COMPLAINT FILED: 31.01.2009<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 25th MARCH 2009<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.289/2009<br /> <br /> <br /> COMPLAINANT M/s.Nandaki Management Systems Pvt. Ltd.,No.2/21, Shantha Complex,1st Main Road, 1st Cross,RMV Extension, 2nd Stage,Bangalore – 560 94.Represented by its Authorized Person,Sri.Deepak Nayak,S/o Venkatesh Nayak,Aged about 30 years,Residing at No.48, 1st Floor,DVG Road, Bangalore – 560 004.Advocate – Sri.Narayana Rao B.VV/s.<br /> OPPOSITE PARTY Mr.Vinay,Director,Vidwath Consulting,# 9, 2nd Floor, 1st Main Road,New BEL Road, Sanjay Nagar,Bangalore – 560 094.Advocate – Sri.M.A.Subramani<br /> <br /> <br /> O R D E R<br /> <br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay Rs.3,06,996/- and compensation of Rs.2,00,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant is the Software Solution provider. OP engaged the services of the complainant to do the assigned Software consultancy job. In that regard complainant raised an invoice for Rs.3,06,996/-. In spite of the repeated requests and demands made by the complainant, OP failed to make payment of the said amount with regard to the said job and service rendered by the complainant. OP did make payment on 14.06.2007 and 16.11.2007 but to the reasons best known to it withheld the payment of Rs.3,06,996/-. For no fault of the complainant he is made to suffer both mental agony and financial loss. The complainant caused the legal notice but it went in futile. Thus he felt deficiency in service on the part of the OP. Accordingly he is advised to file this complaint and sought for the reliefs.<br /> <br /> 2. On appearance, OP filed the version denying all the allegations made by the complainant in toto. According to OP complainant is not a ‘consumer’ as defined under the Act nor he availed the services as contemplated. When he has not availed the services of the OP, he can’t allege the deficiency in service. On the contrary it is the OP who alleged to have availed the services of the complainant. Under such circumstances the present complaint is not maintainable. It is further contended that the complainant had the dealings with ‘Vidwath Consulting’ but he has not made the said ‘Vidwath Consulting’ as a party. Hence complaint is bad for non joinder of necessary party. OP is not personally liable for any kind of contractual obligation. Complainant has not produced any piece of paper to show that he entered into contract with OP with regard to the so called Software Solutions etc. What ever the job that was assigned to the complainant if he has attended to it ‘Vidwath Consultancy’ has paid that amount. That act has nothing to do with the OP. Practically speaking ‘Vidwath Consulting’ is victim of deficiency in service by service provider who happens to the complainant. So complaint is not maintainable and it is devoid of merits. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Negative<br /> Point No.2:- Negative<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. It is the case of the complainant himself that OP Company engaged the services by assigning some Software Consultancy job. Admittedly the said job is assigned by ‘Vidwath Consulting’ a partnership firm. What made the complainant to file this complaint against present OP is his individual capacity is not known. It is also not at dispute that as per the invoices raised by the complainant the ‘Vidwath Consultancy’ has made him the payment. That transaction has nothing to do with the OP.<br /> <br /> 7. On the plain reading of the complaint itself it is OP who availed the services of the complainant and not the complainant himself. So we find substance in the defence of the OP that complainant can’t claim himself as a ‘consumer’. He has not availed the services of the OP for consideration. When that is so he can’t allege the deficiency in service. So on the face of it the present dispute raised by the complainant does not amounts to a ‘consumer’ dispute at all. As it is there is no proof that complainant entered into certain contract with the OP and in pursuance of the work done OP is in due of certain amount. No such documents with respect to privity of contract are produced so also to show that OP in his individual capacity is in due of the present amount claimed under the complaint. So whole complaint appears to be highly imaginary and the claim is baseless.<br /> <br /> 8. We also find substance in the defence set out by the OP that the complaint is bad for non joinder of necessary party like ‘Vidwath Consulting’. When complainant failed to produce the necessary documents and papers with respect to contract being entered into between himself and OP pertaining to assigned of certain job he can’t raise the bill without executing or performing such part of contract. There is no proof of deficiency in service on the part of the OP. Hence complainant is not entitled for the relief claimed. Accordingly we answer point Nos.1 & 2 in negative and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of March 2009.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> Vln* <br /> <br />