K.Parthasarathy vs UNITECH LTD.

FIFTEEN complainants, owners of different flats in the ''F-Block'' of the residential complex known as Terrace Garden Apartments constructed and sold by the respondent having common purpose, have filed this complaint praying for a direction to pay as compensation to each of the complainants the amount indicated in the complaint in paragraph-4, the said amount individually less than Rs. 1,00,000/-, to pay additionally a lumpsum compensation of Rs. 5,000/- to each complainant for the daily inconvenience caused and to pass such other reliefs as this Hon''ble Commission may deem appropriate. However, the complainants made the aggregate compensation claimed by them at Rs. 7,93,050/- so as to attract the jurisdiction of this Commission.

AT the time of filing the complaint, office had raised objections regarding the maintainability of the complaint on the ground of joint complaint by different complainants and also on pecuniary jurisdiction and posted the matter regarding maintainability. On the basis of the notice issued by this Commission, the same objections regarding the maintainability of the complaint has been raised by the respondent in its written version. Hence, we heard the matter regarding maintainability of the complaint.

Mr. K. Anantha Raman, the learned Advocate appearing for the complainant submitted that in view of Section 2(1)(b)(iv) of the Consumer Protection Act (hereinafter referred to as ''the Act''), one or more consumers, where there are numerous consumers having the same interest can file the complaint. He has elaborated his argument by submitting that complainants are integrated association of persons as referred to in Section 2(1)(m)(iv) having a common purpose as disclosed in the complaint. According to him, they are consequently covered by the definition of ''Person'' given in Section 2(1)(m) and of ''Consumer'' defined under Section 2(1)(d)(ii) and of ''Complainant'' under Section 2(1)(b)(i). In this connection, he has invited our attention to a decision of the National Commission reported in II (1991) CPJ 213 (NC), Orissa Lift Irrigation Corp. Ltd. & Ors. v. Birakishore Rout & Ors., and placed reliance on the following paragraphs : "13. It would appear that, on larger considerations, the Legislature knowingly allowed a voluntary association of a number of persons, who are also individual consumers, to seek redress under the Consumer Protection Act, through a joint complaint. It is hardly necessary to emphasise that a petty individual consumer may find it extremely difficult to prosecute a complaint under this Act because he may be illiterate and ignorant of law, may not have the resources and the time to prosecute the complaints before the various Forums and may not find it worthwhile to seek relief under the Act for individual complainants which necessarily would be petty individually. It is perhaps in that context that the voluntary consumer associations registered under a law have been specifically clothed with locus standi in respect of complaints under the Act. Viewed in this background it is in the interest of providing protection to consumers that any association of persons, whether registered under the Society Registration Act or not, are deemed to be a person and, therefore, a consumer under Section 2(1)(d) of the Act.

An association of persons to have locus standi as a consumer, it is necessary that all the individual persons forming the Association must be consumers under Section 2(1)(d) of the Act, that they must have purchased any goods or hired service for consideration; they must have purchased the same goods or hired the same service from the same party, and more or less over the same period in short they should have a common cause of action.

The State Commission was, therefore, justified in rejecting this preliminary objection of the LICL regarding the locus standi of the complainants and the jurisdiction of the State Commission both with reference to the agreement executed by the LICL with the cultivators and the provisions of the Consumer Protection Act."

REGARDING the second objection, the learned Advocate Mr. Anantha Raman has placed reliance on the decision of the National Commission reported in I (1992) CPJ 182 (NC)=1992 (1) CPR 569, Public Health Engineering Department v. Upbhokta Sanrakshan Samiti, and placed reliance on paragraph-5 of the said judgment. The same is as follows : "5. In our opinion this proposition is clearly wrong since under the terms of Section 11 of the Act the pecuniary jurisdiction of the District Forum would depend upon the quantum of compensation claimed in the petition. The view expressed by the State Commission is not based on a correct understanding or interpretation of Section 11. On the plain words used in Section 11 of the Act, the aggregate quantum of compensation claimed in the petition will determine the question of jurisdiction and when the complaint is filed in a representative capacity on behalf of several persons, as in the present case, the total amount of compensation claimed by the representative body on behalf of all the persons whom it represents will govern the valuation of the complaint petition for purpose of jurisdiction."

We heard Mr. Pandith, the learned Advocate for respondent on these two points. He invited our attention to Section 13(6) of the Act which deals with the procedure on receipt of complaint. His submission is that this section is introduced by the Legislature on 18.6.1993 with a purpose. If we consider this sub-section, the joint complaint filed by the present complainants is not maintainable.

AS far as the decision reported in II (1991) CPJ 213 (NC), cited by the other side is concerned, his argument is that the said decision is earlier to the introduction of Section 13(6) of the Act and hence it has no relevance to the facts of the present case. He has also pointed out that in the said case, there was a single agreement between the parties and since there was violation of the condition of the agreement, joint complaint was filed and the National Commission has held that protection of such clause would be available if the Corporation had taken all the reasonable steps which were within its control. Coming to the second contention, his argument is that each complainant has claimed separate relief in the said complaint. It will be less than Rs. 1 lakh and for the purpose of jurisdiction that will be the valuation and not the aggregate valuation. As far as the decision in 1992 (1) CPR 569 , cited by the learned Advocate Mr. Anantha Raman regarding jurisdiction is concerned, Mr. Pandith submitted, that was a complaint filed in a representative capacity on behalf of several persons and that will not help the complainants in the present case. Let us consider the present complaint in the light of the arguments advanced on both the sides and in view of the provisions of the Act. Section 2(1)(b) deals with ''complainant'' and (iv) reads as follows : "2(1)(b)(iv) : One or more consumers, where there are numerous consumers having the same interest." Section 2(1)(c) is the definition of ''complaint'' and ''consumer'' is defined in Section 2(1)(d) of the Act. Jurisdiction of the District Forum is dealt with in Section 11 and the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees five lakhs. Section 12 which deals with manner in which complaint shall be made reads as follows : "12. Manner in which complaint shall be made-A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum, by,- (a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided; (b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d) the Central or the State Government. Explanation : For the purposes of this section, "recognised consumer association" means any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or any other law for the time being in force."

Section 13 speaks about the procedure on receipt of complaint Section 13(6) which is relevant for our purpose is extracted below : "13(6) : Where the complainant is a consumer referred to in Sub-clause (iv) of Clause (b) of Sub-section (1) of Section 2, the provisions of Rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (Act 5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon."

AS mentioned above, the new Sub-section (6), Section 13 was introduced on 18.6.1993. In view of this section, the complainant, as mentioned in Sub-clause (iv) of Clause (b) of Sub-section (1) of Section 2, has to file a complaint as prescribed under Order 1, Rule 8 of the First Schedule to the Code of Civil Procedure.

SECTION 17 deals with the jurisdiction of the State Commission whereas SECTION 18 deals with the procedure applicable to State Commissions, which reads as follows : "18. Procedure applicable to State Commissions-The provisions of SECTIONs 12, 13 and 14 and the rules made thereunder for the disposal of complaints by the District Forum shall, with such modification as may be necessary, be applicable to the disposal of disputes by the State Commission."

In view of this section, the provisions of Section 13 are also applicable to State Commission.

Order 1, Rule 8(1) of the First Schedule to the Code of Civil Procedure reads as follows : "One person may sue or defend of behalf of all in same interest.- (1) Where there are numerous persons having the same interest in one suit,- (a) one or more of such persons may, with the permission of the Court sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested. (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested."

SINCE the present complaint was filed on 7.8.1995, after coming into force of Sub-section (6) of Section 13 of the Act and the complaint filed is not as prescribed under the provisions of Rule 8 of Order 1 of First Schedule to the Code of Civil Procedure, we hold that the complaint filed is not maintainable. SINCE on the first objection itself we are of the opinion that the complaint is not maintainable, we will not give any finding on the second objection. Accordingly, we dismiss this complaint as not maintainable. No costs. Complaint dismissed.