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PETITIONER: REGIONAL PROVIDENT FUND COMMISSIONER

       Vs.

RESPONDENT: SHIV KUMAR JOSHI

DATE OF JUDGMENT:       14/12/1999

BENCH: S. Saghir Ahmad, R.P.Sethi

JUDGMENT:

     The  short  but  an important question of  law  to  be decided  in  this appeal is as to whether the provisions  of Consumer  Protection  Act, 1986 (hereinafter referred to  as ’the  Act’)  can  be  invoked  against  the  Provident  Fund Commissioner  by  a member of the Employees  Provident  Fund Scheme?   it  has to be ascertained as to whether  any  such member  is  a  ’consumer* and the duties  performed  by  the Provident  Fund Commissioner under the relevant scheme is  a ’service’ within the meaning of the Act.  If it is held that such member is the ’Consumer and the facilities provided are ’services’,  it  has to be further considered as to  whether the delayed payment of the

     provident   fund  to  a  member-employee  amounts   to deficiency of service under the Act.

     The  facts leading to the filing of the present appeal are  that the respondent, who was a member of the  Provident Fund   Scheme,  applied  to   the  Regional  Provident  Fund Commissioner  for the payment of his provident fund on  15th July, 1992.  It was found that the application filed was not complete  as required by Para 72(5)(d) of the Provident Fund Scheme  applicable in the case.  The appellant forwarded the application to the Respondent’s employer for verification in terms  of the said Para.  The Inspector of the appellant  is also  stated  to  have  visited   the  factory,  where   the respondent-  employee  was  working,  to  impress  upon  the employer  to expedite verification of the application.   The appellant’s Area Inspector is stated to have personally gone to the factory on 19^ August, 1992

     .   and  obtained the verification  application.   The claim  of  the respondent was settled on 24^  August,  1992. However,  the  respondent  filed  a  complaint  before   the District   Consumer  Disputes   Redressal  Forum,  Faridabad (hereinafter referred to as "the District

     I  Forum") on 26th August, 1992 alleging deficiency in service  of the appellant and claimed damages to the tune of Rs.65,000/-  along  with  costs  for the  alleged  delay  in payment  of  his  provident fund.  The  appellant  raised  a preliminary objection regarding the

     jurisdiction  of the District Forum on the ground that the  respondent  was  not a ’consumer’  and  the  facilities provided  by the scheme were not a ’service’.  The  District

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Forum  vide its order dated 4.11.1992 directed the appellant to  pay  interest  @  18% on delayed payment  and  costs  of Rs.1,000/-.  Not satisfied with the order of the District

     Forum,  the appellant filed an appeal before the State Consumer   Disputes   Redressal   Commission,   Haryana   at Chandigarh

     (hereinafter  referred to as "the State  Commission’’) under  Section  15 of the Act.  The appeal was dismissed  by the State Commission on 1.3.1994.  The revision filed before the  National  Consumer Disputes Redressal  Commission,  New Delhi (hereinafter referred to as "the National Commission") was dismissed vide the order impugned in this appeal.

     Taking us through the Employees Provident Fund Scheme, 1952, Shri N.N.  Gowswamy, Senior Advocate appearing for the appellant  submitted that the said scheme could not be  held to  be a ’service’ within the meaning of Section 2(1)(o) and the  respondent  No.l  as ’consumer* within the  meaning  of Section  2(1)(d)  of  the  Act.  It was urged  that  as  the Provident  Fund Commissioner was the custodian of the  funds passed to him and the contribution to the Scheme was not for consideration, the Act was not applicable.

     Consumer  under the Act has been defined as any person who;

     "(i)  buys  any  goods for a consideration  which  has Deer) paid or promised or partly paid and partly promised or under  any system of the daferred payment and includes  user of  such goods other than the person who buys such goods for consideration  paid  or  promised or partiy paid  or  partiy 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

     (i?)   hires  or  avails  of   any  services   for   a consideration  which has been paid or promised or partly p^d 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 any system  of deferred payment, when such services are  availed of with the approval of the first mentioned person.

     and  "service" means service of any description  which Is  made  available  to  potential users  and  includes  the provision   of  facilities  in   connection  with   banking, financing,   insurance,  transport   processing,  supply  of electrical  or  other  energy,  board or  lodging  or  both, entertainment,  amusement or the purveying of news or  other information,  but  doss  not include the  rendering  of  any service  free  of  charge or under 9  contract  of  personal service.

     The  definition of consumer is wide and covers in  its ambit not only the goods but also services, bought or hired, for consideration.

     Such  consideration be paid or promised or partly paid or  partly promised under any system of deferred payment and includes  any  beneficiary  of such person  other  than  the person  who hires the service for consideration.  The Act is

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aimed  to protect the interests of a consumer as  understood In  commercial sense of the term as ’purchaser of goods’ and in   larger  sense  ’user  of  services’.    The   important characteristic  of  goods and service under the Act is  that such  goods are supplied at a price to cover the costs which consequently  result  in profit or income to the  seller  of goods  or  provider of service.  The definition  excludes  a person  who  obtains  such  goods for  re-sale  or  for  any commercial  purposes.   However,  the   services  hired  for consideration  even  for commercial purposes have  not  been excluded.   A  reference  to  the  definition  of  ’service’ unambiguously   indicates  that  the   definition   is   not restrictive  and includes within its ambit such services  as well  which are specified therein.  However, services  hired or availed, which are free of charge, or under a contract of personal  service,  have specifically been  excluded.   This Court  in  Lucknow Development Authority vs.   M.K.   Gtipta 1(1994)  1  SCO  243 referred to the meanings  of  the  word "consumer"  in  various dictionaries and found that the  Act has opted for no less voider definition than those mentioned in  dictionaries.   Referring  to   the  definition  of  the "consumer" the Court held:

     "....It  is in two parts.  The first deals with  goods and  the other with services.  Both parts first declare  the meaning  of  goods and services by use of wide  expressions. Their  ambit is further enlarged by use of inclusive clause. For  instance, it is not only purchaser of goods or hire, of services  but  even  those  who use the  goods  or  who  are beneficiaries  of  services with approval of the person  who purchased  the  goods or who hired services are included  in it.  The legislature has taken precaution not only to define ’complaint’,  ’complainant’, ’consumer’ but even to  mention in  detail  what  would amount to unfair trade  practice  by giving  an  elaborate definition in clause (r) and  even  to define  ’defect’ and ’deficiency’ by clauses (f) and (g) for which  a consumer can approach the Commission.  The Act thus aims  to  proisct  the economic interest of  a  consumer  as understood  in commercial sense as a purchaser of goods  and in  the  larger  sense  of user  of  services.   The  common characteristics  of  goods  and services are that  they  are supplied ai a price to cover the costs and general profit or income  for the seller of goods or provider of service.  But the defect in one and the deficiency in other may havs to be removed  and  compensated  differently.    The  former   is. normally, capable of being replaced and repaired whereas the other may be required to be compensated by award of the just equivalent  of the value or damages for loss.  ’Goods’  have been  defined by clause (i) and have been assigned the  same meaning  as  in the Sale of Goods Act, 1930 which  reads  as under:

     "  ’goods’ means every kind of movable property  other than  actionable claims and money;  and includes stocks  and shares,  growing  crops,  grass and things  attached  to  or forming  part  of  the land which are agreed to  be  severed before sale or under the contract of sale."

     It  was therefore urged that the applicability of  the Act  having been confined to movebale goods only a complaint filed for any defect in relation to immoveable goods such as a house or building or allotment of site

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     could  not  have been entertained by  the  Commission. The  submission  does  not appear to be well  founded.   The respondents  were  aggrieved either by delay in delivery  of possession of house or use of substandard material etc.  and therefore  they daimed deficiency in service rendered by the appellants.   Whether they were justified in their complaint and  if  such act or omission could be held to be denial  of service  in  the  Act shall be examined  presently  but  the jurisdiction  of  the  Commission could not be  ousted  (sic merely)  because  even though it was service it  related  to immoveable property."

     and  while  dealing  with  the  meaning  of  the  word "service" this Court held:

     "The  main clause itself is very wide.  It applies  to any  service made available to potential users.  Trie  words ’any’  and  ’potential’ are significant.  Both are  of  wide amplitude.   The word ’any’ dictionarily means ’one or  some or  all’.   In Black’s Law Dictionary it is explained  thus. "word  ’any’ has a diversity of meaning and may be  employed to  indicate ’all’ or ’every’ as well as ’some’ or ’one’ and its  meaning in a given statute depends upon the context and the  subject  matter of the statute".  The use of  the  word ’an/ in the context it has been used in clause (o) indicates that  it has been used in wider sense extending from one  to all.   The  other word ’potential’ is again very  wide.   In Oxford  Dictionary it is defined as ’capable of coming  into being,  possibility’.   In  Black’s  Law  Dictionary  it  is defined  as  "existing  in  possibility   but  not  in  act. Naturally  and  probably expected to come existence at  some future  time, though not existing;  for example, the  future product  of gain or trees already planted, or the successive future  instalments or payments on a contract or  engagement already  made."  In  other words service which is  not  only extended  to actual users but those who are capable of using it  are covered in the definition.  The clause is thus  very wide and extends to and or ail actual or potential users."

     In  Morgan Stanley Mutual Fund v.  Kartick Pas [(1994) 4 SCC 225 the definition of "consumer’ was explained as:

     "The consumer as the term implies is one who consumes. As  per  the definition, consumer is the one  who  purchases goods  for  private use or consumption.  The meaning of  the word ’consumer’ is broadly stated in the above definition so as  to include anyone who consumes goods or services at  the end   of  the  chain  of  production.    The   comprehensive definition  aims at covering every man who pays money as the price  or cost of goods and services.  The consumer deserves to  get what he pays for in real quantity and true  quality, in  every society, consumer remains the centre of gravity of ail  business and industrial activity.  He needs  protection from  the  manufacturer, producer, supplier, wholesaler  and retailer." i

     This  Court  again  in S.P.  Goel  vs.   Collector  of Stamps  Delhi  1(1996) 1 SCC 573 considered, with  approval, the meaning and scope of the words "consumer", "service" and "deficiency in service".

     In  State  of Orissa vs.  Divisional Manager.   LIC  & Another [(1996) 8 SCC 655 this Court held:

     "The  only  question  is:  whether  the  appellant  is

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liable to pay compensation to Haribandhu Setha under the Act and  whether the claim Is maintainable.  Section 2(1)(o)  of the  Act  defines  ’services’ as  under:   "services"  means service  of  any  description  which is  made  available  to potential  users and includes the provision of facilities in connection  with  banking, financing, insurance,  transport, processing,  supply of electrical or other energy, board  or lodging   or  both,   housing  construction,  entertainment, amusement  or the purveying a news or other information, but does not

     include the rendering of any service free of charge or under a contract of personal service."

     A  reading  of the definition would indicate that  the services  contemplated  thereunder  alone are  the  services within  the  meaning  of the Act  except  excluded  services mentioned  thereunder.   The excluded services are  "service free  of  charge or under a contract of  personal  service". The  concept of contract of personal service was  considered in  a  recent  Judgment  of this  Court  in  Indian  Medical Assn.vs.   V.P.   Shantha (1995) 6 SCC 651.  This Court  had he’d  therein  that the expression "personal service" has  a well-known  legal connotation and has been construed in  the context  of the right to seek enforcement of such a contract under  the  Specific Relief Act, 1963.  For that purpose,  a contract  of personal service has been held to cover a civil servant, the managing agents of a company and a professor in the University.  There can be a contract of personal service if  there  is relationship of master and servant  between  a doctor  and  the availing of his services and in that  event the  services rendered fay the doctor to hi’s employer would be excluded from the purview of the expression under section 2(1)(o)  of the Act by virtue of the exclusionary clause  in the  said definition.  The other excluded service is service rendered free of charge."

     The  combined reading of the definitions of "consumer" and  "service"  under  the Act and looking at the  aims  and object  for which the Act was enacted, it is imperative that the  words "consumer" and "service" as denned under the  Act should  be construed to comprehend consumer and services  of commercial  and trade oriented nature only.  Thus any person who  is found to have hired services for consideration shall be deemed to be a consumer

     notwithstanding  that the services were in  connection with  any goods or their user.  Such services may be for any connected  commercial   activity and may also relate to  the services as indicated in Section 2(1 )(o) of the Act.

     The   Employees   Provident   Fund   &   Miscellaneous Provisions  Act,  1952  (hereinafter  referred  to  as  "the Provident  Fund  Act") has been enacted to provide  for  the institution  of  provident fund, pension and deposit  linked insurance funds for employees working in factories and other establishments.   Section  2(h) defines "fund" to  mean  the provident fund established under the Scheme.  "Scheme" means the  Employees Provident Fund Scheme framed under Section  5 thereof which provides:

     "5.   Employees’  Provident  Fund   Scheme.(1  )  The Central  Government  may,  by notification in  the  Official Gazette,  frame  a  scheme  to   be  called  the  Employees’ Provident  Fund  Scheme for the establishment  of  provident

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funds  under  this  Act for employees or for  any  class  of employees  and  specify  the   establishments  or  class  of establishments  to  which  the said Scheme shall  apply  and there  shall  be  established, as soon 33 may be  after  the framing  of  the  scheme,  a Fund  in  accordance  with  the provisions of this Act and the Scheme.

     (IA)  The Fund shall vest in, and be administered  by, the Central Board constituted under section 5A.

     (IB)  Subject to the provisions of this Act, a  scheme framed  under sub-section (1) may provide for all or any  of the matters specified in Schedule II.

     (2)  A scheme framed under sub-section (1) may provide that  any  of  its  provisions   shall  take  effect  either prospectively  or  retrospectively  on such date as  may  be specified in this behaif in the Scheme."

     Section  5(d)  authorises the Central   Government  to appoint  a  Central Provident Fund Commissioner who  is  the Chief  Executive  Officer of the Central  Board  constituted under  Section  5(a) or the Provident Fund Act.   Section  6 provides  that the contributions to the Scheme shall be made by  the employer to the Fund at the rates specified  therein from  the  wages  of the employee along with his  own  equal contribution"  exercise of the powers conferred by Section 5 of  the  Provident Fund Act, the Central  Government  framed Employees  Provident  Fund  Scheme.  1952.  Para 30  of  the Scheme provided:

     "30.  Payment of contributions(1) The employer shall, in  the first instance, pay both the contribution payable by himself  (in  this  Scheme  referred to  as  the  employer’s contribution)  and also, on behalf of the member employed by him directly or by or through a contractor, The contribution payable  by  such member (in this Scheme referred to as  the member’s contribution).

     (2)  In respect of employees employed by or through  a contractor,  the  contractor shall recover the  contribution payable  by such employee (in this Scheme referred to as the member’s  contribution)  and  shall  pay  to  the  principal employer  the  amount of member’s contribution  so  deducted together  with  an  equal amount of  contribution  (in  this scheme  referred to as the employer’s contribution) and also administrative charges."

     (3)  It  shall be the responsibility of the  principal employer  io pay both the contribution payable by himself in respect  of the employees directly employed by him and  also in  respect  of  the  employees employed  by  or  through  a contractor and also administrative charges.

     ExplanationFor  the  purposes of this  paragraph  the expression "administrative charges" means such percentage of the   pay  (basic  wages,   dearness  allowance,   retaining allowance,  if  any.   and cash value  of  food  concessions admissible  thereon)  for  the  time being  payable  to  the employees  other  than an excluded employee, as the  Central Government  may  in consultation with the Central Board  and having  regard to the resources of .the Fund for meeting its normal administrative expenses fix.

     Obviously,   it  appears  that  as  the   payment   of

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contribution includes the payment of administrative charges, the Scheme appears to be for consideration.

     Mr.A.S.   Nambiar, Senior Advocate, who later appeared for  the  appellant  submitted  that  as  no  part  of   the administrative  charges  is  payable  by  the  employee,  he (employee)  cannot  be  held to be a ’consumer’  within  the meaning of Section 2(1)(d) of the Act.  In support of such a submission  an  affidavit  of Shri  D.P.   Sethi,  Assistant Provident  Fund  Commissioner has been Tiled ^wherein  after reproduction of para 55 of the scheme it is submitted:

     ’That  under  para 30 of Employees’  Provident  Fund Scheme   1952,   employer  is  liable   to  pay   both   the contributions  as  well as administrative charges but  under para 38 the employer is authorised to deduct the

     employee’s  share  of  contribution  from  his  wages, consequently   leaving   employer’s  share    as   well   as administrative charges payable by employer himself.

     That  according  to above scheme provisions it is  the employer  who  is responsible to pay administrative  charges and  not the member.  Following the above provisions of  law the  Central Board of Trustees is recovering  administrative charges only from employer and not from members."

     Such  a  submission  which apparently  appears  to  be attractive,  when  analysed in depth, is  without  substance and, if accepted, is likely to defeat the purpose and object of  the  Act as also the scheme framed under it.   The  word ’consideration’ has not been defined either under the scheme or  the Act.  Black’s Law Dictionary defines ’consideration’ thus:   Consideration  is not to be confounded with  motive, consideration  means something which is of value in the  eye of  the law, moving from the plaintiff, either or benefit of the  plaintiff or of detriment to the defendant.  In  volume 17  of Corpus Juris Secundum (pp.420-421 and 425) the import of  ’consideration’  has  been   described  thus:    Various definitions  of  consideration  are  to   be  found  in  the textbooks  and  judicial  opinions.  A  sufficient  one,  as stated  in Corpus Juris and which has been quoted and  cited with  approval  is, ’a benefit to the party promising, or  a loss  or  detriment  to  the party to whom  the  promise  is made....".   At  common  law every contract not  under  seal requires a consideration to support it, that is,

     as  shown in the definition above, some benefit to the promisor,  or  some  loss or detriment  to  the  promisee... There  is a sufficient consideration for a promise if  there is  any  benefit  to the promisor or any  detriment  to  the promisee.   It  may  be  laid down as a  general  rule.   in accordance  with the definition given above, that there is a sufficient  consideration  for  a promise if  there  is  any benefit  to  the  promisor or any loss or detriment  to  the promisee.   The  gist  of the term ’consideration’  and  its legal  significance  has been clearly summed up  in  Section 2(d) of the Contract Act which defines ’consideration’ thus: When,  at  the desire of the promisor, the promisee  or  any other  person  has done or abstained from doing, or does  or abstains  from  doing,  or promise to door to  abstain  from doing,  something such actor abstinence or promise is called a  consideration  for  the  promise.   Webster’s  Third  New Intenational      Dictionary        (Unabridged)     defines ’consideration’  as:  Something that is legally regarded  as

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the  equivalent  or return given or suffered by one for  the act or promise of another.

     In  Sonia Bhatia v.  State of U.P.  & Ors.  [1981  (2) SCC 585] it was held:

     "From  a  conspectus,  therefore, of  the  definitions contained in the dictionaries and the books regarding a gift or  an  adequate consideration, the  inescapable  conclusion that  follows  is  that ’consideration’ means  a  reasonable equivalent or other valuable benefit passed

     on  by  the  promisor  to   the  promisee  or  by  the transferor to the transferee."

     A perusal of the scheme unambiguously shows that it is for consideration which is applicable to all those factories and  establishments covered under the Act and the scheme who are  required  to  become  a member of the  Fund  under  the scheme.   Para  26 provides that every employee employed  in connection   with  any  work  of   the  factory   or   other estabishment  to  which  the scheme applies  other  than  an excluded  employee, shall be entitled and required to become a  member of the Fund from the date the said para comes into force  in  such  factory or the establishment.   The  scheme provides  for the Board of Trustees, the appointment,  power of  Commissioner  and  other  staff of  Board  of  Trustees, membership  of the Fund, contribution, etc.  Chapter V deals with  contribution.   The  employer who is otherwise  not  a member  of  the  scheme is obliged to contribute  under  the scheme  at  the rates specified therein of the basic  wages, dearness   allowance  including  cash   value  of  any  food concession  and  repairing allowances, if any.,  payable  to each  employee to whom the scheme applies.  The contribution of  the employee has to be equal to the contribution payable by  the employer in respect of such employee.  The words ’in respect of are significant as they indicate the liability of the employer to pay his part

     of  the contribution in consideration of the  employee working  with  him.  But for the employment of the  employee there  is no obligation upon the employer to pay his part of the contribution to the scheme.  The administrative charges, as  required to be paid under para 30 of the scheme are also paid  for consideration of the employee being the member  of the scheme.  It is Immaterial as to whether such charges are deducted  actually from the wages of the employee or paid by his employer in respect of the employee-member of the scheme working  for such employer.  The administrative charges  are further required to be determined having regard to the basic wages,  the dearness allowance, retaining allowance, if any, and  cash  value of food concessions admissible thereon  for the  time being payable to the employee.  If the  contention of  the  appellant  is  accepted ttiat as  no  part  of  the administrative charges are deducted from the actual wages of the  employee, he cannot be deemed to be hiring the services of  scheme, the consequences of such an interpretation shall frustrate  the  object of the Act and the scheme as in  that event  no  obligation can be cast upon the employer  to  pay contributions which are equal to the contribution payable by the  employee  along with the administrative  charges.   The scheme  has to be given such an interpretation which  serves the  purpose  intended to be achieved by it keeping in  view the objects of the Act.  The admini»trative

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     charges  are in lieu of the membership of the employee and  for the services rendered under the scheme.  It  cannot be  held that even though the employee is the member of  the scheme,  yet  the  employer  would only be deemed  to  be  a ’consumer’  for  having made payments of the  administrative charges.  Admittedly, no service is rendered to the employer under  the  scheme  which is framed for the benefit  of  the employee  under Sections 5, 6 and 7 of the Act.  Chapter VII provides  for  administration  of the  Fund.   Accounts  and Audit.   A  separate account called "Central  Administration Account"  for  recording of administration expenses  of  the Fund  is  required to be kept under Para 49.  Para 52  deals with  the  investment  of  monies  belonging  to  employee’s provident fund and provides that such monies be deposited in the Reserve Bank or the State Bank of India or in such other scheduled banks as may be approved by the Central Government from  time to time or be invested subject to the  directions as  the  Central  Government may from time to time  give  in securities mentioned or referred to in Clauses (a) to (d) of Section  20  of the Indian Trust Act., 1882.   Ail  expenses incurred in respect of, and loss, if any.  arising from, any investment  shall be charged to the Fund.  Para 53  provides that the Fund not including the administration account shall be  except  with  the  previous   sanction  of  the  Central Government be expanded for any purpose other than the

     payment  of  the  sums  standing   to  the  credit  of individual  member of the Fund or to their nominees or heirs or  legal representatives in accordance with the  provisions of  the scheme.  All expenses relating to the administration of  the Fund including those incurred on Regional  Committee are  to  be  made from the Fund in terms of para 54  of  the scheme.   Similarly  all expenses of administration of  Fund including  the  fees and allowances of the trustees  of  the Central    Board  and  salaries,   leave  and  joining  time allowance.    travelling   and    compensatory   allowances, gratuities   and    compassionate    allowances,   pensions, contributions  to  provident  fund and  other  benefit  fund instituted  for  the officers and employees of  the  Central Board, the cost of audit of the accounts, legal expenses and cost of all  stationery and forms incurred in respect of the Central Board, cost and ali e>i"-n^es incurred in connection with  the construction of office ana staff quarters shall be met from the Administration Account of the Fund.  The member of the scheme is entitled oniy to the interest determined as per  para 60.  Chapter VIII deals with nominations, payments and withdrawals from the Fund.

     We  cannot  accept  the  argument  that  the  Regional Provident  Fund  Commissioner,   being  Central  Government, cannot  be held to be rendering ’service’ within the meaning and  scheme  of  the  Act.    The  Regional  Provident  Fund Commissioner, under the Act and the

     scheme  discharges statutory functions for running the scheme.   It  has not, in any way, been delegated  with  the sovereign  powers of the State so as to hold it as a Central Government,  being not the authority rendering the ’service’ under  the Act.  The Commissioner is a separate and distinct entity, it cannot legally claim that the facilities provided by  the  ’scheme’  were not "service" or that  the  benefits under  the  scheme being provided were free of charge.   The definition of "consumer" under the Act includes not only the person  who hires the ’services’ for consideration but  also

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the  beneficiary, for whose benefit such services are hired. Even  if it is held that administrative charges are paid  by the  Central  Government  and no pad of it is  paid  by  the employee, the services of the Provident Fund Commissioner in running  the scheme shall be deemed to hsve been availed  of for  consideration by the Central Government for the benefit of  employees who wouid be treated as beneficiary within the meaning  of  that word used in the definition  of  consumer. This  Court  in  M/s.Sprinq  Meadown Hospital  &  Anr.   vs. Harjol  Ahluwalia  through K.S.  Ahluwalia & Anr.  [JT  1998 (2)  SC 620, to which one of us (Saghir Ahmad.J) was a party has  already  held  that the "consumer" means a  person  who hires or avails of any services and includes any beneficiary of  such  service other than the person who hires or  avails the  services.   The Act gives comprehensive  definition  of ’consumer’

     who  is  the principal beneficiary of the  legislation but at the same time in view of the comprehensive definition of  the term "consumer" even a member of the family of  such ’consumer’  was held to be having the status of  ’consumer’. In an action by any such member of the family of beneficiary of  the service it will  not be open for a trader to take  a stand that there was no privity of contract.  In this regard this Court specifically held:

     "In  the  present case.  we are concerned with  clause (ii)  of  Section  2(1)(d).  In the said clause  a  consumer would  mean a person who hires or avails of any services and includes  any  beneficiary of such services other  than  the person  who  hires or avails of the services.  When a  young child is taken to a hospital by his parents and the child is treated  by  the doctor, the parents would come  within  the definition  of  consumer having hired the services  and  the young child would also become a consumer under the inclusive definition  being  a  beneficiary  of  such  services.   The definition  clause being wide enough to include not only the person  who  hires the services but also the beneficiary  of such-  services  which beneficiary is other than the  person who  hires the services, the conclusion is irresistible that both  the parents of the child as well as the child would be consumer  within the meaning of Section 2(1 )(d)(ii) of  the Act and as such can claim compensation under the Act"

     A  perusal  of  the scheme clearly  and  unambiguously indicate  that  it  is  a ’service’ within  the  meaning  of Section  2(1)(o)  and  the member a  ’consumer’  within  the meaning  of Section 2(1)(d) of the Act.  It is..  therefore, without any substance to urge that the services

     under  the  scheme  are rendered free of  charge  and, therefore,  the  scheme  is not a ’service’ under  the  Act. Both  the  State as well as National Commission  have  dealt with  this  aspect  in  detail   and  rightly  came  to  the conclusion  that  the Act was applicable in the case of  the scheme on the ground that its member was a ’ consumer’ under Section 2(1)(d) and the scheme was a ’service’ under Section (1)(o).

     No  ground  is, therefore, made out  for  interference with   the  impugned  order.    The  appeal  is  accordingly dismissed,  as no one appeared on behalf of the  respondent, without any order as to costs.

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