B.N. Sinha, President:
1. This appeal is directed against order dated 20th December, 1992 passed by the District Forum, Patna in Complaint Case No. 400 of 92 in which this appellant alongwith respondent No. 2 were opposite party and the respondent No. 1 here was the complainant before the District Forum.
2. At the time of hearing nobody appeared on behalf of the appellant and the respondent No. 1 who appeared in person was heard and the order was reserved.
3. The appeal has been presented before this Commission on 18.3.94 i.e., after the expiry of the period of thirty days from the date of the impugned order and hence an application sup- ported by an affidavit has been filed under Rule 8(4) of the Bihar Consumer Protection Rules (hereinafter called the Rules) stating the facts on which the appellant relies to satisfy this Commission that it has sufficient cause for not prefering the appeal within the period of limitation as specified u/Section 15 of the Consumer Protection Act (hereinafter called the Act). It is mentioned by the appellant that he could know of the impugned order only when a copy of the impugned order was served on him on 14.3.93 and before mat date he had no idea of the facts of the case as in the original case the notice only had been sent to him without a copy of the complaint/petition and therefore he wrote to the complainant asking for the complaint/petition which was never sent by the complainant nor by the District Forum; and the case was disposed of by the District Forum without giving this opposite party opportunity to file counter version and under the circumstances he had to obtain a copy of the complaint/petition to know the allegations made by the complaint before filing the appeal and he could get the copy on 17.3.93. Of course the memo of appeal has not been presented by the appellant within thirty days even from the date of getting the knowledge of the impugned order which was received by the opposite partyâappellant on 14th March, 1993. But it appears that three days were taken in obtaining copy of the complaint/petition without which the appellant could not have known the facts of the case, the perusal of which was necessary to decide if this appeal should be filed. Under the circumstances, we are satisfied that the sufficient cause has been shown by the appellant explaining the delay in filing the appeal and there are valid grounds for condoning the delay in filing this appeal. Hence the delay is condoned and the appeal is being disposed of on merit.
4. The facts of the case may be noticed with relative brevity. The opposite party No. 1 â Delhi Law Times Office is the publisher of the Law Journal known as Consumer Protection Judgments (hereinafter called C.P.J.) and the Universal book Traders - the opposite party No. 2 is a book-seller. The complainant purchased from the opposite party No. 2 (1991) (Vol. I) of C.P.J, for Rs. 108.00 and he also paid Rs. 90.00 to the opposite party No. 2 and got himself listed as a subscriber of C.P.J. The issue of CPJ for July to September, 1991 were delivered to the complainant by the opposite party No. 2 and the remaining issues of the CPJ were sent to the complainant by the opposite party No. 2 by Book Post, but they did not reach the complainant. Hence on hearing from the complainant, the opposite party No. 2 sent the three remaining issues of CPJ of 1991 by Registered Post which were received by the complainant. The complainant filed case before the District Forum alleging that though the advertisements in every monthly part of CPJ showed that it contains all the judgments of the National Consumer Disputes Redressal Commission, but CPJ is not providing materials in accordance with this advertisement and there is also delay in providing the materials in the monthly issues of the journal which has caused loss to him. The complainant on these grounds claimed that the opposite party be directed to supply free of cost the copies of judgments of the National Commission which have not been published in CPJ and compensation for mental anguish and cost of the case.
5. On being noticed the opposite party No. 2 appeared and filed written version stating that he has nothing to do with the publishing or editing of the Journal (CPJ) and therefore they are not responsible for the delay in the publication of the judgments in the issues of the different months and non-publication of some of the judgments of the National Commission. The opposite party No. 2 has further averred that he is a book-seller and he had supplied the different issues of the journal to the complainant and there was no deficiency in service on his part.
6. Opposite Party No. 1 did not appear before the District Forum though it appears that notice had been received by him and as the copy of the complaint/petition was not sent to him alongwith the notice, he could not file written version. The District Forum however disposed of the complaint case on the basis of the allegations made by the complainant and the averments made by the opposite party No. 2 and the operative portion of the order passed by the District Forum reads as follows :
| âxx | Â Â Â Â Â Â Â Â Â Â xx | xxâ |
8. The appellant has assailed the order of the District Forum mainly on the ground that the complaint was not maintainable under the Consumer Protection Act.
9. We find there is substance in the point being raised by the appellant. In this connection it is necessary to notice the definition of the complaint as given under the Act. Section 2(1)(c) of the Act defines the word âcomplaint and its relevant portion runs as follows :
âcomplaint means any allegation in writing made by a complainant that â
â(i) Â any unfair trade practice or a restrictive trade practice has been adopted by any traders;
(ii) â¦â¦â¦â¦â¦â¦...
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect.
(iv) â¦â¦â¦..
(v) â¦.â¦..
10. With a view to obtain any relief provided by or under this Act it is evident from the definition of the complaint that a case under this Act can be filed by a complainant. The complainant has been defined u/Section 2(1 )(b) of the Act which reads as follows :
â(b)â complainant means â
(i) Â a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1986 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government, who or which makes a complaint;
(iv) one or more consumers, where there are numerous consumers naming the same interest.
11. The complainant has filed this case as a consumer. Section 2(1)(d) of the Act has defined the word consumer:
â(d)â consumer means any person who â
(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 service 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 when the approval of the first mentioned person;â
12. It is apparent from the facts stated above that there is no privity of contract between the complainant and the opposite party No. 1 and the complainant had not hired or availed of the services of the opposite party No. 1 for consideration. It cannot be said that the complainant by subscribing CPJ has hired or availed of the services of the opposite party No. 1 for publishing the cases. Therefore he cannot be a consumer under the Act. Hence the allegation of the deficiency in service or unfair trade practice cannot be made by the complainant against opposite party No. 1 Moreover, any journal can publish only those cases the copies of which are made available to them by the National Commission or State Commission.
13. So far opposite party No. 2 is concerned he is not a publisher of the journal and therefore, he cannot be held responsible for non-publication of the judgments or delay in the publication of different issues of the journals. It appears that the opposite party No. 1 has already sent Rs. 100/- to the District Forum which according to them is the fine imposed on him by the District Forum and the opposite party No. 2 has not come in appeal. Hence we need not express any opinion with regard thereto.
14. For the reasons mentioned above, we find and hold that the impugned order passed against the opposite party No. 1-the appellant cannot be sustained.
15. In the result, the appeal is allowed and the order of the District Forum so far the opposite party No. 1-the appellant is concerned, is hereby set aside.
16. There is no order as to costs.
Appeal allowed.