<br /> <br /> <br /> By SRI.K. VIJAYKUMARAN, PRESIDENT.<br /> <br /> This a complaint filed challenging the constitution District Consumer Protection Council and fee regarding application filed before the Consumer Forums.<br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is the chairman of a registered Consumer Association No.Q01/05. The chairman and the counselors of the Association are well versed in Consumer activities from the year 1992 onwards. The amended Consumer Protection Act 62 of 2002 came into force on 6.2.2003 with direction to Constitute District Consumer Protection Council in each District. The Government is to constitute State and District Consumer Protection Council from person eligible for selection and Consumer Activists should submit application to both Government and District Collector respectively for consideration for selection. As such the nominee of the complainant submitted application to the District Collector, Kollam on 28i.6.06. On 3.9.2006 it was informed by opp.party 2 that selection will be done as early as possible. On 9.11.2006 the council will be constituted by Government from the panel being forwarded to Government by District Collector.. The decision of Government is not binding as it is against the statutory provisions contained in the Rules framed by Government in the year 2005 In the light of amended Consumer Protection Act 2002 Section 3 [d] of the Consumer Protection rules states that 5 member should be selected from voluntary Consumer Association functioning in the state by the Government to State Consumer Protection Council of whom 2 shall be women . Sub Section [d] of Section 5 of the Rule States that 5 representatives from voluntary Consumer Associations in the District should be nominated by the Collector of which one shall be a woman and section [g] of Section 5 states that 3 persons capable of representing Consumer interests in the District other than those specified above should be nominated by the Collector. The rule categorically explains beyond any reasonable doubt that the members under section [d] and [g] should be nominated by the District Collector and lists forwards to Government for action under Section 8[A] pf the Act. Nomination by Collector and sending a panel to Government by Collector is totally unfounded and it is entirely different. The word nomination means Selection and not forwarding panel. Both the opp.party made mistakes and enlisted persons to their choice without any bonafide basis for selection. The District Collector have no touch or familiarly with Consumer Association or functioning of its Redressal Agencies.. Hence the complainant suggested that the help of Consumer Disputes Redressal Forums in the District should be sought to select the members as they know which Association or members have suitable knowledge in the Consumer affairs. But the opp.party rejected the request. None of our members association of the complainant were selected and the reason for the none inclusion was not intimated the complainant by the opp.parties 1 and 2. The modus operandi adopted in selecting members ought to have been intimated in view of the provision of the Consumer Protection Act. The complainant is the consumer of the opp.party as he hired the services of the Government by registering the Association by paying Rs.100/- and for renewal of the registration. Though the complainant sought for a reply for the none inclusion of their association members in the District council no reply was given a consumer dispute exists and it should be regally settled. The complainant has a right to know how the opp.parties prepared the panel and what was the basis or foundation adopted by them to select the members. Whether the Collector conducted any written text, interview in selecting the candidates as District Council members. What ever be the guidelines or basis adopting by the opp.party in selecting the candidates there is deficiency in service. The complainant is entitled to know how the opp.parties came to the conclusion that the members of his association are unfit to be considered for the post. The complainant have suffered mental agony and injury due to the attitude of the opp.parties. There is anomaly in collecting of the court fee in the applications with clarify it was clarified the Government is that the procedure and act are of the Central Government and State Government had nothing it the explanation offered is unsatisfactory. It is the duty of the Government and the various Consumer Protection Council to cause to discontinue the above restrictive trade practice. Hence the complaint<br /> <br /> The opp.parties were duly served but there is remained absent and hence there was set exparte. <br /> <br /> The points for consideration are:<br /> 1.Whether the complaint is maintainable before this forum.<br /> 2.Whether there any deficiency in service as alleged <br /> 3.Reliefs and costs.<br /> Points 1:<br /> <br /> The complainant has filed this complaint alleging that the opp.parties have not included the complainant or the representatives of his association as array member of the District Consumer Protection Council, Kollam, though the association was the only qualified one for the membership in the above council. According to the complainant he has paid Rs.100/- as registration fee for their association and fee is paid for privileges and therefore he is a consumer within the meaning of Section 2 [1] [d] of the Consumer Protection Act. The definition of consumer under Sec. 2 [1] [d] of the Act is as follows “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 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.<br /> <br /> <br /> <br /> [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 purpose of earning his livelihood by means of self-employment:]<br /> <br /> From the definition it is obvious that only a person who buys any goods for consideration or any user of such goods with the approval of the buyer will come within the first limb of the section and any person who hires or avails of any services referred to above . In Morgan Stanley Mutual Fud V/s. Kartick Das [1994] 4 SCC 225 the Hon'ble High Supreme held that “The consumer as the term implie is one who consumes. As per the definition, consumer is the one who purchase goods for private use or consumption. The meaning of the word 'consumer' is broadly stated in the above definition so as to include anyone who consum goods or services at the end of the chain of production. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. The consumer deserves to get what he pays for in real quantity and true quality”. It is obvious from the definition of the Consumer that the complainant herein will not come within the purview of the above definition.<br /> <br /> <br /> <br /> Deficiency it is defined in Sec. 2[1][g] – Deficiency means any fault imperfection, short coming or inadequacy in the quality nature, and manner of performance which is required to be maintained by or under any law for the time being inforce or has been undertaken to be performed by a person in pursuance of a contract or otherwise in ration to any service” From a perusal by the definition of service it can be seen that it comprehend only services of commercial and trade oriented in nature. Service is defin ed in Sec. 2[1][o] of the Consumer Protection Act which reads as follows: “Service” means service of any description which is made available to potential [user and includes, but not limited to, the provision of]facilities in connection with banking, financing, <br /> insurance, transport, processing, supply of electrical or other energy, board or lodging or both [housing construction] entertainment, amusement or the purveying of news or other information, but does not include purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service:<br /> <br /> <br /> <br /> In state of Orissa v/s Divisional Manager LIC [1996] 8 Sec. 655 the Apex Court has held as follows:<br /> <br /> “A reading of the definition would indicate that the services contemplated there under alone are the services within the meaning of the Act except excluded services mentioned thereunder. The excluded services are “service free of charge or under a contract of personal service” Admittedly the nature of service has not been mentioned in the complaint and it is also not forthcoming as to what is the nature of deficiency in rendering services. The non inclusion of the name of a person in a committee or council, at any stretch of imagination will come within the meaning of service referred to above. As pointed out earlier the grievance of the complainant is that himself or any member of his association, which is a registered one registered by paying Rs.100/- towards registration fee, has not been included as member in the District Consumer Protection Council while members of unregistered association have been included. The learned complainant would argue that he has paid the fee <br /> for privileges but not an obligation and that fees are payment for some special privileges and are services rendered for consideration. That argument cannot be accepted . Payment of fee cannot constitute consideration for any service rendered or likelyto be rendered . Because he had paid fee for registration to Govt. he cannot be considered as having hired the services of the Govt. There is no enabling statutory provision either in Sec. 8A and B or in any other section or Rules in favour of the complainant<br /> <br /> The learned complainant would canvas the point that even the Government and Public authority are amenable to the jurisdiction of the Consumer Protection Fora. It is true that in Ghaziabad Development AuthorityV/s. Balbir Singh2004 [2] KLT 999 [SC] it has been held by the Apex Court that the Consumer Protection Fora have jurisdiction even in cases of services rendered by statutory and public authorities. As pointed out earlier the complainant has not stated what sort of service was offered to him by Govt. while granting registration which was not performed and what is the nature of the deficiency committed by the opp.party. Section 8 [a] of the Consumer Protection Act deals with the constitution of Consumer Protection Council. The object of the Consumer Protection council shall be to protect and promote the right of the Consumers within the District . The council is to be established by notification by the State Govt. and the members are to be appointed by the Govt. There is absolutely nothing in the section with regard to the mode of selection or as to who are to be nominated or whether any particular registered Consumer Association has any right or preference in the appointment. The constitution of District Consumer Protection Council is not a commercial activity but comes within the purview of sovereign function of the State and the sovereign function of the state are not amenable to the jurisdiction of the Consumer Protection Fora . Trissur Municipal Corporation V/s Ummer Koya Haji 2006 [3] KLT 897 it has been held by the High Court of Kerala that “ from the above two decisions I find that the Supreme court has chosen to divide the function of a statutory Authority into ordinary commercial activity and sovereign function and held that as district from sovereign function if the statutory authority performs any ordinary commercial activity, service in respect of such commercial activity may relate to service in respect of which certainly the statutory authority is amenable to the jurisdiction of the authorities under the Consumer Protection Act.”. As pointed out earlier there is no material worth believable to show that the registered Consumer Protection Association have any right or preference to be appointed in the council. In these circumstances we come to the conclusion that the complainant is not a consumer within the meaning of the Consumer Protection Act 1986 and the complaint filed by him is not maintainable before this Forum. Point found accordingly.<br /> <br /> <br /> With regard to the collection of Court Fee also thyis Forum has no jurisdiction to entertain such a prayer. <br /> <br /> <br /> In the result the complaint fails and the same hereby dismissed. No costs. <br /> <br /> <br /> <br /> <br /> Dated this the 31st day of May, 2008<br /> <br />