Karnataka

Kolar

CC/16/2016

M.M.Associates - Complainant(s)

Versus

The Commissioner, - Opp.Party(s)

Sri.C.M.Niranjanaswamy

17 Sep 2016

ORDER

Date of Filing: 12/04/2016

Date of Order: 17/09/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 17^TH DAY OF SEPTEMBER 2016

PRESENT

SRI. R. CHOWDAPPA, B.A., LLB…..    MEMBER (In-charge President)

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 16 OF 2016

M/s. M.M. Associates,

Near Head Post Office,

Gowripet, Kolar,

Man Power suppliers,

Rep. by its Prop: K.V. Shivakumar.

 

(Rep. by Sriyuth.C.M.Niranjanaswamy, Advocate)    ….  Complainant.

 

- V/s -

1) The Commissioner,

City Municipal Council,

Kolar.

(Rep. by Sriyuth.T.Amarendra & V.Amarendra, Advocates)

 

2) The Director of Municipal

Administration,

Dr. Ambedkar Veedhi,

Bangalore-560 001.

(Placed Exparte)                                           …. Opposite Parties.

-: ORDER:-

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted this complaint on hand as envisaged Under Section 12 of the Consumer Protection Act, 1986 (hereinafter in short it is referred as “the Act”) against Ops has sought relief of issuance of directions to the OPs to return the amount paid by him to the two stenographers at the rate of Rs.6,890/- from 16.01.2014 to 16.08.2014 along with the interest at the rate of 18% per annum, as well EMD amount from the date of the complaint i.e., 05.09.2014 till realization and also sought compensation and damages of Rs.1,00,000/- towards illegal cancellation of tender and any other such reliefs as this Forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, being proprietor of M.M. Associates, in response to the invited tenders from the OP No.1 for supply of 02 stenographers, which was so called on the orders issued by the OP No.2.

 

(b)    Further he had contended that, he had been executed the agreement and also deposited the tender amount of Rs.18,000/- vide D. No. 357130, dated: 16.08.2013 issued by Urban Local Bodies and Town Village Panchayath.  The said tender period is of one year.  And that accordingly he had provided 02 stenographers to OP No.1 office, the salary fixed to them is of Rs.6,890/- per month as per the circular issued by the Government vide No. KAE.152 LWA 2008, dated: 21.02.2011.  And that the said two stenographers did worked to the OP No.1, he had paid for them by his own up to 05 months from the date of 16.08.2013.

 

(c)    Further he had contended that, OP No.1 did cancelled the said tender without issuing any notice to him.  And that OP No.1 did not pay the salary of two stenographers for a period of 07 months to him.  And also did not pay the EMD amount deposited by him. 

 

(d)    It is contention of the complainant that, on 27.08.2014 OP No.1 had issued a final notice to him stating that, he had not paid the salary to the stenographers.  And that the OP No.1 had granted the tender of 02 stenographers to one educational institution even though the educational institutions are barred from getting tenders which is not in accordance to Law. 

 

(e)    So contending the complainant has come up with this complaint on hand to seek the above set out reliefs.

 

(f)     Along with the complaint, the complainant has submitted below mentioned documents:-

(i)       Copy of tender notification.

(ii)      Copy of tender form

(iii)    Copy of intimation letter

(iv)     Copy of work order

(v)      Copy of final notice

(vi)     Copy of intimation letter dt: 10.10.13.

(vii)    Copy of letter dated: 05.06.2014

(viii)   Copy of letter dated: 05.09.2014

(ix)     Copy of letter dated: 14.10.2014

(x)      Copy of legal notice dated: 28.09.2015

(xi)     Copy of Postal acknowledgement.

 

03.   In response to the notice issued with regard to the case on hand, as per the proceedings noted in the order-sheet dated: 10.05.2016, the OP No.2 came to be placed exparte.  And that OP No.1 has put its appearance through the said learned counsel.

 

04.   OP No.1 has put in its written version resisting the claim of the complainant in toto:-

 

(a)    OP No.1 by denying all averments of the complaint, it specifically contends that, the allegations made by the complainant are not come within the jurisdiction of the this Hon’ble Forum and also barred by limitation as per the provisions of the Consumer Protection Act, 1986.  Thus prayed for dismissal.

 

(b)    It contends that, the complainant was the highest bidder in the tender proceedings which were called by the OP No.1 for supply of 02 stenographers under package No.1 for the Office of the OP No.1 and 03 Data Entry Operators under the package No.2 for the Office of OP No.2, that is, to the Births and Deaths Section and 02 Data Entry Operators under package No.3 to the SAKALA Section of the Office of the OP No.1. 

 

(c)    And after the completion of tender proceedings, the complainant has executed an Agreement in favour of the OP No.1 and agreed to fulfill the conditions of the work order issued by the Ops and as per the terms and conditions of the tender Notification, the complainant has to deposit the amount of Rs.12,000/- under the package No.1 and Rs.18,000/- under Package No.2 and Rs.12,000/- under package No.3.  The complainant had alleged falsely as the deposit amount is of Rs.18,000/- without any basis.

 

(d)    It is further contends that, as per the terms and conditions of the tender notification and also work order conditions No.6 and 11, the complainant had agreed to pay the salary to the two stenographers at the rate of Rs.6,890/- per month within 5^th of every calendar months through a crossed cheque and also he has to furnish the deductions from their salaries, that is, E.P.F and also ESI and also he has to furnish the statements of the said deductions to the said OP No.1.  And that in this regard OP No.1 had issued final notice to the complainant, but the complainant had not comply the same.  Hence he violated the terms and conditions of the tender and work order, so, the deposit amount and payment of 03 months’ salary has been forfeited by the OP No.1.

 

(e)    And that, the complainant had not produced salary paid statements and also EPF and ESI paid receipts and had not mentioned the names of the stenographers who had worked for OP No.1 as alleged by the complainant.  So prayed for dismissal of the complaint, costs have been sought.

 

(f)     On behalf of the OP No.1, the learned counsel appearing for OP No.1 has submitted below mentioned documents:-

(i)  Copy of the Letter dated: 16.08.2013 issued by OP-1 pertaining to the Terms and Conditions to the complainant.

 

(ii) Copy of notice dated: 24.04.2014 issued by OP-1 to the complainant.

(iii)  Copy of Final notice dated: 27.08.2014 issued by OP-1 to the complainant.

 

05.   Sri.K.V. Shivakumar (the complainant) proprietor of M.M. Associates, Kolar, has submitted his affidavit evidence on 23.06.2016.  And on behalf of OP No.1 Sri.T.R. Sathyanarayana, Commissioner, CMC, Kolar, has submitted his affidavit evidence on 28.06.2016.  Both counsels have submitted their respective written arguments.

 

06.   Heard the oral arguments as advanced by the learned counsel for the complainant and that of the learned counsel appearing for the OP No.1.

 

07.   Therefore the only point that does arise for our consideration in this case is:-

 “Whether this Forum has jurisdiction to entertain the complaint?”

 

08.   Findings of this District Forum on the above said point is in the ‘Negative’ for the following:-

REASONS

09.   It is worth to note that, it is the contention of the complainant that, he had supplied 02 stenographers to the OP No.1 as per the tender conditions and he had paid salary to them as he contended in his complaint as well as in his affidavit and also in the written arguments.  It means that, the complainant had given service to the OP No.1.  Thus complainant had become ‘Service Provider’. 

 

10.   Section 2(1)(d) of the Consumer Protection Act, 1986 reads thus:-

“(d) “Consumer” means any person who-

1. Buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

2. (hires or avails of ) any services 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 payments, 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);

 

(Explanation:   For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;)”

11.   Hence there is no relationship of ‘Consumer’ and ‘Service Provider’ relating to this dispute according to Section. 2(1)(d) of the Consumer Protection Act, 1986.  And thus this dispute does not constitute a ‘Consumer Dispute’ and it does not fall within the jurisdiction of this Forum and hence we are of the definite opinion that, the complaint is not maintainable for lack of jurisdiction.  Since for the reasons stated above we are to hold that, this Forum has no jurisdiction to entertain the complaint on hand and hence we have not discussed about the other aspects involved in this case to decide the matter.  Hence we proceed to pass the following:-

ORDER

(01)  For foregoing reasons this complaint stands Dismissed, however with a direction to both the parties to bear their own costs.

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 17^th DAY OF SEPTEMBER 2016)

 

 

LADY MEMBER                                MEMBER(In-charge of President)