NARINDER SINGH Vs. MUNICIPAL COUNCIL

JUDGEMENT

(1.) This revision is directed against the order dated 29.8.2002 of Consumer Disputes Redressal Commission Punjab, Chandigarh allowing appeal against the order dated 30.1.2001 of a District Forum and dismissing the complaint filed by petitioner/complainant.

(2.) In short, the facts giving rise to this revision are these. Petitioner has been running business of cloth as proprietor of Kuku-Di-Hatti in, Shastri Nagar, Kotakpur. Shop wherein the business was being run was assessed to house tax. Fire Cess was also being collected by respondent No. 1/opposite party No. 1- Municipal Council. Fire took place in the shop on 3.10.1999 at 7.45 p.m. Fire Brigade of respondent No.1 was informed of the fire and two fire brigade vehicles of respondent No. 1 reached the spot. It was alleged that the pump of one of the vehicles bearing registration No. PAT 3412 was not in working condition while another vehicle bearing registration No. PAT 9340 dis not have the water. Fire was controlled by the fire tenders called from Moga and Muktsar. Fire tenders from these places took almost 45 minutes time to reach the site after being informed of fire by the SHO, PS City Kotakpura on wireless. It was stated that petitioner suffered loss to stock of cloth of Rs. 3,75,000, to forniture of Rs. 20,000, to 3 shutters of Rs. 10,000, to electric fittings of Rs. 10,000 in addition to damage to the shop of Rs. 50,000 and loss of earning of Rs. 25,000, totalling Rs. 4,90,000. It was claimed that this loss was caused because of one fire tender not being in working order while another not having water. Alleging deficiency in service, petitioner filed complaint for the said amount which was contested by the respondent/opposite parties. For deciding this revision, all the pleas taken in written version need not be mentioned except noticing the plea that major part of fire was extinguished by the fire tender bearing vehicle registration No. PAT 9340. It was denied that petitioner is a consumer qua the respondents. District Forum allowed the complaint with direction to the respondents to pay amount of Rs. 1,95,002 with interest @ 12% p.a., Rs. 5,000 as compensation as also cost. On appeal by the respondents, the District Forum's order was set aside by the State Commission holding that the fire cess levied on the shop was tax and the same could not be treated as consideration for hiring/availing of service of respondent No. 1 by the petitioner within the meaning of Consumer Protection Act, 1986. Reliance was placed on the decision in Unity and Trust Society v. State of Rajasthan & Ors., II (1991) CPJ 56.

(3.) Relying on the decision in The Hingir Raipur Coal Co. Ltd. and Ors. v. State of Orissa & Ors., AIR 1961 Supreme Court 459, the submission advanced by Mr. Bikram Singh for petitioner was that the fire cess realised from the petitioner by respondent No. 1 was not tax but fee and, thus, the order under challenge being erroneous deserves to be set aside. On the other hand, contention advanced by Mr. Sukant Prabhakar for respondents was that the fire cess levied by respondent No. 1-Municipal Council was 'tax'. In support of this submission, reliance was placed on the decision in C.A. 1810 of 1991, Upaj Mandi Samiti & Ors. v. Orient Paper Industries Ltd., decided by the Supreme Court on 9.11.1994. It was pointed out that the stocks, furniture, fixtures and fittings in the shop were insured for a sum of Rs. 4 lakh with the New India Assurance Co. Ltd. Shop was also insured with the Oriental Insurance Co. Ltd. Since petitioner had taken loan from Punjab National Bank, Kotakpura, the stocks and shop, etc., were hypothecated with the bank and the bank on behalf of petitioner had received amounts of Rs. 2,69,878 from New India Assurance Co. Ltd. and Rs. 25,120 from Oriental Insurance Co. under the two policies. According to the learned Counsel, these facts were concealed by the petitioner. As part of this submission, it was further urged that 90% was extinguished by one of the fire tenders owned by respondent No. 1 Municipal Council. Our attention was invited to certain admissions made by the petitioner in cross-examinations and the affidavits of Harsa Singh Dhillon and Harpal Singh filed by way of evidence before the District Forum by the respondents. Without going into the merit of respective submissions advanced by parties Counsel, if fire cess was tax or fee we are proceeding to dispose of this revision on the assumption that complaint raises a consumer dispute.