Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
DIVISIONAL MANAGER, LIC & ANR.
DATE OF JUDGMENT: 18/03/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (4) 288 1996 SCALE (3)609
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal is treated as special leave petition under
Article 136 of the Constitution.
Leave granted.
We have heard learned counsel on both sides.
This appeal arises from the order dated February 17,
1995 in FA NO.510 of 1992 of the National Consumer and
Redressal Commission, New Delhi. The respondent-Haribandnu
Setha filed a claim before the State Commission, Orissa
under the Consumer Protection Act, 1986 [for short, the
’Act’] for damages. The State Commission awarded damages
against the first respondent-LIC. In appeal, the appellant
was impleaded as party-respondent and the National Forum
awarded damages against the State in a sum of Rs. 1,00,000/-
[Rupees one lakh only] and directed to pay compensation
within a period of three months. Thus, this appeal by
special leave.
The only question is: whether the appellant is 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 of loading or both
housing construction entertainment,
amusement or the purveying of news
or other information, but does not
include the rendering of any
service free of charge or under a
contract of Personal service."
[emphasis supplied]
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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 Association
v. V.P. Shantha & Ors. [(1995) 6 SCC 651]. This Court had
held 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. 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 by the doctor to his 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.
It is not in dispute that the respondent was a
Government servant and, therefore, he is bound by the
service conditions and the State was rendering services free
of charge to the contesting respondent. Under those
circumstances, the Government servant has been excluded from
the purview of the Act to claim any damages against the
State under the Act. Therefore, if any claim arises for the
contesting respondent, it would be open to him to claim, in
any other forum, but not under the Act. If the claim is
barred by limitation, time taken during the entire
proceedings shall stand excluded.
The appeal is accordingly allowed. No costs.