Adv. For the Complainant: - Self
Adv. For O.P :- Sri A.K.Mishra And associate
Date of filing of the Case :-24.12.2021
Date of Order :- 29.09.2022
Facts of the case in nutshell:-
1. The case of the complainant is that the complainant enter in to an oral contract with the present OP. for constriction of his residential house. Measuring an area of 1200 square feet at the rate of 170 per feet. And on good faith and trust the complainant remit RS 64,600/-as advance through SBI Cheque Vide No.590405 date.17.10.2021 which is received by the OP, but the OP did not take any step towards construction despite several request of the complainant and the complainant bound to engage another contractor for the same. Hence this case.
To substantiating his case has relied upon the following documents.
(1) The cash remittance transaction copy.
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(2) A plain paper acknowledgement copy.
Having gone through the complainant it’s accompanied documents it is found that then is a strong primafacie case against the OP seemed to be genuine hence admitted and notice to the opposite party served and in response the OP appeared through his counsel and filed his written version.
The rival contention as per their version. It is denied all the contents to counter the complaint the Op stated that the complain case in not maintain able. The complainant being the P.O of the institution taking advantage of the same admit the case . There was no such contract between the OP and the complainant. The OP. is a Government servant not a contractor the money which remitted through Cheque is not known to the OP he came to know after filing of this case and contended that the money which the complainant remit through Cheque is the amount taken by the complainant at the time of his necessity. We know to each other very well denying all the averment of the complainant praying before the commission to dismiss the case. No documentary evidence been filed to strengthen his case.
2. Heard both the parties . Before going to the merits of the case the learned advocate for the O.P. vehemently opposed and raised a preliminary objection and submitted that the complainant is not a consumer. Hence the complaint is not maintainable.
3. To meet the issue raised by the learned advocate for the OP. it is observed that as per Sec. (7) (ii) any person who hires or avails of any services for a consideration which has been paid, or promised or partly paid or partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid or partly promised or under any system of deferred payment. When such services are availed of with the approval of the first
mentioned person but does not include a person who avails of such services for any commercial purpose.
4. More over Sec.2 (42) defines service means service of any description which is made available to the potential users and includes but not limited to the provisions of facilities in Connection with Banking, Financing Insurance, Transport supply of electricity or other energy board or lodging or both housing construction ,entertainment amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service.
Therefore we are of the considered view that the complainant is a consumer as defined in Sec 2(7) of 2019 C.P.Act.
5. Having gone through the case and after perusal of the evidence it is found that the complainant adduced two documentary evidence. one is the plain paper cash transaction which has no value in the eye of law so rejected the same, another one is the cash transaction of
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Rs 64,600/- remitted to the account of the OP through the SBI Cheque vide No.590405 date.17.10.2021 which shows after the oral contract the complainant remit the said amount as advance money. On the other hand appreciation on the rival contention except in the written version. OP stated that both are known to each other and payment made by the complainant is the money which the complainant takes from the OP at the time of his necessity but not adduce any documentary evidence to strengthen his denial more over the OP takes the plea of official capacity of the complainant but from the record it is found that at the time of filing his complainant case the complainant is no more in service while the complainant got admitted.
6. ‘’As such the opposite party which in the instant case failed to discharge by filing any documentary evidence to establish his case. ‘’ so for concerned hence is the case of negligence amounting to deficiency in service. To be more effectual .
Negligence is actionable whether committed by a doctor, lawyer , an architect , a builder or any individual in V.P. Shantha case the Supreme Court held that Negligence ‘’ is the breach of a duty caused by the omission to do something which a reasonable man guided by those consideration which originally regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do’’
As such the essential components of negligence ar
(1) The existence of a duty to take care which the defendants/Ops Owes to the plaintiff/
Complainant.
(2) The breach of that duty towards the plaintiff /Complainant.
(3) Damage or injury by the complainant as a result of such breach. More over the observes in lucknow Development Authority -Vrs- M.K Gupta 1994 the importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business described as ‘ a network of rackets’ or a society in which ‘ producers have secured power to rob the rest and the might of public bodies which are degenerating in to store houses of in action where papers do not move from one desk to another as a matter of duty and responsibility but for entrances consideration leaving the common man helpless bewildered and shocked’’. The Act this thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in larger sense of user of service. It is a milestone in history of socio economic, legislation and is directed towards achieving public benefit.’’
7. Taking the facts and evidence on the record we are of the view that such an act of the opposite party is proved to be an act amounting to negligent deficiency in service on his part for which our view is expressed accordingly in favour of the complainant with a further expression of our view to entitlement of the complainant with regard to his claim of Rs 64,600/-.
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8. On our further observation of the details of the case in hand it is observed that because of the callous attitude of the opposite party the complainant has under gone with mental, physical and financial harassment for which also in our view he is entitled for an amount of RS 3000/- as mental agony and keeping in view that the complainant being a legal person no amount towards litigation expenses is awarded. Hence our order follows.
ORDER
In view of the facts and circumstances as narrated above the opposite party is directed to pay an amount of Rs 64,600.00 towards claim money Rs.3000.00 towards mental agony total Rs 67, 600.00 within one month from the date of the order pronounced . Further directed that if the O.P. fails to comply the same within the stipulated period he is liable to pay the total claim amount i.e. Rs 67,600.00 with an interest @ 9 % P.A. from the date of filing of the complaint till realization.
PRONOUNCED IN THE OPEN COMMISSION TO-DAY 29TH DAY OF SEPTEMBER’2022.
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(J.MISHRA) (R.K.TRIPATHY)
MEMBER. PRESIDENT(I/C)
