STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Mrs. Mohinder Gupta w/o Sh. Darshan Gupta, Advocate, Haryana, High Court, Chandigarh, r/o Koti No.1504, Sector 43-B, Chandigarh

…… Complainant

V e r s u s

1.           Frontier Construction Company, Carrying its business in Shop No.7-A, Madhya Marg, Sector 7-C, Chandigarh, through its proprietor Shri Shalinder Verma, s/o V.K. Verma.

2.           Sh. Shalinder Verma s/o V.K. Verma, Proprietor, Frontier Construction Company, r/o House No.1628, Sector 7, Chandigarh.

3.           Nanhe Lal s/o Sadhu Parshad r/o Kishangarh, U.T. Chandigarh [Deleted vide order dated 28.9.2011 as per the order dt. 1.5.2001 passed by Hon’ble National Commission]

              .... OPs

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by: Sh. Deepak Arora, Adv. for the complainant

                   Sh. Aalok Jaga, Adv. for OPs 1 & 2

                   Name of OP-3 deleted vide order dated 1.5.2001.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This complaint was initially instituted on 11.5.1994 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi under Section 21 of Consumer Protection Act (hereinafter referred to as the Act) claiming a compensation of Rs.20 lacs. Subsequently, an application for amendment was moved by the complainant to increase the amount of compensation to Rs.20,24,575/-, but the said application was dismissed by the Hon’ble National Commission vide order dated 4.5.2011 and the complaint was returned to the complainant (for want of pecuniary jurisdiction) for presentation before the appropriate Commission, within a period of thirty days from the date of the order.  It was directed that the complaint shall be tried expeditiously, preferably within a period of six months, from the date of first appearance of the parties.  The complainant had filed a fresh complaint before this Commission on 2.6.2011 claiming a compensation of Rs.20,24,575/-  but the said complaint could not be entertained, as the complainant was to present the original complaint (filed by her before the Hon’ble National Commission) before this Commission. The original complaint was accordingly presented on 19.7.2011. A notice of the filing of the complaint was issued to the OPs for 26.8.2011. The present complaint is being disposed of today, well within the time of six months, as directed by the Hon’ble National Commission.

2.                According to the complainant, she approached the OP company and sought its services for eradication of pests/insects and paid Rs.400/- as advance on 25.3.1993.  On 27.3.1993 at about 4:00 p.m. Sh. Nanelal, a regular employee of the OP came to her house for the purpose of spraying/treating the infected carpet.  He was carrying with him a tin of insecticide known as DDVP 76% EC and five litres tin of petrol and a spray machine.  However, he did not care to switch off the main power switch of the house as also the fridge and lights etc.  When he came out after the spray, immediately a loud blast occurred in the drawing/dining room followed by two more successive blasts resulting in blowing up the front portion followed by a massive fire resulting in burning and damaging the entire house and household items.  It has been alleged that due to the impact of the blast, she also suffered injuries and was taken to the hospital by the police.  It has been averred that due to the act and conduct of the OPs she suffered heavy loss and damage as all her household items/library/furniture etc. were reduced to ashes.  She served a legal notice on the OPs calling upon them to make the payment towards the damage/loss suffered by her but to no avail.  Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice 

3.                 OPs 1 & 2 in their written reply submitted that on account of some reference and as a result of marketing gestures OP-1 had gratuitously deputed OP-3 to spray some insecticide as per the requirement of the complainant but no payment at all was received by them.  It has been submitted that the petrol was supplied by her, and was mixed at her instructions and she also opted not to switch off the lights.  It has been denied that any damage to the house as alleged by the complainant was caused.  All other material allegations of the complainant were denied, being wrong.  Pleading that there has been no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint has been made.

4.                This complaint was originally filed before the Hon’ble National Commission but the same was ordered to be returned to the complainant for presentation before the appropriate Commission vide order dated 4.5.2011. That is how the present complaint was presented in this commission on 19.7.2011.    

5.                 On 28.9.2011, counsel for both the parties stated at the bar that they have already led evidence before the Hon’ble National Commission and that they do not want to lead any further evidence.

6.                We have heard the ld. Counsel for the parties and have also perused the record.

7.                As per the order dated 4.5.2011 passed by the Hon’ble National Commission, the complainant was to present the original complaint before this Commission within 30 days from the date of order. There is no dispute about it that the complaint was not presented within the aforesaid period because it was presented on 19.7.2011, whereas the period of 30 days expired on 4.6.2011. The contention of the learned Counsel for the complainant was that he received the complaint back from the Hon’ble National Commission on 8.7.2011 and therefore, prepared an application on 11.7.2011 and presented the complaint on 19.7.2011.  In other words he is putting the blame on the Hon’ble National Commission, which according to him retained the complaint till 8.7.2011 in stead of returning it to the complainant.  We however, do not find any merit in this contention. It was the duty of the complainant to obtain the complaint from the Hon’ble National Commission. He has not produced any document to suggest on which date he made the effort for obtaining the complaint back from the Hon’ble National Commission. Mere mentioning the date in the application presented before this Commission would not extend the said period of 30 days contrary to the directions given by the Hon’ble National Commission. In stead of obtaining the original complaint back from the Hon’ble National Commission the complainant filed a fresh complaint which was taken up on 6.7.2011 and the Counsel for the complainant was directed to obtain the original complaint from the Hon’ble National Commission and present it on 19.7.2011. It appears, it was only thereafter, that the complainant approached the Hon’ble National Commission, upon which the complaint was returned to her, it was therefore, delay on the part of the complainant and not of the Hon’ble National Commission. Since the complaint was not presented by the complainant before this Commission within the period of 30 days as ordered by the Hon’ble National Commission, we cannot take cognizance of this complaint. However on merit also, the complaint has no case.

8.                The next contention of the ld. Counsel for the OP is that the complainant is not a consumer as defined under Section 2(1)(d) of the Act because there was no consideration paid by her for availing the services of the OPs.  The contention of the OPs is that, in fact, it was a gratuitous act as the service was rendered by them free of cost on the asking of a reference and as part of the marketing gesture, as mentioned in para 5(C)and (D) of the written reply, submitted by OPs 1 & 2. The ld. Counsel for the OPs referred to certain authorities with which there is no dispute that if there was no consideration for rendering service, which was done gratuitously, the consumer is outside the purview of the Act and cannot file the consumer complaint.   As against it, the ld. Counsel for the complainant has referred to para 5(C) of the complaint in which it is specifically stated that the complainant paid Rs.400/- in advance on 25.3.1993 for the service regarding which the order was booked and an entry was made by the OPs in the diary maintained by the company in the ordinary course of business. The ld. Counsel also referred to the affidavit filed by the complainant in support of this contention.  It is also contended that a criminal case was registered against OP-2 in which also this question was raised by the OP but it was found by the criminal court while convicting the OP that the said amount of Rs.400/- was paid by her.  The ld. Counsel for the complainant, therefore, argued that the payment of consideration for hiring the services is fully proved in the present case. 

9.                In order to prove the payment, the complainant has not produced any receipt issued to her having paid the said amount of Rs.400/- The OP produced their record (copies of receipts) which are Annexure R-2 to R-20 but there is no such receipt in her favour.  Annexure R-21 is the copy of the cash book maintained by the OP in the ordinary course of business and there is no such entry regarding the receipt of the amount from the complainant as was claimed by her. The documentary evidence, therefore, belies her contention.

10.              When the occurrence took place, the complainant got the FIR registered against the OP, copy of which is Annexure A. There is no mention in the FIR if any such payment of Rs.400/- was made by the complainant to the OP.  The statement of the complainant was recorded under Section 161 Cr.P.C. for the said criminal case and the copy thereof is Annexure B. The complainant nowhere mentioned in her statement if she had paid the said amount of Rs.400/-.  Before filing the present complaint, a notice (Annexure G) was issued to the OP company in April 1993. In the said notice also, no such mention was made if the complainant had paid any consideration for hiring the services.  These are the documents coming from the side of the complainant at the earliest and she never alleged anywhere if she had paid any consideration.  There is, therefore, sufficient merit in the contention of the ld. Counsel for the OPs that when the present complaint was to be filed and the complainant realized that she did not fall under the definition of a consumer, for want of consideration, she, therefore made improvement in the story and concocted the version that she had paid Rs.400/- as advance. Had there been any such payment, there is no reason why the same was not mentioned in the FIR, in her statement under Section 161 Cr.P.C. and in the notice served to the OPs on her instructions.

11.              We, therefore, do not accept the contention of the complainant that she had paid any consideration for hiring the services.  The contention of the ld. Counsel for the OPs is that the OP company had been in the business for the last 20-25 years.   A person close to the complainant approached them for rendering free service. The complainant had been Assistant Advocate General, Standing Counsel of various organizations and having good connections. The OPs in order to oblige her agreed to render the service free of charge. The complainant in para 1 of her complaint has mentioned that she had remained posted on prestigious posts.  We, therefore, find merit in the contention of the OPs that no charges were taken from the complainant for rendering the service and it, being a gratuitous act, falls beyond the purview of the Act.

12.              As regards the order of the Criminal Court dated 29.7.1998 vide which OP No.2 was convicted under Section 285, 427 and 338 IPC and was released on probation, we are of the opinion that the said order cannot be taken into consideration to prove this fact. It may be mentioned for the sake of repetition that there was no mention of payment of consideration of Rs.400 either in the FIR or in the statement of the complainant, recorded under Section 161 Cr. P.C. and also that of her husband. The payment of consideration was introduced by the complainant for the first time when she appeared in the Court as witness on 19.1.1998.  By that date she had already filed the present complaint and had realized the loophole of her case. The judgment of the Criminal Court is neither admissible in evidence nor binding in the present complaint to prove this fact.  For proving the offence under Section 285, 427 and 338 IPC, the payment of consideration was not at all relevant, whether the complainant had paid Rs.400/- for hiring services of the OPs or it was a gratuitous act, the offence could nevertheless be made out against the OPs and therefore, the payment of consideration was not a relevant fact in those proceedings and cannot be said to have been decided by the Criminal Court. This judgment, therefore, does not operate as res judicata. Otherwise also, the payment of consideration was introduced subsequently, and would not improve the case of the complainant in this respect.

13.              The next contention of the ld. Counsel for the OPs is that there is no evidence, worth the name, to suggest as to what was the extent of damage, if any, suffered by the complainant. According to him, she has been depending on guess work and otherwise also, the assessment of loss, if any, requires thorough investigation and exhaustive evidence, which,  it is not possible in these  summary proceedings to assess.  A perusal of the record shows that the complainant has given different estimates of loss at different times. When the complainant made her statement under Section 161 Cr.P.C before the investigating officer, she mentioned having suffered loss of Rs.39/40 lacs. Her husband Darshan Gupta also supported her in this respect.  However, when a notice (Annexure G) was issued, on the instructions of the complainant, the loss came down to Rs.37.5 lacs.  When the complainant filed the present complaint, the loss was mentioned to be Rs.37.5 lacs but she prayed for a compensation of Rs.20 lacs only. Thereafter, an application was moved before the Hon’ble National Commission to amend the complaint and to claim a compensation of Rs.20,24,575/- which was not allowed by the Hon’ble National Commission, as referred to above.  It is, therefore, clear that there is no data or reliable evidence to asses the loss and everything is being presumed simply on conjectures and surmises.

14.              The complainant has enclosed with her complaint Annexure H, which is the list containing the goods damaged in the said incident.  She has filed her own affidavit to prove the same.  The question would be whether the list submitted by a complainant, accompanied by his/her own statement, would be enough to prove the extent of loss without producing any document as to when the article was purchased, what was its price, what is its depreciation and what is its price on the date on which the incident took place. We are of the opinion that the answer to this question would be in the negative.  Mere statement (Annexure H) would not be enough to prove the loss without producing corroborative evidence thereto. Even this much is not proved as to what was the make of the AC or the office table or the wall clock; from where, and when, these articles were purchased and for what amount.  Even this is not in evidence as to what is today the value of a similar article.  It is not understood as to how the complainant remembers the price of each and every article, mentioned by her in the said list, even after the lapse of a long period after its purchase.  There is, therefore, no denying the fact that the list (Annexure H) does not represent the actual loss suffered by the complainant and it has been prepared only on guess work and may be an exaggerated one. The amount of compensation, therefore, cannot be assessed on its basis.  

15.              The complainant has also produced certain photographs to prove the incident and damage to the household goods. Even the OPs do not deny that such an incident may have taken place but their contention is that it was due to the fault of the complainant who, instead of mixing water, directed Nanhe Lal  (OP-3) to mix petrol in the liquid to be sprayed on the carpet for the simple reason that water was likely to damage her carpet.  His further contention is that it was the duty of the complainant to switch off the lights of her house before the spray was done, which she did not.  What are the rights and duties of the parties in such cases can well be determined by a civil court and not by this Commission in the limited and summary jurisdiction of case.

16.              The complainant has alleged that she suffered fracture and spent a sum of Rs.75,000/- on her treatment.  In order to prove this fact she produced Annexure K, which is the copy of the out patient ticket issued by the PGI on 22.4.1993. This document cannot be connected with the present occurrence, which took place on 27.3.1993.  Annexure K relates to 22.4.1993 i.e. near about one month after the said occurrence.  In FIR (Annexure A) she mentioned having received injuries in her feet, head etc. In her statement (Annexure B) she nowhere mentioned having broken or displaced her ribs.  However, a month later, she went to the PGI and obtained medical certificates showing fracture of ribs 3rd, 4th, 5th and 6th.  We are, therefore, of the opinion that this document relates to some other incident.  These injuries, therefore, cannot be connected with the present occurrence. Otherwise also, she did not produce any evidence i.e. cash memos or receipts to prove that she purchased medicines worth Rs.75,000/- on her treatment.

17.              The contention of the complainant that the law books and other articles were damaged in that incident is otherwise also not proved because no damaged article appears to have been found and taken into possession by the police during investigation of the case, got registered by her.  If there was any damage to any article, regarding which the FIR was lodged, those articles would have been taken by the police in custody. This fact also falsifies her contention.

18.              A perusal of the case file shows that it cannot be decided by this Commission in its summary jurisdiction where plenty of evidence is needed to be produced by the complainant to prove each and every article damaged in that fire, as to for how much the said article was purchased and from where, what was its value on the date of occurrence and for what amount a similar article can be procured for her.  It is also required to be proved as to what loss she suffered in her professional life on account of the injuries allegedly suffered by her.  Mere mentioning the price in the list cannot take place of proof or evidence and on its basis we feel handicapped in ascertaining the amount of damage suffered by her.

19.              In view of the above discussion, we are of the opinion that there is no merit in this complaint and the same is accordingly dismissed.  Parties are left to bear their own costs.
                   Copies of this order be sent to the parties free of charge.

Pronounced.

21^st October, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

hg