NATIONAL SAVINGS vs DINENDRA NARAIN RAY

DELAY in filing revision is condoned.

IN this revision, challenge is to the order dated 15.12.2005 of Consumer Disputes Redressal Commission Jharkhand, Ranchi dismissing appeal against the order dated 16.7.2004 of a District Forum whereby petitioner was directed to pay amount of Rs. 16,999.91 towards commission and Rs. 8,000 as compensation to the respondent. Before adverting to the submissions advanced by the parties learned Counsel, few facts need be referred to. The respondent/complainant was appointed as agent on 20.12.1993 vide certificate of authority No. 364/93-94 to canvass orders for subscription to the Public Provident Fund Scheme by the petitioner/opposite party. He was to be paid commission @ 1% on each deposit. Respondent alleged that a sum of Rs. 16,999 towards commission was due to him from the petitioner which it had failed to pay. Complaint filed for recovery of this amount alongwith compensation preferred by the respondent was contested by the petitioner by filing written version. One of the pleas taken in written version was that respondent not being a ''consumer'' under the Consumer Protection Act, 1986 ( for short the ''Act'') the complaint itself was not maintainable. However, this plea did not find favour with either of the two Fora below.

Controversy in this revision centres around the issue if the respondent is a ''consumer'' qua the petitioner?

SUBMISSION advanced by Mr. Jaswinder Singh for the petitioner was that the respondent is not a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act inasmuch as for securing business the petitioner did not render any service to him nor for the alleged service hired it was paid any consideration by the respondent. In support of the submission, strong reliance was placed on the decision in R.P. No. 250/94, Regional Director, National Savings v. Smt. Kusum Gupta, decided on 1.3.1995 by this Commission. On the other hand, relying on the decision in Marine Container Services South Pvt. Ltd. v. Go Go Garments, (1998) 3 SCC 247, the contention advanced by Mr. A.K. Ray for the respondent was that the complaint filed by respondent was maintainable under Section 230 of the Contract Act. To be only noted that both these decisions were also cited before the Fora below but the Fora below was of the view that complaint was maintainable as view of the decision in Go Go Garments'' case (supra). Question which arose for consideration before the Supreme Court in Go Go Garments'' case was in regard to applicability of Section 230 of the Contract Act to the complaint(s) filed under the Act. Apex Court held that the Contract Act does apply to the complaints filed under the Consumer Protection Act, 1986. Section 230 of the Contract Act which is material, reads thus : "230. Agent cannot personally enforce, nor be bound by, contract on behalf of principal-In the absence of any contract to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. Presumption of contract to contrary-Such a contract shall be presumed to exist in the following cases : (i) Where the contract is made by an agent for the sale or purchase to goods for a merchant resident abroad; (ii) Where the agent does not disclose the name of his principal; (iii) Where the principal though disclosed, cannot be sued."

In para No. 5 of the said decision at pages 248 and 249 of the report it was held : "5. The District Consumer Disputes Redressal Forum, Madras before whom the respondent had instituted the claim had found in favour of the appellant, both on the basis of Section 230 of the Contract Act as also on the issue of limitation. The State Consumer Disputes Redressal Commission, Madras in appeal, upheld the decision of the District Forum based on Section 230 of the Contract Act and , therefore, found it unnecessary to consider the aspect of limitation. The National Forum, as aforesaid, took the contrary view on the applicability of Section 230 of the Contract Act on the mistaken basis referred to above as also by reliance on the third clause of the presumptions to the contrary in Section 230, that is to say that an agent is bound by a contract entered into by his principal who though disclosed, cannot be sued. That the principal here is "some company in Taiwan situated far outside the jurisdiction of the Consumer Courts in India" does not mean that it could be inferred, for it had not been so found by the District or State Commissions, that it could not be sued.

IN our view, this decision was rendered entirely in a different context and has no applicability to the facts of present case. Without fulfilling the ingredients as envisaged by said Section 2(1)(d)(ii) the respondent cannot be a ''consumer'' so as to maintain a complaint under this Act. IN Kusum Gupta''s case (supra) it was held that the respondent (complainant) being merely a commission agent appointed by the opposite party/petitioner to canvass the orders for subscription to National Savings Certificate Scheme would not fall within the scope of definition of ''consumer'' as defined in Consumer Protection Act, 1986 and the complaint filed before the District Forum was, thus, totally mis-conceived. IN our opinion, this decision squarely covers controversy involved in the present revision. Complaint filed by the respondent was not maintainable and the orders passed by Fora below, therefore, deserve to be set aside being not legally sustainable. Accordingly, while allowing revision the aforesaid orders passed by Fora below are set aside and complaint dismissed. No order as to cost. Revision Petition allowed.