TECHNO COMBINE ASSOCIATE vs Union of India

FOR the limited purpose of adjudicating on the preliminary objections to the very maintainability of the complaint it is unnecessary to delve too deeply into the facts and merits. On the complainant''s own showing they were allotted an S.T.D./I.S.D. pay phone in Yamuna Nagar in March, 1990 vide an agreement with the Union of India, copy thereof is Annexure C-1. It is common ground that the complainants thereafter operated the said pay phone for a considerable time under the agreement aforesaid. The primal grievance of the complainant is that the opposite parties were charging them from the chart at a rate higher than they actually charged from the public and thus they suffered huge financial losses. Prolonged correspondence passed betwixt the parties and securing no redress, the present complaint has been preferred to recover the alleged overcharging to the tune of more than 7 lacs and further consequential reliefs are also sought.

ON notice being issued the opposite parties raised threshold preliminary objections on the issues of the very maintainability of the complaint. The stand taken is that on the complainant''s own showing he is a licencee of the opposite party to run the pay-phones for a commercial purpose and is thus not a consumer within the meaning of the Act at all. It was also the stand that the complaint was barred by time because the dispute betwixt the parties pertains to the period of September, 1991 to February, 1992. But this objection was very fairly withdrawn by the learned Counsel for the opposite parties in view of the fact that the prescribed limitation by the recent amending Act is now two years and not one year as earlier in the Ordinance. Lastly the firm stand taken is that the complaint is liable to be dismissed on the ground that the complainant had already filed two civil suits on an identical or similar , cause of action which were disposed of vide Annexures R1 & R2 whilst the third civil suit, copy of the plaint thereof is Annexure R3 is still pending adjudication. Mr. Arun Waila, the learned Counsel for the opposite parties has strenuously pressed the preliminary objections relying of the complainant''s own document Annexure-C1. It was argued that the complainants were admittedly licencees of the Union of India and as such can not possibly be deemed to be a consumer who had hired any services at all as such. Equally the stand was that more or less on the same cause of action not one but three civil suits have been preferred, out of which one is yet subjudice and therefore, this Commission should not enter in the same arena and stay its hands. The primal reliance was placed on 1992 (1) CPR 243, Union of India & Another v. Raghubir Sen & Another and I (1992) CPJ 288, Gomati v. Director, State Insurance & G.P.F. Department & Another.

There is patent merit in the aforesaid submission. A bare reading of Annexure C-1 on which basic reliance is placed by the complainants would leave no manner of doubt that the complainants are admittedly licencees of the Union of India for running the pay phones. Not only that vide Clause 30 thereof they have undertaken to carry out all instructions of the Government in the following terms:- "The licencee will by himself or his employee or his duly authorised agents undertake to perform and to the satisfaction of the office and will carry out all instructions which from time to time be given to him by the Govt. with reference thereto. The licencee will also keep the call office clean and sanitary condition and ensure safe custody of booths."

Once it is held as it must be that the complainants are the licencees of the opposite party No. 1, it is elementary that they cannot claim to be consumer qua them. Since the matter is covered by precedent it is unnecessary to elaborate the issue of principle. This Commission in 1992 CPC 469, Shri P.J.S. Mehta of Chandigarh v. Union of India, Ministry of Defence, New Delhi & Another has firmly taken the view that the mere licencee of the Union of India would not come within the meaning of the definition of a consumer under the Act. Yet again by way of analogy the order of this Commission in I (1993) CPJ 56, Ved Parkash Dhingra v. Nuchem Plastics Limited & Others concludes the matter against the complainant. This is so because it was rightly argued by Mr. Walia that in fact the Union of India have hired services of the complainants as a licencees and they cannot turn round to become the consumer of the hirer himself. In the afore-mentioned case it was concluded as follows:- "Inevitably the answer to the question posed at the out-set has to be rendered in the negative and it is held that a person who had hired out his services is not a consumer under the Act."

WHAT however directly covers the issue are the observations of the Rajasthan State Commission in case Union of India & Another v. Raghuvir Sen & Another (Supra). Therein in the particular context of a pay-phone it was observed as follows :- "In our view the person at whose request a P.C.O. telephone is installed cannot be called a consumer as envisaged by Section 2(1)(d)(ii) of the Act as he has not hired the services of the Telephone Department. When such is the case it cannot be said that there is any deficiency in the service as contemplated by Section 2(1)(g) of the Act."

In all fairness to Mr. Kakkar, the learned Counsel for the complainant we must notice his reliance on the brief order of this Commission in S.D.O. Telephones, Gurgaon v. Manish Chaudhry & Another, 1993 (1) SLJ 98. However a reading of the relevant part of the order would show that the same is plainly distinguishable. It is true that the said case pertained to a P.C.O. connection but the only argument raised therein was that the said connection was patently commercial in nature and therefore, would be excluded from the ambit of a consumer. Repelling that limited argument this Commission has rightly observed that in the case of the hiring of service for a consideration the commercial nature thereof was totally irrelevant because it was not a question of the sale of goods to which alone the said exclusion clause applies. It is manifest that the said case cannot possibly be read as a warrant for the preposition that the licencees of the Union of India for the payphones would be consumers qua them.

FOR the fore-going reasons it has to be held that the complainants are not consumers within the ambit of the definition under the Act and consequently the present complaint is not maintainable on that score. The preliminary objection of the opposite parties is thus upheld. Though it is unnecessary to travel further it must be recorded that the opposite parties are on a equally firm ground on the alternative plea that the complainants have elected their remedy and had resorted to not one but two civil suits for virtually identical cause of action which were decided against them vide Annexures R1 & R2. What is more it could not be disputed before us that the plaint Ex. R3 in the third suit has been preferred and the same as yet is pending adjudication. It is by now well settled by the National Commission in a number of decisions that when an identical or similar matter is sub-judice before the Civil Courts the Redressal Agency under the Act must necessarily stay its hand and not enter the arena of controversy. It suffices to notice the recent reiteration of the said rule by Rajasthan State Commission in Gomati v. Director, State Insurance & G.P.F. Department & Another (Supra) wherein it has been observed as follows:- "The subject matter of the suit is more or less is the subject matter of the complaint. The reliefs thought not actually worded in the same words but they are almost the same. It is settled by the National Commission in various case that where a matter is, sub-judice before a competent Court the Redressal Forum should not entertain a complaint in respect of the identical subject matter. Reference may be made to M/s. Does Piston Pvt. Ltd. v. State Bank of India (Original Petition No. 30 of 1989 decided on Oct. 17, 1989) (1991 CSMR Case 173) and Consumer Unity and Protection Center v. Nadiad Municipality and Others (Original Petition No. 7/88 decided on May 10, 1989) (1991 CSMR Case 145)."

In view of the above second preliminary objection also must be upheld and the complainant must be relegated to their ordinary remedy under the Civil Law.

FOR the fore-going reasons this complaint must fail at the very threshold and is dismissed as such. However, we leave the parties to bear their own costs. Appeal dismissed.