Order no. 7 date: 26-07-2017
Sri Shyamal Gupta, Member
This Appeal is directed against the Order dated 15-07-2015 passed by the Ld. District Forum, Kolkata – I (North) in C. C. No. 114/2013 whereof the complaint case has been allowed. Being aggrieved by and dissatisfied with the same, OP thereof has preferred this Appeal.
Brief facts of the complaint case are that the Complainants’ are the trustees of Modern High School for Girls Trust. The said Trust operates a school by the name of Modern High School for Girls in Kolkata. The school sent some examination papers (answer scripts) through the OP Courier on 07-03-2012. However, one of the four packets containing answer scripts of the school for the Geography examination did not reach its destination. When necessary complaint in this regard did not yield any positive result, the complaint was filed before the Ld. District Forum.
Per contra case of the OP is that the complaint in question, under any circumstances, does not come within the purview of the Consumer Protection Act, 1986 and that the dispute, if any, at all, is entirely civil in nature and the remedy, if any at all, lies before the competent Civil Court. Accordingly, it prayed for dismissal of the complaint. Further case of the OP is that since the concerned packet was not insured, its liability, if any at all, stood limited to Rs. 500/- as prominently prescribed on the Consignment Note.
Decision with reasons
Heard the Ld. Advocates of both sides and perused the material on record, including the citations referred to by the Ld. Advocates appearing on behalf of both sides.
In view of the objection raised from the side of the Appellant on maintainability ground, let us first see whether the Respondents can be construed as ‘consumers’ as defined in the Consumer Protection Act, 1986 (henceforth referred to as ‘the 1986 Act’).
Before we dwell on the issue, let us first see the contents of relevant definitions as enumerated in the 1986 Act.
According to Sec. 2(1)(d) of the 1986 Act, "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 purposes;
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;
According to Sec. 2(1)(m) of the 1986 Act, "person" includes,—
(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;
It appears on a plain reading of the aforesaid definitions that ‘Trust’ has not been included in the definition of ‘person’ under the 1986 Act. Whereas the complaint was filed by the Members of the Modern High School for Girls Trust and not by the School itself, to our mind, the complaint cannot be considered as a ‘consumer case’. That being so, the complaint filed by the Respondents is not maintainable.
We may, in this regard, profitably rely upon the recent decision of Hon’ble Supreme Court in the matter of Pratibha Pratisthan & Ors. V. Manager, Canara Bank & Ors., reported in 2017 (2) CPR 5 (SC) and also that of the Hon’ble National Commission in the matter of M/s Excellent Testing Equipment & Anr. v. Vijaya Vittala Charitable & Educational Trust, reported in 2015 (2) CPR 365 (NC) being referred to by the Ld. Advocate appearing on behalf of the Appellant.
It seems, somehow this important aspect escaped the scrutiny of the Ld. District Forum which renders the impugned order bad in law. In any case, insofar as the present case is not maintainable under the 1986 Act, we refrain from getting into the specifics of allegations raised from the side of the Respondents.
In the result, the Appeal stands allowed.
Hence,
O R D E R E D
that A/896/2015 be and the same is allowed on contest against the Respondents but without any costs. The impugned order is hereby set aside. However, the Respondents would be at liberty to pursue the case before the appropriate Court of Law, if they desire so.
