' MEHMOOD MAQBOOL BAJWA, J.---Legality and validity of order dated 15-10-2008 recorded by learned District Consumer Court, Faisalabad, has been called in question by appellant whereby the claim of respondent to the tune of Rs,2,70,000 was granted.
2. The respondent filed complaint against the appellant with the allegation that he being member of "Committee" joined the appellant, subscribing Rs,8,000 per month to him with understanding by the appellant to pay the respondent Rs,2,40,000 after completion of 30 months. The appellant despite undertaking and commitment failed to deliver the amount prompting respondent to approach learned Consumer Court lodging claim to the tune of Rs,3,73,000 on multiple grounds including damages which was resisted on legal and factual premises. Inter alia questioned the jurisdiction of Consumer Court. However, repelling the objection regarding jurisdiction, granted claim in favour of respondent to the tune of Rs,2270,000 including compensation to the tune of Rs,20,000 and Rs,10,000 as counsel fee.
3. The learned counsel for the appellant while questioning the order dated 26-3-2008 repelling the objection regarding jurisdiction maintained that respondent was neither "Consumer" nor appellant was "service provider" within the meaning of section 2 of the Punjab Consumers Protection Act, 2005 and as such the consumer court got no jurisdiction to adjudicate upon the complaint.
Criticizing the judgment on factual premises, it was contended that amount of committee was paid to the respondent. Substantiating argument, it was submitted that Syed Zawar Hussain Shah appeared before the trial court as a witness from appellant's side who categorically maintained that he paid amount to the respondent at the instance of appellant and as such decision by learned trial court in view of special oath taken by Syed Zawar Hussain is legally not sustainable.
' Repelling the arguments, it was submitted at the instance of respondent that Syed Zawar Hussain was called later on in view of understanding between the parties and as such no exception can be taken to the impugned judgment. Adverting to the argument with reference to jurisdiction of court, it was submitted that appellant was a "service provider" and as such the consumer court got jurisdiction to adjudicate upon the complaint.
4. According to section 25 of the Punjab Consumers Protection Act, 2005 (hereinafter called Act), a claim for damages arising out of contravention of any provision of the Act shall be filed before a consumer court. Sections 4, 11, 13, 16, 18, 19, 20 to 22 of the Act deal with certain liabilities and obligations cast upon the manufacturer or service provider. In order to confer jurisdiction upon consumer court, there must be a "consumer" having grievance either against "Manufacturer" or "Service Provider".
The expression "consumer" has been defined in section 2(c) of the Act. Keeping in view the definition, following persons are included in the said definition:-- "(1) Buyers or person who obtains on lease any product; (2) user of such product with the approval of the buyer; (3) hirer of services for consideration; and (4) beneficiary of such services but subject to the approval of hirer".
However, buyer for re-sale or hire for any commercial IB purpose stands excluded from the definition of "consumer".
' The expression "Services" which is also relevant to settle the moot point has been defined in section 2(k) of the Act, according to which provision of any kind of (1) facility, (2) advice or (3) assistance including medical, legal or engineering services. However, exclusionary part of the definition excludes from its ambit any service, free of charge or under a contract of personal service, rendering of nonprofessional services and service the essence of which is to deliver judgment by a court of law or arbitrator.
' In order to confer jurisdiction upon "Consumer Court", there must be a consumer having grievance against either "Manufacturer" or "Service provider".
Keeping in view the facts contained in the complaint regarding contribution of amount on monthly basis by the respondent with group of persons in order to pay the same turn by turn on monthly basis, the respondent cannot be said.To be a person falling within the ambit of section 2(c)(i) of the Act.
' The learned counsel for the respondent maintained, that respondent hired the services Of appellant and as such his case falls under clause (ii) of subsection (c) of section 2 of the Act.
' No doubt any person engaging the services of other person shall be "consumer" but according to the definition "such engagement of services must be for consideration".
The expression "consideration" has not been defined in section 2 of the Act.
' However, while speaking in ordinary and widest sense, it is the reason, motive or inducement by which a man is moved to bind himself by an agreement.
Though it was argued at the instance of respondent that appellant presenting himself to be "collector" of the amount was entitled to receive the amount paid by members as and when desired but nevertheless, contents of the complaint are totally silent in this regard. It is a matter of common knowledge that every member of "committee" used to collect and receive equal amount and the appellant, being collector of the amount on monthly basis had no additional E benefit which can be termed as "consideration" in order to stamp respondent as "consumer". Opinion formulated by learned trial court that respondent was a "consumer" cannot be endorsed in attending circumstances.
' It was also observed by learned trial Court that case of the respondent being "consumer" falls within the ambit of section 21 of the Act which keeping in view the allegation contained in the complaint also not be endorsed.
Section 21 of the Act deals with different eventualities suggesting false, deceptive or misleading representation. Clauses (a), (b), (e) and (g) deal with misrepresentation with reference to products having no nexus with the fact-ih-issue.
Clauses (c), (d), (I), (h), (i) deal with provision of service which is reproduced for ready reference:- "Section 21,
(c) the services are of a particular kind standard or quality;
(d) the services are provided by a person having a requisite skill or qualification or experience;
(f) the products or services have any sponsorship, approval, endorsement, performance, characteristics, accessories, uses or benefits;
(h) the seller or producer of products or provider of service has any sponsorship approval, endorsement or affiliation;
(i) the products or services are necessary for somebody's well-being".
In view of case of respondent set up in the complaint, there can be no two opinions that there was no representation on the part of appellant regarding particular kind, standard or quality of service.
Similarly, there was no representation at all on the part of the appellant regarding his skill, qualification or experience providing alleged service. Question of "Sponsorship" "approval" etc. In order to cover the case within the mischief of clauses (f) and (h) is also not the case of any body.
Clause (i) in the circumstances is also not helpful to cover the case of respondent in section 21 of the Act. Clauses (j) and (k) by no stretch of imagination can be applied to the facts and circumstances of the case.
5. Since the court in which claim was lodged was constituted under special statute and, therefore, question of jurisdiction was required to be examined by learned trial court while remaining in the four corners of the statute which aspect was totally ignored. The grievance undeniably was to be decided by court of ultimate jurisdiction.
6. Since grievance of the respondent was outside the jurisdiction of consumer court, therefore, the adjudication on merits is without jurisdiction and as such cannot be endorsed.
7. Pursuant to above discussion, while setting aside the impugned order, appeal preferred by appellant is hereby accepted holding that claim of respondent could not be adjudicated upon by learned consumer court.