DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/318/2016
No. DF/ Central/
Dr. Amol Deshmukh
Through its Special Power of Attorney holder
Mr. Ankur Gupta
R/O-206/3A Matoshree,
GPO Square, Civil Lines, Nagpur- 440 001 …..COMPLAINANT
VERSUS
1. M/S Convow Inc.
Through its director
Unit-11, 18/2 Arya Samaj Road,
Karol Bagh, New Delhi-110008
2. BGSB, Concrete Solution Pvt. Ltd.
79A, Udyog Vihar,
Phase-5, Gurgaon-122016, Haryana …..OPPOSITE PARTIES
Quorum : Ms. Rekha Rani, President
Mrs. Manju Bala Sharma, Member
ORDER
Rekha Rani, President
1. Instant complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended alleging therein that complainant hired services of OPs in order to get micro-concrete flooring at his residence 206/3A Matoshree, GPO Square, Civil Lines, Nagpur. The total value quoted in the estimate for carrying out this work was Rs. 16,43,087.70/-. 25% advance payment of Rs. 4,10,772/- was paid to the OP on 07.09.2015. OP suggested that it would be better to also carry out micro-concreting in terrace area, bath tubs, bathroom slabs, counter tops, riche etc. Therefore, a quotation was sought to be sent by OP1 for this additional area. On 14.03.2016, an e-mail was received from OP1 regarding the increased micro topping area with request to revise the purchase order to include additional work. As per revised area the total amount of work to be executed came to be Rs. 21,82,902/-. Complainant through his e-mail dated 17.03.2016 asked OP1 to continue the work as per the revised area and assured that the payment will be made within four days. OP issued invoice for revised area on 21.03.2016. The work being carried out by OPs was all sub-standard and of poor quality apart from being delayed. Complainant has accordingly prayed for direction to OPs to refund amount of Rs. 12,32,316/- paid by the complainant with the pendent lite and future interest @ 24% per annum along with Rs.5,00,000/- for causing mental agony to the complainant due to their deficiency in service.
2. OPs contested the claim vide their reply wherein they have denied that they have caused any deficiency in service. In rejoinder, complaint has reiterated the submissions made in the complainant and has denied arguments made in the written statements.
3. We have heard Sh. Satender Chahar, advocate for complainant. We have also heard Sh. C.P. Malik, advocate for OP, particularly on pecuniary jurisdiction.
4. It is not in dispute that total amount payable for the work was Rs.21,82,902/- in Para 11 of the complaint, it is stated:
“As per area the total amount of work to be executed came to be Rs.21,82,902/-.”
It is further pleaded that complainant through an e-mail dated 17.03.2016 asked the OP to continue the work as per the revised area and assured that the payment would be made within four days and that OP issued an invoice for increased area on 21.03.2016.
In Para 3(f) of the reply it is pleaded by the OPs that complainant had started raising questions only when the payment was revised to Rs. 21,82,902/- out of which complainant paid Rs. 12,32,316/- leaving the balance as Rs. 9,50,586/-. Complainant has not denied the fact that the total amount payable for the work was Rs. 21,82,902/- It is submitted in corresponding Para 3(f) of the rejoinder that complainant never had any issues on payment and that complainant objected only to the quality of work done, material used and time taken.
5. Learned counsel for complainant has stated that complainant has claimed refund of only Rs. 12,32,316/- along with compensation and therefore, the matter is within the Pecuniary Jurisdiction of this forum. In view of the judgments in:
Pradeep Kumar Batra v/s Three C Shelters Pvt. Ltd. dated 20.02.2018
Abhishek Kumar & Anr. v/s Nitesh Urban Development Pvt. Ltd. dated 05.09.2017
Deepak Kumar Sharma v/s/ Bptp Ltd. dated 24.04.2018
Richa Sachdev & Anr. v/s M/S 1000 Trees Housing Pvt. Ltd. dated 25.06.2018
Wherein, it was held that in case of refund, it is the amount paid by complainant to the OP which shall decide the Pecuniary Jurisdiction of the Forum. 6. As per Section 11 (i) of the Act the District Forum has pecuniary jurisdiction to adjudicate claims where the value of goods and services and the compensation claimed does not exceed Rs. 20 Lacs.
7. Three member bench of National Commission in Ambrish Kumar Shukla & Ors Vs Ferrous Infrastructure Pvt Ltd in CC No. 97/2016 vide order dated 07.10.2016 observed that value of goods & services and value of relief claimed is to be seen for the purpose of pecuniary jurisdiction instead of value of alleged deficiency.
8. The same question again came up before National Commission in Rajkishore V/s TDI Infrastructure Ltd III (2017) CPJ 155. In that case total sale price of the property was above Rs. 20,00,000/- but complainant sought refund of Rs. 8,06,300/- charged in excess by the OP. Complaint was filed before State Commission which was dismissed vide order dated 16.02.2016 on the issue of pecuniary jurisdiction with liberty to file fresh complaint before District Forum. The complainants went in appeal contending that consumer dispute involved property whose value was above Rs. 20,00,000/-(Rs. Twenty Lacs only) National Commission allowed the appeal and following Ambrish Kumar Shukla (supra) observed that even if there was a small deficiency in the service availed by the complainant the total value of the said service is taken into consideration for the purpose of determining pecuniary jurisdiction.
9. In another case titled Daimler Financial Services India Vs Laxmi Naryan Biswal in First Appeal no. 1616 of 2017 decided on 30.08.2017 by Hon’ble National Commission judgment in Ambrish Kumar Shukla (supra) was again referred and following relevant part of the said judgment was quoted:
“Reference order dated 11.8.2016 Issue No. (i) It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs.1.00 Crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 Crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lakh, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 Crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lakh, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 Crore.”
10. The facts of the case in Daimler Financial Services India (supra) were that the complainant had purchased two Hywa Trucks with the financial help of Daimler Financial Services India by taking loan of Rs. 23,55,945/- for each vehicle. Out of the total loan of Rs. 23,86,995/- for each vehicle , the complainant had already paid the entire loan amount and had agreed to pay the full and final settlement on 05.04.2016 by making payment of Rs. 14,70,000/- and had received the possession of the vehicle on the same day with further condition that the complainant should withdraw the writ petition bearing no. WP (C) 2307 of 2016 from the High Court of Odisha. Prior to liquidation of loan / expiry of the agreement the Daimler Financial Services India had seized the vehicle for which the complainant had approached the High Court of Odisha by way of filing a Writ Petition. The High Court had issued notice and the Daimler Financial Services India after receiving the notice had called the complainant for a settlement. As per the said settlement the complainant had already paid a sum of Rs. 14,70,000/- towards full and final settlement outstanding in respect of both the vehicles. Though the complainant in pursuance to the aforesaid settlement had paid the entire amount towards liquidation of loan and had withdrawn the Writ Petition before the High Court of Odisha, the Daimler Financial Services India taking advantage of the situation had not issued NOC to the complainant. The complainant hence filed a Consumer Complaint before the Odisha State Consumer Disputes Redressal Commission, Cuttack for not granting NOC which was termed illegal deficiency in service and unfair trade practice and for directing Daimler Financial Services India to issue NOC in respect of the two vehicles. The State Commission admitted the consumer complaint which was challenged before the Hon’ble National Commission. The Hon’ble National Commission observed that :
“ Counsel for the appellant has admitted that the respondent/ complainant had taken loan of Rs. 47.74 Lakh, the cost of service and compensation asked for is Rs. 95,000/-. Hence the aggregate value of the cost of service hired or availed of and the compensation claimed by the complainant certainly falls within the pecuniary jurisdiction of the State Commission”.
11. In Gurmukh Singh v/s Greater Mohali Area Development Revision Petition No. 3496/2017 against order dated 11.10.2017 in appeal no. 464/2017 of State Commission, Punjab. Complainant Gurmukh Singh applied for allotment of an apartment with Greater Mohali Area Development (OP). He deposited total amount of Rs. 11,10,000/- in January 2013. He requested OP for refund of the amount deposited by him on the ground that his financial position was not good.
Complainant submitted in the consumer complaint that he received a partial refund of Rs. 5,96,091/- and in this way suffered loss of Rs. 4,76,910/-. He filed consumer complainant in question seeking refund of the said amount along with another Rs. 1,00,000/- as cost of borrowing the funds. He sought direction to OP to pay him a sum of Rs. 5,67,910/- along with compensation of Rs. 2,00,000/- and litigation cost. District forum ordered return of the complaint following the decision of National Commission in Ambrish Kumar Shukla (Supra). State Commission dismissed the appeal. National Commission dismissed the revision petition observing that total value of goods and services is to be taken into consideration for determining the pecuniary jurisdiction of a forum and not the total amount paid by an allotte.
12. The cases of Pradeep Kumar Batra , Abhishek Kumar, Deepak Kumar Sharma and Richa Sachdev & Anr. (supra), relied on by learned counsel for the complainant, were decided by single member whereas the case of Gurmukh Singh (supra) was decided by two member bench of the Hon’ble National Commission which has also discussed the judgment in Ambrish Kumar Shukla case. In view thereof the instant complaint be accordingly returned to the complainant to be presented before the appropriate forum having jurisdiction. Copy of the same be retained on record. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on this ______ Day of _________ 2018.
