The brief facts of the complainant case, is that, there was a lease agreement in between the O.P bank and the petitioner for supply of generator connection on the premises of the O.P bank. The petitioner purchased one Kirlosker Green 15 KVA Air-cooled Genset bearing Model No. EA20, D4 4826/0900120, Engine Sl. No. D4 1615/0900439 and the purchasing amount was Rs. 3,40,200/- and the said generator was set up in the bank premises for supply of power of electricity that on 29/03/2019. The petitioner was received one notice from O.P No. 1 informing that the bank concern has arranged and alternative system for power back and there is no need for generator any more. The bank concerns stated that the service of the generator was no longer required from 01/04/2019 and accordingly terminated the lease in between O.P bank and the petitioner. The petitioner after receiving the said notice became astonished, she is an unmarried lady and she has no source of income to maintain herself. Thereafter petitioner sent a legal notice to the bank concern on 02/04/2019 through her Ld. Advocate and requesting to the bank to withdraw the said termination notice within 7 days but the O.P bank did not pay head to the notice then the petitioner serve reminder to the O.P bank on 24/07/2019 then the O.P bank replied and stated that there was no lease agreement executed in between the petitioner and the O.P bank regarding supply of generator for power supply. The O.P bank have asked from quotation from various venders or firms for supply of generator power at Branch of Falakata. The O.P bank concern had considered of the complainant as it was the lowest quotation of Rs. 10,500/- and approved the quotation of the petitioner vide approval dated - 26/05/2009. According to the approval the validity of generator power supply has been over and the O.P bank concern has no longer required the supply of the generator connection from the petitioner. Thereafter, the petitioner serve another legal notice on 01/06/2019 requesting to the O.P bank for supply of quotation approval letter and period of validity agreement but the O.P bank did not supply the same. the O.P bank concern intense to terminate the agreement as a result the petitioner suffering huge financial loss and the petitioner no other source of income of her own to maintain herself due to non-performing of generator which she was supplied by the O.P bank. The complainant suffering from financial and mental agony and the generator of the complainant has been useless. The complainant has claimed compensation of Rs. 3,40,200/- for price of generator, 1,00,000/- for his mental agony and sufferings and Rs. 20,000/- for litigation cost.
The O.Ps have contested this case by filing W/V and denying all the allegations made by the complainant. The specific case of the O.Ps are that there is no cause of action against the O.Ps under the C.P. Act, 2019 it is barred by limitation. The complainant is not consumer according to C.P. Act, 2019. The specific case of the O.Ps are that there is no lease agreement from higher of generator of monthly lease rent payable by the O.P bank. The O.Ps were the consumer of the generator service provider by the complainant. The O.Ps further stated that the agreement of the generator service would be terminated by the O.P bank at any time. The question of whimsical termination does not arise although the O.P bank issued prior notice before terminating agreement. According to the O.Ps the fact is that the O.Ps have availed of service the supply of generator power to the O.P bank for electricity supply from the complainant at a monthly lease rate of Rs. 10,500/- since in the year 2009 the said agreement terminated by the O.P bank herein effect from 01/04/2019 by issuing a prior notice to the complainant. It is the termination of the lease agreement in which the complainant aggrieved. It is the consumer dispute the O.P had availed of the service of the generator of the complainant and hence the complainant is not a consumer of the O.P bank and the O.P had claimed for dismissal of the case.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Is there any cause of action to file this case against the O.Ps?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
Both the parties file their evidence-on-affidavit. Complainant also files the xerox copy of documents. The O.Ps filed their written argument. The complainant did not file any written argument on her behalf.
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 35 of the Consumer Protection Act, 2019 by the complainant.
Point Nos. 1, 2 and 3:- In this case the first point as raised by the O.Ps is that the complainant is not the consumer according to section 2(7)(ii) of C.P Act, 2019 although the complainant herself claimed that she is the consumer now. Let us consider of the fact of the case the complainant stated that she is supplied one generator to the O.P bank for their Falatkata Branch in the year 2009. But all on sudden O.P bank terminate the contract from 01/04/2019. According to the complainant there was a lease agreement in between the complainant and the O.P bank in monthly lease amounting to Rs. 10,500/- but the O.P bank whimsically terminated the said lease agreement without consent of the complainant. The O.P bank stated that they approved the quotation of the complainant for supply of generator in the year 2009 as it was the lowest quotation and accordingly approval was made Vide RO:P & D:462:09-10 dated - 26/05/2009 and accordingly to the said approval the validity of power supply has been expired and the bank has asked the complainant that the generator connection is no longer required. Now the question is who is the consumer according to the provision of C.P. Act, 2019 according to section 2(7)(ii) “consumer means a person who hires or avails of any service 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 service 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 service for any commercial purpose”. The law says that herein this case bank was higher the service of generator from the petitioner by making monthly rent of Rs. 10,500/-. So the O.Ps are the consumer according to the law as they higher the service from the complainant. Complainant did not purchase the generator from the O.P bank or did not higher any service form the O.P bank. So here in this case complainant is no longer a consumer as per law rather O.Ps are the consumer according to law. That a part in this case there is no specific cause of action arose against the O.Ps. O.Ps have stated that there is no lease agreement in between the parties although the complainant claimed that was lease agreement in between them but the lease agreement has not been filed from the side of the complainant. The O.Ps have asked the complainant that the service of generator connection is not required from 01/04/2019 and the notice was sent on 28/03/2019 as in this case the validity of approval of generator power supply with the complainant has been over. The complainant in his petition specifically did not say anything regarding the cause of action. We find that in this case there is no cause of action from the side of the complainant against the O.Ps. We also find that this Commission has the jurisdiction to try this case if it is filed according to law.
In view of the above discussion we find that the complainant is not the consumer according to the C.P. Act, 2019 and there is no cause of action against the O.Ps.
Point Nos. 4 & 5:- We have already discussed that the complainant is not the consumer according to the provision of C.P. Act, 2019 so she is not get any compensation from this Commission in this case. We do not find any relevancy to discuss regarding the award of this case as because this case is not maintainable. As the complainant is not the consumer of this case and the case is liable to be dismissed. If there is any lease agreement and if it is violated by the O.Ps then the complainant can file the civil case in appropriate court.
Thus all the points are disposed of accordingly.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is dismissed on contest without cost as it is not maintainable.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
