CC Filed on 06.04.2010
Disposed on 15.06.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.
Dated: 15th day of June 2011
PRESENT:
Sri. G.V.HEGDE, President.
Sri. T.NAGARAJA, Member.
Smt. K.G.SHANTALA, Member.
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Consumer Complaint No. 30/2010
Between:
M/s. Raji Electricals, (Prop. T.A. Chandrappa) S/o. Munidas, Aged about 43 years, Karanji Katte, Near DharamarayaSwamyTemple, Khadripura Road, Kolar. (By Advocate Sri. D.S. Ramagopal & others) V/S 1. Bangalore Electricity Supply Company, Represented by 1. The Executive Engineer (Ele), O & M Division, BESCOM, Kolar. 2. The General Manager (Ele), C, O & M Division, BESCOM, Kolar. (By Advocate B.S. Vijaya Kumari) | ….Complainant ….Opposite Parties |
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ORDERS
This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite party to pay Rs.19,15,260/- towards the amount due in respect of various bills submitted to OP for payment and to pay interest at the rate of 12% p.a. on the above said amount due and also to pay compensation for mental agony and harassment suffered by complainant with costs, etc.,
2. The material facts of complainant’s case may be stated as follows:
That the complainant-T.A. Chandrappa is the Proprietor of M/s. Raji Electricals. The complainant is registered Electrical Contractor carrying on the work under the business name M/s. Raji Electricals. He undertakes electrical works of private persons and also the OP-BESCOM. The OP-BESCOM (O & M Division, Kolar) is the supplier of electricity to various Consumers in this area. For that purpose the OP is required to install and maintain electric lines and other equipments. The OP is required to entrust its work to Registered Electrical Contractors by awarding piece work or calling tender.
It is alleged that the complainant was entrusted to carry out certain works by OP by its order dated 06.02.2007, such as providing intermediate poles and realignment of poles to 250 KVA/DTC in O & M- 1, Kolar USD. The works were entrusted to complainant under work award Nos. 18812-13, 18806-07, 18819-19, 18804-05, 18800-01, 18814-15, 18798-09, 18808-09, 18820-21, 18796-07, 18802-03, 18816-17, 18810-11, 18792-03 in all worth Rs.19,15,260/-.
It is alleged that the complainant has successfully executed the work within the stipulated period, under the supervision of the concerned J.E./A.E. and after completion of the work, the concerned Engineer has also taken measurement and entered it in measurement book and that after successful completion of the work the complainant raised the bills and even those bills have been passed for payment by the concerned officer of OP as per the agreement entered between complainant and OP. Further it is alleged that the amounts due under the various bills were not paid till today, inspite of the complainant requesting the OP several times. Further that there is no valid reason assigned by OP to withhold the payment of the amount due under the bills. Further it is alleged that the complainant issued notice dated 09.12.2009 demanding the payment of amount due. Inspite of receiving that notice the OP did not take any steps, but on 29.03.2010 the OP issued reply stating that the superior officials of OP had ordered to stop payment of bills and after clearance and final decision, the bill amount would be paid. It is alleged that the reply given by the OP is as vague as possible and the OP has no right to withhold the bills for the works carried out.
The complainant has alleged that he is a ‘Consumer’ as understood in the Consumer Protection Act 1986 and there is deficiency of service by OP and therefore this Forum has jurisdiction to entertain this complaint. The facts alleged in this regard can be found in para.6 of the complaint which is as follows:
6) The Contract entered into between the Complainant and the Opponent is mutual and reciprocal, as it is the duty of the Complainant to render the service of carrying out the work entrusted to him by the Opponent, and it is the duty of the Opponent to render service of payment of the amount to the Complainant, for the works carried out by the Complainant. The Complainant has approached this Hon’ble Forum as he is consumer and due to deficiency in service by the Opponent and the Complainant is a consumer earning his lively hood by means of self employment, and as such he comes within the purview of consumer as contemplated under Consumer Protection Act, hence this Hon’ble Forum has jurisdiction to entertain this Complaint.
For the above reasons the complainant has presented the complaint to this Forum on 06.04.2010.
3. The OP appeared and filed its version contesting the claim of complainant. After going through the version and the documents filed by OP, the defence taken by it may be stated as follows:
The awarding of different piece works to complainant as alleged in the complaint is not disputed. Submission of bills along with the certification of prescribed concerned officials of OP for having completed the work is not disputed. It is contended that on receiving certain complaints regarding execution of work by the higher-ups, an enquiry was ordered and during that enquiry conducted by Superior Officials of BESCOM it was found that the works awarded to complainant were not carried out as per the approved/sanction/awarded estimate and as per the specifications of BESCOM. Further it is contended that the details of the lacunae/mis-match in the work executed by the complainant in respect of the different work awards were specified in detail in annexure – A appended to the reply notice issued to complainant. It is contended that the complainant has not used the materials drawn from OP stores in the field and that the complainant has – (1). Claimed excess labour for releasing and restringing Rabbit ACSR, RCC Poles and Switches, (2). Claimed excess labour for releasing and re-fixing of service mains, (3). Claimed excess bills in supplying of 10 sq. mm lead wire, (4). Claimed excess labour for supplying and fixing insulation tape, alkathene tube, P.G. clamp, PVC Pipe, Aerial Fuse Board, (5). Claimed labour charges for works of straightening of slanted poles. Further it is contended that the complainant has caused a cumulative pecuniary loss of Rs.42,85,602/- to the OP in respect of 99 Nos. of work awards allotted to him by claiming excess payment and inflating bills. Therefore it is contended for the above reasons the payment of the bills have been withheld. (the present case relates to 14 work awards and the complainant has filed other cases in respect of remaining work awards and it appears in all the complainant is entrusted 99 work awards.)
Further OP has denied the allegations in the complaint that complainant is a ‘consumer’ and that there is deficiency of service on the part of OP and that the claim comes within the purview of Consumer Protection Act 1986 and that this Forum has jurisdiction to entertain the complaint. Therefore the OP prayed for dismissal of the complaint.
4. The parties filed affidavits and produced documents supporting their respective contentions. We heard the Learned Counsel for the parties. The OP has also filed the written argument.
5. From the rival contentions the following points arise for our consideration:
Point No.1: Whether the complainant is a ‘Consumer’ as
defined under Sec- 2 (1) (d) of the Consumer
Protection Act 1986?
Point No.2: If point No.1 is held in Affirmative, whether OP
proves that the execution of the works entrusted
to complainant were suffering from defects stated
in the version?
Point No.3: To what order?
6. After considering the records and the documents and the submissions of parties our findings on the above points are as follows:
Point No.1: If the complainant is a ‘consumer’ as defined under the Consumer Protection Act 1986 (for short Act), the complaint is maintainable before this Forum. Otherwise the complainant has to seek his remedy elsewhere as provided under Law. The Learned Counsel for complainant submitted that the complainant is a ‘consumer’ as defined under the Act and the OP was required to render service of payment of the amount in respect of the works executed by complainant. Therefore according to the Learned Counsel for complainant, the non-payment of amount for the works executed amounted to deficiency in service by OP and for such deficiency in service the complainant can maintain the present complaint before this Forum. On the other hand the Learned Counsel for OP submitted that the complainant is not a ‘Consumer’ and he has not hired or availed any service from OP and that mere liability to pay for the works executed by complainant as per the agreement between parties, does not amount to providing any service by OP to complainant. Further it is contended that on the other hand the OP has availed/hired the services of complainant in executing the works awarded to him. Therefore the Learned Counsel for the OP contended that the present complaint is not maintainable before this Forum.
After giving our anxious consideration to the rival contentions, we hold that one has to accept the contention of the OP. In the facts and circumstances of the case, it is not possible to hold that complainant is a ‘Consumer’ as defined under the Act and he availed/hired any service from OP. The mere liability to pay the agreed consideration for the execution of the works entrusted to complainant, cannot be treated as service to be rendered by OP to complainant within the meaning of sec-2(1) (o) of the Act. We have come to this conclusion after considering the relevant definitions as defined in the Act and the precedents of Hon’ble National Commission and State Commissions.
The Learned Counsel for complainant relied upon the decision of our Hon’ble State Commission passed in Appeal No. 1991/2006 decided on 01.06.2007 between Smt. B. Rajeshwari V/s. Zilla Panchayat and another, in support of his contention to contend that non-payment of amount as per the terms and conditions of agreement amounts to deficiency in service. The relevant para in the said decision of our Hon’ble State Commission is as follows:
“In the instant case, in respect of the work done by the complainants, the OPs have promised to pay the amount. Non payment of the amount as per the terms amounts to deficiency in service. Therefore, the complainants in our view are considered as ‘consumers’ and they can maintain the complaints under the C.P. Act. Hence, we are of the view that the matter requires reconsideration by the District Forum treating the complaints filed by the complainants is maintainable in Law.”
The facts in the above decision was that there was an agreement between complainant and the OP under which the complainant was entrusted the work of repairing the pumpset, electric panel boards and other associated works with regard to the maintenance of borewells for which the OP has agreed to pay certain amount. Further that the complainant has executed the works but the OP has not come forward to pay the amount as per the agreement. The appellant/complainant has filed complaint before District Forum alleging deficiency in service on the part of respondent/OP as it failed to make payment for the works carried out as per agreement. The District Forum had dismissed the complaint on the ground that the complainant was not ‘consumer’ within the definition of the Act. The said order was challenged in the Appeal before our Hon’ble State Commission. After considering the rival contentions the Hon’ble State Commission allowed the appeal holding that the complaint filed by complainant is maintainable in Law and the non-payment of the amount as per the terms of agreement amounts to deficiency in service.
The Learned Counsel for complainant submitted that the facts of the present case, are exactly similar to the facts stated in Appeal No. 9991/2006 referred above. Therefore according to him this Forum is bound to follow the said decision as a binding precedent.
It is true that the facts in the present case and the facts in the above appeal decided by our Hon’ble State Commission are exactly similar. It is also true that this Forum being subordinate to the Hon’ble State Commission has to follow the decision of Hon’ble State Commission. However if it is found that the order of the State Commission is rendered per incurium without considering the law laid down by National Commission/the higher authority and without considering the proper provision of law as interpreted by higher Courts, the said decision need not be followed as a binding precedent. We think the above decision rendered in the said Appeal by our Hon’ble State Commission is a decision rendered per incurium. We think for this reason we need not follow the decision rendered in the above appeal by our Hon’ble State Commission.
Now we may notice certain decisions of Hon’ble National Commission to understand the proper meaning of ‘consumer’ and ‘service’ as understood in the Act. In the decision cited in (1981) I CPJ 169 between Vinodani Bajpai Vs. Rajya Krishi Udapadan Mandi Parishat the Hon’ble National Commission has explained the Law as follows in the context of the facts of that case. The relevant facts and the reasonings stated in the said decision are as follows:
The appellant before us was the complainant before the State Commission, Uttar Pradesh at Lucknow. He was the successful tenderer in respect of the award of a contract by the Respondent Parishad for construction of a deep drain. He approached the State Commission with the grievance that the accounts in respect of the said construction contract had not been settled and amounts that would be due to him on a proper settlement of accounts have not been paid to him by the opposite party.
2. The State Commission was of opinion that this was neither a case of sale of goods nor of hiring of a service as contemplated by the Consumer Protection Act (hereinafter called the Act) and hence the complainant cannot be regarded as a ‘consumer’ falling within the scope of the definition of the said expression contained in Section 2(1) (d) (i) of the Act. The complaint was dismissed by the State Commission on the aforesaid ground. The correctness of the said order passed by State Commission is under challenge in this appeal.
3. The son of the appellant appeared before us as her authorised representative. He contended that by reason of acceptance of the complainant’s tender, a contract had been concluded, under which there were mutual obligations on the part of both parties to render service to one another and that hence the appellant must be regarded as a consumer who had hired a service. We are unable to uphold this contention. The acceptance of a tender undoubtedly creates a contractual relationship. But the contractor who has undertaken to perform a work of construction cannot, by any stretch of reasoning, be regarded as a person who has entered into an arrangement of hiring of service with the other party merely on the ground that under the contract there is an obligation on the part of the said party to supply certain materials such as cement etc. and also to ultimately pay the charges found due for the execution of the work. We are in full agreement with the view expressed by the State Commission that the appellant who was the complainant does not fall within any part of the definition of ‘consumer’ contained in Clause 2(1) (d)(i) of the Act. The complaint preferred by her was therefore rightly dismissed on the ground that it was not maintainable under the Act.
We accordingly confirm the order passed by the State Commission and dismiss the appeal.
In the recent decision citied in 2010 CTJ 287(CP) (NCDRC) between North East Karnataka Road Corporation V/s. Pooja Travels and others, the same nature of question is considered. In the said case the facts narrated in para.1 of the judgement are as follows:
“There is an agreement between the complainant M/s. Pooja Travels who are the respondents and North East Karnataka Road Transport Corporation (in short the “Corporation”) the petitioner before us. As per the agreement the petitioner has agreed to hire the buses belonging to the complainants for consideration to ply the buses from Bidar to Bhalki. It was mentioned in the agreement that the distance between Bidar to Bhalki is 42 km. It is the case of the complainant that in view of this the petitioner cannot pay lesser amount holding that distance between Bidar to Bhalki is only 38 kms. Accordingly, there is a deficiency in service on the part of the petitioner, therefore, filed a complaint before the District Forum.”
The petitioner/OP in the above said case had contended that the claim of complainant was not covered under the Act and the complainant was not a ‘Consumer’ as the complaint is based on the alleged breach of contractual agreement entered into by both the parties and for violation of terms and conditions of the agreement the complainant may approach the Civil Court. The said contention was rejected by the District Forum and the complaint was allowed. The State Commission had confirmed the order in Appeal preferred against the order of District Forum. In the Revision Petition preferred by petitioner/OP the Hon’ble National Commission has stated in para.7 to 9 as follows:
7. The main issue to be decided is whether the complainant is a consumer under the Consumer Protection Act. Section 2(1)(d)(ii) of the Consumer Protection Act reads as follows:
“Consumer means any person who-
hires or avails of any service for a consideration which has been paid or promised or partly paid and 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 and 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”.
8. It is clear from the complaint that the complainant runs a travel company by the name M/s. Pooja Travels which has three managing partners and they own several buses and they had agreed to provide five buses to the Corporation on hire basis.
9. Actually Pooja Travels had provided its services to Corporation and the Corporation has not provided its services to Pooja Travels. Further, Pooja Travels has provided the buses to earn profits. Nowhere in the complaint it has mentioned that the services availed by the complainants were exclusively for earning the livelihood by means of self-employment. Hence, the complaint does not fall under the definition of Consumer Protection Act.
The Learned Author Sri. P.K. Majumdar in his book on Law of Consumer Protection in India, IIIrd Edition Re-print 2000, has considered many examples in the commentary under Sec 2(1) (d) of the Act. He noted on the basis of decided cases that a complainant claiming amount due as salary for services rendered to employer, was not a consumer under the Act and that a person working as Masson existent on construction site was not a ‘Consumer’ and that a person claiming hire charges for hoarding site given for putting up advertisements under an agreement is not a ‘Consumer’ under the Act. At page 294 in para.38 of the notes he cited the gist of a decided case between Veda Prakash Dhingra V/s. Nachum Plastics Limited 1993 CCJ 498 (500) : 1992 CPC 719 (Haryana) which is as follows:
38. Consumer – Transport service, etc. - The complainant was contractor and supplier of various construction materials to the Government or private business houses. The opposite party was a concern engaged in various business and trade activities. The Executive Director of the said concern engaged the services of the complainant vide of purchase order for filling of the land of their project for a certain consideration. It was the complainant’s case that he carried out the aforesaid order and thereafter approached the opposite party for the payment of the amount aforementioned. The allegation was that they used dilatory tactics and despite persistent demand and visits the payment was not made. Hence, the complaint was filed for the relief that the opposite party be directed to pay a certain sum for services rendered along with the interest.
The wide ranging definition of service in Section 2(o) of the Act is now too well-known to require recapitulation. Reading the provision together as they necessarily must be to come within the ambit of this part of the definition of a consumer, a person must be a hirer of a service as defined under the Act. Once that is so, it is somewhat plain that a person who “hires any services” was patently the antonym of “hiring out any services”. Therefore, a person who has hired out his services is not a consumer under the Act, and consequently has no locus standi within the jurisdiction to maintain the complaint and the same was liable to be dismissed.
The above decisions and the commentary on this question make it clear that mere liability for payment of money for the work to be executed as per the agreement, does not amount to hiring/availing of any service by the person who has to execute the work. In the present case, the complainant has to execute the work as per the work orders and the OP has to pay the consideration agreed for carrying out such works. It is the OP who availed the services of complainant for executing certain works. The liability on the part of OP to pay the amount agreed for execution of such work, does not amount to hiring of any service by complainant. The decisions of National Commission noted above make this point clear. If the argument of the Learned Counsel for complainant is accepted, the Consumer Forum has to entertain the complaints for non-payment of the amount agreed under the agreement, though there was no hiring or availing of service by complainant. Therefore we honestly believe that non-payment of amount by OP for the work done by complainant, in breach of the agreement does not amount to deficiency in service as contemplated in the Act. This conclusion is inescapable from the law laid down by Hon’ble National Commission as noted above. We honestly believe that the order in Appeal No. 9991/2006 of our Hon’ble State Commission is rendered in per incurium. Therefore this decision has no binding force. The Learned Counsel for complainant produced two other decisions namely AIR 2004 SC 448 and AIR 2005 Calcutta 108 during his argument. We found that in these decisions the present controversy is not considered. Therefore we think these two decisions are not relevant in the present case. For the above reasons we hold point No.1 in Negative.
Point No.2: As point No.1 is held in Negative, Point No.2 does not arise for consideration.
Point No.3: Hence we pass the following:
O R D E R
The complaint is dismissed holding that the complainant is not a ‘Consumer’ as defined and understood in Sec 2 (1) (d) of the Consumer Protection Act 1986. The parties shall bear their own costs.
Dictated to the Stenographer, corrected and pronounced in open Forum this the 15th day of June 2011.
MEMBER MEMBER PRESIDENT
