Union of India vs AJAY SINGH

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter called the ''Act'') against judgment and order dated 11.5.2001 passed by District Consumer Forum, Pratapgarh in Complaint Case No. 225 of 1998.

A complaint was preferred with the allegations that the complainant got installed telephone No. 43314 in the year 1991-92 which had nicely worked in the year and since then right from the year 1993-94 it started functioning wrongly and thus it was out of order for 40 months. In spite of written and oral complaints, the telephone connection was not set right. Consequently alleging deficiency in service complaint was filed. Although notices were sent to opposite party who appeared on 6.7.1999 prayed for time, written statement was not filed and consequently ex parte proceedings were ordered to be initiated and vide impugned order the complaint was allowed. Opposite Party No. 2, i.e., the appellant, was directed not to realize the payment from 28.12.1998 to 31.12.2000 and also compensation of Rs. 5,000/- and cost of Rs. 2,000/- were awarded.

Aggrieved of the same the present appeal has been filed.

WE have heard the learned Counsel for the parties and have perused the records available. In the memo of appeal all that was pleaded was that although time for preparing written statement was requested for but the same was not granted and consequently ex parte order was said to be contrary to law and was suffering from lack of opportunity of hearing. However, during the course of hearing it was brought to the notice that the respondent was not a consumer and was only a franchise holder who has been provided with the facility of maintaining public call office and the matter of grievance as alleged in the complaint, thus was argued, could not have been adjudicated by the Consumer Forum. The learned Counsel for the complainant however placed reliance on the case of Laxmi Engineering Works v. S.G. Industrial Institute, II (1995) CPJ 1 (SC)=AIR 1995 Supreme Court, p1428 and it was argued that the said PCO was obtained for earning livelihood and in view of the aforesaid ratio of the Hon''ble Supreme Court the complainant was a consumer within the meaning of Section 2(d)(i) of the Act. This argument on the face of it is not acceptable. The ratio on which reliance has been placed by learned Counsel for the complainant has no applicability. The complainant is only a franchise holder and is not a licensee of the grantor of the franchise.

IN the case of General Manager, Madras Telephones & Ors. v. R. Kannan, I (1994) CPJ 14 (NC) it has been held as under: "A franchise holder is only a licensee of of the grantor of the franchise for operating in this case the STD/PCO and collecting the call charges on behalf of the franchiser. It is the franchise holder who is rendering service to the grantor of the franchise inasmuch as he runs and maintains STD/PCO relieving the Telecom Department of the responsibility for providing and maintaining public call offices. The franchise holder performs two functions; (a) establishes and runs a public call office; and (b) collects the call charges on behalf of the department. For rendering these services to the franchiser, the franchise holder gets a commission. The mere fact that the franchise holder has been described as the hirer of the PCO does not make him a person who renders services to the Revision Petitioner, Telecom Deptt. Consequently the fact that he has been described as hirer in the agreement would not mean that he is rendering a service to the telecom department for consideration. A franchise holder renders service to those who use the Public Call Office which is performed by the Telecom Department directly wherever there is no franchiser to manage a Public Call office. Consequently it is erroneous to hold in this case that the franchise holder, who is maintaining and running a STD/PCO office, is consumer vis-a-vis, the revision petitioner, Telecom. Department". Thus it is concluded that the capacity of the complainant is only of a franchise holder and consequently a licensee of the grantor of the franchise and not a consumer. Within the meaning of Section 2(d)(i) of the Act and, therefore, he cannot call himself to be hirer of services of Telephone Department. Contrary finding thus are not liable to be sustained. The appeal is liable to be allowed. ORDER The appeal is allowed and the judgment and order of the learned District Forum are set aside. There will no order as to the costs. Appeal allowed.