Sri Laxmidhar Jena filed a consumer case on 04 Sep 2019 against D.Laxman Rao in the Rayagada Consumer Court. The case no is CC/135/2016 and the judgment uploaded on 07 Nov 2019.
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.
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-
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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