The 1st Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.75,572.50/- collected in excess, to pay Rs.19,900/- etc. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.26.4.2007 in OP.No.119/2001.
This petition coming before us for hearing finally on 30.5.2011. Upon hearing the arguments of the counsels on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The 1st opposite party, in CC.No.119/2007, on the file of District Forum, Nagercoil, aggrieved by the order of the Forum dt.26.4.2007, wherein a direction has been given, against him also, jointly and severally, challenges the said order in this appeal.
2. The facts leading to the case:
Â The 1st respondent/complainant, purchased electrical goods for their Engineering college, as per the recommendation of the purchase committee, in which the 1st opposite party was functioning as convener. Based upon the decision taken by the purchasing committee, the 1st opposite party purchased electrical goods, from the 2nd opposite party on 28.8.99, for the value of Rs.25,70,000/-.
3. The verification of the purchased electrical goods, revealed subsequently, M.R.P were turned up, tampered, the 2nd opposite party had received illegally a total amount of Rs.75,572.50/-, more than the MRP, thereby committing fraud and deficiency. Further under the invoice No.380 dt.28.8.99, the 2nd opposite party had collected excess sum of Rs.19,900/-, thereby caused loss to the complainant. The above things had taken place in collusion between the opposite parties, and therefore the complainant is entitled to the amount collected by the 2nd opposite party, with interest. Thus the claim.
4. The 1st opposite party, admitting his decision as the convener, opposed the complaint, contending that the complainant is not a consumer, as such there was no deficiency in service by the 1st opposite party, and in this view, the complaint it self is not maintainable, that the alleged collusion is false, and this opposite party has not committed any fraud or collusion, that at the time of delivery of the goods at Madurai, goods were checked by the electricians of the complainant, that this opposite party was not award of the actual delivery of the goods, and that for the vexatious, frivolous and motivated claim, he is not entitled to answer since even the time barred claim, thereby prayed for the dismissal of the complaint.
5. The 2nd opposite party, admitting the purchase of the goods from him, on behalf of the Engineering college by six persons, including the 1st complainant, resisted the case, contending that there were no complaints of any substandard or inferior quality of the goods, and therefore as such no consumer complaint would lie, that he has not sold, over and above the MRP rate, that by mistake, while totaling the amount, in Invoice No.380, excess totaling of RS.19900/- occurred, which was adjusted in the discount, that since they have not committed any deficiency, the complaint filed by misusing the jurisdiction of the consumer forum, is liable to be dismissed.
6. The District Forum, considering the admitted facts, as well by going through the exhibits, relied on by either side, felt that the 2nd opposite party had sold the electrical goods, over and above the MRP rate, tampering MRP rate also, thereby obtained undue pecuniary advantage, to the extent of Rs.75,572.50/-. Further, taking into the admission of excess totaling, without giving any finding, acceptable in nature, how the 1st opposite party will come under the scanner of consumer forum, issued a direction against both the opposite parties, to pay Rs.75,572.50/-, as well a further sum of RS.19900/-, with interest and cost.
7. Our effort, by going through the order also, ended in vain to see a finding of deficiency in service, especially the appellant is concerned, including any unfair trade practice, or otherwise, warranting, exercising the jurisdiction by the consumer forum. Because of the above fact, the 1st opposite party has preferred this appeal.
8. The 2nd opposite party, though suffered an adverse order, to our knowledge, which was also not brought to the notice by the parties, no appeal has been filed by the 2nd opposite party (if any), and the findings whatever may be its nature, had reached finality, and therefore we refrain ourselves, from touching the finding as far as the 2nd opposite party is concerned, in view of the further fact, and relief can be split up, even retaining the finding against the 2nd opposite party, setting aside the findings against the 1st opposite party, permissible since they are separable.
9. The learned counsel for the appellant urged before us, that even as per the averments in the complaint, the complainant will not come within the meaning of consumer, and the 1st opposite party/appellant will not come within the meaning of service provider, and this being the position, the order passed against the 1st opposite party should be construed, as erroneous, want of jurisdiction, to which submission we should be amenable. Though the complainant had obtained an order, against the 1st opposite party also, when the case was taken for hearing, there was no representation, and therefore we are constrained to hear the arguments of the appellants, perused the records, and passed the order on merit.
10. The benefits/reliefs given under the Consumer Protection Act, are though in addition to other benefits available under anyother law, for the time being in force, in order to claim the benefits under the Consumer Protection Act, one must be a âconsumer, and the persona against whom the relief sought for must be a service provider, or there must be some contractual obligation for rendering any service, or it must be related to goods, which could be seen from the definition, available under Sec.2(1)(d) (i and ii). The complainant had purchased goods only from the 2nd opposite party, and the 2nd opposite party alone had received the amount/ sale price admittedly. Therefore, if the 2nd opposite party had committed unfair trade practice, in the sale of goods, he may come within the clutches of the Consumer Protection Act. As per the pleadings, no case was made out, that the complainant availed the service of the 1st opposite party to purchase the goods from the 2nd opposite party, paying consideration. The 1st opposite party was the convener of the purchasing committee, for that he was not paid any consideration. Therefore, in the absence of any service, for consideration, if the service of the 1st opposite party has been availed by the complainant, that will not come within the meaning of service provider, as seen from the definition of the consumer. In fact, in the complaint, nowhere it is pleaded, that the 1st opposite party functioned as service provider, though a repeated plea was made in the complaint that the 1st opposite party, acted in collusion with the 2nd opposite party, thereby caused loss to the institution or something like that, for which the remedy available is not under the Consumer Protection Act, may be admissible elsewhere under the common law of remedy, which was sought to be exercised by the consumer forum, exercising jurisdiction under the Consumer Protection Act. Therefore, even assuming, that there was some kind of understanding between the opposite parties, resulting tampering, charging over and above MRP, the consumer forum, cannot order repayment by the 1st opposite party, that too in the absence of any benefits, said to have been obtained by the 1st opposite party, pursuant to the alleged collusion. In this context, we have to see the pleadings, especially the prayer.
11. Prayer in the complaint reads:
a) To pay back Rs.75572.50/- collected by 2nd opposite party beyond that of the MRP rate colluded with 1st opposite party.
b) To pay back Rs.19,900/- collected more in invoice No.380 by 2nd opposite party colluded with 1st opposite party intentionally in order to obtain unlawful gain
12. As seen from the prayer, the amount was collected only by the 2nd opposite party. For the alleged deficiency, which is also not available in clear terms, no damage is also claimed, except interest. By going through the documents also, we are unable to find any material except the dead letters in the proof affidavit, as well as in the complaint, to make out a case as against the 1st opposite party, as if he should have obtained unlawful gain, for that also forum is not consumer forum, which deals with deficiency in service, not the cases relating to collusion, fraud, etc., that too when it was not connected with the service.
13. Unfortunately, the District Forum without considering the nature of post held by the 1st opposite party, though it has recorded in the finding âmoreover, the first opposite party was holding an honorary post and he will not come under the purview of the Consumer Protection Actâ, has rendered an erroneous finding, that the affidavit filed by the electrical contractor, proved the fact that the 1st opposite party also accompanied to place order for the purchase of goods, which perse cannot be a deficiency in service or collusion, since admittedly he was the honorary member of the committee, nominated as convener, alongwith others, and even as pleaded in the complaint, his honorary service was appreciated, as per the resolution passed by the complainant, though it was subsequently withdrawn. For the amount collected over and above MRP, for the excess amount collected while totaling, if at all, the 2nd opposite party alone could be made answerable, whether the case comes within the jurisdiction of the consumer forum or not, since the 2nd opposite party has not challenged the finding. For the above said reasons, we are of the view, the case, as far as the 1st opposite party is concerned, not maintainable, and he cannot be directed to pay the money received by the 2nd opposite party, since no case has been made out, against the appellant, on the basis of consideration, or deficiency in service, or on the basis of negligent act also. For these reasons, we conclude the appeal deserves acceptance, to be allowed.
14. In the result, the appeal is allowed, setting aside the order of the District Forum in C.O.P.No.119/2001 dt.26.4.2007, as far as the appellant/1st opposite party is concerned, and the complaint against the 1st opposite party is dismissed, ordering the parties to bear their respective costs throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.