REGENCY VAULTS LIMITED vs D.C.KHANNA

THE present appeal, filed by the appellant, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') is directed against order dated 22.5.2000 passed by District Forum (North West), Shalimar Bagh, Delhi in Complaint Case No. 1941/1999 entitled Dr. D.C. Khanna v. THE Director, Regency Vaults Limited.

THE facts, relevant for the disposal of the present appeal, briefly stated, are that the respondent Dr. D.C. Khanna had filed a complaint under Section 12 of the Act before the District Forum averring therein that the respondent in the year 1994 had opened a locker with the appellant M/s. Regency Vaults Limited and had deposited an amount of Rs. 2,500/- as security for the said locker with the appellant. It was stated that the annual rent of that locker was Rs. 250/- which was subsequently increased to Rs. 350/- per annum. THE Lease Agreement, executed between the parties in respect of the above said locker was renewed yearly from 8.11.1994 till 7.11.1999. It was stated that on 7.11.1999 the above locker was surrendered by the respondent and the respondent requested for the return of the security deposit. In the complaint, filed by the respondent, before the District Forum the grievance of the respondent Dr. D.C. Khanna, in nutshell, was with regard to the non-refund of the security deposit amounting to Rs. 2,500/- by the appellant. The claim of the respondent in the District Forum was resisted by the appellant and in the reply/written version filed on behalf of the appellant, the appellant had taken certain preliminary objections stating therein that the respondent was not a consumer within the meaning of Section 2(1)(d) of the Act; that the alleged dispute is not a consumer dispute; that the respondent had not approached the District Forum with clean hands and had concealed true facts; that the relationship between the respondent and the appellant was contractual and stood terminated on the date the respondent surrendered the locker; that the appellant was neither providing any service within the meaning of Section 2(1)(o) of the Act, nor was there any deficiency in service within the meaning of Section 2(1)(g) of the Act on the part of the appellant and that the complaint filed by the respondent was not bona fide but mala fide. On merits, while denying each and every allegation, it was stated that the complaint, filed by the respondent be dismissed with costs.

The learned District Forum vide impugned order has held the appellant guilty of deficiency in service and on the basis of the above finding has directed the appellant to refund the security deposit of Rs. 2,500/- after deducting Rs. 350/- on account of rental charges from 8.11.1998 to 7.11.1999 on the surrender of original receipts by the respondent. The District Forum has also directed the appellant to pay a sum of Rs. 1,000/- to the respondent for harassment. Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.

A notice of the appeal, filed by the appellant, was issued to the respondent but as the respondent, despite service of notice on him, neither cared to appear nor cared to file any reply, the respondent was proceeded ex parte in the present proceedings vide order dated 31.3.2003. We have heard the learned Counsel for the appellant at length and have also carefully gone through the documents/material on record. On the basis of memorandum and grounds of appeal, the other material on record and the contentions advanced at the Bar by the learned Counsel for the appellant, the following questions arise for our consideration in the present appeal : (1) Whether Dr. D.C. Khanna (complainant in Complaint Case No. 1941/1999 - entitled Dr. D.C. Khanna v. The Director, Regency Vaults Limited) was a consumer within the meaning of Section 2(1)(d)(ii) of the Act ? (2) Whether the appellant in the given facts was providing any ''service'' for consideration to the respondent Dr. D.C. Khanna within the meaning of 2(1)(o) of the Act ? (3) Whether in the given facts can it be stated that there was any deficiency in service on the part of the appellant within the meaning of Section 2(1)(g) of the Act ? (4) Whether the appellant is entitled to any relief in the present appeal ?

Question Nos. 1 and 2

SINCE both the above questions are inter-connected, we would be dealing with the same together. The term ''Consumer'' has been defined in Section 2(1)(d) of the Act and, therefore, it would be appropriate for us to refer to that definition of the word ''Consumer'' at this stage, which reads as under : "''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; Explanation-For the purpose of Sub-clause (i) "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment."

The term ''Service'' has been defined in Section 2(1)(o) of the Act which runs as under : "''Service'' means service of any description which is made available to potential users and includes 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."

On a bare reading of the above provisions of the Act, it is apparent that the definition of the word ''Consumer'', as defined in Clause (d) of Sub-section (1) of Section 2 and that of the word ''Service'' as defined in Clause (o) of Sub-section (1) of Section 2 of the Act, is of a wide sweep. The above provisions of the Act as contained in Sections 2(1)(d)(ii) and (o) came up for consideration before the Hon''ble Supreme Court in case of Lucknow Development Authority v. Shri M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243, and Their Lordships of the Hon''ble Supreme Court in the above said case have helds : "To begin with the Preamble of the Act which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word ''protection'' furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact, the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory.... The word ''consumer'' is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as ''a purchaser of goods or services''. In Black''s Law Dictionary it is explained to mean, ''one who consumes. Individuals who purchase, use, maintain and dispose of products'' and services. A member of that broad class of people who are affected by pricing policies, financing practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which State and Federal Consumer Protection Laws are enacted. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx The legislature has taken precaution not only to define ''complaint'', ''complainant'', ''consumer'', but even to mention in detail what would amount to unfair trade practices by giving an elaborate definition in Clause (r) and even to define ''defect'' and ''deficiency'' by Clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense or user of services."

IN case of Neela Vasant Raje v. Amogh INdustries & Anr., reported as III (1993) CPJ 261 (NC)=(1986-1995) CONSUMER 446 (NS), the Hon''ble National Commission has held : "IN interpreting a social welfare legislation one should not make a narrow approach but should be guided by the principles of benevolent interpretation which will help to promote and achieve the object and purpose of the Act namely, to protect the interest of consumers and suppress the evil sought to be remedied by the statute namely the unscrupulous exploitation of consumers. The main part of the definition of the expression ''service'' is couched in the widest possible language and it is expressly covers ''service of any description'' other than any service rendered ''free of charge'' or ''under a contract of personal service''. The mere fact that a particular form of arrangement for provision of a facility does not fall within any of the specified categories enumerated in the inclusive part of the definition is absolutely of no consequence as long as the arrangement entered into between the parties is one of rendering ''service'' as that expression is generally understood in common parlance."

(Emphasis supplied)

ON the basis of material on record it is an admitted fact that the respondent Dr. D.C. Khanna had taken locker No. A-201 on rent from the appellant w.e.f. 8.11.1994 on an annual rent of Rs. 250/- per annum which was subsequently increased to Rs. 350/- per annum. It is also an admitted fact that interest free refundable security, amounting to Rs. 2,500/- was deposited by the respondent with the appellant at the time of taking the locker on rent. The respondent surrendered the locker to the appellant on 24.7.1999. From the above facts, the correctness which is not disputed even by the appellant, it is apparent that the respondent was availing of the services, being provided by the appellant for consideration. The above mentioned decisions of the Apex Court and that of the Apex Commission, in the given facts, clinch the matter finally and placing reliance on the above said decisions of the Hon''ble Supreme Court and that of the Hon''ble National Commission, we have least hesitation in holding that the respondent Dr. D.C. Khanna was decidedly a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act and the appellant in the given facts, was providing ''service'' for consideration within the meaning of Section 2(1)(o) of the Act. Question No. 3 During the course of arguments it was contended by the learned Counsel for the appellant that in the given facts there was no deficiency in service on the part of the appellant. Insofar as the above aspect is concerned, it is not in dispute that at the time of taking the locker on rent from the appellant the respondent had made a deposit of Rs. 2,500/- which was interest free security deposit refundable at the time of surrendering the locker in question. It is also not in dispute that the respondent surrendered the locker on 24.7.1999. The grievance of the respondent, in the complaint, filed by him, before the District Forum, in nutshell, was that the security deposit, made by him at the time of taking the locker on rent was not being refunded to him. On the other hand the case of the appellant is that in terms of the agreement dated 8.11.1994, executed between parties, the respondent was entitled to the refund of the security deposit after deducting a sum of Rs. 350/- being rental charges of the locker in question from 8.11.1998 to 7.11.1999, another sum of Rs. 105/- as penal interest on delayed payment of lease money and Rs. 500/- as surrender charges. On a perusal of the impugned order it is apparent that no copy of lease agreement dated 8.11.1994 was placed on record by the appellant before the District Forum. Even in the present appeal no copy of that document has been placed on record by the appellant. It cannot be disputed that the production of the above said document before the District Forum or even before us was a matter of utmost importance because the rights and obligations of the parties flow from that document. The appellant has withheld that vital document before the District Forum and even at the appellate stage before us and, therefore, an adverse inference has to be drawn against the appellant. Since the document (lease agreement dated 8.11.1994) has not been produced before us, the claim of the appellant for the charge of Rs. 105/- on account of penal interest and another sum of Rs. 500/- as surrendering charges of the locker does not appear to be justified and the learned District Forum has rightly ignored the above claim while passing the impugned order. Rental charges from 8.11.1998 to 7.11.1999, amounting to Rs. 350/- have been allowed to be deducted by the learned District Forum from the amount of the security deposit to be refunded by the appellant to the respondent. Since the appellant, on the surrender of the locker in question by the respondent, failed to refund the security deposit, decidedly there was ''deficiency in service'' on the part of the appellant within the meaning of Section 2(1)(g) of the Act. Quetion No. 4 In view of our findings in respect of question Nos. 1, 2 and 3 above, no relief in the present appeal can be given by us to the appellant. The order being impugned in the present proceedings is a well reasoned order which takes due care of the interest of both the parties. The same, as a matter of fact, suffers from no infirmity so as to call for any interference by this Commission in exercise of its appellate powers. The present appeal, filed by the appellant is, therefore, devoid of substance. The same merits dismissed. Accordingly, the same is dismissed. In the facts and circumstances of the case, the parties are left to bear their own costs. The above mentioned appeal, filed by the appellant, stands disposed of in above terms. Appeal dismissed.