RESERVED
State Consumer Disputes Redressal Commission
U.P., Lucknow.
Appeal No.696 of 2004
1- Union of India through its Secretary,
Ministry of Telecommunication, New Delhi.
2- Superintendent of Post Offices, Fatehgarh,
District, Farukkhabad. ...Appellants.
Versus
Virendra Kumar Gupta s/o Shri Dharmendra Nath
Gupta, R/o Police Line, Fatehgarh Quarter no.6/26,
District Farukkhabad. ….Respondent.
Present:-
1- Hon’ble Sri Vijai Varma, Presiding Member.
2- Hon’ble Sri Sanjai Kumar, Member.
Dr. U.V. Singh for the appellants.
None for the respondent.
Date 3.11.2017
JUDGMENT
(Delivered by Sri Vijai Varma, Member)
This appeal has been filed against the judgment and order dated 5.2.2004, passed by the District Forum, Farukkhabad in complaint case no.749 of 2002.
The facts leading to this appeal, in short, are that the respondent/complainant was the authorized agent of National Savings Certificates in the Head Post Office, Fatehgarh in the year 1982-83. His job was to buy and sell NSCs and Kisan Vikas Partra (KVP) in the Head Post Office on commission basis. In the year 1993 certain persons with the connivance of the officials of the Post Office mis-appropriated the amount of the NSCs of one Bhaiyya Lal for which an FIR was lodged but with the police connivance, the officials of the postal department
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implicated him in the aforesaid case. The complainant was subsequently, acquitted but be was not paid the commission for the period September, 1993 to October, 1993. The commission amount was Rs.32,578.00 and when the complainant asked for this amount then the officials of the postal department refused to make payment. Hence, a complaint was filed by the complainant in the Forum where the appellants/OPs filed their WS submitting therein that the NSCs were issued in the name of Bhaiyya Lal who died on 27.7.1993 but thereafter, on the forged signatures of the bearer on the identification of the complainant the amount of Rs.77,971.00 was paid on 9.10.1993 to the bearer of NSCs. In another case, the complainant had made a loss of Rs.13,307.00 by giving false evidence pertaining to a dead person Peru Singh hence, after the departmental enquiry he was found guilty and on the basis of the same he was issued notice on 28.10.1993 for depositing Rs.77,971.00 plus Rs.13,307.00 totalling Rs.91,248.00 but he did not deposit it. The amount which was payable as commission was adjusted in the amount recoverable from the complainant. There was no deficiency in service committed by the appellant. After hearing the parties, the ld. Forum has passed the impugned order on 5.2.2004 as under:-
"विपक्षीगण क्रमांक-1 पोस्ट मास्टर, प्रधान डाक घर फतेहगढ़ एवं विपक्षी क्रमांक-2 डाक अधीक्षक, फर्रूखाबाद मण्डल फर्रूखाबाद के विरूद्ध करते हुये विपक्षीगण के विरूद्ध सितम्बर 1993 के अर्जित कमीशन (अभिकर्ता) के बिल के सन्दर्भ में 14,428/- (चौदह हजार चार सौ अट्ठाईस रूपये) एवं अक्टूबर 1993 के अर्जित बिल के कमीशन/अभिकर्ता रूप में बिल के
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आधार पर 18,150/-(अट्ठारह हजार एक सै पचास रूपये समग्रता में) 32,578/- (बत्तीस हजार पांच सौ अठहत्तर रूपये) तथा उपरोक्त बिलों की तिथि से वास्तविक भुगतान की तिथि तक 06प्रतिशत वार्षिक ब्याज सहित, समग्रता में धनराशि एतद्दारा परिवादी के पक्ष में एवं विपक्षीगण के विरूद्ध आज्ञप्ति की जाती है। बिलों की तिथि क्रमश: सितम्बर 1993 एवं अक्टूबर 1993 से उन बिलों में सन्दर्भित धनराशि के सन्दर्भ में भुगतान की तिथि तक 06 प्रतिशत वार्षिक ब्याज अतिरिक्त रूप से विपक्षीगण को परिवादी को देने का समग्रता में विधिक दायित्व स्थापित होता है। उपरोक्त धनराशि के अतिरिक्त 1,000/-(एक हजार रूपये) वाद-व्यय के रूप में विपक्षीगण को परिवादी को समग्रता से देय उद्धधोषित किया जाता है।
विपक्षीगण को आदेशित किया जाता है कि निर्णय के एक माह की अवधि के अन्तर्गत सितम्बर 1993 एवं अक्टूबर 1993 के बिल के सन्दर्भ में क्रमश: धनराशि जो समग्रता में 32,578/- (बत्तीस हजार पांच सौ अठहत्तर रूपये) होती है तथा बिलों की तिथि से भुगतान की तिथि तक अतिरिक्त 06 प्रतिशत वार्षिक ब्याज सहित तथा 1,000/-(एक हजार रूपये) वाद-व्यय के रूप में कुल राशि का भुगतान एक माह की अवधि के अन्तर्गत कारित करें और अनुपालन आख्या मंच में उपलब्ध कराये, अन्यथा उक्त परिसीमा के उपरान्त परिवादी को निष्पादन का अधिकार उपलब्ध हो जाएगा और उसका अतिरिक्त व्यय भी विपक्षीगण को वहन करना अनिवार्य हो जायेगा।"
Feeling aggrieved with the impugned order that the appellants/OPs have filed this appeal mainly on the grounds that the respondent/complainant was a commission agent and hence, he was not a consumer and therefore, the case was not maintainable in the Forum below. Besides, the respondent himself had consented for adjustment of his commission amount from his own fault to the appellants but the ld. Forum has passed the impugned order which is patently illegal and is liable to be set aside and the appeal allowed.
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Heard counsel for the appellants and perused the entire records. None appeared for the respondent.
In this case, it is not disputed that the complainant was the commission agent of the appellants/OPs and that as the commission agent the complaint was not paid his commission for the period September, 1993 to October, 1993. The disputed point according to the appellants is that the complainant was a commission agent therefore, the complaint was not maintainable against the appellants in the Forum. It is also disputed that the amount was not payable to the complainant as the same was adjusted from the amount to be recovered from the complainant for the defaults made by him with regard to payment of certain NSCs and KVPs.
We firstly have to see as to whether the complainant is a commission agent and is a consumer or not and whether the complaint is maintainable or not.
In this regard, it is argued by the ld. counsel for the appellant that the complainant was a commission agent of the appellants/OPs and he was neither the purchaser of any goods or the appellants any service provider to the complainant and therefore, under the provisions of the Consumer Protection Act, 1986 the complainant as a commission agent, was not a consumer and hence, the case was not maintainable in the Forum.
The consumer is defined under section 2(1)(d) which reproduced as under:-
- Buys any goods for a consideration which has been paid or promised or partly paid and partly
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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 persons such goods for resale or for any commercial purpose ;or"
So from the aforesaid provisions, it is very clear that someone has to be a buyer of any goods for a consideration or one who hires or avails of any service for consideration. In the case of the complainant as a commission agent, he is neither a buyer of goods, nor hirer of any service as against the appellants/OPs. In fact, he himself is a service provider as an agent of the appellants/ OPs to the people. He simply is paid certain commission on the basis of working as an agent in selling the product such as NSCs and KVPs etc. to the persons. So, the amount which he gets on the basis of an agreement as a commission agent can not be termed, by no stretch of imagination, as a consumer as provided under the provisions of the Consumer Protection Act. If he has any grouse of not getting any commission from the department who have appointed him as a commission agent then under the agreement he may file the case in the appropriate forum/court but certainly not as a consumer under the provisions of the Consumer Protection Act in the Forum. Therefore, the complainant as a commission
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agent was not a consumer and hence, the complaint was not maintainable in the Forum below. The ld. Forum has erred in entertaining the complaint and has passed the impugned order which is not legal and therefore, it is liable to be set aside and the appeal allowed.
ORDER
The appeal is allowed. The judgment and order dated 5.2.2004, passed by the District Forum, Farukkhabad in complaint case no.749 of 2002 is set aside and the complaint is dismissed. The complainant is free to file a case in the appropriate court/forum for redressal of his grievance.
No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules.
(Vijai Varma) (Sanjai Kumar)
Presiding Member Member
Jafri PA-II
Court No.3
