Neyyar Aqua Products v United India Insurance Company Ltd, Syndicate Bank and Kerala State Consumer Disputes Redressal Commission

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY ,THE 07TH DAY OF MARCH 2019 / 16TH PHALGUNA, 1940** ## **WP(C).No. 3255 of 2019** ## **PETITIONER/S:** **NEYYAR AQUA PRODUCTS, NMC-V/375, A & B, T.B. JUNCTION, NEYYATTINKARA, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING PARTNER K.S. SAIJU.** **BY ADV. SRI.GRASHIOUS KURIAKOSE (SR.)** ## **RESPONDENT/S:** |**1**|**THE DIVISIONAL MANAGER,**| |---|---| ||**UNITED INDIA INSURANCE COMPANY LTD,**| ||**LMS COMPOUND, PALAYAM, THIRUVANANTHAPURAM-695004.**| |**2**|**THE MANAGER,**| ||**SYNDICATE BANK, STATUE BRANCH,**| ||**THIRUVANANTHAPURAM-695004.**| |**3**|**THE KERALA STATE CONSUMER DISPUTES REDRESSAL**| ||**COMMISSION,**| ||**SISU VIHAR LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM,**| ||**REPRESENTED BY ITS SECRETARY-695004.**| **BY ADVS. R1- SRI.P.K.MANOJ KUMAR, SC, UNITED INDIA INSURANCE R2 - SRI. R.S. KALKURA, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.3255 of 2019 2 ## **JUDGMENT** This writ petition is filed by the petitioner a partnership firm consisting of husband and wife, challenging Ext.P9 judgment delivered by the Kerala State Consumer Disputes Redressal Commission dated 27.09.2018 in CC No.52/12, whereby the complaint filed by the petitioner was dismissed on the preliminary point that the petition is not maintainable under Sec.2(1)(d) of the Consumer Protection Act, 1986, being a commercial transaction. Brief material facts for the disposal of the writ petition are as follows: 2. My immediate endeavour is to ascertain whether the writ petition is maintainable against the judgment of the State Consumer Disputes Commission. It is not disputed that an appeal from the judgment of the Commission is maintainable before the National Commission as per Sec.19 of the Consumer Protection Act. However, learned Senior Counsel for the petitioner submitted that the complaint was pending before the Commission from the year 2012 onwards, and since the complaint was dismissed on a preliminary point after six years, it cannot be sustained under law. However, I am informed that an application was filed by the 2[nd] W.P.(C) No.3255 of 2019 3 respondent Bank, seeking to adjudicate the issue with respect to the maintainability of the complaint, which was relegated by the Commission, since it was not a pure question of law, to be considered along with the complaint itself. It was thereupon that evidence was adduced by both parties, documents were marked and thereafter assimilating the situation, the Commission has arrived at the finding that petitioner is not a 'consumer', enabling the petitioner to invoke the jurisdiction of the State Commission. 3. I have heard learned Senior Counsel for the petitioner and the respective Standing Counsel appearing for respondents 1 and 2 and perused the pleadings and the documents on record. 4. It is an admitted fact that petitioner participated in the proceedings before the Consumer Commission and has adduced evidence in terms of the complaint filed before the Commission. However, after providing sufficient opportunity and assimilating the situation, Commission has arrived at a finding that the activity carried on by the petitioner is a commercial activity, and therefore, it is hit by Sec.2(1)(d) of the Act. It is also found that petitioner is not entitled to get the benefit of the exemption granted W.P.(C) No.3255 of 2019 4 thereunder. Section 2(1)(d) of Act, 1986 read thus: _“(d) “_ _**consumer** ” means any person who-_ _(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 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 availed of with the approval of he first mentioned person but does not include a person who avails of such services for any commercial purpose;_ _**Explanation** .--For the purposes of this clause, “commercial purpose” does not include use by a person of goods brought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”_ 5. On a reading of the provision, it is clear that a person carrying on with a commercial activity is excluded from the provisions of the Act, however, a person carrying on any activity for the purposes of earning his livelihood is exempted. The Commission after assimilating the situation and taking into account the facts and figures involved in the subject W.P.(C) No.3255 of 2019 5 matter, has arrived at a finding that petitioner is not a consumer under the Act to secure any relief, as sought for. Petitioner has no case that sufficient opportunity was not provided to contest the proceedings. The issue was considered by the apex court in ' _**Nivedita Sharma v. Cellular Operators**_ _**Association of India and Others**_ ' [(2011) 14 SCC 337] and held as follows in paragraphs 22 to 25: _“_ _**22** . Section 17(1) of the 1986 Act which outlines the jurisdiction of the State Commission and Section 19 which provides for an appeal against the order of the State Commission read as under:_ _“_ _**17. Jurisdiction of the State Commission** .--_ _(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--_ _(a) to entertain--_ _(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore; and_ _(ii) appeals against the orders of any District Forum within the State; and_ _(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity._ W.P.(C) No.3255 of 2019 6 _(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction--_ _(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or_ _(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or_ _(c) the cause of action, wholly or in_ _part, arises._ **==> picture [220 x 6] intentionally omitted <==** _**19** ._ _**Appeals** .--Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of Section 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order in such form and manner as may be prescribed:_ _Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period;_ _Provided further that no appeal by a person, who is required to pay any amount in terms of an order of the State Commission, shall be entertained by the National Commission unless the appellant has deposited in the prescribed manner fifty per cent of the amount of rupees thirtyfive thousand, whichever is less.”_ W.P.(C) No.3255 of 2019 7 _**23** . A reading of the plain language of Section 17 shows that every State Commission has the jurisdiction to entertain complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.20 lakhs but does not exceed Rs.1 crore. By Section 18 the provisions of Sections 12 to 14 and the Rules made thereunder, for the disposal of complaints by the District Forum, have been made applicable for deciding the disputes by the State Commission._ _**24** . Section 19 of the 1986 Act provides for remedy of appeal against an order made by the State Commission in exercise of its powers under sub-clause (i) of clause (a) of Section 17. If Sections 11, 17 and 21 of the 1986 Act which relate to the jurisdiction of the District Forum, the State Commission and the National Commission, there does not appear any plausible reason to interpret the same in a manner which would frustrate the object of legislation._ _**25** . What has surprised us is that the High Court has not even referred to Sections 17 and 19 of the 1986 Act and the law laid down in various judgments of this Court and yet it has declared that the directions given by the State Commission are without jurisdiction and that too by overlooking the availability of statutory remedy of appeal to the respondents.”_ 6. Therefore, on an evaluation of the proposition of law laid down by the apex court, it is clear and evident that under normal circumstances, a writ petition cannot be entertained under Article 226 of the Constitution of India, in view of the fact that there is a clear statutory legal frame-work, enabling the aggrieved persons to prefer appeal before the appellate authority. W.P.(C) No.3255 of 2019 8 7. However, learned Senior Counsel for the petitioner has invited my attention to the judgment of the apex court in ' _**Commissioner of Income Tax and Others v. Chhabil Dass Agarwal**_ ' [(2014) 1 SCC 603], wherein also, interference in matters where efficacious alternative remedy is available was considered, and it was held that, when a statutory forum is created by law for redressal of grievances, writ petition should not be entertained ignoring the said statutory dispensation. But, learned Senior Counsel for the petitioner has a case that the issue comes under exceptional circumstances liable to be interfered with by this Court under Article 226 of the Constitution of India, and has invited my attention to paragraphs 15 and 16, which read thus: _“_ _**15** . Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a_ W.P.(C) No.3255 of 2019 9 _statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation._ _**16** . In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana, this Court has noticed that if an appeal is from “Caesar to Caesar's wife” the existence of alternative remedy would be a mirage and an exercise in futility.”_ 8. But, in my considered opinion, the proposition of law laid down thereunder will not also come to the rescue of the petitioner, since this is a case where the preliminary issue was relegated to be considered along with the complaint, being a mixed question of facts and law, and the decision was taken after providing full opportunity of participation and hearing to the respective parties. Therefore, it cannot be said that there is any perversity, arbitrariness, illegality or unfairness on the part of the Commission in conducting the proceedings. Taking into account all these aspects and evaluating the _pros and cons_ , I do not think that petitioner has made out a case W.P.(C) No.3255 of 2019 10 justifying interference of this Court under Article 226 of the Constitution of India. Accordingly, the writ petition is dismissed, as not maintainable. All questions of fact and law on the merits of the matter are left open. ## **Sd/-** ## **SHAJI P.CHALY** **JUDGE** St/08.03.2019 W.P.(C) No.3255 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE INSURANCE POLICY ISSUED BY UNITED INDIA INSURANCE COMPANY IN RESPECT OF THE MACHINERIES AND THE UNIT.** - **EXHIBIT P2 A TRUE COPY OF THE INSURANCE POLICY ISSUED BY UNITED INDIA INSURANCE COMPANY IN RESPECT OF THE MACHINERIES AND THE UNIT.** - **EXHIBIT P3 A TRUE COPY OF THE CLAIM FORM RAISED BY THE PETITIONER BEFORE THE UNITED INDIA INSURANCE COMPANY LIMITED DATED 10/12/2010.** - **EXHIBIT P4 A TRUE COPY OF THE INTIMATION ISSUED BY THE UNITED INDIA INSURANCE COMPANY TO THE FIRST RESPONDENT WITH COPY TO THE PETITIONER.** - **EXHIBIT P5 A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER AGAINST RESPONDENTS 1 AND 2 AS C.C.52/2012 DATED NIL.** - **EXHIBIT P6 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE FIRST RESPONDENT IN C.C. NO.52/2012.** - **EXHIBIT P7 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE SECOND RESPONDENT IN C.C.NO.52/2012.** - **EXHIBIT P8 A TRUE COPY OF THE AFFIDAVIT FILED BY THE PARTNER OF THE PETITIONER BEFORE THE DEBTS RECOVERY TRIBUNAL-II, ERNAKULAM IN TSA NO.408/2016. DATED 12/7/2016.** - **EXHIBIT P9 A TRUE COPY OF THE JUDGMENT PASSED BY THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, THIRUVANANTHAPURAM IN C.C.NO.52/2012, DATED 27/9/2018.** RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-