(m), which includes – (i) a firm, whether registered or not; (ii) a Hindu Undivided Family; (iii) a Co-operative society; and (iv) every other association of persons whether registered under the Societies Registration Act, 1860 or not.

42.          Further, in support, the learned Counsel for the opp.party Bank has rightly pointed out an observation from DJ Hayton, Hayton & Marshall Commentary and Cases on The Law of Trusts and Equitable Remidies, wherein it has been observed that -

“A trust, unlike a company, has no legal personality; thus, it cannot own property for entering into contracts, sue or are sued.  It is the trustees who own the trust property, enter into contracts, sued or are sued.  A trustee as such has no distinct legal personality in his representative capacity separate from himself in his personal capacity.”

43.          Considering the aforesaid definition of the word ‘person’ a public trust is not ‘person’ which can be considered to be a ‘consumer’ entitled to file complaint before the Consumer Forum.  The reasons are :

(i)      trust is not included in the definition of the word ‘person’.  The Legislature included cooperative society under the definition ‘person’ but not ‘public trust’;

(ii)              secondly, trust is not a legal entity.

44.          Hence, the complainant, Pratibha Pratishthan Trust, which is registered under the Bombay Public Trust Act, 1950, cannot be considered to be ‘person’ which can file a complaint under the Consumer Protection Act, 1986.

In the said reported case one Pratibha Pratishthan Trust which was registered under Bombay Public Trust Act, 1950 was alone impleaded as a party without being represented by its Trustees.  In the case in hand the Complainant has been represented by its all the Trustees namely as many as seven persons.  We are, therefore, of the view that the point as raised by the Appellant as to the maintainability of the complaint by the trust alone cannot, therefore be sustained.  The said plea is accordingly rejected.

However, upon careful reading of the materials on record we find that starting from 11.11.2006 the Complainant wrote several letters to the O.P. No. 1 by alleging that painting work has not been of super quality.  It has washed out from most of the walls and patches have appeared in the border areas.  Apart from making such allegation, the Complainant has not produced any evidence to establish that the work done by the O.P. No. 1 was not of super quality nor any evidence as to what the Complainant had perceived of super quality painting of outside walls of the premises in question.  In the proceeding before the Forum below no inspection was held to assess the quality of the work of the outside painting of the premises in question.  No expert opinion was also obtained at the instance of the Complainant as to the quality of the outside painting work done by the O.P. No. 1 in the premises in question.  Mere verbal statement, if any, made by the Complainant that the outside painting work of the premises in question done by the O.P. No. 1 was not of super quality will not enable the adjudicating forum to decide conclusively that such work was not done as per the standard agreed upon between the parties as because the agreement entered into by and between the parties did particularly specify the kind of quality work to be completed by the O.P. No. 1.  Most interestingly the O.P. No. 1 was also asked to do the outside painting work of the premises in question without seeking any guarantee in writing from the O.P. No. 2.   This would be evident from the letter dated 14.06.2005 issued by the Complainant to the O.P. No. 1 whereby an order was placed to the O.P. No. 1 for doing outside painting work of the premises in question.    In the absence of such evidence it is impossible to hold that the quality of the work as done by the O.P. No. 1 has not been of the superior quality as agreed by and between the Complainant and the O.P. No. 1. 

For the reasons as aforesaid we are of the view that District Forum has erred in law by allowing the complaint on such allegation.  The judgement and order of the Forum below is thus set aside.  The appeal is accordingly allowed.