Kerala High Court
Life Insurance Agents Co-Operative ... vs Nelson David on 12 April, 2024
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
WP(C) NO. 23786 OF 2018
PETITIONERS:
1 LIFE INSURANCE AGENTS CO-OPERATIVE SOCIETY LTD.
NO.R. 1021,
REPRESENTED BY ITS SECRETARY,OPP. HEAD POST OFFICE,
SAKTHAN NAGAR,THRISSUR.
2 THE PRESIDENT
LIFE INSURANCE AGENTS CO-OPERATIVE SOCIETY LTD.
NO.R. 1021, OPP. HEAD POST OFFICE, SAKTHAN
NAGAR,THRISSUR.
BY ADV SRI.P.C.SASIDHARAN
RESPONDENTS:
1 NELSON DAVID
PALLIPPURAM HOUSE,ST.ANTONY'S STREET,P.O.
KURIYACHIRA, THRISSUR- 680 006
2 JUMI NELSON
PALLIPPURAM HOUSE,ST.ANTONY'S STREET,P.O.
KURIYACHIRA, THRISSUR- 680 006
3 CONSUMER DISPUTES REDRESSAL FORUM
THRISSUR, REPRESENTED BY ITS PRESIDENT,P.K.SASI-
680 001.
BY ADVS.
SRI.R.S.KALKURA FOR R1 & R2,
SRI.HARISH GOPINATH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C) NO.23786 OF 2018
2
"C.R"
JUDGMENT
The 1st petitioner is a Co-operative Society registered
under the provisions of the Kerala Co-operative Societies Act,
1969 and Rules framed thereunder, and the 2nd petitioner is its
President. It is contended that the Society is formed for the
welfare of Life Insurance Agents and the area of operation is
entire Thrissur District.
2. According to the petitioners, one Geethakumary was
managing the affairs of the Society and had misappropriated the
entire money and deposits of the Society to a tune of
Rs.3,69,90,208/-. Based on the complaint of the petitioners, FIR
was lodged in Crime No.1846 of 2015.
3. While so, the respondents 1 and 2 filed complaints
before the Consumer Disputes Redressal Forum, Thrissur
alleging that they made a deposit of Rs.2,50,000 on 21.1.2015
and since the majority amount has not been paid, there is
deficiency in service. Acting on the complaints, the Consumer
Disputes Redressal Forum, Thrissur, on 30.4.2018 passed orders
WP(C) NO.23786 OF 2018
in C.C No.690 of 2016 and C.C No.685 of 2016 (Exts.P4 and P5)
allowing their complaints. It is challenging Exts.P4 and P5
orders passed by the Consumer Disputes Redressal Forum,
Thrissur that the petitioners have approached this Court with
this writ petition.
4. According to the petitioners, since it is a Co-operative
Society and thus it is taken out of the purview of the Consumer
Protection Act, 1986 and therefore, complaints filed by the 1 st
and 2nd respondents were not maintainable and accordingly, the
consequential orders passed as Exts.P4 and P5 are not
sustainable and are without jurisdiction.
5. The respondents 1 and 2 have filed a counter
affidavit, in which it is contented that their complaints were
perfectly maintainable and that they fell within the definition of
"consumer" under Section 2(o) of the Consumer Protection Act,
1986. It is also contended that under Clause (e) of Section 2,
which defines "Consumer Disputes", the complaints were
perfectly maintainable.
6. I have heard Sri.P.C.Sasidharan, learned counsel
WP(C) NO.23786 OF 2018
appearing for the petitioners and Sri. R.S.Kalkura, learned
counsel appearing for respondents 1 and 2.
7. Sri.P.C.Sasidharan, learned counsel for the
petitioners, contended that since the orders passed by the
Consumer Forum under Exts.P4 and P5 are without jurisdiction,
this Court under Article 226 of the Constitution of India has
ample powers to interfere with the said proceedings. According
to him, the petitioner being a co-operative Society, the
respondents 1 and 2 must resort to the mechanism available
under the Kerala Co-operative Societies Act, 1969 and the Rules
made thereunder. In other words, it is the specific case of the
learned counsel for the petitioners in view of Section 69 of the
Kerala Co-Operative Societies Act, 1969. Shri.P.C.Sasidharan
further contends that the respondents 1 and 2 are not
consumers of the petitioner Society and there is no service
rendered by them to the respondents and hence the jurisdiction
of the 3rd respondent is clearly ousted. He further relies on the
decision of the Single Bench of the Calcutta High Court in Secy,
E & NF Railway Junior Coop. Credit Society Ltd Eastern
WP(C) NO.23786 OF 2018
Railway Vs. Jyothish Chandra Sarkar [2024 SCC Online
Cal 1668], in support of the his contentions.
8. On the other hand, Sri.R.S.Kalkura, learned counsel for
the respondents 1 and 2 submitted that since the petitioner-
Society has not invoked the alternative remedy under the
provisions of the Consumer Protection Act, 1986, the Writ
Petition is not maintainable. At any rate, according to the
learned counsel for respondents 1 and 2, the Consumer
Disputes Redressal Forum and the remedy under the Kerala Co-
operative Societies Act, 1969 are supplemental to each other
and, hence, it cannot be said that the 3 rd respondent did not
have the jurisdiction to entertain the complaints.
9. I have considered the rival submissions raised across
the bar.
10. The prime question that falls for consideration of this
Court is as to Whether the provisions of the Kerala Co-
operative Societies Act, 1969 override the provisions of
the Consumer Protection Act, 1986?
11. Before answering the said question it is necessary to
WP(C) NO.23786 OF 2018
consider the purpose for which the Consumer Protection Act,
1986 was enacted. The Consumer Protection Act was enacted on
24.12.1986. On a reading of the preamble of the Act, it is
evident that the said Act is enacted for providing better
protection of the interest of consumers and for the purpose to
make provision for establishment of Consumer Council and
other Authorities for the settlement of consumers' disputes and
for matters connected therewith.
12. Section 3 of the Consumer Protection Act, 1986
provides that the provisions of the Act shall be in addition to and
not in derogation of the provisions of any other law for the time
being in force. Therefore, it is evidently clear that the provisions
of the Consumer Protection Act, 1986 do not have any
overriding effect over any other enactments. But, the pointed
question is, when pitted against the provisions of the Kerala Co-
operative Societies Act, 1969, whether the Consumer Protection
Act, 1986 will prevail or not?
13. Kerala Co-operative Societies Act, 1969 was passed
by the Kerala State Legislative Assembly and received the
WP(C) NO.23786 OF 2018
assent of the President of India on 9.4.1969. When one reads
the preamble of the Kerala Co-operative Societies Act, 1969 it
becomes clear that the same is intended to consolidate, amend
and unify the law relating to Co-operative Societies in the State.
Therefore, it is evident that both enactments are intended to
operate on different fields and have no overlapping on each
other.
14. With these observations, when this Court analyses the
contention of the learned counsel for the petitioners, the point
requires to be addressed is whether the presence of an
alternative forum under the provisions of the Kerala Co-
operative Societies Act, the jurisdiction of the Consumer
Disputes Redressal Forum is ousted.
15. Section 69 of the Kerala Co-operative Societies Act,
1969 no doubt, provides for a mechanism for resolution of a
dispute between a member and Society. However, that itself will
not enable the petitioner-Society to contend that the
respondents 1 and 2 should invoke the mechanism under the
Kerala Co-operative Societies Act, 1969 alone and no other
WP(C) NO.23786 OF 2018
mechanism could be invoked by them. Accepting the said
argument would necessarily be doing violence to the provisions
of Section 3 of the Consumer Protection Act, 1986. When the
Parliament enacted the Consumer Protection Act, 1986, the very
intention was to provide an alternative mechanism for easy
disposal of the grievances of the consumer. It is also pertinent
to note that the provisions of the Kerala Co-operative Societies
Act, 1969 has received the assent of the President of India.
However, pertinently, the provisions under Section 69 underwent
amendment by the State Legislative Assembly and was given
effect from 2-1-2003 and the amendments were notified without
obtaining Presidential assent. Hence, the State enactment will
not prevail. (see Thodupuzha Taluk General Marketing Co
op. Society v. Michael Sebastian [2010 (1) KLT 938].
16. Now the added question raised by the petitioners is
whether respondents 1 and 2 are consumers qua the petitioner
society. The averments in the writ petition clearly admits that
the petitioner Society has received deposits from the
respondents 1 and 2 and there is a dispute in not having
WP(C) NO.23786 OF 2018
returned the entire money.
17. It is pertinent to note that the definition of the term
"consumer" under the Consumer Protection Act, 1986 cannot be
given restricted meaning. Section 2(d)(ii) of the Consumer
Protection Act, 1986 clearly lays down that a person who avails
a services is also included in the definition of "consumer" under
the Act. Exts. R1(a) and R1(c) deposit receipts will evidently
show that the petitioner-Society has received Rs.2.5 lakhs as
deposit and promised to return the same after 36 months. Thus,
failure to return the amount after the expiry of period certainly
constitutes a breach of promise entitling the respondents 1 and
2 to choose their remedy for redressal of the grievance.
18. In Virender Jain Vs Alaknanda Coop.Group
Housing Society Ltd. [(2013)9 SCC 383], the Hon'ble
Supreme Court held that members of the Society who have
given amounts in instalments for the purchase of flats would
come within the definition of "consumer" under Section 2(1)(d)
of the Consumer Protection Act, 1986 and their complaint is
maintainable under the provisions of the Consumer Protection
WP(C) NO.23786 OF 2018
Act, 1986.
19. Similarly, in Chandigarh Housing Board vs Avtar
Singh [(2010)10 SCC 194], it was held by the Apex Court
that when members have applied pursuant to the scheme of the
society for allotment of flats, it is deemed that they have availed
the services and would come within the definition of 'consumer'
under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
20. The above decisions rendered by the Hon'ble Supreme
Court is definitely an authority for the proposition that the
respondents 1 and 2 are consumers qua the petitioner Society.
21. In view of the above, this Court has no hesitation to
reject the contention of the petitioner-Society that the
respondents 1 and 2 will not come within the definition of
"consumer" as provided under the Consumer Protection Act, 1986.
22. Coming back to the question of ouster of jurisdiction
of the Consumer Disputes Redressal Forum, for applying the
principles of ouster, there should have been explicit provisions
under the Kerala Co-operative Societies Act, 1969 which also
should have received the Presidential assent. Admittedly, that is
not the case here. Reading of Section 69 of the Kerala Co-
WP(C) NO.23786 OF 2018
operative Societies Act, 1969, it is not possible for this Court to
conclude that the Jurisdiction of Consumer Forum will be ousted
merely because of the presence of alternative Forum for
redressal of the grievance of the respondents 1 and 2. The
purposive interpretation given to the both enactments would
lead to an irresistible conclusion that the remedy under the
Consumer Protection Act, 1986 is supplemental to the remedy
under the Kerala Co-operative Societies Act, 1969. Any other
interpretation will not do justice to the cause.
23. In National Seeds Corpn Ltd Vs M.Madhusudhan
Reddy [(2012)2 SCC 506], the Apex Court considered the
question as to whether the provisions of Seed Act, 1966 would
override the provisions of the Consumer Protection Act, 1986.
Answering the question in negative the Apex Court held that
merely because a mechanism is provided under the Seed Act,
1966 for farmers suffering from loss of crop due to defective
seeds to seek for redressal of their grievance, the claim for
damages under the provisions of Consumer protection Act, 1986
is not barred. Despite the Seed Act, 1966 being a special
WP(C) NO.23786 OF 2018
enactment, the Apex Court proceeded to hold that the
provisions of the Seed Act will not oust the jurisdiction of the
Consumer Forum.
24. It is beyond doubt that Consumer Protection Act,
1986 being a beneficial legislation should receive a wider and
broad interpretation. In Fair Air Engineers(P) Ltd Vs N K
Modi [(1996) 6 SCC 385], the Supreme Court was called
upon to decide whether the remedy under the Consumer
Protection Act, 1986 is in addition to the remedy provided under
the Arbitration Act. Relying on the provision under Section 3 of
the Consumer Protection Act, 1986, it was held that the Forums
created under the Act was competent to proceed with the
disputes rather than relegating the parties to the Forum created
under the Agreement.
25. In Secretary, Thirumurugan Co-operative
Society v. Lalitha (dead) through L.Rs & Others [2004(1)
SCC305] reaffirming the view in Fair Engineers (supra), the
Honourable Supreme Court considering the very same issue as
to whether the provisions of the T.N Co-operative Societies Act
WP(C) NO.23786 OF 2018
will prevail over the provisions of the Consumer Protection Act,
have answered the question in negative and have held that the
provisions of the State Co-operative Societies Act will not prevail
over the provisions of the Consumer Protection Act. Therefore, it
has to be held that jurisdiction of the Consumer Forum under
the Consumer Protection Act, 1986 is not ousted by virtue of the
provisions of the Kerala Co-operative Societies Act, 1969.
26. Before concluding, it is necessary to consider the impact of
the decision of the Single Bench of the Calcutta High Court in
Secy, E & NF Railway Junior Coop. Credit Society Ltd
Eastern Railway (supra) relied on by the learned counsel for
the petitioners. A reading of the said decision shows that the
Single Bench of the Calcutta High Court was called upon to
decide the impact of Section 84 of Multi State Cooperative
Societies Act, 2002. Since the said Act contained a provision for
arbitration, it was held that the provisions of the Consumer
Protection Act, 1986 are not applicable. In arriving at such a
decision, the learned Single Judge relied on the decision of the
WP(C) NO.23786 OF 2018
Apex Court in Chairman, Thiruvalluvar Transport
Corporation Vs. Consumer Protection Council [(1995) 2
SCC 479]. However, it is pertinent to note that the aforesaid
decision in Thiruvallur Transport Corporation has been
distinguished by the Apex Court in the decision in Secretary,
Thirumurugan Co-operative Society (supra). Further more,
a reading of the decision shows that none of the decisions of the
Supreme Court referred to above in this judgment has been
brought to the notice of the Single Bench of the Calcutta High
Court and hence this Court is not inclined to the rely on the said
decision, since it is rendered "per incuriam".
27. In view of the above discussions, the irresistible
conclusion is that the provisions of the Kerala Co-operative
Societies Act, 1969 does not oust the jurisdiction of the
Consumer Forum under the provisions of the Consumer
Protection Act, 1986. Thus, Exts.P4 and P5 cannot be assailed
on the question of jurisdiction. Hence, the writ petition fails and,
accordingly, it is dismissed.
28. However, since this Court has declined to uphold the
WP(C) NO.23786 OF 2018
contention of the petitioners on the question of jurisdiction, the
petitioner-Society necessarily can avail its statutory remedy
under Section 15 of the Consumer Protection Act, 1986.
However, this Court is constrained to note that the orders were
passed on 30.4.2008 and that the present Writ Petition was filed
only on 06.07.2018 and that too after expiry of the period
prescribed for preferring appeal. However, the petitioners are
entitled to have the period from 6.7.2018 till today excluded for
the purpose of seeking condonation of delay in preferring the
appeal. It is to be noted that the writ petition was admitted and
kept pending with an interim order passed in favour of the
petitioners on 17.07.2018. In view of the above, though the writ
petition is dismissed, following directions are issued:
(1) Liberty is granted to the petitioners to file statutory
appeals and applications for stay as against Exts.P4 and P5
orders within a period of one month from the date of receipt of
the copy of this judgment, if so advised.
(2) The petitioners may also file applications for
condonation of delay.
WP(C) NO.23786 OF 2018
(3) If the appeals and applications for condonation of
delay are filed within the time as directed above, the period
from 06.07.2018 till today shall stand excluded in terms of the
provisions contained under Section 14 of the Limitation Act,
1963.
(4) Petitioners will however be at liberty to explain the
cause of delay, otherwise not excluded under this judgment.
(5) It is however made clear that benefit would however
apply only if the petitioners prefer appeal, if so advised, within a
period of one month from the date of receipt of a copy of this
judgment.
(6) Till such time the appeals are filed as above, the
interim order passed by this Court on 17.7.2018 will inure to the
benefit of the petitioners.
Accordingly, this Writ Petition is dismissed subject to the
above observations. No order as to costs.
Sd/-
EASWARAN.S,
JUDGE
lsn
WP(C) NO.23786 OF 2018
APPENDIX OF WP(C) 23786/2018
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE
EXHIBIT P2 TRUE COPY OF THE CLASSIFICATION
EXHIBIT P3 TRUE COPY OF THE FIR IN CRIME NO 1846/2015 OF
NEDUPUZHA POLICE STATION
EXHIBIT P4 TRUE COPY OF THE ORDER IN CC NO 690/2016
FILED BY THE 1ST RESPONDENT DATED 30.4.2018
EXHIBIT P5 TRUE COPY OF THE ORDER IN CC NO 685/2016
FILED BY THE 2ND RESPONDENT DATED 30.4.2018
RESPONDENTS' EXHIBITS:
EXHIBIT TRUE COPY OF THE FIXED DEPOSIT RECEIPT
R1(a) BEARING NO.2960 DATED 21.1.2015 ISSUED BY THE
PETITIONER TO THE 1ST RESPONDENT.
EXHIBIT TRUE COPY OF THE COMPLAINT IN CC NO.690 OF
R1(b) 2016 FILED BY THE FIRST RESPONDENT BEFORE THE
CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR.
EXHIBIT TRUE COPY OF THE FIXED DEPOSIT RECEIPT
R1(c) BEARING NO.2959 DATED 21.1.2015 ISSUED BY THE
PETITIONER TO THE SECOND RESPONDENT.
EXHIBIT TRUE COPY OF THE COMPLAINT IN CC 685 OF 2016
R1(d) FILED BY THE 2ND RESPONDENT BEFORE THE
CONSUMER DISPUTES REDRESSAL FORUM, THRISSUR.
EXHIBIT TRUE COPY OF THE WRITTEN VERSION SUBMITTED BY
R1(e) THE OPPOSITE PARTIES IN CC 690 OF 2015 ON THE
FILE OF THE CONSUMER DISPUTES REDRESSAL FORUM
EXHIBIT TRUE COPY OF THE WRITTEN VERSION SUBMITTED BY
R1(f) THE OPPOSITE PARTIES IN CC 685 OF 2015 ON THE
FILE OF THE CONSUMER DISPUTES REDRESSAL FORUM
TRUE COPY
P.A TO JUDGE
LSN
