S.S.SARNA vs GENERAL MANAGER, TELEPHONE

THE short question but of great significance is involved in this appeal. THE question is as to whether family member of a subscriber of a telephone can be a consumer, as defined under the Consumer Protection Act, entitled to move the FORA for the relief.

TELEPHONE No. 601689 was installed in the name of Harpreet Singh at his residential address House No. 738, Sector 39, Ludhiana. His father S.S. Sarna is also resident of the same house and it is Mr. Sarna who lodged a complaint before the District Forum regarding faulty telephone aforesaid causing mental harassment and inconvenience. Since the complaint was finally disposed of by the District Forum on the technical ground that the complainant was not a consumer as defined, no opinion on merits of the complaint out of pleadings of the parties is being made. Suffice it to say that Mr. Sarna in the complaint pleaded that the telephone was installed at his residence in the name of his son Harpreet Singh and it is Mr. Sarna who has been a potential user of the same. Some evidence was also produced to indicate that Harpreet Singh had been posted at Bombay and felt inconvenience to contact his father and other family members on the telephone on account of defect in the telephone. The District Forum did not accept the version of the complainant on the ground that proper affidavit in support of the allegations made in the complaint was not filed. We find that this approach is not correct. No specific form of affidavit is prescribed under the Consumer Protection Act or the rules framed thereunder. In the summary jurisdiction, the FOR A has been authorized to take on the record evidence on affidavit. A short affidavit, of course, was filed by the complainant stating therein that the contents of his complaint be read as part of affidavit and the same were correct and true. We find no infirmity in the affidavit as such. When the complainant has sworn to the correctness of the facts stated in the complaint which were to be part of the affidavit as such, the same could not be ignored. Even if the affidavit aforesaid is found to be defective, for proper adjudication of the cause, the complainant should have been given an opportunity to produce a detailed affidavit. To deny the relief, which is legitimate otherwise on the technical ground as stated above is not proper. The whole purpose of the Act would stand frustrated if on technical grounds, relief is declined by the FORA.

Section 2(1)(d) of the Consumer Protection Act defines the consumer as under : " ''consumer'' means any person who - (i) buys any goods for a consideration which has been paid or promised or partly paid and party 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 includes 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 or 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 payments, when such services are availed of with the approval of the first-mentioned person."

SINCE the present is a case covered by Clause (ii) as reproduced above, it is a case of hiring services of the opposite party in the mate of rendering telephone services to Harpreet Singh. Not only Harpreet Singh would be a consumer but the beneficiaries of that contract would also be consumers. The Telephone Department has issued instructions vide No. 30-63/ 57-PHC dated March 7, 1958. Para 2 of such instructions reads as under: "A telephone taken by a subscriber is meant primarily for his personal use or for the use of persons who are members of his family in case of residential connections or who are his direct assistants or direct associates in a particular business in case of connections at business premises. Purely casual use of such telephone by an outsider may not be considered misuse so long as the hirer is main primary user."

The aforesaid instructions would further make it clear that not only the subscriber but his relations, family members, associates are also permitted to use the telephone. SINCE in the present case, father was using the telephone, though in the name of his son Harpreet Singh, the father would be a beneficiary of the services, hence a consumer, as defined, entitled to file the complaint. The complaint filed by S.S. Sarna is, therefore, held to be maintainable. The case, thus, deserves to be remanded to the District Forum for decision on merits. It is made clear that if additional affidavit is produced by the complainant with regard to some documents subsequently produced, the same would be permitted. For the reasons recorded above, this appeal is allowed. The order of the District Forum is set aside. The case is remanded to the District Forum for decision on merits according to law as above. The parties are directed to appear before District Forum, Ludhiana on 28.4.1999. Copy of the order alongwith District Forum records be sent there promptly. Appeal allowed.