Orissa

Rayagada

CC/135/2016

Sri Laxmidhar Jena - Complainant(s)

Versus

D.Laxman Rao - Opp.Party(s)

Self

04 Sep 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 135/ 2016.                                        Date.  4     . 9. 2019.

P R E S E N T .

Dr. Aswini  KumarMohapatra,                         President

SriGadadharaSahu,                                                      Member.

Smt.Padmalaya   Mishra,.                                           Member

 

Sri Laxmidhar Jena, S/O: Late Jagannath  Jena, AT:Sastri Nagar, 7th. Lane, Po/Dist:Rayagada, State:  Odisha.                                                …….Complainant

Vrs.

  1. Sri D.Laxman Rao, Propritor Sri Sai Yarn Packaging Pvt. Ltd., At: Komtalapeta,  Dist: Rayagada.
  2. Sri Michal Rao,  Nehru  Nagar, 2nd. Lane, Back side of Chaitanya  School,  Po:J.K.Pur, Dist:Rayagada.                                         …Opposite parties.

For the Complainant:-Sri Manoj Kumar Rath, Advocate, Rayagada.

For the O.P No.1:-  SriPratap  Ch. Das, Advocate, Rayagada.

For the O.P. No.2:- Set exparte.

.

JUDGEMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of the balance  amount a sum of Rs.33,100/- towards  supply of Centring  materials  for  construction  of  2nd. Floor  building of the O.P. No.1..

 

On being noticed the O.P.No.1  filed  written version through their learned counsel  and refuting the allegation levelled against  them. The O.PNo.1  takingone and other pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No.1. Hence the O.P No.1 prays the forum to dismiss the case against  them  to meet the ends of justice.

In the instant case the copy of the complaint was referred to the O.P No.2  directing to given  written version of the case.  After service of notice the O.P  No.2  failed to avail of the opportunity for filing  of the version of the case.  On number of dates they failed  to appear  on the version dates fixed. As the version of the case was not filed by the O.P No.2    within the time frame given, we have no alternative  but to resort to Section -13(2)(b)(ii) of the C.P. Act, 1986  and  O.P No.2  was   set  exparte.

The O.P No.1  appeared and filed their written version.  Heard arguments from the    O.PNo.1  and from the complainant.    Perused the record, documents, written version  filed by the parties. 

The  parties advanced arguments  & vehemently opposed the complaint touching the points both on the facts  as well as on  law.

We therefore proceed to dispose of the case, on its merit. We perused the complaint petition and the document filed by the complainant.

Now  the issues on the oust are  to be decided by this forum prior to delve in to conclusion:-

        1.Whether this forum  has   jurisdiction to entertain the complaint under the C.P. Act, 1986  ?

        2.Whether the complaint is a consumer as defined  U/S- 2(1)(d) of the C.P. Act,1986 ?

While addressing  the issue  we would like to refer the citations.  It is held and reported  in CPR-2011(4) page No. 482   the  Hon’ble  National commission,  where in observed  “Conumer forum  can not adjudicate  disputes without  addressing to the basic issues”.  In  another decision  reported in CPJ 2010(1) page No. 136 where in the Hon’ble  State Commission, New Delhi  observed  “Forum should decide the dispute of jurisdiction  first, application kept open to be decided later”

            At this stage, it is appropriate to quote Section  2(1)(d) of C.P. Act,  which reads as follows:-

            “(d)”Consumer” means any person who-

  1. Buys any goods 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 user of such goods other than the person who buys   such goods for consideration paid or promised or partly paid or partly  promised , or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
  2. Hires or avails of any services 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 services other than the person who hires or avails  of the services for consideration paid or promised, or partly paid and  partly promised, or under any system of deferred payment, when such services are availed  of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.

 

Admittedly, in the case at hand, the complainant has not availed any service nor purchased any goods from the O.P. for any consideration, as such, he cannot be a ‘consumer’ under them. Only because the Consumer Protection Act is a social benefit oriented Act, it cannot besaid that any body who files a case before the District Forum,as the case may be he can bea ‘consumer’.

                       

                  We observed that the complainant is not a consumer as he is not coming  within the definition  of ‘consumer’ as mentioned Under Section  2(1)(d) of the C.P. Act. Rather  he was  the service provider and had engaged  his  Centringfor slap work of building  on hire with the O.P.  It may be that there is some amount  to be paid towards service charges  by  the O.P.,  but that does not form the basis for filing a Consumer Complaint.  Since the complainant was service provider and was not a consumer as we have already stated, the complaint was not at all maintainable before the Forum.

         FINDINGS.

The O.P.No.1  in their written version contended that the complaint petition filed by the complainant is not legally maintainable  and the complainant utilizing  his centring  for  slap work  for commercial purpose.

On perusal  of the record it is revealed that the complainant  in the present case in hand admitted that   he had hired his  centring  for construction  of building slap   of the O.P. Thus, the complainant is the service provider and the  O.P. is availing the service provided by the complainant, and as such , the complainant is not regarded as a consumer under the C.P.Act and accordingly the case filed by the complainant is not maintainable  in the eyes of  law.

It is pertinent to mention here that a complaint is maintainable  before the consumer forum under the C.P. Act,1986 by a complainant against the service  provider, but the service provider can not file a case being a consumer under the C.P. Act.  Consumer forum  will have jurisdiction only when (i) the complainant is a consumer as defined  in clause 2(d) of the Act; and (ii) the O.P is a provider of service as defined in clause 2(O) of section  of the C.P. Act.  Where the complainant is not a consumer, or where the O.P is not a service provider, the consumerforum  will have no jurisdiction either to entertain any  complaint or grant any relief under the Act. In the case in hand, the complainant is the service provider  and the O.P. hires the vehicle of the complainant for consideration. So the complainant is not consumer under the C.P. Act.  Again the  complainant does not come within the definition of consumer as defined U/S- 2(i)(d) of the C.P. Act because  he is using his centring for construction  of building slap  for commercial purpose and therefore this complaint  is not maintainable and the relief sought by the complainant as of civil nature it can  be  adjudicated  before  proper forum as per law and not before the present forum.  

Further in the complaint petition the complainant admitted that  he is ‘C” Class contractor and  he used  to give his service for   valuable consideration.  In this connection this forum relied citation which is mentioned here.

 It is held and reported in   1992 (1) CPR page  No.10  in the case of VinodiniBajpaiVrs. RajyaKrishiUtpadanMandiParishad  where in the hon’ble  National Commission observed “That  the acceptance of a tender  undoubtedly  creates  a contractual  relationship, but  the contractor who has undertaken to perform a work of construction can not, by any stretch  of reasoning, be regarded as a person who has entered in to an arrangement of hiring of service with  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. Therefore, the  complainant does not fall within  any part of the definition of “Consumer” contained  in Section 2(1)(d)(ii)  of the  C.P.Act.”

On  Dt. 10.2.2012  in First  Appeal No. 452 of 2011   the Hon’ble State C.D.R.Commission, Cuttack  where in  observed  “that the service providers  are not consumer  under the C.P. Act,1986”.

It is  suffice  to say  here that the C.P. Act does not provide for application of evidence Act or CPC. A consumer  dispute is to be  decided on the yard stick of reasonable probabilities  on the basis of facts brought  on record  by the parties  (GeetaJethaniVrs. Air Port authority of India and others 2004  CPJ  1048 (N.C).  The  parties  are at their liberty  to agitate  their grievance before the appropriate court of law and not before this forum  being  nullified the grievances of the complainant. We  do not  think  proper to go  into merit of this case.

Hence, the claim of the   complainant can not be accepted under the provisions of the C.P. Act. It is open to  complainant   ordinary remedy to approach proper forum.       

 

So  to meet the  ends of justice    the following order is passed.

ORDER.

            In resultant the complaint petition is    stands  dismissed. The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is disposed of.

 

We appreciate  the zeal of the complainant  in filing  a complaint, but we are to regret that the complaint did not lie here and we  have got no option but to dismiss  the complaint petition.  However, the complainant  is free to approach the court of competent  having  its jurisdiction.  Since there is delay in availing the alternative remedy, we grant liberty to the  complainant to file an  application  for condo nation of delay  Under section -14 of the Limitation Act in which  event the same shall be considered  keeping in view the pendency of the matter  before this forum.

Dictated and corrected by me

Pronounced on this        4th.   Day of   September,  2019.

 

            Member.                                 Member.                                             President

 

 

           

 

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