IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

                          Friday the 11^thday of  February, 2022

                                  Filed on : 30.06.2021

Present

1. Sri.S.SanthoshKumar  BSc.,LL.B  (President )

2.Smt.C.K.Lekhamma, B.A., LLB (Member)

In

CC/No.120/2021

between

                                                                    ORDER

C.K.LEKHAMMA(MEMBER)

1.   Brief facts of complainant's case are as follows:-

     Complainant had 23 years of  unblemished service in the Housing Cooperative Society A.111, Alappuzha and has taken voluntary retirement on 30.4.2018 since his salary was in due for the last several months. He was working as an accountant, but later, the complainant was appointed as Secretary in charge. Later irregularity utilization of the fund was detected in the said society . The 1st opposite party  appointed an Administrator, the 2nd opposite party, to manage the affairs of the society. Further decided that the loss due to the society has to be met by the  Secretary and the members who held office during that period ,accordingly issued notice to them. Thereafter nothing heard  about the said incident.   The complainant contended that the reason for taking the V.R.S is that the society did not paid his salary for 28 months. The arrears of salary comes at Rs.44,050/-. Along with arrears of salary the complainant is entitled to the amount in PF, the staff security amount of Rs. 10,000/- deposited in the Kerala Housing Federation and the retirement benefits from the society with interest. Several requests were made before the 1st opposite party for the disbursement of said amount but no positive steps have been taken till date. This act of opposite parties caused mental agony to the complainant since he is unable to meet his various expenses the said acts of the opposite parties amounts to deficiency in service. Therefore the complainant filed this case against the opposite parties.

2.     Version of the 1st and 2nd opposite parties is as follows:-

 Co-operative Housing Society Alappuzha is a registered society since 30/6/1960.   The said society  utilizes the funds of Kerala State Co-operative   Housing Federation and  disbursing the said fund among its  members  as loan.

       It was found that the repaid loan amount by the members   during the period of 2001 to 2002 was  used by the members for disbursing salary, allowances and other expenses.  Therefore    said fund was not repaid to the     federation in time in consequence of that the society   faced various legal proceedings  from   different authorities.  Since   the aggrieved  members filed the petition before various authorities and  society  is bound to obey the decisions of  such authorities. The Fishermen debt reliefs commission   in an adalath held directed the opposite party to give 1st preference  to returning of the  documents of the members who cleared their loan and thereafter they would  consider  and disburse the allowances and benefits of the staff.  Further they would consider the grievance of the complainant after the settling the above mentioned issues.

3.      Version of the 3rd opposite party is as follows:-

 Co-operative Housing society, Alappuzha is a member of the Kerala State Co-operative Housing Federation, 3rd opposite party.  The complainant was the secretary in charge of the said co-operative housing society, Alappuzha.  On 2012 onwards  the said society is under the control of the 2nd opposite party,  the administrator.  The complainant himself opted for voluntarily retirement. Accordingly a letter dtd. 5/7/2018 was sent to the Registrar Ambalappuzha for taking necessary actions.  But it seems that no action was taken by them. A letter dtd. 10/7/2018 was  received from the administrator  concerning the retirement of the complainant.  

      It is found that the staff security deposit of  the complainant  is Rs.10,000/- of the  housing society alappuzha is with the 3rd opposite party.   The interest of the said deposit has been credited at the end of the  year, to the advance principal account of the society.  3rd opposite party is ready to refund  the said amount in accordance of the decision by the, 2nd opposite party.  Hence there is no deficiency in service on the part of this opposite party.

4.     Points for determination are as follows:-

   1. Whether the complainant is a consumer?.

  2. Whether the opposite parties have committed any deficiency in 

          service?.

  3.  Reliefs and costs if any?.

5.     Point no.1 &2 :-

         The case of the complainant is that he was working as a secretary in charge of the co-operative Housing society, Alappuzha. On 30.4.2018 he had constrained to opt for voluntary retirement since his salary was unpaid for a long period. On detecting the  fraud and misappropriation of the funds by the earlier secretary and committee members of the society the 2nd opposite party has been appointed as an Administrator of the society  by the 1st opposite party. Even though there is no allegation against the complainant , Opposite parties did not disburse complainant's arrears of the salary and the other benefits such as the PF, the staff security amount deposited with the concerned authority and his retirement benefits. For the realization of said amounts  complainant filed this complaint.

          Opposite parties resisted his allegations and pleaded that the complainant is not a consumer of the opposite party.  Further it is noticed  that  the complainant was involved along with others in misappropriation  of the funds of the society .The Fishermen Debt Relief Commission directed to take necessary legal action against the staff and board members and also directed to give first preference to hand over the documents to the  members of the society, who had closed their loan.   Therefore, the disbursement of salary and allowances of the complainant are not possible.

     Firstly we have to decide whether the complainant has come under the purview of the Consumer Protection Act of 2019(CP Act). The Consumer Protection Act was enacted to provide for the better protection of interest of consumers, such as the right to be protected against marketing of goods which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, to protect the consumer against unfair trade practices; and right to seek redressal against an unscrupulous exploitation of consumers, and further to provide right to consumer education etc.  As is evident from the statement of objects and reasons of the Act.

Section.2 of the Act which is a definition clause defines the following as under.

2(5) ‘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;

iv.  The central Authority or

v. One or more consumers, where there are numerous consumers

   having the same interest;

vi. In case of death of a consumer, his legal heir or representative;  

vii.  In case of a consumer being minor his parents or legal guardian who or which makes a complaint.

2(6) ‘complaint’ means any allegation in writing made by a complainant that-

i. An unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

ii. The goods bought by him or agreed to be bought by him suffer from one or more defects;

iii. The services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

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2 (9) ‘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 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 services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid or partly promised or under any system of deferred payments, when such services are availed of with the approval of the 1st mentioned person (but does not include a person who avails of such services for any commercial purpose).

*******

2(11) ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

******

2(42) ‘service’ means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction), entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

*****

Sec.34 of the Act deals with the jurisdiction of the District Commission as:

1. Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration, does not one crores rupees.

       The aforesaid statutory provisions make it crystal clear that the Act is made to deal with the rights of consumers wherein marketing of goods, or “services” as defined under the Act have been provided.  

It is clear from the provision that in order to attract the provisions of the Act there must be a transaction of buying of goods or hiring of service for a consideration described under Sec.2(7) (1) of the Consumer Protection Act, 2019.  Here in this case the relation between Complainant and Opposite Parties  is that of  an Employee-Employer relationship it will  not come under the purview of Consumer Protection Act,2019.

         Further, it is understood that the opposite parties are not service providers at the same time the complainant has not  availed any service from the opposite parties vis a vis the Housing society appointed the complainant for  which they paid salary or remuneration to the complainant. Due to the contingency of the society, the 1st opposite party has appointed the 2nd opposite party to manage the affairs of the society. Therefore, it is clear from the evidence on records that the complainant does not come under the purview of 'consumer' as contemplated under the CP Act  of 2019. Hence issue No.1 is found against the complainant. Because of the above findings, we are not discussing the remaining issues.

6.          Point no.3 :- 

       Accordingly,   the complaint is dismissed with a liberty to the complainant that he has right to approach appropriate authority within 30 days from the date of receipt of  this order. 

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 11^th day of February, 2022

                                         Sd/-Smt. C.K.Lekhamma (Member)

                                        Sd/-Sri.S.Santhosh Kumar (President)

Appendix:-Evidence of the complainant:-

PW1                      -   Manoj.P.G(Complainant)

Ext.A1                -    Copy of Audit Certificate & memorandum

Ext.A2                -    Copy of Letter dtd. 20/7/2006

Ext.A3                  -    Copy of Reference Letter

Ext.A4                  -    Copy of Reference Letter

Ext.A5                  -    KPSC  Verification Certificate

Ext.A6                  -    Certificate of Disability

Evidence of the opposite parties:-  

 RW1                      -    Mary Gracy.KS.(Unit Inspector Op2)

 Ext.B1                   -    Copy of Ledger

Ext.B2                  -     Copy of Order dtd. 8/11/2019

Ext.B3                  -     Copy of Statement of Account

Ext.B4                  -     Copy of Letter dtd. 5/1/2022     

                                                       ///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:- Br/-

Comp.by: