Ld Advocate for the complainant and OPs1 to 3 are present. OP4 takes no step. Judgement is ready, it is delivered in open Commission in 5 pages 3 separate sheet of paper.
BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case are that the Complainant is a citizen of India and lives at the address mentioned in the cause title. The Complainant is the proprietor of M/S. J & P Enterprise having its office situated at Village-Joynagar, Post Office- Doro Joynagar, Police Station- Durgachak, District- Purba Medinipur, PIN-721635 for running business. The Opposite Party No.4, M.B. Builders is a Government contractor having No. AN ISO 9001:2015 certified company. The Opposite Party No.4 got tender in respect of “Development of Hard Stand with concrete paver blocks including drainage facility at common users” Siding - I (CUS-1) at Patikhali, Haldia Dock Complex from the Shyamaprasad Mukherjee Port being Opposite Party No.1 to 3. The Opposite Parties Nos. 1,2 and 3 invited a tender in respect of the “drainage facility at common users’ Siding-I (CUS-1) at Patikhali, Haldia Dock Complex and the respondent No.4 had been selected for the aforesaid work and thereafter the respondent No.4 engaged the Complainant by issuing work order dated 20.03.2020 for completion of the said work order. The Complainant got work order for labour supply on measurement basis from the M.B. Builders (Govt. Contractor) on 20th March, 2020 and rate has been fixed on the basis of terms and conditions mentioned in the work order. The photo copy of the work order is annexed herewith and marked as Annexure ‘P-1’. On the basis of work order the complainant started work in the said project under the Opposite Party No.4 by providing all sorts of works mentioned in the work order. The Complainant completed entire work and final measurement bills submitted on 09.09.2020 amounting of Rs. 5,67,179/- and received by the contractor through his agent on the same date. The measurement was done in presence of all the representatives of the respondents. The photo copy ofthe bills are annexed herewith and collectively marked as Annexure ‘P-2’. During the period of work the contractor, Opposite Party No.4 paid a sum of Rs. 2,71,000/- to the complainant by six installments as advance but the rest amount of Rs. 2,96,179/- has not been paid till date. The Complainant approached before the concerned Opposite Parties several time for releasing the rest amount but the said Opposite Party did not care to that effect. The Complainant is entitled to a sum of RS. 2,96,179/- alongwith interest at the rate of 10% per annum. The Complainant lastly on 05.04.2021 made representation to the said M/S. M.B. Builders (Govt. Contractor), the Opposite Party No.4 for payment of arrear dues by registered post and the same was received on 15.04.2021. The Complainant lastly on 05.04.2021 made representation to the said M/S. M.B. Builders (Govt. Contractor), the Opposite Party No.4 for payment for arrear dues by registered post and the same was received on 15.04.2021. The photo copy of the said letter dated 05.04.2021 is annexed herewith and collectively marked as Annexure ‘P-3’. The Complainant made representation to the respondent No. 1 to 3 by registered post with A/D but they refused to accept the same. Although final bill was submitted on 09.09.2020 yet no payment has been released till date. The Complainant made representation before the respondent Nos. 1 to 3 by stating that complainant completed the said project work and measurement had been done in presence of representative of the respondent as well as contractor but thereafter no payment has been made to that effect. The Complainant submits that at the time of work the respondent No.4 through its proprietor verbally told to the complainant that the miscellaneous cost (mixture machine, pump set, road cutting machine, blade, petrol, diesel etc.) shall be paid to the complainant. After completion of the said work the complainant approached before the respondent No. 4 for payment of such miscellaneous cost but the said respondent refused to pay the said amount by using slang languages. The Complainant submits that he has paid the entire labour payment and other miscellaneous charges in respect of the said project work as such huge loss has been incurred by the complainant. The refusal on the part of Opposite Parties, the complainant has suffered huge loss, damages and prejudices which has been reasonable assessed at Rs. 50,000/- for loss of goodwill and reputation. In such circumstances, the complainant is entitled to compensate to the tune of a sum of Rs. 50,000/- for discontinuation of the said business. The Complainant has suffered mental agony and harassment which amounts to Rs. 50,000/- only a sum of Rs. 20,000/- which he is entitled to receive for the litigation cost. The cause of action of the instant complaint arose on 15.04.2021 when the complainant approached before the opposite Party No.4 for payment of the dues and thereafter on 05.04.2021 when the last reminder letter was sent by the Complainant to the Opposite Party. In such circumstances no part of the Complainant’s claim is barred by law of limitation and the same is within the jurisdiction of this Commission. The Complaint is made bonafide and for the ends of justice. In the facts and circumstances, the complainant hasprayed for directing the Opposite parties, to pay the sum of RS. 2,96,179/- alongwith interest @ 10% per annum from the date of 09.09.2020 till the realization by the Complainant; to pay compensation of Rs. 50,000/- for loss of goodwill and reputation and Rs. 50,000/- for discontinuation of business and Rs. 50,000/- mental agony and harassment for the complainant; to pay litigation cost of Rs. 20,000/- to the Complainant.
Notices were duly served upon all the opposite parties. All the opposite parties have contested the case by filing written version jointly by ops-1 ,2, & 3 and op-4 separately.
The sum and substance of Written version filed by Ops. No. 1,2&3 can be stated as follows;-The instant case is not maintainable in its present form, prayer and in law. The prayers of the complainant as stated are false, frivolous, baseless, illegal and as such the Complainant is not entitled to have the relief as prayed for. A Work order for “DEVELOPMENT OF HARDSTAND WITH CONCRETE PAVER BLOCKS INCLUDING DRAINAGE FACILITY AT COMMON USERS’ SIDING-I (CUS-1) AT PATIKHALI, HALDIA DOCK COMPLED” was issued to M.B. Builders, Address: Zenith Commercial Complex, Dighasipur, P.O.-Chakdwipa, P.S.- Bhabanipur, Haldia, Dist.- Purba Medinipur vide this office work order No. I & CF/IZ&R/t/277/255 Dated 29.05.2019 at a total cost Rs. 5,64,48,457.54 + applicable GST. The schedule time of completion was 12 months i.e. the scheduled completion of time was on 28.05.2020. The major work comprises of construction of R.C.C. drain, guard wall, sand filling and paver block laying. The work is still in progress and about 85% of the work has so far been completed till date. The Opposite Parties state that this Opposite Parties do not have any evidence of employment of sub-contractor by M.B. Builders. These Opposite parties have no relation whatsoever with complainant. Opposite Party No.4 failed to do the entire work within stipulated time period as per work order dt. 29.05.2019. This Opposite Parties are neither on deficiency of service nor liable for unfair trade practice in the present case. So complainant is not entitled to get any relief against this Opposite Parties as prayed for. This Opposite Parties states that the complainant has no cause of action to institute the instant case against this Opposite Party. The claim of complainant in this case is totally false, frivolous, baseless, incorrect, and unwarranted n law and as such the complainant is not entitled to have the relief as prayed for. Only to harass this Opposite Parties complainant has filed the instant case with false pretext. In view of the above facts and circumstances the complainant’s case is liable to be dismissed with costs.
In Written version of O.P. No.4 it has been stated inter alia that there is no cause of action for filing this complaint. The Complaint is barred by the principles of waiver, estoppels and acquiescence. The Complainant is not ‘consumer’ within the measuring of the consumer protection Act, 1986 and 2019. The law is well settled that where relationship of the parties is that of work for labour supply in measurement basis, this has reference to the quotation and subsequent discussion had with you on the above subject matter on ‘DEVELOPMENT OF HARD STAND WITH CONCRETE PAVER BLCOKS INCLUDING DRAINAGE FACILITY AT COMMON USERS’SIDING-I (CVS-I) AT PATIKHLIL, HALDIA DOCK COMPLEX SIDING-I (CVS-I) AT PATIKHALI, HALDIA DOCK COMPLEX matter on 18.03.2020, Admittedly the complaint availed of work order for labor supply in measurement basis, by no stretch it reasoning the purported dispute of the complainant falls under the preview of the Consumer Protection Act. The contents of para No.6 of the complainant petition is denied by the O.P. No.4. The contents of Para No.7 of the complain petition some part is admitted and rest part is denied by O.P. No.4, it is true to say that during the O.P. No.4 paid a sum of Rs. 2,71,000/- (Rupees Two Lakh Seventy One) to the complainant. The Contents of para No. 8,9,10,11,12,14,15,16 of the Complaint are denied by the O.P. No.4 . It is fact that the complainant’s actual work bills are amounting toRs. 2,80,393/- as per survey report. It is true to say that during the O.P. no.4 paid a sum of Rs. 2,71,000/- (Two Lakhs Seventy One Thousand) but the resent amount i.e. (Rs.2,80,393/- - Rs. 2,71,000/-) = Rs. 9,393/- (Nine Thousand Three Hundred Ninety Three) Only. It is stated that the complainant, in respect of the said project work,used low quality cement, Iron, Lazy labour, lazy worker etc. but the complainant did not make arrangement for ,at all, efficient and sufficient labor as required at work order. According to this op, the complainant failed or neglected to do said project work as per the terms and conditions of the agreement executed between the parties. As a result O.P. No.4 has suffered highly loss, damages and prejudiced which has been assessed at Rs. 3,15,000/- (Three Lakh fifteen Thousand). In such circumstances the O.P. No.4 is entitled to get compensated to the tune of Rs. 3,15,000/- (Three Lakh Fifteen Thousand) for discontinuation of the said project. It is accordingly prayed that this Commission would be graciously pleased to pass an order for dismissing the instant complaint.
Points for determination are:
1. Is the case maintainable in its present form and in law?
2. Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have carefully perused and assessed the complaint on affidavit of the complainant, written version filed by ops, evidence of both parties, and other documents.
We have given thoughtful consideration of the rival arguments of Ld Advocates for both parties and read the contents of the application filed by the ops 1 to 3 on 13.12.2022 challenging the maintainability of the case against them .The said application is also taken up for consideration and disposal of the same alongwith this Judgement.
Having regards had to the facts and circumstances of the case, it is evident that the complainant has averred in para-2 of the complaint that the Complainant is the proprietor of M/S. J & P Enterprise having its office situated at Village-Joynagar, Post Office- Doro Joynagar, Police Station- Durgachak, District- Purba Medinipur, PIN-721635 for running business. No where it has been pleaded specifically in the complaint that his such business or the alleged undertaken performance by him was exclusively for the purpose of earning his livelihood, by means of self employment.Now, the short question to be decided is whether the works done by the complainant would fall within the term commercial purpose and whether such service is availed by the complainant for the purpose of earning his livelihood by means of self-employment.
In the present case the complainant is admittedly running a business concern under the name and style ‘M/S. J & P Enterprise’ having its office situated at Village-Joynagarand is engaged in the business of supplying construction materials and labours. The law is well settled that purchasing of goods or availing service for commercial purpose would not attract the definition of a consumer. In order to file a case before the ConsumerCommission,the important ingredients are that the goods purchased or service availed are exclusively for the purpose of his own use or for earning livelihood by means of self-employment. Every business run by an individual or group of business is meant to earn livelihood, but to be a consumer under the Consumer Protection Act one has to prove that he is running the business for earning his livelihood by way of self-employment. In the present case the complainant has no doubt averred that he runs the business. It is evident that complainant was a sub-contractor under op-4.The sub-contractorunder other contractor cannot be a consumer.The above stated activitiesundertaken by the complainant clearly indicate that his intention was to generate profit which is the main indication of commercial purpose. The complainant entered into contract for construction and supply of labours under some terms and condition for expanding his business and to increase his profit and as such the transaction would clearly come within the ambit of commercial purpose. It cannot be said that the contract was exclusively for the purpose of earning his livelihood by means of self-employment.The complainant has not also claimed the same specifically in his complaint.
It has been contended by ops 1 to 3 that the Opposite parties have no relation whatsoever with complainant. There is no document that Opposite Party No. 1 to 3 engaged complainant as sub-contractor for aforesaid work. This opposite Parties are neither on deficiency of service nor liable for unfair trade practice in the present case. ThisCommission has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the Provisions of the Consumer Protection Act 2019 as there is no deficiency of service or negligence on the part of the answering Opposite Party it is stated that “Deficiency” is defined under 2(11) of the Consumer Protection Act. 2019 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance, which is required to be maintained in pursuance of the contract and the complainant has failed to establish deficiency on the part of Opposite Party No.1 to 3 complaint fails to establish any deficiency on the part of the answering Opposite party No. 1 to 3.On evaluation of the materials on record, we find that there is substance in the afore mentioned contentions of the ops 1 to 3.
It is pertinent to be mentioned here that complainant in his written reply against Questionnaire No. 6,7, 8 dated 14.10.2022 answered that “no agreement/document was made in between him and Opposite party No.1 to 3 for aforesaid work and he has no document to show that Opposite Party No.1 to 3 engaged him as sub-contractor for aforesaid work and he has no document to show that Opposite Party No.1 to 3 agreed to pay the money to him as sub-contractor for aforesaid work”. In para -15 of the complaint, the complainant has stated that the cause of action of the instant complaint arose on 15.04.2021 when the complainant approached before the opposite Party No.4 for payment of the dues and thereafter on 05.04.2021 when the last reminder letter was sent by the Complainant to the Opposite Party. There is no particular cause of action has been pleaded against ops-1 to 3.So, the bundle of facts show that there is no cause of action against the ops-1 to 3 at all.The complainant has also not been able to bring home any elementof deficiency of service or unfair trade practice against the op-4.There is no evidence of any omission or commission by op-4 which caused loss or injury to the complainant as Consumer.The complainant availed of work order for labor supply in measurement basis, by no stretch of imagination or reasoning the purported dispute of the complainant falls under the purview of the Consumer Protection Act.The Complainant is not a consumer within the meaning of the Consumer Protection Act,2019; and the complaint filed by him is not maintainable. The complainant is not entitled get any relief in this case. The case is liable to be dismissed.
Both the points are decided against the complainant.
Thus, the instant case does not succeed.
Hence, it is
O R D E R E D
That CC/107 of 2021 be and the same is dismissed on contest against all the opposite parties. No order as to costs is passed.
Let a copy of the judgment be supplied to each of the parties free of cost.
