Tamil Nadu

North Chennai

5/2014

M.Krishnan,S/o.Mr.Muthusami, - Complainant(s)

Versus

M/s.Om Muruga Fabricators,Rep by its Proprietor Mr.V.Appasami - Opp.Party(s)

M/s.M.Chidambaram

23 Dec 2016

ORDER

                                                            Complaint presented on:  07.01.2014

                                                                Order pronounced on:  23.12.2016

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

FRIDAY THE 23^rd   DAY OF DECEMBER 2016

 

C.C.NO.05/2014

 

 

M.Krishnan,

S/o.Mr.Muthusami,

No.179/1, Broadway,

Near Mannady Bus Stop,

Mannady, Chennai – 600 108.

                                                                                            ….. Complainant

 

..Vs..

 

M/s.Om Muruga Fabricators,

Rep.by its Proprietor Mr. V.Appasami,

No.55/27, Gate Street,

Broadway, Chennai – 600 001.

	...Opposite Party

Date of complaint                                  : 10.01.2014

Counsel for Complainant                      : M/s.M.Chidambaram,A.Q.Choudhury,

                                                                R.Pavithra & T.M.Velu

 

Counsel for Opposite Party                  :M/s. V.Balaji, A.Sermaraj

 

 

 

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is doing furniture business in the name and style of M/s.Sakthi Industries. The Opposite Party agreed to purchase the old shutters and other items for a sum of Rs.12,000/- and agreed to erect fresh shutters with fresh materials. Hence the Complainant entrusted the work of removing the old shutter and to erect new shutters in the above shop. The Opposite Party demanded a sum of Rs.39,000/- being labour charges by erecting new shutters and Rs.6,000/- for mason charges. The Complainant agreed to pay only a sum of Rs.39,000/- to do the work and the Opposite Party also agreed to do the work for the said amount. There was no written agreement entered between them to do the above work and only a oral agreement was entered on 15.10.2013. The Complainant paid amount by way of cash and cheque on various dates totaling to a sum of Rs.32,000/-. The Complainant also purchased side sheets for an amount of Rs.3,695/- and old materials valued at Rs.12,000/- and thus a total sum of Rs.47,695/- paid to the Opposite Party as per the calculation of the Complainant. However the Complainant agreed to pay service charges a sum of Rs.39,000/- to the Opposite Party and deducting such amount, the Opposite Party has to repay a sum of Rs.8,695/- to the Complainant. However, the Opposite Party claimed a sum of Rs.97,335/- is not sustainable.  Further the Opposite Party   failed to clear the repair as requested by him and he also erected the shutter with only 9 leaps instead of 10 leaps and therefore the Opposite Party committed deficiency in service. Hence the Complainant sent notice to the Opposite Party dated 03.12.2013 narrating the above facts and however the said notice cover was returned to him. Hence the Complainant filed this Complaint to rectify the defects in the newly erected shutters and also to refund a sum of Rs.8,695/- with interest and also compensation for mental agony with cost.

2. WRITTERN VERSION OF THE OPPOSITE PARTY  IN BRIEF:

           The Opposite Party admits that he had undertaken to do 3 works by erecting new shutters, remove old shutters and other miscellaneous work.  The Complainant paid a sum of Rs.15,000/- by way of cheque on 15.10.2013 for purchase of the materials and the materials have been purchased and the bills have been handed over to the   Complainant. The Complainant in order to avoid the lawful payment of Rs.1,29,760/- to the Opposite Party, the present Complaint has been filed by him.  The Opposite Party never agreed to purchase the old shutter for the sum of Rs. 12,000/-. Hence the Opposite Party prays to dismiss the Complaint with cost.    

3.POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complaint is entitled to any relief? If so to what extent?

4.POINT : 1

          The Complainant carrying on furniture business in the name and style of M/s Sakthi Industries and the said shop was having shutters and the Complainant wanted to change the shutters with new one removing old shutters. The Opposite Party also agreed to do the said work and the Complainant also entrusted the work to him. However to carry out the said work there was no written agreement between the parties. The Complainant paid a sum of Rs.32,000/- on various dates to the Opposite Party to erect new shutters. The Opposite Party also agreed to do the work by removing the old shutters and for erecting new shutters.

          5. The Complainant contended that there was oral arguments between them on 15.10.2013, the Opposite Party agreed to take the old shutters for a value of Rs.12,000/- and apart from payment of amount of Rs.32,000/-, the Complainant also purchased side sheet for an amount of Rs.3,695/- for the said work and thus including the old materials the Complainant paid totally a sum of Rs.47,695 and the Opposite Party agreed  for the service charges a sum of Rs.39,000/-  and deducting such amount the Opposite Party  is due to pay to the Complainant  a sum of Rs.8,695/- to him and further the Opposite Party had not done the work to his satisfaction and further normally the shutter will have 10 leaps and instead of that the Complainant done with only 9 leaps  and further the Opposite Party demanded a sum of Rs.97,335/- for the said work is not justified and therefore the Opposite Party committed Deficiency in Service and therefore this Complaint is filed.

          6. The Opposite Party contended that he never agreed to take the old shutters for the value of Rs.12,000/-  and in the Ex.A2 proof filed by the Complainant the value of Rs.12,000/- written in different ink and therefore Ex.A2 is prepared for the purpose of case and further as on today the work was completed and the Complainant also using the shutters without any hindrance and therefore the Opposite Party has not committed any Deficiency in Service and prays to dismiss the Complaint.

          7. Ex.A2 receipt is for the value of Rs.12,000/-  in respect of old materials  in the letter pad of the Complainant. No signature of the Opposite Party is found in the said receipt. If really Ex.A2 is written by the Opposite Party certainly the same would bear the signature of the Opposite Party and his company seal and failure to have the same it is held that Ex.A2 is the document prepared by the Complainant for the purpose of the same has not been issued by the Opposite Party. Likewise the Opposite Party also not admitted that the Complainant purchased side sheet for the value of Rs.3,695/- for the worth even for the same there was no documents to show that the Complainant purchased the side sheet for an amount of Rs.3,695/-.        

8.  It is not in dispute that the newly erected shutters are being used by the Complainant. The Complainant case is that normally the shutters will have 10 leaps and however the Opposite Party erected the shutters with only 9 leaps is a defect on his part.  Because of only 9 leaps in the shutters, there was no evidence on behalf of Complainant to show that how the shutter is having defect with 9 leaps. Since the Complainant also using the shutters and  therefore for rendering service to erect new shutters to the Complainant  the Opposite Party has not committed any deficiency  to the Complainant. 

          9. The Opposite Party contended that the work has been completed and  the Complainant also using the shutters and  furthers contended that the case relates to only settlement of account between the parties and in view of that work has  already been completed and therefore this Forum has no jurisdiction to decide the settlement of  account and for such contention he relies an order of the National Commission reported in III (2011) CPJ 141 (NC)  held in para 10 & 11 as follows:

           It is noted that the possession of bungalow has already been handed over by the petitioners to the Respondent and the dispute that now remains, pertains, to settlement of accounts between the two parties. The Consumer Fora are Courts of limited jurisdiction and are required to conduct their proceedings in a summary manner based on the principles of natural justice. In the sense they are not courts though vested with the powers of the civil courts. The Hon’ble Supreme Court in Laxmi Engineering works V. P.S.G. Industrial Institute, II (1995) CPJ 1(SC) =(1995) 3 SCC 583, had clearly spelt out the status of consumer Fora as follows:

      “The quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not Courts though invested with some of the powers of a civil court. They are quasi-judicial Tribunals brought into existence to render inexpensive and speedy remedies to consumers. These Forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. It was intended to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire act revolves round the consumer and is designed to protect his interest. The act provides for ‘business-to-consumer’ disputes and not for ‘business-to-business’ disputes”.

          10. Respectfully following the above ruling of the Hon’ble Supreme Court of India, in the instant case the present dispute is a dispute between the two parties pertaining to settlement of account where a counter-claim has been advanced against the Respondent/Complainant by the petitioner herein. This matter is, therefore, to be adjudicated in a civil court and not in a consumer court it is clearly a “business –to-business” dispute.

The above order of the National Commission also referred a judgment of the Supreme Court and the Hon’ble Supreme Court held, the act provides ‘business – to – Consumer’ disputes.  In the case in hand also the work entrusted to the Opposite Party was carried out by him and the Complainant also using the shutters to safeguard the materials in his shop and the Complainant only giving certain calculation for the fresh materials and old materials and as for his accounts, the Opposite Party is  due  to pay to him a sum of Rs.8,695/- is a clear case of settlement of account between the parties. In view of such conclusion the Complaint is not maintainable in this forum and such facts have to be decided only in the civil courts.

          11. The Complainant relies a judgment of Supreme Court reported in III (2007) CPJ 17(SC) (Bangalore Development Authority Vs. Syndicate Bank) and another judgment of the Supreme Court reported in (1994) 1SCC 243 (Luknow Development Authority Vs.M.K.Gupta) in support of his contention. The facts in the above referred judgments of the Hon’ble Supreme Court dealt deficiency in service in respect of delay in delivery in possession of the houses to the allottees and such fact are different from the facts of the case in hand. Therefore in view of the forgoing discussions we hold that the Complainant has not proved that the Opposite Party has committed Deficiency in Service and accordingly this point is answered.

 

 

 

12. POINT NO:2

          Even though it is held above that the Opposite Party has not committed deficiency in service and the facts of this case is in respect of settlement of accounts between the parties, the parties are at liberty to approach the Civil Court or any other appropriate authority for settlement of their accounts and the Complainant is not entitled for any other reliefs in this Complaint and the Complaint is liable to be dismissed without costs.

In the result the Complaint is dismissed with liberty to the Complainant to file a Civil Suit with same set of cause of action within two months from the date of this order and  to work out his remedy in the manner known to law. There will be no order as to costs.

Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 23^rd day of December 2016.

MEMBER – II                                                               PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 15.10.2013                   Dhanalakshmi Bank cheque No.606133

                                                 Issued

 

Ex.A2 dated 15.10.2013                   Estimate for the old materials

Ex.A3 dated 17.10.2013                   Statement of cash payment details

              To 19.10.2013

 

Ex.A4 dated 17.10.2013                   Bill issued by Barakath Steel

Ex.A5 dated 17.10.2013                   Bill issued by Sri Sai Siva Steels

Ex.A6 dated 17.10.2013                   Bill issued by G.K.Steels

Ex.A7 dated 18.10.2013                   Bill issued by M.N.S.Metal Profiles (p) Ltd.,

Ex.A8 dated 19.10.2013                   Bill issued by Vijayalakshmi & Co.

Ex.A9 dated 26.10.2013                   Bill issued by Gomathi Steel Traders

Ex.A10 dated 03.12.2013                 Complainant’s Notice to the Opposite Party

Ex.A11 dated 09.12.2013                 Refused Return Cover

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

 

…..NIL…..
MEMBER – II                                                               PRESIDENT