Haryana

Fatehabad

CC/214/2018

Sunil Kumar - Complainant(s)

Versus

Kirshan Kumar - Opp.Party(s)

Anil Kumar Solra

02 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION FATEHABAD.                   

 

Complaint Case No.214 of 2018.

Date of Instt.:08.08.2018.

Date of Decision: 02.03.2023

 

Sunil Kumar son of Dharm Chand resident of Basti Bhiwan Fatehabad Tehsil & District Fatehabad.

 

...Complainant    

          Versus

Krishan Kumar (contractor) son of Satpal Singh resident of village Khumber Tehsil & District Fatehabad.

 

          ...Opposite Party.

 

          Complaint under Section 12 of Consumer Protection Act, 1986

 

Present:       Sh.Anil Kumar Solra, Advocate for complainant.

                   Sh.Lovepreet Mehta, Advocate for OP.

                  

CORAM:        SH. RAJBIR SINGH, PRESIDENT.                             SMT.HARISHA MEHTA, MEMBER.                                              SH.K.S.NIRANIA, MEMBER.                                  

ORDER

SH. RAJBIR SINGH, PRESIDENT

1.                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (in short CP Act).

2.                Brief facts of the present complaint are that the OP had done wooden work in the house of complainant on contract basis; that the agreed rate between the parties was Rs.50/- per feet for doors, Rs.130/- per feet for almirah ; Rs.170 per feet for kitchen and Rs.130/- per feet for LED penal; that after completing half work the Op had intentionally changed/increased his rates as Rs.65/- per feet for doors,  Rs.150/- per feet for almirah ; Rs.170 per feet for kitchen and Rs.170/- per feet for LED penal wrongly and illegally; that again the Op had increased the rates; that he had already received Rs.58,000/- from the complainant; that the Op had also demanded a blank cheque by asking that he would fill the amount as per the work; that the complainant refused to give the cheque, therefore, the Op had changed his behavior; that on 06.03.2018, the Op flee away from the house of the complainant alongwith his machine and other equipments by leaving the half work when the complainant and his family members were in the market; that the Op had also broken the stones and tiles fitted on the pillars and ramps while taking the machine in hurry; that the complainant contacted the Op but he refused to complete the work; that the complainant got served a legal notice upon the Op and after that a panchayat was convened and the Op admitted his mistake and assured to complete the work soon; that OP had also given his affidavit with the assurance to start the work by 05.05.2018; that the complainant had given a  cheque of Rs.30,000/- to be paid in SBI, Branch Anaj Mandi, Fatehabad and also transferred a sum of Rs.10,000/- in the bank account No.0653000109105932; that even then the Op did not complete the work and again flee away from the house of the complainant alongwith his equipments; that the Op had worked carelessly and ruined the portion A &  B intentionally and due to his carelessness the floor of the complainant also got broken; that the Op had ran away again after leaving 20 % work despite receiving excess amount; that the act and conduct of the Op clearly amounts to deficiency in service on his part. In the end, prayer has been made either to give direction to the Op to return the amount of Rs.98,000/- received on the excuse of work or to complete the work. Rs.50,000/- has also been claimed as compensation on account of mental agony and harassment and Rs.5500/- towards litigation expenses.

3.                          Averments of the complaint have been strongly opposed in the written statement (in short W.S.) filed on behalf of Op wherein, it is mentioned, inter-alia, that the present complaint is false and frivolous; that the complainant has no cause of action to file the present complaint because a sum of Rs.47,000/- is outstanding towards the complainant which is not being paid intentionally by him; that the answering Op had moved a complaint before Labour Inspector but the complainant did not appear before him; that the present complaint is not maintainable as the present matter does not fall within the ambit consumer disputes and that the complainant has not come with the clean hands before this Commission. It has been further submitted that the answering Op had lodged a complaint before Labour Court which is still pending and in order to avoid the balance payment the complainant has filed the present complaint on concocted story.  The answering Op had never been careless in the work and all the equipments and machines which were being used in the work were taken by the answering Op in the presence of complainant and his family members. Due to intervention of panchayat the matter was sort out  but the complainant again refused to make the labour charges and still he is not agreed to pay the same.  Other contents have also been controvered and prayer for the dismissal of the complaint has been made.

4.                The complainant in evidence has tendered his affidavit as Ex.CW1/A. Documents Annexure C1 to Annexure C9 and mark A and B have also been placed on file in support of contentions of complainant. Then complainant’s evidence was closed.  On the other hand, the Op has tendered his affidavit Ex.RW2/A and affidavit of Suresh Kumar son of Ram Kishan as Annexure RW1/A on the case file besides documents Annexure R1 to Annexure R4. Then the evidence of the Op was closed.

5.                Final arguments advanced on behalf of both the parties have been heard and the case file has also been perused minutely.

6.                Learned counsel for the complainant has come with the plea that the complainant has hired the services of the Op; therefore, he falls within the definition of the consumer. He further argued that Op has not completed the work which was given to him and even he had been careless in doing the work resulting into damage of floor and other articles of the house. In support of his contentions learned counsel for the complainant has placed reliance of judgment dated 05.07.2021  passed by Hon’ble National Commission on 05.07.2021  in RP No.2195 of 2015 in case titled as Naveen Joshi Versus Bhupinder Singh  and judgment dated 08.05.2003 passed by  Hon’ble Punjab State Consumer Disputes Redressal Commission in appeal No.1444 of 2002 in case titled as Jagtar Singh Versus Kirpal Singh.

7.                          On the other hand learned counsel for the Op has come with the plea that in order to avoid of making the outstanding amount the complainant has woven false story and has approached this Commission by taking undue advantage of benevolent provisions of Consumer Protection Act.  Learned counsel for the OP has further argued that in order to recover the balance amount, the Op has already filed a complaint/application before Hon’ble Labour Court earlier to file filing of this complaint, therefore, the present complaint is not maintainable before this Commission. Learned counsel for the Op drew the attention of this Commission towards Annexure R1 (copy of application/complaint filed before Hon’ble Labour Court) and further argued that the said application/complaint is still pending and the complainant is not appearing before that court intentionally.

8.                          After going through all the material available on the case file, it is ample clear that the complainant does not fall within the ambit of consumer as mentioned in Section 2 (1) (d) of Consumer Protection Act, 1986, which is as follows:

Section 2(1)(d) in the Consumer Protection Act, 1986

 

(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) ¹² [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 ¹² [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 ¹³ [but does not include a person who avails of such services for any commercial purpose];

 

Moreover, it is established on the case file that the Op had filed a petition before Labour Court, as is evident through Annexure R1, with regard to the subject matter of this complaint which is still pending; therefore, we are of the considered view that the controversy involved in the instant case cannot be adjudicated in summarily manner.  With due respect, there cannot be any dispute as regards to the case laws relied up on by learned counsel  for the complainant. However, with due respect, the ratio of the judgments of these cited cases, is not found helpful to the submissions made by the complainant in the mater in dispute.

9.                          Hence, in view of above discussion, coupled with   factual as-well-as legal position, we are of the view that the present complaint is not maintainable before this Commission and the same is hereby dismissed. In the given facts and circumstances of this case, parties are left to bear their own costs. Copy of this order be supplied to the parties concerned, free of cost, as per rules. This order be also uploaded forthwith on website of this Commission, as per rules, for perusal of parties. The case file be consigned to record room, as per rules, after necessary compliance.

Announced in open Commission.                                                           Dated:02.03.2023

                                                                                                                  

         

 

          (K.S.Nirania)                  (Harisha Mehta)                 (Rajbir Singh)                       Member                              Member                              President