O R D E R
Per Sri A. Hazarath Rao, President:-
The complainant association filed this complaint u/s 12 of the Consumer Protection Act seeking recovery of Rs.59,364/- paid to the opposite party towards repairs, Rs.2,00,000/- as compensation; Rs.50,000/- towards mental agony and Rs.5,000/- towards costs.
2. In brief the averments of the complaint are these:
The complainant in July, 2010 contacted the opposite party for getting repairs of the 2nd floor terrace as it was leaking. The complainant entrusted the work of water proofing to the opposite party believing his words. The opposite party under took to arrest leaking by way of injecting pressure grouting and level correction by means of water basin polymer, water proofing compound and plastering. The complainant initially paid Rs.29,682/- by way of cheque on 20-08-10. The opposite party started his work and completed it by 16-09-10. After completion of the said work, the complainant had taken photos and questioned about the work done being rough and shabby. The opposite party replied that final finishing will be done within in two days and settled the bill amount for Rs.59,364/- by taking DD dated 16-09-10 for Rs.28,495/-. Subsequently, the opposite party did not turn up to complete the finishing work. In October, 2010 the complainant noticed the slab leaking as usual and brought it to the notice of opposite party over telephone and requested him to rectify the problem. The opposite party though promised to rectify somehow or other was postponing to complete the work. The complainant got issued legal notice on 09-08-11 to the opposite party. But the opposite party did not respond. The opposite party failed to rectify the leakage problem inspite of collecting the entire amount and it amounted to deficiency of service. The complaint therefore be allowed.
3. The contention of the opposite party in nutshell is hereunder:
The opposite party did the work with utmost care and caution in a very good manner. In the agreement the opposite party specifically mentioned that curing is must for ten days after slab and wall cracks repairs. As the complainant failed to follow the said precaution the leakage happened, but not due to the defective work done by the opposite party. After satisfying the work done only the complainant paid the balance amount to the opposite party. The complainant failed to produce the photographs alleged to have been taken after completion of the work. Issuing of legal notice after a long time revealed that there was no negligence on the part of the opposite party in completing the work. The complainant has not produced any proof that the work done by the opposite party was defective. The opposite party gave five years warranty only if nobody tampers and done curing for ten days by the complainant. The complainant let out the same for functions after the work done by the opposite party. There was no damage or loss either mentally or physically to the complainant. The opposite party could not give reply as did not receive notice. The opposite party did not commit any deficiency of service. The complaint is not maintainable under law. The complaint therefore may be dismissed.
4. Exs.A-1 to A-13 were marked on behalf of complainant. No documents were marked on behalf of opposite party.
5. Now the points that arise for consideration are:
1. Whether the complaint is maintainable?
2. Whether the opposite party committed deficiency of service?
3. Whether the complainant is entitled to compensation?
4. To what relief?
6. Admitted facts in this complaint are:
1. The opposite party executed a letter regarding the work to be done by him on 07-08-10 besides an agreement (Exs.A-1 & A-2).
2. The opposite party received Rs.29,682/- on 20-08-10 (Ex.A-3).
3. The opposite party issued bill for Rs.59,364/- to the complainant on 16-09-10 (Ex.A-4).
4. The complainant paid Rs.28,495/- on 16-09-10 by way of account payee cheque (Ex.A-5).
5. The complainant got issued notice to opposite party by way of registered post (Exs.A-7 and A-8).
7. POINTS 1 to 3:- The complainant was described as M/s The Indian Tobacco Association, Guntur rep. by its treasurer Karpurapu Santhi Bhushan. The registry on 05-12-11 took the objection regarding maintainability of the complaint u/s 2(1)(d) among others. The relevant objection is extracted below for better appreciation:
“The building is being utilized for business purpose. Explain how this complainant is a consumer u/s 2(1)(d)(i) of CP Act, 1986?
The complainant during his resubmission represented the following:
“Services are obtained by the complainant from the opposite party for consideration. As the services are not upto the mark. Inspite of demands by the complainant the opposite party failed to comply or rectify the same. As there is deficiency of service on the part of opposite party and the dispute has to be adjudicated by this Hon’ble Forum”.
8. Being a question of fact and law this Forum numbered the complaint. The opposite party specifically questioned regarding the maintainability of the complaint as the complainant was letting the building for functions. The complainant in para 6 of its complaint mentioned as noted infra:
“It is further submitted to this Hon’ble Forum that the complainant is unable to let out the said premises for functions and other activities as it is leaking from the ceiling where the leak proof work done. Due to that the entire false ceiling was getting badly torn out and even the carpet area on the 1st floor is also becoming spoiled due to dampness etc. The complainant could not let out the said premises even though it is located in the prima locality and incurred heavy loss”
9. The above averments lead us to draw an inference that the complainant used to let out the subject premises earlier. It is not the case of the complainant that it was letting out the premises free of cost. By letting out the premises the complainant is engaged in commercial activity. The complainant hired the services of the opposite party for commercial purpose. In Economic Transport Organisation vs. Charan Spinning Mills (P) Limited and another 2010 II CPR 181 (SC)(FB) = 2010 CTJ 361 (SC) the Supreme Court held:
“Section 2 (1) (d) of Act was amended by Amendment Act 62 of 2002 with effect from 15-03-03, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’. After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.
10. Relying on the above decision, we are of the considered opinion, that the complaint is not maintainable as the complainant hired the services of the opposite party for commercial purposes. Therefore the complainant is also not entitled to any compensation. We therefore answer these points against the complainant.
11. POINT No.4:- In view of above findings, in the result the complaint is dismissed without costs.
Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 21st day of June, 2012.
MEMBER MEMBER PRESIDENT
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APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.Nos. |
DATE |
DESCRIPTION OF DOCUMENTS |
A1 |
07-08-10 |
Quotation issued by opposite party |
A2 |
07-08-10 |
Terms and conditions along with quotation bill |
A3 |
20-08-10 |
Receipt for Rs.29,682/- by the opposite party |
A4 |
16-09-10 |
Bill for Rs.59,364/- issued by the opposite party |
A5 |
16-09-10 |
Copy of IOB Cheque for Rs.28,495/- issued by the complainant to the opposite party |
A6 |
21-11-11 |
Ledger extract for the period of 01-04-10 to 31-04-11 |
A7 |
09-08-11 |
Office copy of regd. Legal notice to the opposite party |
A8 |
10-08-11 |
Postal acknowledgment of opposite party |
A9 |
|
Photograph |
A10 |
|
Specifications mentioned in CPWD- Volume(1) 2009 at pages 192 to 197 (copy) |
A11 |
|
Norms and specifications given in Indian Practical Civil Engineers Handbook by P.N. Khanna at page 166 to 173 |
A12 |
|
Specifications from a standard text book at page 58 |
A13 |
|
Specifications mentioned in CPWD- Volume(1) 2009 at pages 137 & 138 |
For opposite party : NIL
PRESIDENT
