Per Hon’ble Justice Mr.S.B.Mhase, President
This appeal is directed as against the judgment and order passed in consumer complaint no.CC/10/10 decided on 04/10/2011 by Central Mumbai District Forum. By this order the opponents/appellants are directed to pay jointly and severally an amount of `2,80,900/- with 9% interest from the date of filing of the complaint i.e.03/02/2010 till the amount is paid. District Forum has further directed the appellants to pay `5,000/- jointly and severally by way of expenses. This order of the District Forum is challenged in this appeal by the original opponents. For the sake of convenience appellants are referred as ‘opponents’ and respondent is referred as ‘complainant’.
Complainant is an education institution registered under the Companies Act and not a Charitable Institution. The complainant company which is a private limited company was suffering from financial losses.
Opponent no.1 is a partnership firm, while the opponent no.2 is one of the partners of the said firm. The opponents are providing the services to the institutions which are in financial difficulties to come out of financial crunch and to develop their business properly. Thus, advisory services are provided by the opponents. In order to avail such a service, complainant had paid an amount of `2,50,000/- and `30,900/- totaling to `2,80,900/- on 04/09/2009. Since the said advisory services were not given, the complaint was filed for recovery of the said amount. The opponent has accepted that they are providing such a service and the opponents have received `2,80,900/-. However, they have submitted that as per the agreement between the complainant and the opponent, the service has been provided.
After considering the rival contentions and the affidavits of the parties, forum has come to the conclusion that there is deficiency in service on the part of the opponents and passed the above referred order.
It is to be noted that complainant is a private limited company carrying out educational activities as a business of the said company and in order to come out of their commercial losses, the services of the opponents were hired. Therefore, the total service which is hired is a ‘commercial service’. As a result of this availment of commercial service, there is no generation of ‘self employment’ and/or it is not a principal source of income of the complainant. If we look to the definition of ‘consumer’, it will be seen that the complainant is not a consumer within the said definition. This aspect has not been considered by the District Forum and, therefore, the complaint has been wrongly entertained. We find that under these circumstances, complaint was not tenable and the order passed by the District Forum is erroneous. We allow the appeal and set aside the order passed by the District Forum in consumer complaint no.CC/10/10. Hence the following order:-
ORDER
Appeal is allowed.
Impugned order passed by the District Forum in consumer complaint no.CC/10/10 is set aside.
In the result, consumer complaint stands dismissed.
Parties are left to bear their own costs.
Pronounced on 15th October, 2012.
