ASS. ENG., RAJASTHAN STATE ELEC. BOARD vs PANI

BY this appeal under Section 15 of the Consumer Protection Act, 1986 ("The Act" herein) the opposite party-before the District Forum, Ajmer questions the correctness and legality of the order dated 18-7-1990 passed in Complaint Case No. 222/90. BY the order under appeal, the opposite-party-appellant was directed to pay a sum of Rs. 4,000/- as compensation to the complainant. The facts leading to this appeal lie in a narrow compass.

THE complainant-respondent filed a complaint under Section 12 of the Act before the District Forum, Ajmer on 15-9-1989 alleging that her buffalo died on 8-7-1989 on account of touching D.P. in kilechowk, Fatehgarh, Panchayat Samiti Area, District Ajmer. It is stated by the complainant that the buffalo had died for non-providing of the safety measures by the opposite party-appellant as there was no compound wall to the transformer and, no sign of danger was there. On account of the negligence of the opposite party appellant, the complainant claimed a sum of Rs. 8,000/- from the opposite party. The opposite party filed a version of the case contesting the complaint. It was stated in it that no buffalo as alleged or otherwise had died. The claim for compensation was also denied.

In support of the complaint the complainant submitted documents stating that the buffalo had died on account of electric current in the circumstances narrated in the complaint. The complainant examined herself as a witness. Besides that, statement of Mr. Parasmal was also recorded. The District Forum by the impugned order awarded a sum of Rs. 4,000/- as a compensation to the complainant stating amongst others that if the order is not complied with, the opposite party will be considered to have disobeyed the order Aggrieved, the opposite party-appellant has filed the appeal. The appeal was registered subject to all just exceptions.

A notice was issued to the respondent. In pursuance of which Smt. Vijay Laxmi Joshi representative of the respondent has appeared. She has submitted reply to the appeal supported by affidavit of the complainant. We have heard Mr. G.C. Garg, learned counsel for the appellant and Smt. Vijay Laxmi Joshi, representative of the respondent and considered the record and the other under appeal in the light of the submission made by the learned counsel for the appellant and Smt. Joshi, representative of the respondent.

A perusal of the order under appeal shows that before the District Forum a contention was raised that it has no jurisdiction to entertain the complaint under the Act. Holding that it has jurisdiction to decide the complaint, the District Forum ordered for the award of compensation to the complainant. It was the responsibility of the opposite party-respondent to have taken safety measures so that the electric current may not cause any damage and loss to any man or animal and as the buffalo of the complainant died on account of touching of the electric wire, the negligence of the opposite party is apparent. In view of the conclusion which we have arrived at that the complaint under Section 12 of the Act is not maintainable under the Act and the relief claimed on the facts alleged by the complainant cannot be granted under Section 14(1) of the Act, we do not consider it necessary to go into the merits of the finding recorded by the District Forum, Ajmer. ''Complainant'', ''Complaint'', ''Consumer dispute'', ''Deficiency'' and ''Service'' have been defined in Section 2(1) (b), (c), (d), (g) and (o) of the Act. The first and foremost question in this connection is whether the complainant is a "Consumer" as envisaged by Section 2(1)(d)(ii) of the Act. A further question is whether the complainant has hired any service of the opposite party-appellant for consideration. Both these questions are answered in the negative. The only conclusion is that the complaint is not maintainable. We have an occasion to consider a somewhat similar question in Complaint Case Nos. 73 and 75/90 (Kumari Pinki v. M/s Motor Aids Petrol Pump and others) decided on August 10,1990. After considering the definitions referred to hereinabove. It was observed in the above cases as under: "According to Section 2(1)(d)(ii) of the Act the person who alleges himself to be a consumer should have hired the services for consideration. Allied with this the question is whether there has been any hiring of services by the complainants and whether any consideration has been paid. The definition of expression consumer contained in sub-clause (ii) of clause (d) of Section 2(1) has to satisfy the test that he has hired service for a consideration. The connotation of the expression hire is "to acquire temporary use of a thing or the services in exchange of payment", "to procure the use of services at a price", to grant temporary use of for compensation". This is the ordinary plain, grammatical meaning of the expression "hire" as popularly understood and it would appear reasonable to assume that it is only in this sense that the word "hire" has been used in sub-clause (ii) of Section 2(1)(d) of the Act."

IN those cases reliance was placed on CUTS v. State of Rajasthan (First Appeal No. 2/89 decided on 15-12-1989 by the National Commission). The decision rendered by us in Kumari Pinki''s case (supra) and Sanju''s case (supra) was affirmed by the National Commission.

HAVING considered the complaint and the definitions given in the Act adverted to hereinabove, we are of considered opinion that the complainant is not a ''consumer'' as defined in Section 2(1)(d) of the Act and she cannot be said to have hired the services of the opposite party appellant for consideration. No relief could be granted to the complaint under the Act, by the Redressal Forums constituted under the Act. It follows that the District Forum, Ajmer had no jurisdiction to award compensation to the complainant-respondent on the basis of the complaint filed by her before it and the complaint should have been dismissed on this limited ground. In view of this as stated above it is not necessary to go into the merits of the order, but the appeal has to be allowed. After discussing with the learned counsel for the opposite party-appellant, it is hoped and expected that if any request is made by the complainant to the Chairman, RSEB, Jaipur to compensate her on account of the death of her buffalo he will sympathetically consider it.

It is further made clear hat this order will however, not preclude the complainant for seeking relief/reliefs from appropriate Forum/Court if it is permissible under Law.

THE result is that the appeal is allowed and the order dated 18-7-1990 passed by the District Forum, Ajmer in Complainant Case No. 222/89 is set aside and the complaint shall stand dismissed. In the circumstances of the case parties are ordered to bear their own costs. Complaint dismissed.