Filed on: 07/09/2010.
Disposed on: 03/02/2011.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM TUTICORIN.
Present: Thiru.M.Ramachandran, B.Sc., B.L., President.
Tmt.G.P.Bhadra Thulasi, Member – I.
Thiru.S.Leonard Vasanth, Member – II.
(Thursday the 3rd day of January 2011)
1/86, South Street,
Tuticorin District. …Complainant.
1. The Public Information Officer,
Manonmaniam Sundaranar University,
2. The Principal, (Public Information Officer)
St. Mary's College,
South Seashore Road,
Thoothukudi 628 001. … Opposite parties.
This complaint came before us for final hearing on 6-1-2011 in the presence of Thiru N.Selvaraj, Advocate for the complainant and Thiru D.A. Prabakar, Advocate for the 1st opposite party and the 2nd opposite party called absent and set exparte and having stood over till this day for consideration this Forum made the following:
This complaint has been filed under section 12 of Consumer Protection Act 1986.
1) The averments in the complaint are as follows: The complainant has filed a petition under R.T.I. Act to furnish some information regarding her sister's education on 29-10-2009 to the 1st opposite party for that he has paid Rs.10/- as court fee and hence he is a consumer under the Consumer Protection Act. The 1st opposite party has sent the above petition to the 2nd opposite party on 10-11-2009 and informed him to furnish the particulars asked for by the complainant within 30 days, a copy of which was also sent to the complainant. But the opposite party has not furnished the particulars even after 30 days and this amount to deficiency of service on their part. The opposite parties have not furnished the particulars under the R.T.I. Act and thereby they have caused much annoyance to the complainant. Hence the complainant has filed this complaint to direct the opposite parties to pay Rs.1,00,000/- as compensation for the deficiency of service committed by them and to pay Rs.1,00,000/- as compensation for the mental agony and loss caused to him and the cost of the proceedings.
2) The averments in the written version of the 1st opposite party are as follows: This complaint is not maintainable either in law or on facts and it has to be dismissed in limine. Court fee affixed or fees paid to a public authority under Right to Information Act cannot be construed as a fee paid by a consumer. The fee to get information is fixed by the Government and the 1st opposite party is performing his statutory duty and hence the complainant is not a consumer. The complainant has given a petition to 1st opposite party asking for some information pertaining to the copy of applications of Female Students to B.Sc., Computer Science received by St. Mary's College, Tuticorin for the year 2006-2007. It was received by 1st opposite party on 30-10-2009 and since the information's were not available with him he forwarded the above petition to 2nd opposite party on 10-11-2009 with a request to furnish informations and copy marked to the complainant. The 2nd opposite party sent a letter to 1st opposite party on 3-12-2009 stating that the required informations were furnished to the same complainant on 26-5-2009 in a case 24894/enquiry/2009 before State Information Commission, Chennai and hence it is not necessary to give the same information again. As far as the 1st opposite party is concerned he has done his statutory duties. If aggrieved the complainant can prepare an appeal u/s.19(1) of R.T.I. Act 2005. But the complainant has chosen a wrong Forum to get the remedy. The complainant is not a consumer and no deficiency of service has been committed by this opposite party. This opposite party has forwarded the petition dated 29-10-2009 seeking informations to 2nd opposite party according to R.T.I. Act. No mental agony was caused to the complainant by the auction of this opposite party. The damages claimed are exorbitant and imaginary. Hence the complaint is liable to be dismissed.
3) The points for consideration are:
1. Whether the complainant is a consumer under the provisions of the Consumer Protection Act and this Forum has got jurisdiction to entertain this complaint?
2. Whether the opposite parties have committed deficiency in service and if so; to what relief the complainant is entitled to?
4) Points: The complainant has filed a petition before the 1st opposite party under R.T.I Act on 29-10-2009 seeking some particulars and since the particulars are not available with the 1st opposite party he has sent the above petition to the 2nd opposite party with request to furnish the particulars called for therein to the complainant, but the 2nd opposite party has not furnished the particulars to the complainant in stead gave a reply to the 1st opposite party that the required informations have already been furnished to the same complainant in response to an earlier petition and hence it is not necessary to give the same information once again. The 1st opposite party has stated that this Forum has no jurisdiction to entertain this complaint since the Court fee affixed or fees paid to a public authority under Right to Information act cannot be construed as a fee paid by the consumer and if at all the complainant is aggrieved he can prefer an appeal U/s.19(1) of Right to Information Act only. The National Commission in Dr.S.P.Thirumala Rao Vs. Municipal Commissioner, Mysore City Municipal Corporation has held that Right to Information Act does not have any overriding effect on the Consumer Protection Act, 1986 and Section 3 of the Consumer Protection Act provides an additional remedy; that the bar of jurisdiction in the Right to Information Act is only against the Courts as also in respect of the order made under the Act and since in this case the opposite party has not passed any order on account of which the question of bar of jurisdiction does not arise and it is a case of deficiency of service. The contention of the opposite parties that if aggrieved the complainant can prefer an appeal U/s.19(1) of the Right to Information Act is not applicable to this case since the opposite parties have not furnished any information in time and hence the complainant could not approach proper authority for redressal of his grievance on account of deficiency of service. Hence the contention of the opposite parties that the complainant is not a consumer and this Forum has no jurisdiction to entertain this complaint does not seems to be acceptable.
5) To prove the case of the complainant proof affidavit has been filed and Ex.A1 to Ex.A3 have been marked. Ex.A1 is the copy of the petition given by the complainant under Right to Information Act to the 1st opposite party. Ex.A2 is the acknowledgement card for that. Ex.A3 is the copy of the letter sent by the 1st opposite party to the 2nd opposite party with a copy to the complainant with request of furnishing particulars called for by the complainant. On the side of the 2nd opposite party proof affidavit has been filed and no documents have been marked. Ex.A3 would prove that the 1st opposite party has transmitted the petition filed by the complainant to the 2nd opposite party with direction to furnish the particulars called for to the complainant. The 2nd opposite party has stated that the 1st opposite party has written a letter to him stating that the particulars required by the complainant have already been furnished to him in another case and hence it is not necessary to furnish the same particulars once again to the complainant. The 2nd opposite party who remained exparte has not filed any documents to prove that the same particulars were furnished to the complainant earlier. More over even if the above contention is correct the complainant filed a fresh petition with due fee under Right to Information Act and it is incumbent on the part of the opposite parties to furnish the particulars. Hence the contention of the opposite parties that they have already furnished the particulars to the complainant and hence it is not necessary to furnish the same once again seems to be not correct. The 1st opposite party has transmitted the petition filed by the complainant to the 2nd opposite party since the particulars required by the complainant are not available with him with a request to furnish the particulars to the complainant by the 2nd opposite party. But the 2nd opposite party has not furnished the particulars even after lapse of 30 days which amounts to deficiency of service on his part.
6) In the circumstances stated above, we come to the conclusion that the 2nd opposite party has committed deficiency of service and hence the complainant is entitled for the relief as prayed for. We decide these points accordingly.
7) In the result, the complaint is allowed and the 2nd opposite party is directed to pay Rs.20,000/- to the complainant as compensation for the mental agony caused to the complainant due to deficiency of service on his part and to pay Rs.3000/- towards cost of the proceedings within a period of two months from the date of this order, failing which the complainant is at liberty to execute this order U/s.25 and 27 of the Consumer Protection Act 1986. The complaint against 1st opposite party is dismissed without costs.
Dictated to the Steno-typist, taken and typed by him, and corrected by me and pronounced by us in the Open Forum on this the 3rd day of February 2011.
Member II. Member I. President.
I) List of documents marked for the complainant:
1. Ex.A1/29-10-09 : Xerox copy of the petition given by the complainant to
the 1st opposite party
2. Ex.A2/ : Xerox copy of the postal acknowledgement card
3. Ex.A3/10-11-09 : Xerox copy of the letter to the 2nd opposite party by the
1st opposite party
II) List of documents marked for the opposite parties: Nil.
Member II. Member I. President.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO. 1975 OF 2005
(Against the order dated 1.10.05 in Appeal No.244/04
of the State Commission, Karnataka)
Dr. S.P. Thirumala Rao
No.1138/3, Narayanasastry Road
Devaraja Mohalla ........ Petitioner
Mysore – 570 001
Mysore City Municipal Corporation
Sayyaji Rao Road.
Mysore – 570 024 …….Respondent
HON'BLE MR. JUSTICE R.K. BATTA,
HON'BLE MR. S.K. NAIK, MEMBER
For the Petitioner : Mr. Aditya Narain, Advocate
Ms. Astha Tyagi, Advocate
For the Respondent : NEMO
Pronounced on : 28th May, 2009
PER JUSTICE R.K. BATTA, PRESIDING MEMBER
The grievance of the complainant who is Consultant Physician is that some private telephone provider had dug up the footpath in front of his clinic, for laying telephone cables and after laying the PVC pipes, failed to restore the footpath in original condition. The damaged footpath and projected PVC pipe was causing obstruction to his patient and pedestrians. He, therefore, filed two applications before the opposite party on 10.2.2003, under Rule 4(1) of the Karnataka Right to Information Act, 2002 (hereinafter referred as the said Act) seeking information about the said private telephone provider. The OP was required to furnish information within 15 days under the Act, but the said information was not furnished which according to the complainant amounts to deficiency of service. The complainant, therefore, filed a complaint before the District Forum claiming damages/compensation of Rs.30,000/- and cost of Rs.1,000/-.
The opposite party in affidavit dated 26.8.2003 submitted that the information could not be given within the time prescribed due to heavy work in the office. In the affidavit it was stated that the private telephone provider, namely; Reliance Company and the Government of India through the Department of Telecommunication had laid down the cables and the Corporation had nothing to do with the said act of the Reliance Company.
The District Forum had framed 4 points for consideration, which are as under:
1. Whether Section 11 of the K.R.I. Act, 2002 has got overriding effect on the provision of the Consumer Protection Act, 1986?
2. Whether Section 10 of the K.R.I. Act, 20002 bars the jurisdiction of the Consumer Forum?
3. Whether this forum has no jurisdiction as an appeal is provided under Section 7 of the K.R.I. Act, 2002 for not furnishing the information;
4. Whether the complainant has proved deficiency in service, if so, to what relief he is entitled?
On the first point, it was held that Section 11 of the Karnataka Right to Information Act does not have any overriding effect on the Consumer Protection Act, 1986. On the question of bar of jurisdiction of Courts under Section 10 of the Karnataka Right to Information Act, it was held that Section 3 of the Consumer Protection Act, 1986 provides an additional remedy; that the bar of jurisdiction under Section 10 of the Act is only against the Courts as also in respect of the order made under the Act but in this case the OP had not passed any order on account of which, the question of bar of jurisdiction does not arise and it is a case of deficiency of service. On the third point, the District forum held that since the OP did not furnish information in time, the complainant could not approach proper authority for redressal of his grievance on account of deficiency of service, a such he was entitled to invoke the jurisdiction of District Forum. On quantum of damages, it was stated that nominal damages would be sufficient as a token of recognition of valuable Right to Information. Accordingly, District forum directed OP to pay damages of Rs.500/- and cost of Rs.100/-. This order was challenged by the OP before the State Commission.
The State Commission referred to Section 7 of the Karnataka Right to Information Act, 2002 and held that since no communication was sent to the complainant within 15 working days of filing the applications in terms of Section 5 of the Act, it is a case of deemed rejection against which, an appeal is provided under Clause II of Section 7 of the said Act. The State Commission also took into account that though the remedy under Section 3 of the CP Act is in addition to remedy provided under other Acts and not in derogation of the provisions of any other law, yet, once the complainant has availed the remedy against which appeal is provided, he cannot maintain a complaint under the CP Act. Accordingly, the appeal was allowed and the order of the District Forum was set aside. This order is subject matter of challenge before us.
Ld. Counsel for the petitioner was heard.
The Respondent was duly served for 23.2.2009 when the matter was fixed for final hearing but the respondent did not appear. The acknowledgement card of service of Respondent is kept in Part II file. No one appeared for the respondent.
Ld. Amicus Curiae appearing on behalf of the petitioner took us through the various provisions of Karnataka Right to Information Act, 2002 and submitted before us that the complainant had sought information under the said Act and as per Section 5(2), the information is to be supplied within 15 working days from the date of receipt of the application. Since the said information has not been furnished, there is deficiency of service on account of which, the complainant is entitled to approach the District Forum in view of Section 3 of the CP Act, even though, the complainant has not filed any appeal as provided under Section 7 of the said Act. According to Ld. Counsel for the petitioner, on account of deficiency in service in not providing information to which the petitioner was entitled under the said Act, the petitioner is a consumer who has availed the services of opposite party on payment of application fee for the said purpose. After placing reliance on the judgement of this Commission in Smt. Kalawati & Ors. Vs. United Vaish Co-operative Thrift & Credit Society Ltd. – I (2002) CPJ 71 (NC) and judgement of this Commission in Smt. Ushal Rani Aggarwal Vs. Nagar Palika Parishad (R.P. No. 2774 of 2004) decided on 6.9.2006, it was urged that Section 10 of the said Act does not bar the jurisdiction of the District Forum since only the jurisdiction of Court has been barred and in view of Section 3 of the CP Act, 1986, the matters pertaining to deficiency of service under the Karnataka Right to Information Act can be entertained by the Consumer Fora. On the question of additional remedy, reliance was placed on Fair Air Engineers Pvt. Ltd. & Anr. Vs. N.K. Modi – III (1996) CPJ 1 (SC) and Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. – AIR 2000 SC 2008 in which it was held that despite the existence of an arbitration clause, the complaint by a consumer under CP Act, 1986 was tenable since the remedy provided under the CP Act is in addition to the provisions of law for the time being in force. Reliance was also placed on the judgement of Lucknow Development Authority Vs. M.K. Gupta – (1994) 1 SCC 243 and it was urged that revision be allowed and compensation ordered by the District Forum be maintained.
The District Forum had dealt with the objections raised by the opposite party regarding bar of jurisdiction of Courts under Section 10 of the Act as also the overriding affect of the Act. The State Commission in the impugned order did not at all refer to the findings of the District Forum on the said issues but allowed the appeal only on the ground that once the complainant had already availed remedy under the said Act and appeal is provided therein, the complainant cannot maintain a complaint under the CP Act. We may at this stage point out that the findings of the District Forum with reference to Section 10 & 11 are supported by reasons which do not call for any interference. In fact, the view taken by the District Forum is in consonance with the rulings of this Commission in the case of Smt. Kalawati (Supra) and Smt. Ushal Rani Aggarwal (Supra). We entirely agree with the reasoning of District Forum on this aspect. Though, the said Act provides for penalties under Section 9 of the said Act on the competent authority, yet, the Act does not provide for any remedy to the consumers who have sought information under the said Act for deficiency of service in the nature of compensation or damages for not furnishing the informations ought to which they are entitled to get under the said Act. Section 3 of the CPA provides additional remedy in addition to the remedies provided under other Acts and it is not in derogation of any provisions of any law. The Consumer Fora has, therefore, jurisdiction to entertain the complaint in respect of deficiency of service in the given facts especially when information sought was not furnished. The competent authority was required to give information within 15 days of the application in terms of Section 5 of the said Act. However, the said information was not furnished. The complainant had approached the District Forum claiming compensation/damages for deficiency of service. Even though, further remedy may be available to the applicant in case information is not supplied in terms of Section 5 of the Act within 15 days, yet, there is no bar to approach the District Forum for deficiency of service. The remedy under the said Act would take care of disciplinary action and penalty against the competent authority in not furnishing the information but no remedy is provided under the said Act to the applicant seeking information therein if information sought is not provided resulting in deficiency of service on that count. The applicant had paid a fee of Rs.10/- for seeking the said information. The case of the applicant would fall within the scope and ambit of Section 2(i)(o) of CP Act, which provides that service means service of any description which is made available to potential users, which include purveying of news or supplying of other information. The complainant had availed of the services under the said Act for consideration by paying fee and had sought information under the said Act, which was not supplied to him, which amounts to deficiency of service. The complainant is, thus, a consumer vis-à-vis information sought on payment under the said Act. In our view, therefore, the State Commission was wrong while holding that once the complainant had availed the remedy against which appeal was provided, he could not maintain a complaint under the CP Act.
For the aforesaid reasons, the impugned order of the State Commission is liable to be set aside and the order of the District Forum is restored. In the facts and circumstances, we shall leave the parties to bear their own cost.
( PRESIDING MEMBER)
NCDRC ruling at: http://18.104.22.168/ncdrcrep/judgement/00RP197505.html