CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

Case No.99/18

1. NIYAMAT ULLAH

S/O INAYAT ULLAH,

R/O G-9, 4^TH FLOOR, SHAHEEN BAGH,

A.F. ENCLAVE PART-II, N.D.-25

ALSO AT ADHINPUR, REHRA BAZAR,

UTRAULA BALRAMPUR, U.P. 271306 …..COMPLAINANT           

Vs.

2. SH. SHAKIL AND SH. GOLU BOTH

S/O MOHD. ISLAM

R/O G-9/1, 4^TH FLOOR, SHAHEEN BAGH,

A.F. ENCLAVE PART-II , N.D.-25

ALSO AT VILL ADHINPUR, P.S & TOWN RANGERY ROAD,

REHRA BAZAR DISTT. BALAMPUR, U. P...RESPONDENT

                                                 Date of Order: 13.12.2021

O R D E R

A.K. KUHAR– President

            The complainant is the Director of M/s Nidaema Infracon Pvt. Ltd. having office at G-9, 4^th Floor, A.F Enclave-II, Shaheen Bagh, N.D-25. He has his native place at Adhinpur, Rehra Bazar, Utraula Balrampur, U.P.  271306.

            The complainant hired the services of OP namely Mr. Shakil and Mr. Golu who were also resident of the same area/ village. The services of OP were hired for doing the work of P.O.P at number of sites at Delhi and NCR. The contract was awarded by the complainant to the OP to the tune of Rs. 1,30,000/-. He alleged that the OP has not completed the work of P.O.P at the sites despite taking more than Rs. 47,000/- for completion of work up to 10/08/2017. He alleges that the OP has admitted this fact before the Police Inspector and Pradhan Rehra Bazar Balrampur, U.P. A settlement was also arrived at between the parties at Balrampur and it is stated that the OP also admitted these facts before the authorities at Delhi and assured to refund the amount of Rs. 47,000/- or complete the P.O.P work.

            However, the OP did not perform his part of the contract and the settlement arrived at and as such neither did he refund the amount of Rs. 47,000/- nor he completed the work of P.O.P at various sites of the complainant. A legal notice was sent on 21/02/2018 but there was no response. Hence, the present complaint has been filed.

            The notice was sent to OP however, the OP were proceeded Ex-parte vide order dated 04/07/2018. Thereafter, the complainant led his evidence.

             We have heard the arguments of the Ld. Counsel for the complainant, perused the complaint and the documents in support thereof. The complainant has placed on record the copy of the payment receipt and advance money receipt Ex. CW-1/1, a copy of settlement EX. CW-1/2 and the legal notice EX. CW-1/3.

            The Ld. Counsel for the complainant has submitted that the case is covered under the Consumer Protection Act because the services of the OP were hired and there was deficiency in service since the work contracted out to the OP was not completed. He had argued that the Consumer Protection Act has defined ‘deficiency’ of service and the present case falls within the fore corner of the said definition. He argued that the complaint be allowed with the direction to the OP to refund the amount of Rs. 47,000/- along with the interest at the rate of 14% and, apart from this damages to the tune of 30,000/- and litigation expenses of 15,000/- be also awarded to the complainant.

            As per the allegations the services of OP were hired for completion of the work of P.O.P at number of sites at Delhi and NCR. Any deficiency in the workmanship and the amount of work which was required to be done and deficiency therein would definitely be covered under the Consumer Protection Act.

 Section 11 of the Act defines Deficiency as under:-

“deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-

1. Any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

2. Deliberate withholding of relevant information by such person to the consumer;”

            To establish the case the complainant was required to prove that a particular work was assigned at a particular site and a particular/ specific deficiency was noticed in the workmanship of the OP. First of all, the complaint is absolutely silent about the sites in Delhi and NCR where the work was to be carried out by the OP. The complaint is also silent about the deficiency noticed in the work done by the OP. From the documents placed on record what is apparent is that there is some dispute with regard to the payment between the complainant and the OP. The settlement EX. CW-1/2 relied upon by the complainant does not show that dispute was with regard to any deficiency noticed in the work undertaken by the OP. Even, in the legal notice it is not explained at which site the OP was undertaking the work of P.O.P. The tone and tenor of the legal notice itself would show that the dispute is with regard to the amount taken by the OP for the work undertaken by him, none of the documents placed on record show any deficiency in the work carried out by the OP. The complaint is also silent about the loss suffered by the complainant. The entire complaint is vague.

            A doubt about the territory jurisdiction also arise in this case because the complainant has not mentioned at which place in Delhi the work was assigned and carried out by the OP, so the complainant could not establish that any cause of action arose in Delhi.  There is no proof either that OP was resident of Delhi.

            The Hon’ble Supreme Court has recently held in the case of “SGS India Limited V/S Dolphin International Limited” Civil appeal No. 5759/2009 decided on 06/10/2021 that the onus of proof of deficiency in service in on the complainant. It is the complainant who had approached the Commission therefore, without any prove of deficiency the OP cannot be held responsible for deficiency in service. While making these observations, the SC has relied upon the judgment in Ravneet Singh Bagga v/s KLM Royal Dutch Airlines & Anr. (2000) 1 SCC 66  where it was held that the burden of proving the deficiency in service is upon the person who alleges it.

“The deficiency in service cannot be alleged without

attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it.The complainant has, on fact been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

In Indigo Airlines v/s Kalpana Rani Debbarma & Ors. (2020) 9 SCC 424 also it was held by the SC that the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complainant and observed as under:-

 “In our opinion the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Forum, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/ complainants had discharged their Initial burden in establishing the factum of deficiency in service.”

            In view of the above discussion we are of the considered view that the complaint is vague with regard to the averments made therein as to deficiency in service:

1.  The complainant does not explain about the sites at which the work was to be carried out.
2. The complaint is also silent about the deficiency in the work noticed by the complainant. A dispute with regard to some payment will not fall in the definition of deficiency of service.

The complaint is vague and uncertain. Moreover, the complainant has not discharged the onus of proving deficiency in service. The complaint is, therefore, dismissed.

Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

(Dr. RAJENDER DHAR)     (RASHMI BANSAL)                       (A.K. KUHAR)

        MEMBER                          MEMBER                                     PRESIDENT