1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 17.04.2017 passed by Learned District Forum in consumer complaint No.307/2016 titled Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. Brief facts of Case:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is the registered society for the rights of consumers. It is pleaded that on 04.03.2014 opposite party No.1 took bus No.HP-65-1419 on a newly constructed road to check the road fitness on Doh-Gudwahan-Shil Kunt Bayo road. It is pleaded that a joint team comprised of Sub-Divisional Magistrate Sadar Mandi, Deputy Superintendent of Police, Executive Engineer and opposite party No.2 had given road fitness certificate. It is further pleaded that on 29.11.2015 the road was dedicated to the public by way of inauguration. It is pleaded that thereafter opposite party No.2 did not ply any bus on the road and now more than one year has elapsed and residents of the locality are running from pillar to post for their grievances. It is further pleaded that nine representations also sent but opposite party did not ply the bus. It is further pleaded that there are hundreds of potential consumers including school Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. (F.A. No.121/2017) & college going students, employees, Advocates & labourers. Complainant sought relief to the effect that opposite parties be directed to ply HRTC bus on the road and suitable compensation be also awarded to the complainant.
3. Per contra version filed on behalf of opposite parties No.1 & 2 pleaded therein that present complainant is not consumer and did not fall within the definition of Consumer Protection Act 1986. It is pleaded that present complaint is not maintainable. It is further pleaded that declaratory relief cannot be granted by consumer forums and could be granted only by civil courts. It is admitted that road was inaugurated by Minister. It is further pleaded that complainant has not paid any consideration amount to the opposite parties. It is further pleaded that due to shortage of bus and staff bus could not be plied upon the road. It is further pleaded that bus would be plied on the road as and when bus and staff would be available.
4. Per contra separate version filed on behalf of opposite parties No.3 to 5 pleaded therein that complainant is not consumer as defined under Consumer Protection Act 1986. It is further pleaded that opposite party did not commit any deficiency in service. It is further pleaded that society does not come in the definition of consumer and complainant has no cause of action to file the complaint under Consumer Protection Act 1986. It is admitted that road was inaugurated by cabinet Minister. It is further pleaded that complainant did not hire Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. (F.A. No.121/2017) the service of opposite party and prayer for dismissal of complaint sought.
5. Learned District Forum dismissed the complaint on dated 17.04.2017 and held that consumer complaint is not maintainable. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
6. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether potential user of transport facilities can file consumer complaint under system of deferred payment when such services will be available under Consumer Protection Act 1986.
2. Final order. Findings upon point No.1 with reasons:
8. Submission of learned Advocate appearing on behalf of appellant that appellant fall within the definition of consumer as defined under section 2(1)(o) of Consumer Protection Act 1986. Section 2(1)(o) and Section 2(1)(d)(ii) of Consumer Protection Act 1986 are quoted in toto :- 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. Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. (F.A. No.121/2017) Section 2(1)(d)(ii) of Consumer Protection Act, 1986
(ii) [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 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 purposes of earning his livelihood by means of self employment.
9. Opposite party has admitted that public road was inaugurated by the competent authority after the approval of expert committee for plying bus for the welfare of general public. It is proved on record that road was constructed by HRTC for the benefit of general public and it is also proved on record that road was inaugurated by competent authority of law after completion of road. State Commission is of the opinion that after inauguration of the public road HRTC was under legal obligation to ply the bus on the road for welfare of general public. State Commission is of the opinion that HRTC cannot be allowed not to ply the bus for the benefit of general public simply on the ground that bus and staff are not available with HRTC. It is held that HRTC perform the function for the welfare of the general public. The road was constructed for the welfare of students, employees and labourers. State Commission is of the opinion that after inauguration of the public road by competent authority HRTC was under legal obligation to ply the bus for the benefit of general public. Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. (F.A. No.121/2017)
10. Submission of the learned Advocate appearing on behalf of respondents that complainant did not pay any consideration amount to the opposite party for service rendered and on this ground appeal be dismissed is decided accordingly. State Commission is of the opinion that potential consumer falls within definition of consumer. State Commission is also of opinion that any system of deferred payment when such service will be available falls within the definition of service as defined under section 2(o) of Consumer Protection Act 1986. See 1994 (1) SCC 243 at page 249 Lucknow Development Authority Versus M.K. Gupta. See 2000(2) CPC 76 Pb titled New Punjab Cold Storage Versus Punjab State Electricity Board. It is held that prospective consumer can invoke Consumer Forum jurisdiction.
11. State Commission is of the opinion that after inauguration of public road by the competent authority and after issuing of fitness certificate by the competent authority opposite parties were under legal obligation to ply bus for the welfare of general public under system of deferred payment. State Commission is of the opinion that deferred payment will be presumed in the present case because till date opposite party had not provided any bus service to the complainant upon public road.
12. It is held that present consumer complaint falls within the definition of system of deferred payment when such service would be availed by the general public. It is held that in view of above stated facts consumer complaint is maintainable Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. (F.A. No.121/2017) before District Forum under section 2(1)(o) of Consumer Protection Act 1986. It is held that potential facilities in connection with transport falls within the definition of 2(1)(o) of Consumer Protection Act 1986. It is held that complaint by registered society falls within definition of consumer as defined in section 2(m) of Consumer Protection Act 1986. Registered society under Societies Registration Act 1860 has been defined as person under section 2(m) of Consumer Protection Act 1986. Point No.1 is decided accordingly. Point No.2: Final Order
13. In view of findings upon point No.1 above appeal is allowed and order of learned District Forum dated 17.04.2017 announced in consumer complaint No.307/2016 is set aside and complaint is restored to its original number. It is held that consumer complaint by potential consumer before learned District Forum qua facilities in connection with transport under system of deferred payment when such services will be availed falls within the definition of consumer as defined under section 2(1)(o) of Consumer Protection Act 1986. Learned District Forum will dispose of complaint within two months after receipt of file strictly in accordance with law and proved facts. Learned District Forum will obtain evidence of the parties by way of affidavits strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986. Observation will not effect the merits of complaint in any manner. Parties are directed to appear before learned District Forum Mandi on date Himachal Pradesh Upbhogta Sangh (HPUS) Versus M.D. H.P. Transport Corporation (HRTC) & Ors. (F.A. No.121/2017) 12.10.2017. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of. Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 21.09.2017. K D *
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