Complain against the actual service provider

Consumers often complain against the divisional officer of an insurance company who is a separate legal entity

When a complaint is filed, care has to be taken to ensure it fits within the four corners of the law under which it is filed. Otherwise, regardless of whether the grievance is legitimate or not, the complaint is bound to fail. Forgetting this, a complaint is often filed against the individual who is perceived by the consumer as being responsible for the deficiency in service, rather than against the actual service provider. This can have disastrous consequences, as happened in the case of Hasmukh Mehta.

Mehta is a member of Mount Everest Co-op. Housing Society. He had corresponded with the Society on various matters but did not receive any reply. Mehta claimed a secretary of a co-operative housing society who fails to reply to a member's letter is negligent in performing his duties, which constitutes a deficiency of service under the Consumer Protection Act. So, he filed a consumer complaint against Sanjeev Shah, honorary secretary of the Society.

In his complaint on May 11, 2009, Mehta pointed out various instances of the secretary's failure to reply to his letters. When he made a written application to the Society for a no-objection certificate to sell his flat, it was not issued. So, he lost an excellent offer for the sale of his flat. In another instance, Mehta made a written request for a resident certificate required for the passport renewal of his son, Pratik, who was residing with him since birth but the Society failed to issue it. In September 2008, Mehta had wanted to avail of the government's 'amnesty scheme' for registration of the agreement for the flat but the Society initially failed to issue the certificate, and later issued it without the supporting documents.

Consequently, Mehta could not get the benefit of the amnesty scheme. When he tried to lodge the nomination form, it was returned to him because the managing committee considered him to be a defaulter. For these alleged deficiencies, Mehta claimed Shah as the secretary should be personally liable to pay a compensation of Rs 20,000, with 18 per cent interest.

Shah contested it, saying there was no complaint against the Society, so this would not be maintainable for non-joinder of necessary parties. Mehta countered that his grievance was only against Shah and that he did not want to proceed against the Society or the other officebearers who were giving their time and energy for the work on an honorary basis.

Shah denied the allegations and claimed Mehta was in the habit of filing frivolous litigation against the Society or its committee members. He pointed out that of the seven cases filed by Mehta over 14 years, six had been dismissed and only one was pending.

S M Ratnakar, delivering the judgement on behalf of the bench, with S S Patil, observed Mehta had failed to join the Society as a necessary party, despite the objection to the maintainability of the complaint. Mehta had not paid any fees or charges to Shah. So there is neither a consumer and service provider relationship, nor privity of contract between Mehta and Shah. The Society is the service provider. Since the Society is not a party to the dispute, a complaint against Shah in his individual capacity is not maintainable.

Accordingly, the consumer forum, by its order dated June 15, 2013, refused to consider the complaint on merits, and dismissed it as untenable.

The consumer forum noted Mehta had earlier filed a similar complaint, dismissed for identical reasons. It indicted Mehta of filing a false and frivolous complaint despite knowing the correct legal position.

Observing that unfair complaints require to be curbed, the Forum imposed costs of Rs 2,000 to be paid by Mehta to Shah. Thus, after four years of litigation, the complaint came to be dismissed as the service provider was not joined as a party.

Consumers often make similar mistakes by filing complaints against the divisional officer of an insurance company who is a separate and distinct legal entity from the insurance company which is the service provider. When the proper person is not a party before the forum, the complaint gets dismissed on technicalities, regardless of merit.

The author is a consumer activist