BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986), MEDAK AT SANGAREDDY .
Present: Sri P.V.Subrahmanayma, B.A.B.L., PRESIDENT
Smt U.Sunita, M.A., Lady Member
Sri Mekala Narsimha Reddy, M.A.,LL.B.,
P.G.D.C.P.L. Male Member
Friday, the 28th day of August, 2009
CC.No. 62 of 2008
Between:
Human Rights & consumer Protection Cell – BMRWS (Regd.)
BHEL MIG 982, Hyderabad – 502032, Andhra Pradesh, India.
Rep. By: -
Thakur Rajkumar Singh S/o Shri. T. Deen Dayal Singh
General Secretary & Authrorised Representative/Spl. GPA of Mr. Lokapur
….. Complainant
And
1. Sh. Wazid Khan – Commandant,
CISF Unit, BHEL Ramachandrapuram,
Medak District - 502 032,
Andhra Pradesh.
2. The Branch Manager,
State Bank of India – Serilingampally Branch – 06314
Rajyalakshmi Compex, Chandanagar,
GHMC Hyderabad – 500 050,
Andhra Pradesh.
3. The Post Master,
Ramachandrapuram Post Office,
BHEL – Campus,
Medak District – 502 032,
Andhra Pradesh.
….Opposite parties
This case came up for final hearing before us on 13.08.2009 in the presence of Sri Thakur Raj Kumar Singh, representing the complainant cell as its general secretary, Opposite party No. 1 in person, Sri M. Sunil Kumar, Advocate for opposite party No. 2 and Sri. N. Shiva Kumar, advocate for opposite party No. 3, upon hearing the arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following:
O R D E R
(Per Sri. P.V. Subrahmanyam, President)
This complaint is filed Under Section 12 of Consumer Protection Act, 1986 to direct opposite party No. 1 to give back Rs.30,000/- to Mr. Lokapur and to direct the opposite parties to pay Rs.1,00,000/- each to Mr. Lokapur for deficiency in service and negligence etc.
The averments in the complaint in brief are as follows:
1. The complainant’s consumer Protection Cell is a specialized wing of BMRWS (Registered No. 2351). It is a recognized voluntary welfare society actively involved in Consumer Protection. It is registered under A.P. Societies Registration Act, 2001. The complainant’s Cell had received a grievance from one Mr.Y.H. Lokapur (Schedule Caste) Const. No. 963512309 who is working as CISF Constable (NLC Neyveli, Tamil Nadu) Resident of NLC Neyvili CISF unit barracks, stating that Rs.30,000/ has been robbed from his account – State Bank of India. Mr. Lokapur had authorized the complainant to take up this case by making the complainant’s cell his attorney by executing special general power of attorney to attend court cases as required under Regulation 16 of Consumer Protection Regulations, 2005. On receipt of the complaint the complainant’s cell went into fact finding massion and the investigation and enquiry revealed that the amount was robbed due to deficiency in service on the part of opposite parties No. 1 and 2 and due to negligence of opposite party No. 3.
2. Mr. Y.H. Lokapur has SB Account No. 3006902605 -1 with opposite party No. 2. On 05.01.2007 he went to bank and withdrew Rs.2,000/- through a cheque and updated his pass book. He was surprised to note that Rs.30,000/- has been drawn from his account through ATM card on 01.01.2007 which was actually not issued to him. Immediately he enquired with the branch manager and brought the facts to his notice in writing. Opposite party No. 2 told Mr. Lokapur that an ATM card had been sent to his office address, from Mumbai head office, on 20.12.2006 which was received by opposite party No. 1 on 22.12.2006 from opposite party No. 3. The said theft amount was part of loan given by opposite party No. 2 to Mr. Lokapur. Even after more than eight months, opposite party No.2 has been deducting monthly EMIs from the account of Mr. Lokapur on the whole loan amount. Opposite party No. 2 had fraudulently given away Mr. Lakapur’s ATM password / Number to an un authorized person due to which Mr. Lokapur had lost his money. Opposite party No. 2 has wantonly and maliciously deducted monthly EMIs on the whole loan amount. FIR 105/07 has been booked on 25.03.2007 by R.C. Puram Police who closed the case illegally, upon which a complaint was filed with A.P. State Human Rights Commission (HRC 2095 of 2008) and the matter is pending.
3. Earlier the complainant’s cell filed a Consumer Complaint before this forum in C.C. No. 37/2007 which was dismissed mainly on the ground of maintainability, with a finding that the complainant is not shown to be a Recognized voluntary consumer association registered under Companies Act or under any other Law. The complainant is a Registered Voluntary Society / Association / Organization Registered under A.P. Society Registration Act (Government of A.P) and had represented victims / sufferers in number of cases pertaining to human Rights, consumer protection, Right to Information and Anti corruption, from the year 2004. Also this forum passed a favorable order on 27.08.2007 in C.C. No. 163/2006 awarding a compensation of Rs.40,000/- to the sufferers / victims who were represented by the Complainant’s Cell. Opposite party No. 1 claimed to have received Rs. 30,000/- from unknown person through post in the form of bankers cheque which was stolen from the account of the complainant which is lying with him. Opposite party No. 1 further claimed that Mr. Lokapur is not willing to receive the bankers cheque. Even till today the amount is illegally held by opposite party No. 1. Mr. Lakapur’s ATM card in sealed cover was received by opposite party No. 1from opposite party No. 3 un authorizedly when it was sent to his office address by the Head office of opposite party No. 2. After receiving the ATM card opposite party No. 1 did not give it to Mr. Lokapur. Opposite party No. 2 gave away the secrete password / Number to an un authorized person who withdrew the money from ATM fraudulently. Instead of giving registered letter directly to Mr. Lokapur, opposite party No. 3 gave it to opposite party No. 1. Therefore all the opposite parties are liable. Hence the complaint.
4. The complaint is resisted by the opposite parties No. 1 to 3 by filing their versions separately. The averments in the said versions are almost similar. In brief they are as follows:
The complaint is not maintainable as opposite party No. 1 is not working for the complainant for rendering service on payment, as such there is no deficiency in service. Provisions of Consumer Protection Act are not applicable, therefore this forum has no jurisdiction. The complainant has no locus standii to file a consumer case on behalf of Mr. Lokapur. The complainant is a society registered to address grievances of resident members of that society. It is neither a consumer nor a Registered Consumer Association. Opposite party No. 1 is not aware of SB account of Mr. Lokapur with opposite party No. 2 and withdrawal of Rs.30,000/- there from through ATM. On the complaint of Mr. Lokapur, Ramachandrapuram Police registered FIR No. 105/07 in connection with theft of ATM card and money by using the same, and that case was closed as un detectable. This forum cannot adjudicate cases of theft. As the earlier complaint of the complainant in C.C. No. 37/2007 was dismissed on 05.05.2008, this complaint is barred by principles of resjudicata. The allegation that opposite party No. 1 illegally held money of the cheque of Mr. Lokapur is denied. In fact opposite party No. 1 was on leave for ten days from 22.12.2006 to 31.12.2006 therefore he is not responsible for receiving ATM card of Mr. Lokapur by somebody else. The allegations made in the complaint are not true in correct and the complainant is not entitled to any amounts including compensation as claimed in the complaint. The complaint may therefore be dismissed with exemplary costs.
5. Evidence affidavits of complainant and opposite parties No. 2 and 3 are filed to prove the contentions raised in their respective pleadings. Counsel for opposite party No. 1 filed a memo to treat the counter version of opposite party No. 1 as evidence affidavit on his behalf. On the request of the complainant Exs. A1 to A59 are marked. On behalf of opposite party No. 1 Exs.B1 to B7 are marked. On behalf of opposite party No. 2 Exs. B8 to B13 are marked and on behalf of opposite party No. 3 Ex.B14 is marked. Written arguments of complainant and opposite party Nos. 1 and 2 are filed. Counsel for opposite party No. 3 filed a memo to treat the evidence affidavit of opposite party No. 3 as written arguments on his behalf . Oral arguments on both sides heard. Perused the record.
6. The point for consideration is whether the complainant is entitled to the amounts claimed in the complaint?
Point:
The case of the complainant is that Mr. Y.H. Lokapur has been working as constable in CISF in the office of opposite party No. 1. It is its further case that the said Lokapur has a Savings Bank account in the bank of opposite party No. 2 and the said bank sent ATM card of Mr. Lokapur through registered post to his office address and the office of opposite party No. 1 received the same but it was wrongly handed over to somebody else and opposite party No. 2 has also wrongly delivered the secrete PIN to operate the ATM card to a person other than Mr. Lokapur and with the help of the said ATM card and by using the PIN somebody stealthily withdrew Rs.30,000/- from the account of the said Lokapur which is part of loan amount obtained by him. It is also the case of the complainant that post man of opposite party No. 3 handed over the registered cover addressed to Mr. Lokapur in the office of opposite party No. 1 in the inward section, instead of directly delivering it to Mr. Lokapur. According to the complainant the said Y.H. Lokapur engaged the services of the complainant to file a case and deal with it and a special power of attorney is also executed by him in the name of the complainant, therefore this complaint is filed for return of the amount of Rs.30,000/- and to award compensation of Rs.1,00,000/- against each of the opposite parties in favour of Mr. Lokapur.
7. The common defence of all the opposite parties is that the complainant is not a “consumer” within the meaning of the Consumer Protection Act and it also does not come within the definition of the expression “complainant” and hence there is no “consumer dispute” as such between the parties and hence the complaint is liable to be dismissed.
8. After going through the record and considering the written and oral arguments submitted by both parties, we are of the opinion that it is necessary to consider themaintainability of the complaint in the first instance before going to the merits of the case. To appreciate the rival contentions it is necessary to refer to the definitions of the expressions “Complainant” and “Consumer” in the Consumer Protection Act, 1986.
9. Section 2(1)(b) “Complainant” means, - i). a consumer ; or ii). Any voluntary consumer association registered under The Companies Act, 1956 or under any other law for the time being in force; or iii) the Central Government or any State Government, who or which makes a complaint; iv). One or more consumers, where there are numerous consumers having the same interest; v). in case of death of a consumer, his legal heir or representative.
10. Section 2(1)(d) “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 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; Explanation: - For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.
11. During arguments Mr. Thakur Raj Kumar Singh, claiming to be General Secretary of the complainant’s cell, contended that the complainant is within the four corners of Section 2 (b)(ii) as it is a voluntary consumer association registered under A.P. Societies Registration Act. It is further argued by him that such a registered voluntary consumer association can file complaint under Section 12(1)(b). But according to the counsel for opposite parties the complainant’s society is registered to address grievances of resident members of their society and it is neither a consumer nor a registered consumer association as such there is no consumer and service provider relationship between the complainant and the opposite parties and therefore the complainant has no locus standii to file this complaint and hence the complaint is liable to be dismissed.
12. It is to be observed here that a recognized consumer association which is registered, can file a complaint for and on behalf of a consumer, figuring him as a party to the proceedings. Ignoring, the actual consumer, the voluntary consumer association cannot independently present a complaint as the same is not maintainable. In the case now in hand the complainant’s cell filed this complaint alleging that Mr. Y.H. Lokapur, who is the alleged aggrieved party , has executed a power of attorney in the name of the complainant and basing upon the same this complaint is filed. Such complaint is not maintainable. This view is supported by a decision of Hon’ble Bihar State Commission rendered in the case of Punjab National Bank vs. Ramakant Yadava reported in I(1997) CPJ 44. Paragraph 8 of the said order is as follows: “A person holding power of attorney has not been included in this definition of complainant under the Act. Hence the present complainant is not entitled to file this case as a complainant under the Act.”
13. The complainant’s cell has not made the consumer a party to the proceedings nor his signature is obtained in the complainant. Such complaint is liable to be dismissed. Hon’ble Gujarat State Commission had an occasion to deal with a similar situation while disposing of the case of Gujarat Electricity Board & others vs. Grahak Hit Suraksha Mandal Kodimar reported in I(2003) CPJ 125. In para 6 of the said decision it is stated as follows: “In our considered opinion a recognized Consumer Association might file complaint but in that event the consumer/s for whose cause the Association was filing the complaint he/they would have to be party to the complaint. In the present case the concerned consumer is neither a party to the complaint nor has he signed the complaint. Under such circumstances, the complaint could not have been entertained by the learned Forum.” Therefore in view of the ratio in the decisions referred above also the present complaint is not maintainable.
14. It is argued by Mr. Thakur Raj Kumar, on behalf of the complainant, that the complainant’s organization has filed number of complaints in various District Consumer Fora and most of them were allowed in favour of the complainant by passing orders benefiting the consumers therefore the technical objection raised by the opposite parties cannot be given much importance. It is further argued by him that as this is a consumer case, forum should not go to the technicalities. In this connection he has referred to regulation No. 26(1) of The Consumer Protection Regulations, 2005. Regulation No. 26(1) is as follows: “Miscellaneous: - 1). In all proceedings before the Consumer Forum, endeavor shall be made by the parties and their counsel to avoid the use of provisions of Code of Civil procedure, 1908 (5 of 1908): Provided that the provisions of the Code of Civil Procedure, 1908 may be applied which have been referred to in the Act or in the rules made there under”.
15. Under The Consumer Protection Act a District Forum shall have the same powers as are vested in a Civil court under the Code of Civil Procedure, 1908 while trying a suit in respect of certain matters enumerated in sub Section 4 of Section 13. Therefore use of other provisions in CPC has to be avoided. This is nothing to do with the technical ground which is agitated by the opposite parties regarding the maintainability of the present complaint.
16. As per a decision rendered by the Hon’ble Maharashtra State Commission in the case of Vishnu Kumar Vershney vs. Dynamatic Forgings India Ltd. reported in III(2002) CPJ 277 if a complaint is dismissed for non compliance of pre requisite formalities, such a dismissal is not proper. In para 8 of the said judgment it is stated as follows: “Since Consumer Protection Act, 1986 is the beneficient Statute, it is expected that Consumer Forums do not get unduly swayed with hyper technicalities at the cost of justice”. Therefore it is to be understood that technicalities means such technicalities as stated in the above decision but not regarding the maintainability of the complaint as in this case.
17. It is therefore held that the complainant is not a consumer and there is no consumer dispute between the complainant and any of the opposite parties. As the alleged consumer Mr. Y.H. Lokapur is not a party to the proceedings and as this complaint does not contain his signature, in view of the discussion supra and the ratio in the decisions referred above, it is held that the complaint is not maintainable.
18. In the circumstances discussed the above, as the alleged consumer Mr. Y.H. Lokapur is a not a party to the proceedings, in his absence and behind his back, the case cannot be decided on merits, hence the evidence placed before this forum by both parties is not being considered as the same is not necessary. In the circumstances the complainant is not entitled to any of the reliefs prayed for in the complaint and the complaint is liable to be dismissed. The point is answered against the complainant.
19. In the result the complaint is dismissed and the complainant is directed to pay Rs.2,000/- to each of the opposite parties towards costs within one month, bearing its own costs.
Typed to dictation, corrected and pronounced by us in the open forum this 28th day of August, 2009.
Sd/- Sd/- Sd/-
PRESIDENT LADY MEMBER MALE MEMBER
Copy to:-
1) The Complainant
2) The Opp.Parties
3) Spare copy copy delivered to the Complainant/
Opp.Parties On ___________
Dis.No. /2009, dt.
