C.F. CASE No. : CC/09/79
COMPLAINANT : Dipak Sinha Ray
S/o late Kanai Lal Singh Roy,
15, M.G. Road (Gate Road)
P.O. Krishnagar, P.S. Kotwali,
Dist. Nadia
OPPOSITE PARTY/OP : Krishnagar Municipality
represented by the Board of Commissioner
having its Office at Krishnagar,
P.O. Krishnagar, P.S. Kotwali, Dist. Nadia
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
DATE OF DELIVERY
OF JUDGMENT : 30th May, 2011
: J U D G M E N T :
In brief, the case of the complainant is that the OP Krishnagar Municipality hired his vehicle No. WGN 899 by its memo No. 893/20-1/99 dtd. 07.04.99 @ Rs. 174/- per day (inclusive lubricant wages of driver, assistant, maintenance of vehicle) on working days and as per that he rendered services to the OP from 08.04.99 to 16.09.08 regularly. He regularly submitted bills before the OP who paid the bill amount by cheque upto January, 07. Since February, 07 to September, 08 excepting January, 08 the OP did not pay the amount of Rs. 90,503/-. For the month of January 08 the OP made payment by cheque No. 063679 SBI for Rs. 5,283/-. On 17.09.08 this complainant sent a demand notice to the OP, but to no effect. Thereafter, he sent a lawyer’s notice upon the OP dtd. 29.07.09 demanding Rs. 90,503/- which was duly received by the OP on 29.03.09 also. In spite of receipt of the said notice the OP did not make any payment of the claim amount of Rs. 90,503/-. So having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP Krishnagar Municipality has filed a written version in this case, inter alia, stating that this Forum has no jurisdiction to entertain this case as the complainant is not at all a consumer as per law. It is his specific submission that this OP engaged tractor No. WGN 899 belonging to the complainant from 08.04.99 to 31.03.08 @ Rs.174/- per day (inclusive lubricant wages of driver, assistant, maintenance of vehicle) on working days. An agreement to that effect would to be made within one month from the date of issuing the tender. The vehicle worked under him upto 31.03.2000. Subsequently, the vehicle in question was under him on hire basis as per the requirement of the Municipality though there was no subsequent agreement to that effect. It is his specific contention that this OP never engaged the vehicle of the complainant for the period since February, 07 to September, 08. Rather he submits that as the vehicle had no valid documents as per MV Act, so this OP sent a letter on 19.08.08 directing the complainant to submit documents with regard to the said vehicle, but the complainant did not comply the above said direction of the OP. Therefore, the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
Point No.2: Is the complainant consumer as per CP Act?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of complaint and the written version filed by the OP along with the annexed documents filed by the parties it is available on record that admittedly this OP engaged the tractor No. WGN 899 belonging to the complainant for his service for the period from 08.04.99 to 16.09.08 @ Rs. 174/- per day on all working days. Complainant’s specific contention is that he rendered services of his tractor after 2000 till September, 08. But the OP did not pay the rent of his tractor for the period from February, 07 to September 08 except January, 08. So the total claim amount stands at Rs. 90,503/- which is strongly denied by the OP also. OP has categorically stated that the tractor of the OP worked under him upto 2007 and thereafter it worked under Municipality on hire basis as per the requirement of the Municipality. To that extent, there was subsequently no agreement. So from these recitals of the OP we find that after 31.03.2000 the tractor of the complainant worked under the OP. At ‘Para-13’ of written version it is stated by this OP that on 19.08.08 he sent a letter to the complainant directing to submit documents with regard to this vehicle and the complainant did not comply with that direction of the OP. So it is not clear to us why the OP directed the OP to submit the documents of the vehicle though it is his averment at ‘Para-11’ that after 31.03.2000 the tractor was engaged by him on hire basis as per requirement of the Municipality and not continuously. On the other hand, the complainant has filed some documents such as copy of form No. 16A of Income Tax, from which it is available that this OP deducted tax at source (TDS) from the bills of the complainant for the period of May-07, June-07, October-07, December-07, April, May, July, and October-08, April-04, March-05 and some months in 2006 also. For example the total amount paid to the complainant on 08.04.08 was Rs. 50,334/- and the TDS amount Rs. 111/-. On 12.05.05, payment was made to the extent of Rs. 5046/- and TDS amount is Rs. 104/-. On 01.10.08, payment amount is Rs. 50,394/- and TDS amount is Rs. 111/-. In May-07 paid amount stands at Rs. 50,220/- and TDS amount was Rs. 106/-. For the months of May, June, October and December, 07 the total paid amount is Rs. 30629/- and TDS amount is Rs. 628/- . All the Forms No. 16A were duly signed by the Chairman of the Municipality and also bear the seal of the Municipality. At answer to the OP against the interrogatories filed by the complainant it is stated that “On the requirement basis the vehicle in question may work and in that case the payment may have been given. It is also stated that TDS is collected against bills and if any work is done bill is paid and it is the duty of the Municipality to collect TDS in all cases. The log book of the vehicle is an important document in this case which was called for by the complainant from the OP for producing the same before this Forum. But the OP failed to produce the same. Even at cross-examination the OP has answered that he cannot place the log book before this Forum for the period from February-07 to September-08. Complainant has also filed copies of bills submitted before the OP dtd. 18.03.08, 08.04.08, 17.06.08, 12.06.08, 04.09.08. From these documents, it is available that all the original bills received by the OP men. PW-1 who was posted at Krishnagar Municipality in his examination-in-chief he has categorically deposed that all the above stated bills were received by him. He has also stated that there is no system of maintaining any log book regarding temporary vehicles and the counterfoils of the vouchers are not available at their office.
Therefore, considering the facts of this case along with the annexed document filed by the complainant & the OP and after hearing the arguments advanced by the ld. lawyers for both sides and the oral evidences also, we are inclined to hold that the vehicle belonging to the complainant was engaged by the OP since 08.04.99 and which continued to render services to the OP upto September-08. It is also evident on record that OP did not pay the charge of the vehicle for the period from February, 07 to September-08 except the month of January, 08 i.e., for the period of 19 months. The OP is a defaulter in payment of the rent amount for hiring the vehicle of the complainant for the above 19 months and the total amount stands at Rs. 90,503/-.
OP has taken the plea in the written version that this case is not maintainable in this Forum as the complainant is not a consumer at all as per provision of CP Act. In course of his argument he has drawn our attention to the provision of section 2 of the Act. In Section 2(1)(d)(ii) it is stated "Consumer means any person who— 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.”
Here it is his submission that actually the OP is a consumer in this case as he hired services from the complainant by hiring this vehicle on making payment of money. In this connection he has cited a ruling from AIR 2010, Karnataka, page 12 where the Hon’ble Court decided, “Consumer Protection Act (68 of 1986) Section 2(1)(d), 1(g) – Consumer dispute – Deficiency in service – Complaint for recovery of money rent – There was no consumer or service provider relationship between parties – Claim for recovery of money will not fall within ambit of Section 2(1)(d) of the Act – Complainant ought to have approached civil court – Claim not maintainable before consumer Forum.”
In the instant case the complainant is a service provider undoubtedly, but he has claimed recovery of money payable by the OP for his service. Practically, he has filed this case for recovery of money. On the other hand, it is established in this case that he rendered services to the OP after taking money. There is no question of giving any service by the OP to this complainant. Ld. lawyer for the OP has cited another ruling from 1993 CCJ page 498, Haryana, where the Hon’ble State Commission decided “A person who provided transport services could not claim himself to be a consumer and was not allowed to go before a consumer Forum to recover his promised amount.” Ld. lawyer for the complainant has cited a ruling in this case from 1 (2009) CPJ page 534.
We have gone through the rulings cited by the ld. lawyers for both the parties and after careful perusal of the above cited rulings and considering the facts of this case we are inclined to hold that this complainant is not a consumer as per provision of CP Act. So his case is not maintainable in its present form and nature. Rather he should file this case before the appropriate Forum for realising of his due amount of rent from the OP. As the complainant has not become able to prove his case, so he is not at all entitled to get the relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/09/79 be and the same is dismissed on contest against the OP without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
