M.R.ANANTHAPADMANABHARAO vs SOUTH EASTERN ROADWAYS

IN this appeal, the short point for consideration is whether the conclusion arrived at by the District Forum that the complainant was not a consumer is not sustainable.

THE complainant, who is a supplier of chemicals sent a consignment of ''hydrasine hydrate'' (hereinafter called ''the goods'') to Cochin Refineries Ltd. (hereinafter called ''CRL'') through opposite party No. 1-M/s. South Eastern Roadways, under invoice dated 5.8.1991. In the quotation, the complainant had stipulated that the value of goods was to be paid either in advance at the time of placing the purchase order or the documents of title to the goods would be negotiated through a Bank. This condition was meant to ensure that the complainant was paid the money due to him before CRL obtained possession of the goods. THE CRL had signified in its purchase order that it prefers to have the documents of title to the goods negotiated through opposite party No. 2-State Bank of Travancore. It is the case of the complainant that in terms of this arrangement, CRL made payment of a sum of Rs. 54,132/- to opposite party No. 2 towards value of the goods consigned by the complainant, but opposite party No. 2, instead of making it over to the complainant on due delivery of the goods, returned the money to CRL unlawfully. It is stated that opposite party No. 1 on its part has delivered the goods to CRL without collecting the requisite lorry receipt from the consignee-CRL in flagrant violation of business norms and time-honoured commercial practice. This, according to the complainant, has resulted in an avoidable loss of Rs. 89,872/-, including interest and compensation for business oriented anxiety and anguish. He has, therefore, approached the District Forum to award necessary relief to cover the loss incurred by him.

One of the contentions raised by opposite party No. 1 is that the complainant does not fit into the definition of a ''consumer'' under the Consumer Protection Act, 1986 (for short ''the Act'') inasmuch as no consideration is paid or payable by the complainant to opposite party No. 1 since, according to the transaction terms, CRL was supposed to pay the transportation charges to opposite party No. 1 and not the complainant. It is, therefore, contended that in such an arrangement, there is no flow of consideration from the complainant to opposite party No. 1 and hence the complainant cannot acquire a consumer-tag against opposite party No. 1 for the purpose of instituting a complaint. The District Forum took this aspect as a preliminary issue and relying on a decision of this Commission in The Manager, Karnataka State Financial Corporation & Anr. v. Syed Iqbal Hussain & Anr., reported in I (1994) CPJ 414, came to the conclusion that the complainant was not a consumer and hence dismissed the complaint as not maintainable. This appeal is directed against the said order of the District Forum.

THE appellant has admitted that according to agreement between the parties he was supposed to book the goods through opposite party No. 1, but the transportation charges was to be paid by CRL. According to appellant this arrangement prima facie implies that there was specific approval from CRL for availing the services of opposite party No. 1 which by extension means that the transportation charge is supposed to be paid by CRL on behalf of the complainant. Mr. Venkatesh Arbatti, learned Counsel for the complainant contended that the word ''consumer'' defined in the Act includes a person who avails of services even where the consideration is paid or payable by a third party and in that view, the complainant has enough credentials to be considered as a consumer in the true sense of the definition under the Act. Mr. Vishwanath, and Mr. P.C. Zacharia, learned Counsels argued respectively for opposite party No. 1 and opposite party No. 2 contended that in the absence of any consideration flowing from the complainant even remotely, the complainant stands disrobed of his claim as a consumer and hence the conclusion arrived at by the District Forum is just and proper. The learned Counsels also contended that in this view of the matter the appeal is liable to be dismissed on this preliminary issue alone without going into the merits of the case.

APPROPOS such rival contentions pressed into service before us, it is relevant to recapture what Section 2(1)(d) sets out as the true attributes of a consumer. The said section reads as follows : "(d) ''Consumer'' means any person who- (i) buys any goods 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 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 person who obtains such goods for resale or for any commercial purpose; or (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."

The group of words coming in for due analysis in the context of the rival contentions raised before us are ''hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised''. It goes without saying that payment of consideration is the prime requirement for a person to step into the definition of a consumer, but, the not-too-obvious aspect of the words deployed in this clause relates to whether the hirer or availer of service alone should pay consideration for the service hired or availed, or he could support the consumer-tag even if someone else pays consideration for and on his behalf. The wordings are ominously silent on this aspect. Nevertheless, if it were the legislative intention that the hirer or availer of services alone should pay consideration directly, there is every reason to believe that such intention would have been reflected by necessary modulation in the wordings. The fact that the wordings have remained unchanged even after certain amendments were made in 1993 to supply certain omissions elsewhere in the Act gives sufficient reasons to believe that the net is allowed to be cast wide enough to reckon a person as a consumer even in cases where consideration agreed upon is paid or promised or partly paid and partly promised by a person other than the promisor. In other words so long as the promisee is in receipt of consideration for and on behalf of the promisor from whatever source, the promissor does not lose his identity as a consumer under the Act. This proposition gains sustenance from the fact that such payment by a third party is made in the case in hand with a tripartite consensus as between the parties involved, and from the stand point of the promisee it is as good a payment as from the promisor. It is evidently in view of such a proposition that Clause (ii) reproduced above has remained silent with regard to the identity of the person from whom consideration for the service hired or availed should flow. Therefore, the intention entrenched in the wordings deployed in the Clause can be reasonably construed as embracing any other person volunteering, willing, opting or agreeing to pay consideration for and on behalf of a person who hires or avails a service. In this context it has to be remembered that judicial authorities are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the statutes, but on the converse principle that every procedure is to be understood as permissible till it is shown to be prohibited by the law. As a matter of general principle, prohibitions cannot be presumed. In this view of the matter, we are of the view that such a construction of the provisions is wholly consistent with the overall scheme of the Act, and hence it has to be held that the complainant in the instant case has necessary credentials to be termed as a ''consumer'' within the meaning of that expression under Section 2(1)(d)(ii) of the Act. If that be so, the natural corollary is to hold that the District Forum was not justified in dismissing the complaint as not maintainable on the preliminary point that the complainant is not a consumer. Consequently, the case is liable to be remitted back to the District Forum.

IN the view that we have taken above, we make the following : Order The appeal is allowed. The order passed by the District Forum is set aside. The matter is remitted back to the District Forum for fresh disposal on merits in accordance with law on priority, giving opportunities to either side to produce such evidence as they would like to produce. IN the circumstances of the case, we make no order as to costs in this appeal. Appeal allowed.