STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY, CHANDIGARH
First Appeal No. | 210 of 2013 |
Date of Institution | 23.05.2013 |
Date of Decision | 17.07.2013 |
Sanawar Montessori School, Sector 11, Chandigarh, through its Principal Harjit Sehgal, Principal Sanawar Montessori School, Sector 11, Chandigarh.
…..Appellant-Complainant
VERSUS
Floor Square (A Venture of Paradise Decorator (P) Ltd., SCO No.151-152, 1st Floor, Sector 8-C, Madhya Marg and Chandigarh through its Managing Director-cum-Proprietor.
……Respondent/Opposite Party
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT
SH.DEV RAJ, MEMBER
Argued by:Sh. R. D. Sehgal, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for the respondent.
PER DEV RAJ, MEMBER
This appeal is directed against the order dated 15.04.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in Consumer Complaint No.676 of 2012, vide which, it dismissed the complaint filed by the complainant (now appellant).
2. In brief, the facts of the case are that the complainant, which is primary school upto 5th Class contacted the Opposite Party for fixing Garware Sun Control Blue Reflective Film as well as decoration. It was stated that the representative of the Opposite Party apprised the authorities about the pros & cons of fixation of Garware Sun Control Blue Reflective Film, terms & conditions of the payment as also the period for execution required to complete the job etc. The School authorities were also told that the aforesaid film shall provide relief from sunlight and heat inside particularly in the reception area.
3. The complainant-school agreed for the fixation of Garware Sun Control Blue Reflective Film in the said areas and paid Rs.11,000/-, in advance, against the full payment of the estimated cost of the material, labour etc. It was further stated that the Opposite Party after completion of the work raised the bill for Rs.16,750/- inclusive of labour charges etc. Since a sum of Rs.11,000/- had already been given, in advance to the Opposite Party, the balance amount was paid in cash on 21.07.2012. It was further stated that the Opposite Party wrongly calculated the area of fixation of film aforesaid i.e. 355 sq. feet instead of 300 sq. feet. It was further stated that the representative of the Opposite Party told the authorities of the complainant-School that after fixing of the said film in the said areas, there would be no complaint with regard to the work executed, as also, there would be no leakage. It was brought to the notice of the Opposite Party that while executing the film fixing job, the person who was deputed for the purpose, removed the material known as silicon for fixing glass and there was apprehension of leakage at that spot. It was further stated that despite warning, the Opposite Party, did not repair it and assured that, in case leakage was there, the same could be repaired. It was further stated that while carrying out the work of fixing the film, aforesaid, carelessly, the glasses, which were already fixed, in these areas, with silicon material were removed. Accordingly, the complainant-School approached the Opposite Party a number of times, to rectify the defects, but to no effect. It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant-School was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.
4. In its written reply, the Opposite Party took up the preliminary objection that the complainant-School was engaged in commercial activity and, as such, it was not a consumer as defined in Section 2(i)(d) of the Consumer Protection Act, 1986. It was stated that the representative of the Opposite Party measured the area and specifically told the complainant-School that the film comes in five feet pieces and wastage shall be borne by it (complainant-School). The complainant-School instructed to fix the film from outside and, as such, the same was agreed to be fixed and a proforma invoice was given. It was admitted that the complainant-School paid Rs.16,250/- but the balance amount of Rs.500/- was not paid so far. It was further stated that the proforma invoice clearly mentioned the area. It was further stated that the leakage, if any, might be due to some defect in the glass roof. The remaining allegations contained in the complaint were denied. It was further stated that the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The core question, which falls for consideration is, as to whether the appellant/complainant is a ‘consumer’ as defined in Section 2(1)(d) of the Act? The respondent/Opposite Party pleaded that the complainant was engaged in commercial activity and the services of the Opposite Party were availed of for fixation of Garware Sun Control Blue Reflective Film on the glass, in the reception area of the School in pursuance of such commercial activity, as such, it was not a ‘consumer’ as defined in Section 2(1)(d) of the Act.
10. Section 2(1)(d) of the Act, is extracted below:-
“(d) "consumer" means any person who—
(i) 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
(ii) 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 purposes;
Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”
11. The complainant School is apparently charging hefty fees and other charges from the students, who are studying therein, to earn huge profits. It is not the case of the complainant, in the complaint, that it is a charitable institution and being run on no profit no loss basis. The complainant is, thus, engaged in a commercial activity. Apparently, the fixation of Garware Sun Control Blue Reflective Film and decoration in the reception area of the school was done to give the premises a better look and was, apparently for commercial purpose. Thus, the services of the Opposite Party were engaged by the complainant in furtherance of its commercial activity. As such, the complainant did not fall within the definition of a consumer.
12. The Counsel for the appellant/complainant, however, submitted that the school was being run as a charitable Institute. No such plea, as stated above, was taken in the complaint. Even no evidence to prove the assertion that the school was a charitable Institute, was brought, on record, by the appellant/complainant before the District Forum. In the absence of any plea in this regard, in the complaint, and the evidence, to prove this fact, we are not inclined to accept the submission of the Counsel for the appellant, in this regard. The submission of the Counsel for the appellant, in this regard, is thus, rejected. The findings of the District Forum, that the complainant did not fall within the definition of a consumer and, thus, the Consumer Complaint was, not maintainable, being correct, are affirmed.
13. No other point, was urged, by the Counsel for the appellant/complainant.
14. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
15. For the reasons recorded above, the appeal filed by the appellant/complainant, is dismissed, with no orders as to costs. The impugned order, passed by the District Forum, is upheld.
16. The appellant/Complainant, shall, however, be at liberty to resort to any other legal remedy, which may be available to it.
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
July 17, 2013.
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[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
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[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.210 of 2013)
Argued by:Sh.R.D.Sehgal, Advocate for the appellant.
Sh.Gaurav Bhardwaj, Advocate for the respondent.
Dated the 17th day of July, 2013.
ORDER
We have gone through the application, moved by the appellant, for placing, on record, additional documents as Annexures A-6 and A-7, which are copies of Constitution of the appellant/complainant, Tax Exemption Certificates/letters dated 19.11.2007/23.11.2004, 01.10.2007 and memorandum of the society, by way of additional evidence and have perused the record.
2. The respondent/Opposite Party, strongly opposed the application, by way of filing reply, wherein it was stated that the appellant had the opportunity of filing these documents with his rejoinder before the District Forum, but it failed to do so and as such, these documents, could not be allowed to be placed, on record, at this stage.
3. The documents, aforesaid, sought to be placed, on record, were very much, in possession and knowledge of the appellant, when it was leading evidence, in the District Forum. No plausible reason has been assigned, as to what prevented the appellant, from producing aforesaid documents, on record, in the District Forum. In case, at this stage, the application for placing, on record, documents (Annexures A-6 and A-7), is allowed, that will delay the disposal of the appeal, thereby defeating the very purpose of the provisions of Section 13(3A), of the Consumer Protection Act, 1986, stipulating the specific time, for the disposal of the Consumer Disputes. Thus, there is no justification, whatsoever, to allow the application, for placing, on record, documents (Annexures A-6 and A-7), at this stage. The application is accordingly dismissed.
4. Vide our detailed order of the even date, recorded separately, this appeal filed by the appellant/complainant, has also been dismissed, with no order as to costs.
5. Copy of this order be sent to each of the parties, free of charge.
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(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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