BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 470/2000 Filed on 25.08.2000

Dated : 15.12.2008

Complainants:

1. P. Damodaran, S/o Padmanabhan, Kulam Nikanna Puthuval Puthen Veedu, Chittakkode, Neyyattinkara P.O, Neyyattinkara.

    

2. G. Rajan, Panayara Vilakom House, T.C 7/640, Maruthamkuzhi, Kanjirampara P.O, Thiruvananthapuram.

(By adv. M.P. Sasidharan Nair)

Opposite parties:

1. The Secretary, Nedumangad Valiamala Space Centre Employees Co-operative Society, Ltd. No. T 1388.

   (By adv. P. Venugopalan Nair)

2. The Administrative Officer, Vikram Sarabhai Space Centre, Thumba, Thiruvananthapuram.

   (By adv. A. Gopalakrishnan Nair)

3. P. Varghese, T.C 27/330, Vivekananda Nagar, Kunnukuzhi, Thiruvananthapuram.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 23.10.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 05.12.2008, the Forum on 15.12.2008 delivered the following:

ORDER

SMT. S.K.SREELA: MEMBER

Complainants are the employees of the 2^nd opposite party and their grievance is as follows: The 3^rd opposite party who is also an employee of the 2^nd opposite party had availed a loan from the 1^st opposite party for which the complainants were the sureties. The 3^rd opposite party voluntarily retired from service on 16.04.1998. Before the retirement period of the 3^rd opposite party itself, on the request of the complainants, the details with regard to the liabilities of 3^rd opposite party were called for, but there was no reply for the same and the 3^rd opposite party retired accordingly after obtaining the entire benefits. Now, the 1^st opposite party has directed the 2^nd opposite party to recover the arrears of loan defaulted by the 3^rd opposite party from the complainants. If 1^st opposite party had taken action against the 3^rd opposite party in time, the complainants would not have suffered loss. Hence this complaint to

stay the recovery proceedings along with other reliefs.

The 1^st opposite party has filed their version contending as follows: The complaint is not maintainable and the complainant is not a consumer. The complaint is bad for non-joinder of necessary party. The 1^st

complainant has filed an arbitration case under Sec. 69 of the Kerala Co-operative Societies Act before the Arbitrator/Inspector, Office of the Assistant Registrar of Co-operative Societies(General), Thiruvananthapuram. One and the same matter is under adjudication before two fora at the instance of the petitioner. 1^st opposite party admits that the complainants are the sureties for the loan availed by the 3^rd opposite party. Besides this, the complainant was also a surety to the loan taken by another

member. The principal debtor as well as the sureties are jointly and severally liable to repay the arrears of loan for which they are sureties. Necessary agreement has been executed by the complainant with the society to this effect. There is no deficiency in service on the part of the 1^st opposite party. The complainant as surety has agreed for the repayment of the loan and it is incumbent on the 2^nd opposite

party to recover the amount from the parties in the loan agreement and pay the amount so recovered to the society. The complainant is not entitled for any of the reliefs prayed and hence prays for dismissal of the complaint.

1^st complainant has filed affidavit for and on behalf of the 2^nd complainant also. Exts. P1 to P3 were marked. 1^st opposite party has filed their affidavit and Exts. D1 to D8 were marked.

The question of maintainability was heard and this Forum passed an order on 19.03.2001 that this is a dispute between a surety and the society. The Consumer Protection Act provides an additional remedy than as provided in the Co-operative Societies Act. Hence the petition is found maintainable.

On the contentions raised, the following questions arise for consideration.

1. Whether the complainants are consumers as envisaged under Sec. 2 of the Consumer Protection Act?

2. Whether there is any deficiency in service on the part of the opposite parties?

3. Reliefs and costs.

Point (i):- There is no dispute with regard to the fact that the complainants were sureties for the loan availed by the 3^rd opposite party. The complaint is with regard to the loan transaction between the complainants and the 3^rd opposite party. Hence the aspect to be looked into is whether the

complainants have availed any service of the opposite parties by paying any consideration.

As per Sec. 2(1)(d) consumer means any person who-

1. 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

2. [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 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 purpose 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;]

Sec. 2(1)(d)(ii) of the Consumer Protection Act shows that a person claiming himself as 'consumer' should satisfy amongst others, three conditions namely (1) the service should have been rendered to him, (2) the service should be hired by him and (3) for hiring the service he should have paid consideration in the manner envisaged in Sec. 2(1)(d) of the Act. The materials on record and the pleadings in the complaint reveal that the complainants are not the persons who had hired the services, but the 3^rd opposite party who had hired the services of the other opposite parties. On going through the

entire facts of the case we are of the view that the complainants have not hired the services of the opposite parties for consideration as per the provisions of the Consumer Protection Act. There is no hiring of service for consideration and hence it is not covered by the Consumer Protection Act. Under Sec. 2(1)(d) of the Act a consumer is not only the person who avails or hires of any service for consideration, but also who is the beneficiary of such services. In the instant case by no stretch of imagination, the complainants could be considered as a beneficiary of services also. Such being the position, the complainants cannot be regarded as coming within the definition of 'consumer' falling within Sec. 2(1)(d) of the Consumer Protection Act so as to entitle him to maintain the complaint before this Forum. So far as this Forum is concerned, the complaint could be entertained only if the complainants were consumers.

In the result the complaint is found not maintainable before this Forum and hence the complaint is dismissed as not maintainable with liberty to the complainants to approach the appropriate authority for their grievances if any.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15^th December 2008.

S.K.SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER