BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 03^rd DAY OF MARCH 2023

ORDER

SMT.JYOTHI N., MEMBER

1. The complaint has been filed under Section 35 of C.P. Act (hereinafter referred as an “Act”) against the OP for the following reliefs against the OP:-

1. Direct the OPs to pay total due a sum of Rs.30,43,424.47p with interest at the rate of 24% p.a. from the date of failure till the date of payment.
2. Direct the OPs to pay the compensation of Rs.50,00,000/- for the pecuniary loss caused to the complainant for purchase of raw material and loss of raw material and inconvenience, harassment.
3. Direct the respondent bank to clear the liens created over the schedule property.
4.  Direct the OPs to pay cost of the proceedings  and pass  such other relief deems fit and proper under the circumstances of the case in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainant  state that Opposite parties are group of companies carrying on large scale construction work all over India, OPs were also carrying on construction of LT/HT Electrical lines, shifting of LT/HT lines and transformer centre along CTH road project in Bengaluru. The complainant had a small electrical shop by name and style Chetan Electronics which was situated at Manipal for earning his livelihood and at present said shop was closed due to non-payment of the dues by the OPs. The complainant came in contact with the one Abhijeet Toll Road (Karnataka) Co.Ltd. i.e. OP No.1 and OPs awarded work to the complainant as per work order dt.15.03.2012. The complainant proposed to do service for shifting and extension of HT & LT lines, along the SH and CTH Toll road cum partly development project and KRDCL from Hassan to CN Halli.

3.     The complainant further states that had also executed the shifting of line including installations of new poles as per BOQ and also one DP structure with 63KVA transformer supplied to their site office for power connection. The total bill of Rs.30,43,000/- presented at their office. In order to execute the work complainant availed bank loan for Rs.25,00,000/- to purchase the raw material after completing portion of work shifting of HT/LT electrical line along CTH project work. The complainant also produced 04 invoices dt.27.02.2013, 08.04.2013 and 05.01.2013 for total of Rs.30,43,424.47p. The complainant states that out of his own fund executed the shifting of lines including installing of new holes as per BOQ by engaging manpowers and raw materials in order to work out his livelihood and presented the bills to OP-4. The total 04 perform invoice worth of Rs.30,43,424.47p has been certified by the quality and project managers of their companies.

4.     The complainant further states that the OPs company by investing his funds by availing loan of Rs.25,00,000/- and investing Rs.25,00,000/- out of his own funds in total Rs.50,00,000/- spend on the project thinking that the OP company will reimburse the same. The work done by the complainant is liable to pay by the OPs and also the raw material purchase by the complainant has been used by the OP company but not paid the amount. The complainant also states that the OP company through their agreement and availed bank loan in order to execute the work and forced to pay bank interest along with capital money availed by the complainant and also invested his own funds. The complainant states OPs company is  intentionally  and neglectingly not paid the amount in spite of availing service from the complainant just to make wrongful gain which amounts to deficiency of service. The complainant stored raw material for executing the  work with Rs.50,00,000/- has been taken by the OPs and some material are stolen by the general public. FIR also lodged by the complainant.

5.  The complainant further states that the complainant is a customer and the OPs hired the service of the complainant but failed to pay the amount as agreed by the OP which amounts to deficiency in service and cause of the complaint arose on the date of entrust of work i.e.15.03.2012 and several demands was made and complainant issued legal notice dt.12.08.2013 and letter dt.02.02.2016 and the amount unpaid till the date and cause of action will continue till the date of payment. Hence, complaint is within time.

6.   After service of notice, OP-1 to 4 have appeared before this commission and filed version. But as per order dt.12.08.2021 and subsequently OP-1 to 4 were present and sought time to file vakalath and later OP- 1 to 4 not filed vakalath and also version of OP-1 to 4 and it was taken as not filed as version of OP-1 to 4 has not filed within statutory period of 45 days and later version of OP-1,3 & 4 has filed, but complainant has stated no objection. Hence, version of OP-1,3 & 4 was taken on file but it was not taken on record.  

7.   The GPA holder of complainant  filed his affidavit evidence relies on documents No.1 to 6.   One Pankaj Kumar Jayaswal, Authorized representative of OP-1 & 3  has filed his affidavit evidence and  relied on documents R1 and Sri Santhosh Kumar, HR Manager of OP-4 filed his affidavit evidence and Relies on document R2.

8.  Heard the arguments of advocate for the complainant. On such date 15.10.2022 counsel                OP-1 and 3 counsel have filed retirement memo commission order dt.15.10.2023 directed to produce the copies and issue notice to OP-1 & 3 with postal acknowledgement or any electronic mode.  Perused the documents.

9.     The following points arise for our consideration as are:-

1. Whether the complainant is a consumer or not?
2. Whether there is deficiency in service on the part of the OP?
3. Whether the complainant is entitled for the reliefs as sought for?
4. What order?

10.   Our answers to the above points are as under:

       Point No.1:  Negative.

       Point No.2 & 3: Does not arise for consideration

      Point No.4: As per final orders

REASONS

11.   Point No.1:   On perusal of the pleading of the complainant, the complainant has availed loan for Rs.50,00,000/- for the purpose of shifting and extension HT & LT line along the SH and CTH toll road cum partially developed project and KRDTL which OP has provided the working order dt.15.03.2012. OP has issued work order i.e.Ex.P2 to complainant and complainant was a contractor/investor who was running business of name and style of Chetan Electricals for construction of LT/HT electronically line shifting of LT/HT lines and transformer centre along with CTH project Rs.1,35,02,087/-. The complainant being investor and as a contractor has agreed to undertake the work from OP for shifting LT/HT and for which complainant availed a loan and invested his money to the raw material and manpower for shifting LT/HT lines Rs.50,00,000/- and  complainant’s 04 invoices dt.27.02.2013, 08.04.2013 and 05.01.2013 to total of Rs.30,43,427.47p as per Ex.P3.

12.   Now the crux of the matter is that whether the complainant is a consumer. In the instant case the complainant has not paid any monetary consideration to OP to avail the services from OP, but complainant is a investor and a contractor has invested money for doing a contract work to the OP as per the work order issued by the OP. No monetary consideration has been paid to avail the services from the OP, no document has been produced to support the transaction and just a service provider to the OPs. But the complainant investor and the contractor is alleging the deficiency of service, it is not fair as per section 2(7) of C.P.Act, “ which define who is a consumer?  In section 2(7)(ii): hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service otherthan the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of which the approval of the first mentioned person, but does not include a person who avails such service for any commercial purpose ”

13. The complainant is not consumer but he is investor/contractor who is doing the business in the name  and style of Chadhan Electronics and he is a service provider to the OPs said company. But the complainant is the proprietorship of concerned shop name and style Chetan Electricals stating that the complainant is running said proprietorship for his livelihood. The complainant has not paid any consideration to OP to avail the service from OP to show that he is the consumer.

14. In such being the case the complainant is not a consumer, but he is investor and contractor service provider that the document produced i.e. in Ex.P2. But he has invested his hard earned money for shifting of LT/HT lines without being specific contract between the complainant and OPs. More over on the basis of work order complainant cannot falsely allege that he has invested his hard earned money completely on work i.e. work order given by OPs for which the complainant has to approach competent civil court for recovery of money that he has invested. But inspite doing so complainant has filed complaint in Consumer Commission alleging deficiency in service when the complainant is not a consumer. Hence, there is no sufficient grounds to allege the deficiency of service and complainant fails to prove the deficiency of service on the part of OP.  Accordingly we answer point No.1 in negative. The complainant utterly fails to prove that he is a consumer. Hence,  point No.2& 3 does not arise for  consideration. Further the complainant is at liberty to approach the competent civil court to recovery of money,  if law permits to do so.

15.   Point No.4:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is dismissed. No costs.
2. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 03rd day of March 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 & 2: 

SKA