Date of Filing : 23.04.2011
Date of Order : 25.02.2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR
Dated 25th FEBRUARY 2012
PRESENT
Sri. T. RAJASHEKHARAIAH …….. PRESIDENT
Sri. T.NAGARAJA …….. MEMBER
Smt. K.G.SHANTALA …….. MEMBER
CONSUMER COMPLAINT NO. 127 / 2011
Sri. Chowdeshwari Electricals,
Prop: T.V. Krishnappa,
S/o. Venkateshappa,
Aged about 58 years,
R/o. Thotli Village & Post,
Kolar Taluk.
(By Sri. C.R. Krishnamurthy, Adv.) ……. Complainant
V/s.
1. The Bangalore Electricity Supply Co.,
Rep. by its Managing Director,
K.R. Circle,
Bangalore – 560 001.
2. The Bangalore Electricity Company,
(Rep. by) The Executive Engineer (Ele),
O & M Division, BESCOM,
Kolar.
3. The General Manager,
C, O & Division, BESCOM,
Kolar.
(By B.S. Vijayakumari, Adv.) …… Opposite Parties
ORDER
By Smt. K.G. SHANTALA, MEMBER
This Complaint is filed by the Complainant u/s. 12 of the Consumer Protection Act, 1986 seeking direction against the OPs to pay Rs.3,92,535/- with interest @ 12% P.A. from the date of completion till payment.
2. Brief facts of the Complaint are that the Complainant is a registered Firm approved by the Government and also process Class-I Electrical Licence from the Government of Karnataka to carry out electrical works in BESCOM and other Department in the entire State of Karnataka. OP has entrusted the works to the Complainant through award dtd. 28.12.2006 to carryout the works viz., Re-ferbishment of loose span and stringing of switch phase control wire in villages in O&M III Section, Rural Sub-Division, Sugutur Kolar Taluk vide award No. Q-6112, P-1956, P-69909, Q-9903, Q-19912, Q-9919, Q-9917, Q-61134, Q-61146, P-38300, Q-242 to Q246, P-282, P-2000, P-2001, Q-4303, Q-9920 to Q9922, P-1932, Q-9309, P-1955,P-3833, Q-1862, P-38346, Q-52242, Q-52243, Q-52245, P-38302, P-2033, P-1948, Q-1994, P-38347 as per estimates. The amount estimated for completion of the above said works is at Rs.2,97,865/- (Rs.3,00,000/-). Accordingly, Complainant has carried out the works entrusted to him. On submission of the Bills, Officers of the Ops have inspected the work and approved the Bills. In spite of passing the Bills, Ops have not paid the amounts. All efforts made by the Complainant to the Ops to release the payment went in vain. Ops instead of responding to the notice dtd. 09.12.200, they have issued frivolous notices to the Complainant in order to evade payments. Ultimately, the Ops have issued a notice on 08.04.2010 for the demands made by the Complainant stating that BESCOM Company has stopped passing the Bills for the works. There is a deficiency in service on the part Ops. Hence, filed the Complaint for necessary relief/s.
3. The OP on being served with notice appeared through Counsel and filed version. The OP admitted having entrusted the works mentioned in the Complaint. The OP contended that the relationship between the Complainant and the Ops is bounded by an agreement and hence electrical contractor is not a consumer and as such the complaint is not maintainable. Ops further contended that the Complainant has claimed excess labour for fixing of guy sets, excess labour for releasing and re-fixing of 2/4 ACSR conductor, excess bills in supplying of 10 Sq.mm. lead wire, excess labour for supply and fixing insulation tape & guy roads, labour charges for works of straightening of slanted poles. Complainant has not carried out the work of supplying and providing danger Boards as per BESCOM specification and approved drawings. Complainant has claimed VAT 12% for labour Bills and not returned unused materials to BESCOM stores. Hence, Complainant caused cumulative pecuniary loss of Rs.7,61,090/- for 25 Nos. of works by claiming excess payment by inflating Bills. There was no deficiency in service and prayed that Complaint be dismissed.
4. The parties have filed affidavits and produced documents in support of their respective contentions. We heard the Learned Counsel for the parties. The OP has also filed the written argument.
5. The questions that arise for our consideration are as under:
(1) Whether the complainant is a ‘Consumer’ as defined u/s. 2(1)(d) of the Consumer Protection Act 1986?
(2) If so, whether the Complainant proves that there is deficiency of service on the part of Ops?
(3) What order?
6. Our findings on the above points are as under:
(1) Point No. 1 – Negative
(2) Point No. 2 – Since point No. 1 held in negative, this point
does not arise for consideration.
(3) Point No. 3 – As per final order.
REASONS
7. Point Nos. 1 & 2: If the complainant is a ‘consumer’ as defined under the Consumer Protection Act 1986 (for short Act), the complaint is maintainable before this Forum. Otherwise the complainant has to seek his remedy elsewhere as provided under Law. The Learned Counsel for Complainant submitted that the complainant is a ‘consumer’ as defined under the Act and the OP was required to render service of payment of the amount in respect of the works executed by complainant. Therefore according to the Learned Counsel for complainant, the non-payment of amount for the works executed amounted to deficiency in service by OP and for such deficiency in service the complainant can maintain the present complaint before this Forum. On the other hand, the Learned Counsel for the OPs submitted that the complainant is not a ‘Consumer’ and he has not hired or availed any service from OP and that mere liability to pay for the works executed by complainant as per the agreement between parties, does not amount to providing any service by OP to complainant. Further it is contended that on the other hand the OP has availed/hired the services of complainant in executing the works awarded to him. Therefore the Learned Counsel for the OP contended that the present complaint is not maintainable before this Forum.
8. Now we may notice certain decisions of Hon’ble National Commission to understand the proper meaning of ‘consumer’ and ‘service’ as understood in the Act. In the decision cited in (1981) I CPJ 169 between Vinodani Bajpai Vs. Rajya Krishi Udapadan Mandi Parishat the Hon’ble National Commission has explained the Law as follows in the context of the facts of that case. The relevant facts and the reasonings stated in the said decision are as follows:
The appellant before us was the complainant before the State Commission, Uttar Pradesh at Lucknow. He was the successful tenderer in respect of the award of a contract by the Respondent Parishad for construction of a deep drain. He approached the State Commission with the grievance that the accounts in respect of the said construction contract had not been settled and amounts that would be due to him on a proper settlement of accounts have not been paid to him by the opposite party.
2. The State Commission was of opinion that this was neither a case of sale of goods nor of hiring of a service as contemplated by the Consumer Protection Act (hereinafter called the Act) and hence the complainant cannot be regarded as a ‘consumer’ falling within the scope of the definition of the said expression contained in Section 2(1) (d) (i) of the Act. The complaint was dismissed by the State Commission on the aforesaid ground. The correctness of the said order passed by State Commission is under challenge in this appeal.
3. The son of the appellant appeared before us as her authorised representative. He contended that by reason of acceptance of the complainant’s tender, a contract had been concluded, under which there were mutual obligations on the part of both parties to render service to one another and that hence the appellant must be regarded as a consumer who had hired a service. We are unable to uphold this contention. The acceptance of a tender undoubtedly creates a contractual relationship. But the contractor who has undertaken to perform a work of construction cannot, by any stretch of reasoning, be regarded as a person who has entered into an arrangement of hiring of service with the other party merely on the ground that under the contract there is an obligation on the part of the said party to supply certain materials such as cement etc. and also to ultimately pay the charges found due for the execution of the work. We are in full agreement with the view expressed by the State Commission that the appellant who was the complainant does not fall within any part of the definition of ‘consumer’ contained in Clause 2(1) (d)(i) of the Act. The complaint preferred by her was therefore rightly dismissed on the ground that it was not maintainable under the Act.
9. The facts and circumstances of that case are similar to the dispute of the case on hand. The order passed by the Hon’ble National Commission is binding on this Forum. Hence by applying the ratio decided in that, we hold the complainant is not a consumer and hence we proceed to pass the following:
ORDER
The Complaint is dismissed holding that the Complainant is not a “consumer” as defined and understood the Sec. 2(1)(d) of the C.P. Act, 1986. The parties shall bear their own costs.
Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 25th day of February 2012.
T. NAGARAJA K.G.SHANTALA T.RAJASHEKHARAIAH
Member Member President
SSS
