Dev Raj, Member:
1. This appeal is directed against the order dated 13.11.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant (now appellant).
2. In brief, the facts of the case, are that the complainant had been utilizing the services of Opposite Party No.1 for the last many years and as per normal practice, he went to it (Opposite Party No.1) on 6.5.2011 for getting petrol filled, in Activa Scooter, bearing Registration no.CH01-AF-2986, registered in the name of his wife Babita Sood, and got filled petrol worth Rs.200/- against receipt No.1493 dated 6.5.2011. It was stated that after getting petrol filled, the complainant wanted to get the air pressure checked, in the scooter tyres, but the air pump on the one side was out of order, and, on the other side, the attendant refused to check the pressure, on the plea, that it was meant for four wheelers. It was further stated that since there was no four wheeler, the complainant again requested the attendant for filling air in his two wheeler, but he replied very rudely and refused to render proper service. It was further stated that, in the meanwhile, Opposite Party No.2, came out, from the office and without ascertaining the facts supported the attendant and started misbehaving with the complainant. When the complainant remonstrated against the use of foul language, Opposite Party No.2, gave him the beating while the other employees, at the Petrol Pump, encircled him. It was further stated that, in the meanwhile, Sh. Rajesh Kumar Sharma, Advocate came to the Petrol Pump (Opposite Party No.1) and intervened and saved the complainant from further beating. It was further stated that the complainant called up the PCR and S.I. Gurdev Singh from Sector 34 Police Station arrived at the spot but instead of listening to the grievance of the complainant, he too started misbehaving with him and tried to drag the complainant in his gypsy for taking him to the Police Station. It was further stated that on intervention fo Sh. Rajesh Kumar Sharma and Sh. Mukesh Mittal, Advocate, the complainant was freed from illegal confinement.
3. It was further stated that the complainant alongwith Sh. Rajesh Kumar Sharma, went to Sh. N. K. Nanda, Advocate, President of the Chandigarh District Bar Association, and narrated the entire episode, who contacted Sh. B. S. Bedi, Deputy S.P. (South) on phone, from whom it was learnt that Petrol Pump, in question, was being run by Police Authorities at Chandigarh through Chandigarh Police Welfare Society. It was further stated that the S.S.P, Chandigarh marked inquiry to Opposite Party no.3 and directed him to submit the report within 48 hours. It was further stated that Opposite Party No.3 investigated the matter, in a most lopsided manner, and put up the entire blame on the complainant raising a wrong plea that he was trying to run away without making payment for the petrol purchased. It was further stated that the complainant made further complaint to the S.S.P., Chandigarh against the enquiry of Opposite Party No.3, who entrusted further enquiry to S.P-cum-Deputy Commandant I.R.B., Chandigarh, who gave his report dated 24.2.2012 against Opposite Parties No.2 and 3 besides other police officials, and found them guilty. It was further stated that due to beating, by Opposite Party No.2, the complainant suffered an ear injury resulting into loss of hearing, to the extent of 30-35% and was still undergoing treatment at GMCH, Sector 32, Chandigarh. It was further stated that the above narration clearly established gross abuse of power and high handedness, on the part of Opposite Parties No.2 and 3. It was further stated that the aforesaid acts amounted to deficiency in rendering service and indulgence into unfair trade practice on the part of the Opposite Parties. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the œAct? only), was filed seeking directions to the Opposite Parties, to pay compensation for deficiency in service by not providing free air and unfair trade practice; pay Rs.5 Lacs as compensation for unlawful detention and manhandling of complainant; Rs.2 Lacs as compensation for defaming the complainant by making false allegation, that he was trying to run away without making payment for the petrol purchased; Rs.1 Lac as compensation for causing physical injury and Rs.25,000/- a cost of litigation.
4. Despite service, nobody appeared on behalf of Opposite Party No.1, before the District Forum and, as such, it was proceeded against exparte.
5. Opposite Parties No.2 and 3, in their joint written reply, took up certain preliminary objections to the effect that the complaint was not maintainable, firstly, on the ground, that no deficiency was alleged and secondly, the complainant had already filed a criminal complaint before the Court of Judicial Magistrate, First Class, U.T., Chandigarh for registration of a criminal case against them; the complaint was belatedly filed in the month of April 2013 through the alleged date of incident was 6.5.2011. On merits, the matter regarding marking of enquiry and subsequent findings were admitted. It was also admitted that the S.S.P entrusted the enquiry to the S.P who held that the conduct of Opposite Parties No.2 and 3, was not up-to the mark. It was stated that the complainant twisted the facts to his advantage. It was further stated that receipt was issued to the complainant when he came to the petrol pump after one hour in the second round after collecting money from his colleague. It was further stated that the delay in the timings of filling the petrol and issuance of receipt in itself reflected the true picture, to suggest that the receipt, which was instantly available, was issued later after about one and a half hours to the complainant, on payment of money. It was denied that the employee ever refused to entertain the complainant. It was further stated that the matter regarding scuffle and alleged misbehaviour was pending before the Judicial Magistrate, U.T., Chandigarh. It was further stated that since all the allegations, and counter allegations, shall be taken into account by the appropriate Court of Judicial Magistrate, the District Forum did not have the jurisdiction to entertain such complaint. It was further stated that the enquiry conducted by the Authority, did not prove that the complainant was innocent. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties No.2 and 3 nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.4, in its written reply, took up certain preliminary objections to the effect that there was no privity of contract, between it, and the complainant; the complaint involved complicated questions of law and facts, which required voluminous evidence; and in view of Clause 11 of the contract entered into between the Corporation and the Dealer, the Corporation could not be made liable for the negligent act, if any, of Opposite Party No.1. On merits, the pleadings made in the preliminary objections were reiterated. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party No.4 nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the contesting parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint as stated above, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
10. We have heard the Counsel for the appellant, at the preliminary stage, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellant/complainant submitted that the appellant/complainant, after getting the petrol filled in his Activa Scooter, bearing Regd. No.CH01-AF-2986, made payment of Rs.200/- to the attendant of Opposite Party No.1, vide receipt dated 6.5.2011 (Annexure C-1). It was further submitted that when the appellant/complainant, wanted to get the air pressure checked, in the scooter tyres, the said attendant refused to attend the appellant/complainant and started misbehaving. It was further submitted that respondent No.2/Opposite Party No.2, also misbehaved with him. It was further submitted that due to beating by respondent No.2/Opposite Party No.2, the appellant/complainant suffered ear injury resulting into 30% to 35% loss of hearing. It was further submitted that the District Forum erroneously came to the conclusion that the supply of air filling service was free of cost and, as such, the appellant/complainant was not a consumer. It was further submitted that the District Forum also failed to appreciate that civil, criminal and consumer proceedings are independent of each other.
12. After giving our thoughtful consideration, to the submissions, made by the Counsel for the appellant/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. The complaint revolved round two issues viz. deficiency in service in not providing the free air service and manhandling/beating of the appellant/complainant by respondent No.2/Opposite Party No.2 and others. So far as manhandling and beating of the appellant/complainant, is concerned, a criminal complaint has already been filed by the appellant/complainant before the Court of Judicial Magistrate, First Class, U.T., Chandigarh for registration of a criminal case against the respondents/Opposite Parties. A complaint was also filed before the Police Complaints Authority, U.T., Chandigarh and the same was investigated. During investigation, Constable Kaptan Singh (Opposite Party No.2) and Sub Inspector Gurdev Singh were held liable for their gross misconduct and abuse of power. These two officials were placed under suspension and appropriate disciplinary action against Sh. Jagbir Singh, D.S.P (Operations) (Opposite Party No.3) was also recommended as is evident from the order dated 02.12.2011 (Annexure C-5) passed by the Police Complaints Authority, U.T., Chandigarh, which is extracted below:-
œSub Inspector Gurdev Singh (P.S. Sector 34, Chandigarh) and Constable Kaptan Singh are held liable for their gross misconduct and abuse of power. Both are ordered to be placed under suspension forthwith and to face departmental enquiry for disciplinary action against them. DSP (Lines) Jagbir Singh has not conducted himself as a just and impartial senior police officer. He also deserves an appropriate disciplinary action as the Inspector General of Police, Union Territory, Chandigarh may deem proper.?
13. Undoubtedly, the aforesaid aspect of the matter was entirely criminal, in nature, and outside the purview of the Consumer Protection Act, 1986. In fact majority of the evidence and documents, on record, relate to criminal aspect of the case. The District Forum, thus, rightly held that this aspect of the matter, being primarily criminal, in character, was within the jurisdiction of a competent Criminal Court of law.
14. As regards deficiency, in rendering service, on the part of respondent No.1/Opposite Party No.1 on account of refusal by its attendant, to check air pressure in the scooter of the appellant/complainant is concerned, it is normal practice that such services are rendered free of cost. Thus, it is not a service against consideration, and, thus, the appellant/complainant did not fall within the definition of consumer as defined in Section 2(1)(d)(ii) of the Act, which is extracted below:-
œ(d)"consumer" means any person who”
(i) xxxxx
(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 but does not include a person who avails of such services for any commercial purposes;
Explanation.” For the purposes of this clause, œcommercial purpose? does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;?Further, as per Section 2(o) of the Act, œservice? does not include rendering of any service free of charge or under a contract of personal service. Here also, the service, sought to be availed of viz. free air pressure checking, by the appellant/complainant from the respondent No.1/Opposite Party No.1 was free and without consideration. As such, the respondent No.1/Opposite Party did not provide any service to the appellant/complainant, which the District Forum has rightly held in its order.
15. No other point, was urged, by the Counsel for the appellant/complainant.
16. For the reasons recorded above, the appeal filed by the appellant/complainant, is dismissed, at the preliminary stage, with no order as to costs. The order passed by the District Forum is upheld.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.