O R D E R
Sri. P. Satheesh Chandran Nair (President):
The complainant filed this petition u/s.12 of the C.P. Act 1986.
2. The case of the complainant is briefly stated as follows: The complainant is the registered owner of a Maruti Ritz Car bearing Reg. No. KL-03 Y-5836. On 05.03.2015 when he drives the vehicle to Chengannur Railway Station, he parked the car on the left side of the Poyyanil Junction of Kozhencherry hospital. Suddenly a big sound arises from the left side front wheel of the said vehicle and found that the tyre of the vehicle was broken by hitting on a scrap of iron which was erected in the road portion. The complainant contented that the said incident is happened due to the cheating of P.W.D authority in road construction and it resulted loss and mental agony to the complainant and the P.W.D authority concerned are responsible for the loss sustained to the complainant. According to him, the responsibility of this incident may answerable by the contractor concerned, R.T.O, all the P.W.D authority concerned etc. He again contented that he remitted double road tax to his vehicle at Allahabad and Kerala. The complainant file this complaint for getting a relief of Rs.29,400/- from different heads as per his complaint. The complainant filed this complaint along with the photographs of the damaged tyre, press release of Malayala Manaroma and a receipt of the complaint to Aranmula Police Station regarding this incident. On perusal of the complaint and records we obtained some clarification from the complainant and the case has been taken file and issue notice to the opposite party. The opposite party entered appearance before this Forum and file their version through Addl. Govt. Pleader Adv. R. Satish Kumar.
3. The main contention of the opposite party is stated as follows:
According to this opposite party, this petition is not maintainable either in law or in facts and the statement of the complainant is vague and incomplete. According to him, there is a legal bar against the complainant to file a complaint against to him and further stated that the complainant herein is not a consumer as per the definition of the Consumer Protection Act. This opposite party again stated that the alleged occurrence place is not clear as per the complaint and moreover the P.W.D authority has not give any of this road portion for four wheeler parking. According to him, as per the complaint the incident took place at the shoulder portion of the road. This area is not usually used for vehicle parking or for pedestrians. The opposite party admitted that the P.W.D authorities arranged a contract work in this portion for a comfortable vehicle flow and for the safety of the pedestrians. These works include the cutting and changing of old iron pillars which was fixed in the said road portion. According to the said opposite party the alleged incident is not due to the defect of him and there is no evidence to see that the incident was took place with the hitting of the remaining portion of the fixed and scraped iron pillar. The opposite party again contented that the complaint is defective due to the non-joinder of necessary parties and the complainant is not eligible to get any kind of compensation as prayed and there is no bonafide for this petition. He categorically stated that, there is no deficiency in service on his part and the petition has to be dismissed with cost to the opposite party.
4. Perusing the above complaint and records produced on the side of the complainant and the version we raised the following issues.
(1) Whether the petition is maintainable before this Forum if it is
maintainable what kind of relief is to be granted in favour of the
complainant?
- Regarding the relief and costs?
5. On 22.06.2015 the learned counsel appearing for the opposite party is requested to heard maintainability of the case hence we heard maintainability on 19.09.2015 and the case posted to 30.09.2015 for order on maintainability. The complainant filed an argument note on 22.08.2015 regarding the maintainability question.
6. Point No.1 and 2 : Learned counsel appearing for the opposite party submitted before the forum that the complainant in this case not comes under the definition as per Consumer Protection Act 1986. Section 2 (d) of the Act says that “consumer” means any person who –
- 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 which 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
- [hires or avails] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, 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]
(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.)
7. Another contention raised by the opposite party that the complaint is defective with the non-joinder of necessary parties. In order to substantiate his contention, he stated that, the P.W.D the opposite party herein is a State Government Official and the said official is under the control of State of Kerala. If it be so the state should be a necessary party for the proceeding. As per his contention, the District Collector, Pathanamthitta has to represent the State of Kerala in this case when considering the allegation of the complaint. The learned counsel again submitted that the opposite party is a Government official and relief sought by the complainant is for compensation. If it is so, the complainant has to issue notice to the opposite party prior to the institution of a petition or suit as per the Section 80 of CPC 1906. But on the other hand, the complainant in this case filed an argument note along with the copy of judgment from the Hon’ble High Court of Delhi in WP(C ) 13771/2006. When considering the argument put forwarded by the learned counsel appearing on behalf of the opposite party we do admit that as per the Section 2(b) of Consumer Protection Act 1986 the complainant in this case not comes under the definition clause of ‘Consumer’. It is pertinent to see that the relief sought by the complainant against opposite party is mainly for damages and it has to be compensated in terms of money. If so section 80 notice as per the CPC 1906 is mandatory. It is clear that in this case the State of Kerala is not at all a party. On the other hand, the petitioner is mainly relied on the decision in WPC 13771/2006 of the Hon’ble High Court of Delhi dated 01.07.2009. When we peruse the judgment it is understood that even a Writ petition under Article 226 of the constitution, the court can grant compensation against Government officials and the Government official concerned are answerable to the negligence caused on the part of Government officials at the time of discharge of their official duties. The said decision is not discussed the right of the ‘Consumer’ under the purview of Consumer Dispute Act. Hence we find that the objection raised by the complainant against the plea of maintainability by the opposite party is not sustainable. The objection filed by the opposite party as per the version and the argument put forwarded by the counsel stated above we find that the complainant in this case has not comes under the purview of ‘consumer’ as per Section 2(d) of Consumer Protection Act and this case is defective for non-joinder of necessary parties. We also found that when the relief sought by the complainant is compensation in terms of money Section 80 notice as per C.P.C is also inevitable. In the light of the above discussion, we found point No.1 is against the complainant. Point No.1 is already found against the complainant hence there is no need to consider point No.2 in this case. Hence point No.1 and 2 are against the complainant.
8. In the result, the petition is dismissed. No order of cost.
Declared in the Open Forum on this the 30th day of September, 2015.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. K.P. Padmasree (member –I) : (Sd/-)
Smt. Sheela Jacob (Member – II) : (Sd/-)
Appendix - Nil.
(By Order)
Copy to:- (1) Cheriyan Joseph, Enchakalody, Keezhukara,
Kozhencherry – 689641, Pathanamthitta. (2) The Executive Engineer (Road Division),
Public Works Department, Pathanamthitta.
- The Stock File.
