NORTH EAST KARNATAKA ROAD TRANSPORT CORPORATION vs Pooja Travels By Its Partners And Ors.

DR . P.D. Shenoy, Member -There is an agreement between the complainant M/s. Pooja Travels who are the respondents and North East Karnataka Road Transport Corporation (in short the "Corporation") the petitioner before us. As per the agreement the petitioner has agreed to hire the buses belonging to the complainants for consideration to ply the buses from Bidar to Bhalki. It was mentioned in the agreement that the distance between Bidar to Bhalki is 42 km. It is the case of the complainant that in view of this the petitioner cannot pay lesser amount holding that the distance between Bidar to Bhalki is only 38 kms. Accordingly, there is a deficiency in service on the part of the petitioner, therefore, filed a complaint before the District Forum.

THIS was contested by the petitioner Corporation stating that this case is not covered under the CP Act and the complainant is not a consumer as the complaint is based upon the contractual agreement entered into by both the parties and for violation of the terms and conditions of the agreement, parties may approach the competent Civil Court seeking necessary remedies. The complainant had approached the District Forum with ulterior motive of circumventing the law and to evade the payment of Court fee. It was further contended by the corporation that it had issued a circular which prescribed the procedure to be adopted for measurement and distance. In accordance to that instructions the route survey had been conducted to determine the actual distance between Bidar to Bhalki. The complainant had participated and agreed for the route survey to be conducted and in the survey it was found that the distance was only 38 kms. Therefore, for five buses calculating the distance is 38 kms amount has been paid. Hence, there is no deficiency in service. The District Forum partly allowed the complaint and directed the petitioner to pay the difference amount of 4 kms per trip of 5 buses with effect from 16.11.2003 with interest on differential amount @ 12% from the date of filing of the petitioner till realization. Further, the parties were directed to get the dispute resolved for differential amount pertaining to the spare parts to the tune of Rs. 6.00 lakh as per the deed of agreement.

AGGRIEVED by the order North East Karnataka Road Transport Corporation filed an appeal before the State Commission. The State Commission observed that the complaint under the Consumer Protection Act is maintainable even though the parties have agreed for resolution of the dispute through arbitration since the remedy provided under the CP Act is in addition to the remedy provided under any other law or under the contract. Accordingly, the appeal was dismissed. Against the order of the State Commission, the Corporation had filed a Special Leave to appeal (Civil) No. 9118 of 2007 before the Hon''ble Supreme Court. The Supreme Court ordered as follows: "The respondent filed a complaint against the petitioner in the District Forum seeking certain relief by alleging that the petitioner was a service provider. The petitioner resisted the claim on several grounds: (i) that as the matter was governed by a contract thus, respondent was not entitled to the relief sought; (ii) that the petitioner was not a service provider'' but the respondent was the service provider''; and (iii) that there was an arbitration agreement and therefore any dispute or claim should be referred to arbitration. The District Forum did not accept the said contentions and granted certain relief by order dated 30.12.2004. The appeal filed by the petitioner was dismissed by the State Commission by order dated 18.2.2005. Instead of challenging the order of the State Commission by filing a revision before the National Commission, the petitioner challenged the order of the State Commission in a writ petition before the High Court. That writ petition was dismissed on 2.12.2005 and the review petition was also dismissed on 20.12.2006. Feeling aggrieved, the petitioner has filed this SLP. The appropriate remedy for the petitioner was to approach the National Commission. It is apparent that the petitioner has approached the wrong Forum being under the impression that as it was contending that the Fora under the Consumer Protection Act had no jurisdiction, it could approach the High Court to decide the issue. We feel that interest of justice would be served if we permit the petitioner to approach the National Commission. We are sure that when the delay is explained with reference to pendency of the writ petition, review petition and the present SLP which the petitioner was pursuing bona fide, the delay will be condoned and the issues raised by the petitioner would be examined on merits. (Emphasis supplied) We, accordingly, dismiss this special leave petition reserving liberty to the petitioner to approach the National Commission within one month."

AT the time of admission on 6.2.2009, this Commission passed the following order: "Heard the Counsel for the petitioner. Notice be issued to the respondent on condonation of delay application as also on admission returnable on 15.4.2009. Learned Counsel for the petitioner prays for stay of the impugned order. He submits before us that the petitioner has already deposited Rs. 3,38,015 during the execution proceedings before the District Forum on 28.4.2006 - out of which a sum of Rs. 1,38,015 has already been withdrawn by the complainant. Learned Counsel for the petitioner is not able to inform the Commission as to what is the total liability under the impugned order. We, therefore, direct the petitioner to deposit a sum of Rs. 2,00,000 (Rupees two lakh only) with the District Forum. Stay subject to deposit of the said amount with the District Forum. Stay will operate only on deposit. Dasti in addition".

AFTER hearing the Counsel on both sides, this Commission passed the following order on 15.4.2009 condoning delay: "Heard Counsel appearing on both sides. In view of the order of the Apex Court dated 25.11.2008, the delay is condoned, inasmuch as the petitioner was pursuing remedy before the High Court and thereafter before the Apex Court."

THE main issue to be decided is whether the complainant is a consumer under the Consumer Protection Act. Section 2(d)(ii) of the Consumer Protection Act reads as follows: "Consumer means any person who - [hires or avails of] any service 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 purpose]."

IT is clear from the complaint that the complainant runs a travel company by the name M/s. Pooja Travels which has three managing partners and they own several buses and they had agreed to provide five buses to the Corporation on hire basis.

ACTUALLY Pooja Travels had provided its services to Corporation and the Corporation has not provided its services to Pooja Travels. Further, Pooja Travels has provided the buses to earn profits. Nowhere in the complaint it has mentioned that the services availed by the complainants were exclusively for earning the livelihood by means of self employment. Hence, the complaint does not fall under the definition of Consumer Protection Act.

THEREFORE , the complaint itself was not maintainable under the CP Act, 1986. As the complaint is not maintainable we do not propose to go into the other aspects of the case. Accordingly, this revision petition is allowed. The amount of Rs. 2.00 lakh deposited by the complainant -petitioner corporation with the District Forum shall be released to the North East Karnataka Road Transport Corporation and further, the respondents shall refund the amount of Rs. 1,38,015 to the petitioner within six weeks from the date of the pronouncement of the order, otherwise, they shall pay interest @ 10% per annum on that amount. The balance amount, if any, deposited with the District Forum by the petitioner Corporation shall also be refunded by the District Forum to the petitioner Corporation. However, there shall be no order as to cost. R.P. allowed.