As per Hon’ble President. Mr. Atul Alshi.
1. The complainant has filed this compliant against OP for delay, deficient and inferior quality of work which given under contract for miscellaneous work in respect of fitting of tiles, marble, kadappa etc. and thereby claiming refund of Rs.22,000/- for repair charges payment made to OP, Rs.88,781/- for purchase of the material and thereby claiming compensation of Rs.1,00,000/- and litigation charges of Rs.15,000/-. The complaint’s complaint in short as under-
2. The complainant is an advocate has orally entered into contract on 19.08.2017 for miscellaneous house repairing work of fixing of tiles in three room, kadappa in kitchen, tiles in parking and porch and alongwith other miscellaneous work. The OP promised to complete the work within 13 days. The complainant paid Rs.88,781/- for purchasing construction material such as cement, sand, marble stone etc. The complainant paid Rs.22,000/- for labour charges. The OP failed to complete the work as promised. The work done by OP was of inferior quality. On 20.12.2017 the OP entered unlawfully in the house of complainant by breaking lock of grill door and committed theft of Rs.20,000/- for taking his tiles cutting machine and other instrument. The OP has removed material for which complainant has paid price of material of Rs.88,781/- and payment for incomplete work of Rs.22,000/- and therefore complainant has filed this complaint.
3. The OP filed reply and denied allegation and submitted that the complainant has given contract of fitting of tiles to one Shivram Paul who lived in Orissa and was working in Nagpur doing building construction work. The OP has no connection with Shivram Paul and also with tiles fitting and other works. The OP was watchman. The complainant has lodged false criminal complaint No. 269/2017 U/s 454, 380 of IPC for breaking open the lock of house and committed theft of Rs.20,000/-. But after investigation, “A” summary report was submitted to magistrate. The OP was demanding the salary of 20 days work as watchman; therefore the complainant has filed this complaint and report police. The OP has not known whereabouts of Shivram Paul, contractor. To extort the money from OP, complainant prepared fabricated documents and filed false report to Police Station. Therefore, the present complaint is deserved to be dismiss with cost.
4. The complainant argued that she has filed the copy of FIR in respect of the theft in her house on record. The complainant has filed the bills of 17.08.2017, 03.10.2017 and 17.09.2017 for the payment of marble, tiles, sand and cement and also copy of passbook which disclosed the payment for material. The complainant has filed the copy of receipt of payment of Rs.22,000/- as advance in parts in favour of OP/contractor on record dtd.19.09.2017, 21.09.2017, 28.07.2017. The complainant has also filed photographs of unfinished work in her house. After repeated demand, the OP failed to complete work as promised. Hence, case is deserve to allow.
5. The counsel for OP argued that, the complainant had given the contract of fitting of tiles and other work in the house of complainant to Shivram Paul. The OP was working as watchman in the house of the complainant. The OP is illiterate and not knowing English language. The OP has not issued the receipt of advance payment for the uncompleted work in the house of complainant. There is no written contract of work to be performing. The complaint failed to file the expert opinion of any engineer for the uncompleted work on record. Therefore, case is deserved to be dismissed.
6. Both the parties argued the case on merit at length. After hearing of case the following points arose for consideration.
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- Whether the complainant is consumer? No.
- Whether there is deficiency in service on the part of OP? No. 3) What order? As per final order.
REASONING
7. Point No. 1 to 3 - It is admitted fact there is no written contract of fitting of tiles and other work by OP and for that purpose the payment of Rs.22,000/- has been paid. There is no other evidence on record for the entrustment of work and completion of period of time and quality of work is undertaking for perform by OP as contractor. The complainant had paid cost of material directly to the shopkeeper and there is no endorsement of order which has been placed on behalf of OP to shopkeeper in respect of construction material. Therefore, there is no relation between complainant and OP as consumer and service provider. In view of the above discussions, we answer point No.1 in negative.
8. We have already held that Complainant is not entitled to be considered as ‘Consumer’ within the Consumer Protection Act 2019 and complainant has not filed any documentary evidence contract on record that the OP has undertaken the works of fitting of tiles in rooms, parking, porch and fitting marble on kitchen platform. Therefore the present complaint case is dismissed, as per following order.
ORDER
- The complaint is dismissed with no order as to cost.
- Copy of the order shall be given to both the parties, free of cost.
