Circuit Bench Jodhpur

StateCommission

A/128/2015

Suprim Eliwaters India Pvt Ltd - Complainant(s)

Versus

Smt Tarabai Desai - Opp.Party(s)

Narpat Singh Kishnawat

05 Oct 2018

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 128/2015

 

Managing Director, Supreme Elivators India Pvt.Ltd., 406 Rajkamal Plaza-A, Near old High Court, Ashram Road, Ahmedabad, Gujarat & ors.

Vs.

Administrator Smt.Tara Bai Desai, Cheritable Opthalmic Trust Hospital, Jodhpur. E-22, Shastri Nagar, Jodhpur.

 

Date of Order 5.10.2018

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

 

Mr. Hari Bareth counsel for the appellant

Mrs.Dr.Sushil Gupta for the respondents

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

This appeal is filed against the order passed by the

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District Forum, Jodhpur 1^st dated 16.2.2015 whereby the claim is allowed against the appellant.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

The only contention of the counsel for the appellant is that complaint filed by the trust is not maintainable as trust is not a person and therefore, not a consumer.

 

Per contra the contention of the respondent is that the complaint is filed by the Administrator Tara Bai and hence, maintainable.

 

The appellant has relied upon the judgment passed by the apex court in Civil Appeal No. 3560/2008 Pratibha pratisthan & ors. Vs. Manager Canara Bank ( NCJ 2017 868 (SC) where the apex court has held as under:

 

“ Section 2 (c) of the Act provides for a complainant making a complaint, inter alia, for an unfair trade practice or a restrictive trade practice adopted by any trader or service provider; a complaint in respect of

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goods (bought by a complainant) suffering from one or more defects; a complaint of deficiency in services hired or availed of by a complainant and so on. A complainant is defined in Section 2 (b) of the Act in the following words :-

(b) "complainant" means -

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act,1956 (1 of 1956) or under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(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 ; who or which makes a complaint;

3. It is quite clear from the above definition of a complainant that it does not include a Trust. But does a Trust come within the definition of a consumer? A consumer has been defined in Section 2 (d) of the Act as follows :-

(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

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   1. 1. 1. 1. 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 of 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;

4. A reading of the definition of the words 'complaint', 'complainant' and 'consumer' makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made. To put this beyond any doubt, the word 'person' has also been defined in the Act and Section 2(m) thereof defines a person as follows :-

1000. "person" includes, -

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(i) a firm whether registered or not;

(ii) a Hindu undivided family;

(iii) a co-operative society;

(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not

5. On a plain and simple reading of all the above provisions of the Act it is clear that a Trust is not a person and therefore not a consumer. Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.

6. In view of the above, we are of opinion that the National Commission was quite right in holding that the complaint filed by the appellant Trust was not maintainable.”

 

Per contra the respondent has placed reliance on 2007 (2) C.P.C. 643 Pratibha Pratishthan Vs. Manager, Allahabad Bank but the National Commission was also of the view that the trust is not the legal entity. It is not included in the definition of 'person' and the complainant trust cannot be considered to be 'person' and cannot file consumer complaint

 

 

 

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Hence, the complaint was not maintainable before the Forum below.

In view of the above, the appeal is allowed and the order of the Forum below dated 16.2.2015 is set aside.

(Nisha Gupta)

President

 

 

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