BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

Dated 27^th MARCH 2012

PRESENT

Sri. H.V. RAMACHANDRA RAO, B.Sc., BL,   …….                PRESIDENT

Sri. T.NAGARAJA, B.Sc., LLB.                        ……..     MEMBER

Smt. K.G.SHANTALA, B.A., LLB.                    ……..     MEMBER

CC Nos.  31/10 to 33/10, 35/10 to 42/10, 72/10, 73/10, 133/10 to141/10, 144/10, 145/10, 167/10, 171/10, 197/10, 225/10, 23/11 to 30/2011

By Sri. D.S. Ramagopal, Adv. for the Complainants in CC Nos.

By Sri. B.S. Sathyanarayana, Adv. for Complainants in CC Nos. 197/10 & 225/10

By Sri. N. Ramachandraiah, Adv. For Complainants in CC Nos. 23/11 to 30/11.

V/s.

    (By Sri. B.S. Vijayakumar, Adv. for Ops in all the cases)

ORDER

By Sri. H.V. RAMACHANDRA RAO, PRESIDENT

Since all these Complaint Nos. 31 to 33/2010, 35 to 42/2010, 72/2010, 73/2010, 133/2010 to 141/2010, 144/2010, 145/2010, 167/2010, 171/2010, 197/2010, 225/2010, 23/2011 to 30/2011 relate to same OPs by different Complainants regarding similar matters, all are taken-up together and common order is passed. 

2.       Herein afterwards Complainants in all the above Complaints will be referred as Complainant etc. and the Opposite Party will be referred as OP. 

3.       The brief antecedents that lead to the filing of the Complainant made u/s. 12 of the C.P. Act seeking direction to the OP to pay compensation of Rs.15,60,752/- in complaint No. 31/2010 Rs.11,18,918/- in Complaint No. 32/2010, Rs.11,80,920/- in complaint No. 33/2010, Rs.19,90,880/- in complaint No. 35/2010, Rs.3,00,084/- in complaint No. 36/2010, Rs.14,53,120/- in complaint No. 37/2010, Rs.9,89,080/- in complaint No. 38/2010, Rs.9,23,440/- in complaint No. 39/2010, Rs.11,32,785/- in complaint No. 40/2010, Rs.6,48,498/- in complaint No. 41/2010, Rs.13,28,535/- in complaint No. 42/2010, Rs.1,28,998/- in complaint No. 72/2010, Rs,.15,98,955/- in complaint No. 73/2010, Rs.5,52,174/- in complaint No. 133/2010, Rs.8,87,872/- in complaint No. 134/2010, Rs.9,58,740/- in complaint No. 135/2010, Rs.1,96,820/- in complaint No. 136/2010, Rs.10,11,150/- in complaint No. 137/2010, Rs.10,66,130/- in complaint No. 138/2010, Rs.7,51,661/- in complaint No. 139/2010, Rs.6,99,520/- in complaint No. 140/2010, Rs.5,97,544/- in complaint No. 141/2010, Rs.3,58,216/- in complaint No. 144/2010, Rs.1,52,959/- in complaint No. 145/2010, Rs.1,15,114/- in complaint No. 167/2010, Rs.2,72,506/- in complaint No. 171/2010, Rs.3,18,245/- in complaint No. 197/2010, Rs.18,76,056/- in complaint No. 225/2010, Rs.5,35,203/- in complaint No. 23/2011, Rs.9,23,440/- in complaint No. 24/2011, Rs.19,90,880/- in complaint No. 25/2011, Rs.14,18,262/- in complaint No. 26/2011, Rs.13,43,844/- in complaint No. 27/2011, Rs.11,48,754/- in complaint No. 28/2011, Rs.9,23,440/- in complaint No. 29/2011 & Rs.5,60,079/- in complaint No. 30/2011 are necessary.

Complainants are the registered Class-I Electrical Contractors dealing with electrical works of the government departments and other private organizations.  OP has entrusted certain electrical works to the Complainants for their sub divisions, work orders issued are produced.  Complainants have completed the works agreed to by them as per the terms of the contract.  The Authorities under OP, on completion of the works had come to the spot and verified and given appropriate certificates.  Even Accounts Department passed the Bills.  After all these, Complainants approached the OP number of times and demanded their money and also to return EMD / Security Deposit made by them.  It was found that  OP has referred the matter to TAQC Department to re-inspect the works done by the Complainants that too after lapse of several years. OP alleged that Complainants have claimed excess labour, it is untenable.  Hence, Complainants issued notice to the OP, even then OP has not settled the claim.

4.       In brief version of the OP are:-

The relationship between the parties are bounded on the agreement, and the Electrical Contractors are not consumers, it is business to business transaction done as per agreement.  Certain works were entrusted to the Complainants for the relevant year under the agreement as they are Class-I Contractors.  Complainants completed the work honestly to the satisfaction of the OP are denied.  OP referred the matter to the concerned persons of TAQC Department who found that work has not been completed in accordance with the terms of the Contract and complainants have claimed excess labour and not carried out work.  All the allegations to the contrary are denied.

5.       To substantiate their respective cases, parties had filed their respective affidavit and documents.  OP had filed written arguments.  Advocates for the complainant have addressed the arguments.  Counsel for the OP replied.

6.       The points that arise for our consideration are as under:

(A)     Whether the Complainants are consumers ?

          (B)     Whether this is consumer dispute ?

          (C)     Whether there is deficiency in service ?

          (D)     What order ?

7.       Our findings on the above points are as under:

          (A) & (B)    -        Negative

          (C)              -        Does not arise for consideration

          (D)              -        As per detailed order for the following reasons

8.       Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that the Complainants are the Class-I Electrical Contractors and they are taking up works of the OP, Government Departments and others on contract and do the work and receive the money for the works done by them.

9.       It is also an admitted fact that for the relevant year OP has granted certain works on contract to these Complainants and they did certain work and accordingly the Bills upto Accounts Department Bills were passed.  Later OP rejected their claim on the ground that Complainants have claimed excess labour charges and they have not done the work as per the terms of the contract.  Complainants have questioned these things before this Forum. 

10.     Now, we have to see whether the Complainants are consumers and this is a consumer dispute.  Section 2(1)(d) of the C.P. Act defines who is a consumer which reads thus:

“Consumer” means any person who -

(i)      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

(ii)      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”

Section 2(1)(q) of the C.P. Act defines who is trader which reads thus:

“Trader” in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof.

That means consumer is a person who “purchases any goods for consideration either to be paid immediately or deferred” and the trader is a “person who sells goods for consideration either paid or deferred”.  Here, the entire  case of the Complainants are that they have been given contract for doing certain works by the OP, that means the Complainants are traders and they are not consumers and the OP who has purchased / availed the services of the Complainant for consideration and it is the Complainant who has sold the services for consideration.  Hence, the Complainants are not “consumers” and this dispute is not consumer dispute.  This is trader dispute and it is outside the purview of the Consumer Forum. 

11.     Complainants are Class-I Electrical Contractors and they are doing contract work that is their profession, occupation, trade, not only with the OP, but also with many other Governmental Institutions.  That means this is purely commercial activity.  In a case between Techno Mukund Constructions v/s. Mercedes Benz India Ltd. & another reported in 2011 CTJ 387 (CP) (NCDRC) the Hon’ble National Commission has ruled thus:

“The intention of Parliament in excluding persons purchasing goods for commercial purpose from the definition of the expression ‘Consumer’ is to impose a restriction that the special remedy before the Consumer Forums can be invoked only by ordinary consumers buying goods for their private and personal use and consumption and not business organizations buying goods for commercial purpose”

12.     Here the Complainants have not purchased any goods or services from the Ops.  It is the OP who has availed the services of the Complainants under the contract and breach of that contract alleged to have been committed by the Complainants, it has not paid the money.  This is commercial transaction / activity entered into between the parties.  Hence, Complainants are not purchasers of any goods nor they are consumers.

13.     Further, the Complainants claimed that they have completed the works in accordance with the terms of the contract, but OP denies it.  What is the work that has been done by the Complainants, what is the work that were entrusted, whether the entrusted work, is in accordance with the terms of the contract, all these things require detailed pleadings, detailed evidence, detailed cross examination and in depth scrutiny of the evidence.  This cannot be done by this Forum which has jurisdiction of summary trial, and dispose off the same by affidavits.  If the parties aggrieved, they can approach Civil Court seeking appropriate relief wherein they can have detailed pleadings, detailed evidence, detailed cross examination and in depth scrutiny of the evidence.  Hence, this cannot be done in summary way, this liberty is reserved to Complainants.  This order will not come in their way in the Civil Court.

14.     During the course of the arguments it was contended by one of the Counsels for the Complainant that there is deficiency in service and unfair trade practice, in the sense they had obtained certificate under the Right to Information Act which clearly goes to show that Ops have not appointed any expert to reinvestigate the matter and no such report is there, as such, the case of the Complainant is assumed to have been proved.  Even if we take the said contention of the Complainant as true for the sake of arguments, even then, merely there is unfair trade practice or deficiency in service, it will not come within the ambit & scope of consumer dispute since the Complainants can never be termed as consumers and dispute can never be termed as consumer disputes and that too within the ambit & scope of C.P. Act Complainants cannot be treated as consumers.  The dispute must be consumer dispute, then alone the question of unfair trade practice and deficiency in service will have to be considered while moulding the relief.  It reminds a proverb  “J¯Éà C£ÉÆßÃzÀPÉÌ ºÉAqÀw£Éà E®è, ªÀÄUÀ£À ºÉ¸ÀgÀÄ gÁªÀÄPÀȵÀÚ”  

15.     Further it was contended by some of the other Counsels who appeared for some Complainants that there is “Tort” in this case i.e., negligence, deficiency in service, unfair trade practice, as such Complainants must be deemed to be consumers under Consumer Protection Act, in the sense, when there is “Tort” that automatically means it is consumer dispute.  In consumer disputes, ‘Tort’ will be there, but all “tort” will not be consumer disputes.

16.     Counsel for the Complainants submitted AIR 2004 SC 448 between Secretary, Thirumurugan Co-op. Agricultural Credit Society v/s. M. Lalitha by LRs & others of Hon’ble Supreme Court and unreported judgement in Appeal No. 1991/1996 clubbed with 1992/1996 between B. Rajeshwari and G. Narayana Reddy V/s. Zilla Panchayath & another dtd. 01.06.207  of our Hon’ble State Commission.   There is no dispute about proposition of Law stated therein.  The facts and circumstances of these cases are not applicable to the facts and circumstances of the present cases.   Hence, it is not quoted in extenso.  Distinguishing and discussing each & every judgement will make order bulky & bulgy.  Hence, it is not quoted. 

17.     This is a dispute between the Contractor and the OP who entrusted the work.  Whether the work has been completed or not in accordance with terms of the contract or who has committed breach is outside the purview of the Consumer Protection Act, that has to be decided in Civil Court. Hence, for the foregoing reasons, we hold the points accordingly, and pass the following order: 

ORDER

1.       Complaint is dismissed.

2.       Send copy of this Order to the parties free costs.

3.       Original Order shall be kept in CC No. 31/2010 and copies thereof in the remaining Complaints.

4.       Return extra sets to the parties concerned under the Regulation 20(3) of the Consumer Protection Regulations 2005.

(Dictated to the Stenographer, got it transcribed and corrected and pronounced in the open Forum on this the 27^th day of March 2012)

T. NAGARAJA          K.G.SHANTALA           H.V.RAMACHANDRA RAO

    Member                         Member                                       President

SSS