SAMIKSHA BHATTACHARYA, MEMBER

The instant appeal u/s 41 of C.P. Act, 2019 is in challenge to the order dated 18.01.2023 in complaint case No. CC/1/2023 passed by the Ld. DCDRC, Howrah.

The facts of the case, in brief, are that the appellant/complainant (hereinafter referred to as ‘complainant) has availed and/or hire the service of OP (hereinafter referred to as ‘OP’) for the purpose of interior decoration in  his residential flat purchased by him. After getting the information from the website of OP Firm, the work was allotted to the OP and thereafter through telephonic conversation and personal meeting and acceptance of scheme of work, the work was allotted to the OP by the complainant. OP has prepared the proposed design for the said flat and shared the same along with a quotation of Rs.20,50,000/- with the complainant. Thereafter, OP proceeded with work and accepted payment through Google Pay platform time to time from the complainant.  Immediately after initiation of the work, the complainant and his son paid a total sum of Rs.15,40,000/- in the period from 12.04.2022 to 21.08.2022. After repeated request from the complainant, the OP ultimately sent a purported final quotation through whatsapp amounting to Rs.25,15,000/-. The dispute has been arisen out of refusal by the OP to complete the interior decoration even after acceptance of further payment.  To make the situation vitiated, the OP has launched a police complaint against the complainant portraying that the complainant has wrongfully withheld materials belonging to the OP which is nothing but an absolutely false allegation against the complainant.  The OP has asked for expenses from the complainant for purchasing all materials needed for designing the said flat and immediately thereafter, the complainant on good faith made payment to purchase such materials.  In the  meantime, the OP has sent a revised estimate of Rs.24,15,000/-. The OP always assured the complainant that the work would be completed by the agreed date by 31.10.2022.  But the complainant was shocked and surprised to receive the message from the OP immediately after payment of Rs.6,00,000/- made on 17.09.2022 where the OP said “all plans have failed”.  Receiving such message, the complainant contacted with the OP when the OP informed the complainant that he would walk away from the project.  Ultimately on 27.09.2022, the OP has informed the complainant  that he has withdrawn from the project.  Being in utter state of shock, the complainant visited the said flat and found that OP did not complete the work in a single room of the said flat although the OP assured that the work would be completed and on this assurance, complainant paid more than 90% of the amount as per quotation.  The OP demanded more amount.  Finding no other alternative, the complainant filed the petition of complaint before the Ld. DCDRC, Howrah praying for refund of Rs.10,00,000/- paid by the complainant along with interest @ 12% p.a. on the said sum and consequential relief.

On the date of admission hearing, the Ld. DCDRC, Howrah rejected the complaint on the ground that the entire scenario do not focus any ingredient prima facie to the  effect that the complainant is consumer.

Being aggrieved by and dissatisfied with the order of the Ld.  District Commission, Howrah, the complainant/appellant has filed the instant Appeal. On the date of final hearing, the Ld.  Counsel for the complainant has submitted that the  Ld.  District Commission dismissed the consumer complaint  upon forming  an  information that the appellant/complainant is not a  consumer within the meaning of section of CP Act, 2019. The Ld. Counsel  has drew our attention  by showing the  Section 2(7) of CP Act, 2019 which defines “consumer”. He has further submitted that from the facts of the case it is clear and evident that the complainant has availed and/or hiring the service of the  OP for the purpose of interior decoration of the residential flat.   The work was allotted to the OP after getting  information from the website of the OP/ proprietor firm and thereafter different telephonic conversation, personal meeting etc. were exchanged over Whatsapp. The transcripts  are annexed with the petition of complaint. The OP  has also proceeded with the work  and  accepted the payment  through Google Pay. When the OP refused to complete the remaining interior work the dispute has cropped up. This refusal, in spite of acceptance of further payment,  amounts to deficiency  in  providing service to a genuine and  bonafide consumer. Refusal to complete the work as communicated by the OP through its legal notice dated 10.11.2022  also amounts to  unfair trade practice as defined under Section 2(47) of CP Act, 2019. The OP has asked for  expenses from the complainant for  purchasing all kinds of materials  needed for designing the said flat and thereafter the complainant on good faith made payment to purchase such materials and taking advantage of such advance payment, the OP has wrongfully deceived the complainant, therefore, the complainant is obviously the  consumer under Section 2(7)(ii) of CP Act, 2019 particularly, when he has paid money for availing service of a service provider and  such payment has been  acknowledged by the service provider.  The Ld.  Counsel for the complainant has also cited the judgment  passed in Lukhnow Development  Authority vs. M.K. Gupta reported in (1994) 1 SCC 243 in support of his contention.  Therefore,  the Ld.  District Commission has passed the impugned order without proper and judicious application of mind and the Ld. District Commission has committed gross error  of law in rejecting the petition of complaint. The impugned order passed by the District Commission amounts to absolute denial of justice to the complainant . The impugned order is  based on surmises and conjecture and  is bad in the eye of law and the order is suffering from  infirmities  under the law.    The impugned order deserves  no merit and  hence the same is required to be set aside. Hence,  the complainant has  preferred the present appeal praying for setting aside the impugned order  and judgment dated 18.01.2023 passed by the Ld. DCDRC, Howrah.

The Ld. Counsel for the OP has submitted that the Ld.  District Commission has correctly found in  their final  judgment that the complainant is not come under the definition of ‘consumer’ as per the Act. The question of law arises under two aspects: Whether the complainant  comes under the definition of consumer or not and whether there is deficiency in service on the part of the OP. The Ld. Counsel for the OP has further submitted that if we consider this is a   good case under the   CP Act then the complainant has to prove that he is  a bona fide consumer. The OP  is a service provider so the duty of the OP  is to provide   proper service to the complainant. But in the instant case, the complainant has not prayed for providing service, if any deficiency happened by the OP. The complainant has prayed before the Ld. District Commission for direction upon the OP to pay a sum of Rs.10,00,000. The complainant has not justified in the petition of complaint that for what reason, the  OP  would pay such amount to him. Ld. Counsel for the OP has further submitted that there is no written  agreement by and between the parties. Therefore, there is no document to prove the allegation. All the allegations are afterthought and self-made and nothing but a concocted story. Therefore, the complainant cannot make out  his prima facie complaint case and therefore, the  Ld.  District Commission has rightly dismissed the complaint. 

The Ld. Counsel for the OP has further submitted that good service always demands a good remuneration.  In the instant case, the OP has virtually proposed about all the decoration. The complainant has accepted the same but when the OP has started work in accordance with the complaint then the complainant has intentionally started to demandcostly and luxury products and materials. In every   occasion, the complainant has changed their plan, diagram, decoration etc. and therefore the project was abandoned. The prayer in the  petition of complaint is without any reason. The consumer court cannot entertain  money claim as a primary claim. Hence,  the OP has prayed for dismissal of the  appeal by imposing cost upon the complainant.

Upon  hearing  the parties and on perusal of the  entire  materials on record, it is admitted fact that the complainant has wanted to do some interior decoration and after searching over internet, they came to know about the OP. The complainant contacted the OP and  spoke to its proprietor. After detailed discussion, the complainant   acknowledged the OP  to do the job for interior decoration of his flat. Thereafter, the  complainant has paid the amount as raised by the OP and OP has also started to do the interior decoration. After some time, the dispute  has been  cropped up between the parties. Now the question  is whether the complainant is a consumer and whether the OP is a service provider. As per Section 2(7) of CP Act, 2019, the complainant is obviously a ‘consumer’ who has availed service from the OP who is nothing but a service provider. For providing service, the OP has charged amount  and the complainant has paid for that. The complainant has availed the service for a consideration which has been paid in part and the rest amount would be paid on later date. Though  there is no written agreement, in  course of argument, the Ld. Counsel for  the OP has admitted  that  the OP is obviously a service provider. The argument on behalf of the OP that “ there is no written agreement” cannot be acceptable in the eye of law  since it was duty of the OP to enter into an agreement before performing the job. The OP has accepted the amount  to perform interior decoration without any written agreement. Therefore,  this plea cannot be entertained. The complainant  has acknowledged  the OP for doing interior work for his personal  purpose  not for any commercial purpose or not for any resale purpose. Therefore, it can safely be held that the complainant is a consumer and the OP is a service provider. From the Whatsapp transcripts annexed with the petition of complaint there is no doubt that the complainant has availed service of the  OP. The complainant has annexed the bank transaction towards payment to OP.   

It is astonishing that on the very first day i.e., on the date of admission hearing, the Ld.  District Commission has dismissed the complaint case on the ground that the complainant is not a consumer. The matter should be contested on merit, it should not  be dismissed on the assumption  that the complainant is not a  consumer. Whether there is any  deficiency in service on the part of the OP and whether the complainant  would be entitled   with relief that can be considered only after closing of the evidence of the both parties.  

As per above discussion, the impugned order dated 18.01.2023  in CC case No. CC/01/2023 passed by Ld. DCDRC, Howrah, is hereby set aside.

Let the Complaint case be admitted and registered.

Ld. District Commission is requested to restore the case in  its original file  and number and to proceed with the complaint case in accordance with  law. The Ld. DCDRC, Howrah is further requested to dispose of the case preferably  within 3 (three) months from the date of appearance of the parties.

Since the case was dismissed at the initial stage of admission hearing and the case is restored to its original file and number, we refrain ourselves from passing any opinion on the other issues involved in the complaint case.

Fix 11.08.2023 for appearance   of the parties before the Ld. DCDRC, Howrah  for receiving further  direction.

Consequently, the instant Appeal  be and the same is allowed on contest.

No order as to costs.  

The appeal is  thus disposed of accordingly.

Let a  copy of  this order be sent to the Ld. District Commission,  Howrah  at once.