This complaint is coming on for final hearing before us in the presence of Sri K.Krishna Murthy, Advocate for the complainant and Sri T.Srinivasa Rao, Advocate for O.P.1 and G.P. for O.P.2 and having stood over for consideration, the Forum made the following:-
O R D E R
This is a complainant filed under Section 12 of Consumer Protection
Act seeking the relief to direct the O.Ps. to fill the trench in Kurellavari Street / Mandapam street, Kothapeta, Vizianagaram, with proper material, as expeditiously as possible, to pay Rs.10,000/- towards compensation for the inconvenience and physical discomfort caused to the complainant and to pay Rs.1,000/- for each day, till the O.P. completes the filling of the trench and make the road fit for plying the car of the complainant on the following averments.
The complainant is the permanent resident of Kurellavari Street and is practicing as a legal practitioner since 31 years in the same street having established office. He has an old and sickly mother aged 75 years who is suffering from Diabetics, Blood Pressure, severe arthritis of both the knees and is under regular care and treatment of doctors.
The complainant has been paying property tax to O.P. for his building and road tax to the government for the life of his vehicle, which is being used to attend courts at Vizianagaram / Srikakulam and Visakhapatnam Districts. The complainant purchased a new car on 18-6-2012 and paid road tax of about Rs.1,25,000/-. The O.P. undertaken laying pipe line through the street for which purpose it got dug about six feet depth and about four feet width of trench, throughout the street from east to west that too in the middle of the road, making the existing road into two strips of which the Southern strip measuring about seven feet, whereas the Northern strip measuring about five feet including road margin. The above said road is a thorough fare, which connects Poolbagh – Nellimarla Road and the old Bus stand and city bus-stand. The house of complainant is abutting the northern strip of the road. The O.P. got the pipe line laid and filled the trench with the sand and removed earth and the people of the street are put to inconvenience for short time of two days and thereafter the traffic was restored and the complainant used to go through such road on his vehicle.
On 11-8-2012 at about mid day suddenly the men of O.Ps. again got removed the filled earth to a depth of about 2 to 3 feet all along the street knowing fully well that it is a rainy season. Due to the conduct of O.Ps. in not getting the trench filled up despite complaints over phones the complainant had to keep his new car idle at his portico, since that date to till date. The complainant is not able to take his mother to hospital for treatment out of his house, thus the movements of the complainant were practically restricted and the inconvenience caused to the complainant since August, 2012 by the O.P. till date including physical discomfort, idling of car is estimated at Rs.1,000/-per day. The O.P. having opened the trench though it is obligated to lay pacca road and make it fit to ply vehicles but did not take care in minimizing the inconvenience to the public, including the complainant. For the negligence of the O.P. many of the people innocently entering into the street with vehicles and some of them fell down into the trench and received injuries.
It is averred that since the complainant is one of the tax payers has right to demand for use of the road of the street named above, and he comes within the meaning of a Consumer. The acts and conduct of the O.P. amounts to deficiency in service. Hence, the complaint.
Originally the complaint was filed against the 1st O.P. and subsequently, the 2nd O.P. was impleaded. Both the parties filed their respective counters traversing the material allegations made in the complaint. In the counter of 1st O.P. it is averred that they are not concerned with the work of laying of pipe line as the work was taken up by the office of Executive Engineer, Public Health Division, Vizianagaram. It is averred that though they are not concerned with execution of the work but in the light of representations made by people during ward visits and phone-in programme, the Commissioner of Vizianagaram Municipality has appraised the situation to the Public Health Department and addressed a letter to the Executive Engineer of the said department requesting them to take immediate steps for completion of restoration of the road work and as such there is no deficiency of service on their part. It is averred that the complainant is not a Consumer and as there are no bonafides in the complaint the same is liable to be dismissed.
In the counter of 2nd O.P. it is averred that to supply drinking water the pipe lines were laid in Kurellavari Street by taking permission from the Municipality and during execution of work some inconvenience seems to have caused to the public which is inevitable. It is averred that the movements of public in the street was not stopped during that period. It is averred that the respondent had no intention to cause any inconvenience and hardship to the public. It is averred that the laying of pipe line in Kurellavari street was taken up by the PH & ME Department through EPC contracting agency of M/s Singam Projects, Hyderabad and in the month of October, 2011 the pipes were laid and trench was filled and traffic was restored as per the agreement entered into between the parties. The EPC agency has done the consolidation work before laying of road layers, by taking extra time. It is averred that the petitioner is not a Consumer and the dispute does not come under Consumer Protection Act and as there are no bonafieds in this complaint the same is liable to be dismissed.
Both parties filed their respective evidence affidavits and on behalf of complainant Ex.A.1 and Ex.A.2 are marked and on behalf of O.Ps. Ex.B.1 is marked.
Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for. It is the specific contention of the complainant that he is one of the tax payers and has the right to demand for use of the road and the O.Ps. without giving any notice got removed the filled earth on 11-8-2012 to a depth of 2 to 3 feet all along their street and thereby caused inconvenience for the free flow of traffic and to take vehicles from their respective houses. The O.Ps. have taken a plea that there is no consumer and service provider relationship in between them and the complainant and though they have dug the road for laying pipes the same was filled and the road was made fit for free flow of men and vehicles.
It is well settled that a person claiming himself as consumer has to satisfy three conditions namely (I) the service should have been rendered to him (II) the service should be hired by him (III) for hiring the service he should have paid consideration in the manner envisaged by 2(1)(d) of the Act.
Coming to case on hand there is no whisper in the complaint to believe that the complainant has paid certain amount for availing specific service from the O.Ps. whereas the complainant has pleaded in the complaint that he is a tax payer and has a right to demand for use of the road and is therefore a Consumer.
To substantiate the claim of the complainant he cited a decision reported in II (1996) CPJ 98 (NC) MINISTRY OF COMMERCE & INDUSTRY, HOUSE BUILDING SOCIETY LTD , Wherein it is held in
PARA 3 :- We have carefully perused the affidavits filed by these Officers and find that the grievance of the appellant Society has been substantially removed and, therefore, dispose of this original petition accordingly. We however, expect that any minor works which might have been left in the process of completing the works for providing the roads, etc., will also be completed by the Municipal Corporation of Delhi so that no irritant is left between the society and them. With these observations we dispose off this petition. The parties will bear their respective costs.
As seen from the facts of the above said case the MCD has not done the work inspite of required amount for providing specific facilities was paid. Since the house building society has paid certain amount to the MCD for doing certain work their lordships have opined that there exists Consumer and service provider relationship in between them as the house building society has availed the services of MCD for consideration.
The learned advocate cited another decision in SIGNET CORPORATION Vs. COMMISSIONER, MCD & ORS.
Wherein it is held: It is a duty of the MCD to see that the drainage system is not chowked and the filthy water does not overflow and inundate the road and adjacent areas. It is, therefore, necessary that the sewerage system should be repaired and the water standing on the road and adjacent areas should be drained out immediately by the O.P.
As seen from the facts of the case cited supra there was urgency in the matter before the court and inspite of absence of O.Ps. a direction was given to the O.Ps. to repair the sewerage system and to drain out the water standing on the road and adjacent areas.
The complainant cited another decision in REVISION PETITION NO.2774 OF 2004; 1. SMT USHAL RANI AGGARWAL 2. SMT NIRMALA DEVI AGARWAL Vs. NAGAR PALIKA PARISHAD, HALDWANI DISTRICT NAINITAL
Wherein it is held : From the facts stated above and the law as enunciated by the apex court, this is a clear case of deficiency in service, and also harassment to a common man who cannot match the might of the state instrumentalities. Against arbitrary action of the officers of the respondent instead of feeling helplessness the petitioner rightly knocked the doors of the Consumer Fora for the harassment and mental agony. Hence, the complainant is required to be adequately compensated.
As seen from the facts of the case cited supra the complainant deposited a sum of Rs.200/- as fee for the work done by the O.Ps. and as O.Ps. did not do the work inspite of depositing the said amount by the complainant the later approached the Forum to get his grievances redressed.
In all the above cited cases for availing services by the complainant some amounts were paid to the O.Ps. and as the latter did not perform their duties the complainants have approached the Forum for necessary direction. As we have already stated supra the complainant herein did not deposit any amount with the O.Ps. for availing their service for filling the trench which was dug for laying the pipes. He sought the relief in this complaint on the ground that he is one of the tax payers and has a right to demand for use of the road in their street.
In a decision in Mrs M.R.REDDY Vs. D.BALAIAB, 1996 (3) CPR 430 (MAD)
Tax is not a consideration within the meaning of the consumer protection act. Tax is a compulsory levy that has to be paid, rightly. Therefore, the District Forum has held that the complainant is not a Consumer vis-à-vis a local body.
In another decision in THE SHIMOGA URBAN DEVELOPMENT AUTHORITY Vs. SRI ARUN, 1995 (3) CPR 546.
Tax:- Payment to government – tax payer is not a Consumer – No hiring of services of government – tax paid by citizen goes into the consolidated fund of government of India or state and does not constitute payment of “consideration” for the “hiring” or “availing of ” a service of the government.
A.SRINIVAS MURTHY Vs. THE CHAIRMAN, BANGALORE DEVELOPMENT AUTHORITY. II (1992) CPJ 395 (NC): 1991 (1) CPR 529 (NC)
TAX – payment to government or local authorities – Does not constitute hiring of specific service for consideration – complaint under the Act against Development Authority – Not maintainable – The complaint filed by appellant against the Development Authority – Cannot be legally sustained since the essential pre-requisite of the existence of an arrangement of hiring of service for consideration is totally lacking in this case. The payment of tax which goes into the general revenues of the state local authority will not legally constitute payment of consideration for any specific service.
As seen from the principles laid down in the decision cited supra the payment of tax which goes into the general revenues of the State or local authority will not constitute payment of consideration for any specific service. Since the complainant did not pay any specific amount for availing the services of O.Ps. he will not come under the purview of definition of Consumer. Though he has paid house tax as well as life tax to his car it cannot be said that he has hired the services of the O.Ps. for consideration. Hence, we are of the considered opinion that there is no consumer and service provider relationship in between the complainant and O.Ps.
In the counter filed by O.P.1 they have taken a plea that they are not concerned with the execution of the work and that the Executive Engineer of public health division has taken up the work and as such the complaint is not maintainable against them. After the above said stand was taken by the O.Ps. the complainant has impleaded the Executive Engineer, Public Health Division, Vizianagaram as O.P.2. In the counter filed by O.P.2 it is averred that as part of agreement the EPC agency has started the restoration work on 11-8-2012 in Kothapeta area by digging the trench and has also laid pipes and done the consolidation work before laying all road layers. While the matter was subjudice the O.Ps. filed Ex.B.1 photos and as seen from the same it is clear that the trench was closed and the road was laid throughout the street. Though the complainant and the inhibitants of the locality suffered some inconvenience for digging the road for lying pipes it cannot be said that the complainant has availed the services of the O.P. for consideration as stated supra. Hence, in the above said facts and circumstances we are of the considered opinion that the complainant is not entitled to get any reliefs as prayed for.
In the result, the complaint is dismissed, but under the circumstances without costs.
Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 21st day of January, 2014.
Member President
CC. 61 of 2012
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For P.W.1 For R.W.1
DOCUMENTS MARKED.
For complainant:-
1. Ex.A.1 :- Property Tax demand notice & receive dt.1-3-2012
2. Ex.A.2 Positive photographs with C.D.
For O.P.:-
1. Ex.B.1 letter dt.25-9-2012 addressed by the Municiple Commissioner
to the E.E. Public Health Department.
President
