BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 41/2006 Filed on 08.02.2006 Dated : 15.12.2008 Complainant:
T. Yesudasan, Kollammanneli Veedu, Mavilakkadavu, Kulathoor, Uchakkada P.O.
(By adv. Koshy P. Thomas)
Opposite parties:
The Manager, District Co-operative Bank, Pozhiyoor Branch, Tvpm.
(By adv. Suresh Babu)
P. Chandran, Purathikollamannadi Veedu, Masilakkadavu, Kulathoor, Uchakkada P.O. Suseelaraj, Marthadomkal Veedu, Thirupuram P.O, Neyyattinkara.
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 27.03.2007, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been heard on 29.11.2008, the Forum on 15.12.2008 delivered the following: ORDER SMT. S.K.SREELA : MEMBER The case of the complainant is as follows: The complainant is a surety for the loan availed by the 2nd opposite party on 18.09.1999 for Rs. 50000/- from the 1st opposite party. The 2nd opposite party effected repayment till 03.10.2002 and thereafter no payment has been made. The complainant was under the impression that the 2nd opposite party was repaying the loan regularly. The 1st opposite party never informed the sureties regarding the default in repayment by the 2nd opposite party, if informed properly the complainant would have made arrangements to ensure the repayment in time. On 27.12.2004, the 2nd opposite party received a notice demanding to pay Rs. 65690/- which according to the complainant cannot be considered as a valid notice and submits that the said notice has to be considered as null and void. Hence this complaint for an order setting aside the said notice along with compensation and costs. The 1st opposite party has filed their version contending that the complaint is not maintainable. The 1st opposite party had granted a loan of Rs. 50000/- to the 2nd opposite party and he was not remitting the instalments promptly. The 1st opposite party had sent ordinary and registered notices to the principal debtor and sureties several times and the defaulters were many times requested to attend the customer meets arranged in the branches by direct letters to the loanees and through advertisement in major daily newspapers etc. offering one time settlement of dues with substantial reliefs. The complainant and the 2nd and 3rd opposite parties never cared to remit the dues in spite of such efforts put forth by the bank. On the other hand, the complainant who is having close contact with the principal debtor and other surety is fully aware of the pulse of repayment from the principal debtor and this complaint has been filed in collusion with the 2nd and 3rd opposite parties with an intention to get rid of the liability and to make illegal gains and hence prays for dismissal of the complaint with costs. Opposite parties 2 and 3 remain exparte. The complainant has filed affidavit and examined as PW1, marked Exts. P1 and P2. 1st opposite party has also filed affidavit and she has been examined as DW1, marked Exts. D1 to D6 series. The points that would arise for consideration are :- Whether the complainant is a consumer as per the Consumer Protection Act and whether the complaint is maintainable before the Forum? Whether there is any deficiency in service on the part of the 1st opposite party? Reliefs and costs.
Point (i):- There is no dispute with regard to the fact that the complainant was a surety for the loan availed by the 2nd opposite party. The complaint is with regard to the loan transaction between the complainant and the 2nd opposite party. Hence the aspect to be looked into is whether the complainant has availed any service of the 1st opposite party by paying any consideration.
As per Sec. 2(1)(d) of the Consumer Protection Act, 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 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 [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 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;]
Sec. 2(1)(d)(ii) of the Consumer Protection Act shows that a person claiming himself as 'consumer' should satisfy amongst others, three conditions namely (1) the service should have been rendered to him, (2) the service should be hired by him and (3) for hiring the service he should have paid consideration in the manner envisaged in Sec. 2(1)(d) of the Act. The materials on record and the pleadings in the complaint reveal that the complainant is not the person who had hired the services, but the 2nd opposite party who had hired the services of the other opposite parties. On going through the entire facts of the case we are of the view that the complainant has not hired the services of the opposite parties for consideration as per the provisions of the Consumer Protection Act. There is no hiring of service for consideration and hence it is not covered by the Consumer Protection Act. Under Sec. 2(1)(d) of the Act a consumer is not only the person who avails or hires of any service for consideration, but also who is the beneficiary of such services. In the instant case by no stretch of imagination, the complainant could be considered as a beneficiary of services also. Such being the position, the complainant cannot be regarded as coming within the definition of 'consumer' falling within Sec. 2(1)(d) of the Consumer Protection Act so as to entitle him to maintain the complaint before this Forum. So far as this Forum is concerned, the complaint could be entertained only if the complainant was a consumer. In the light of the above finding, the other issues require no consideration. In the result, the complaint is found not maintainable before this Forum and hence the complaint is dismissed as not maintainable with liberty to the complainant to approach the appropriate authority for his grievances if any. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 15th December 2008.
S.K.SREELA : MEMBER G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
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......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
