State Consumer Disputes Redressal Commission
Nitesh S/O Krishnarao Bande vs Mahesh S/O.Tekchand Bopche on 13 June, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA NAGPUR CIRCUIT BENCH NAGPUR First Appeal No. A/15/195 (Arisen out of Order Dated 23/02/2015 in Case No. CC/14/103 of District Nagpur) 1. NITESH S/O KRISHNARAO BANDE B2/108,MANGAL APARTMENTS,KHARE TOWN,DHARAMPETH,NAGPUR NAGPUR ...........Appellant(s) Versus 1. MAHESH S/O.TEKCHAND BOPCHE PLOT NO 26,JAITALA EKATMATA NAGAR ROAD,NEAR,ORBITAL EMPIRE,PAKKIDE LAYOUT,JAITALA EKATMATA NAGAR,NAGPUR NAGPUR ...........Respondent(s) BEFORE: HON'BLE MR. B.A.SHAIKH PRESIDING MEMBER HON'BLE MRS. Jayshree Yengal MEMBER For the Appellant: Adv. MR B N Jaipurkar For the Respondent: Exparte Dated : 13 Jun 2017 Final Order / Judgement Per Mr B A Shaikh, Hon'ble Presiding Member
1. This appeal is filed by the original complainant feeling aggrieved by the order dtd.23.02.2015, passed by Additional District Consumer Forum, Nagpur in consumer complaint No. 14/103, by which the complaint has been dismissed.
2. The case of the original complainant / appellant herein as set out by him in his consumer complaint filed before the District Forum in brief is as under.
The original complainant was in need of poultry farm sheds to be constructed on his land. The opposite party had started business of construction as a contractor and he was working with Rachana Builders at Nagpur. An oral agreement was entered into between the original complainant and the original opposite party for construction of two poultry farm sheds, two rooms and a well on the land of complainant at Village Pipala (Kinkhede) by the opposite party for total consideration of Rs.11.00 Lacs. The original complainant / appellant paid Rs.10.00 Lacs to the opposite party in instalments as specified in detail in the complaint. However, the complainant found that despite payment of Rs.10.00 Lacs, there was no progress in construction. When he asked the opposite party about the same, opposite party assured that he would complete the construction by 15.05.2014. Thereafter also no progress in construction was made. Hence, agreement was reduced into writing by the complainant and the opposite party, on 04.01.2014. But the opposite party failed to discharge his obligations as per that written contract. He did construction not more than worth Rs.3.00 Lacs. Therefore, on failure of the opposite party to discharge his obligations, complainant asked the opposite party to refund balance amount of Rs.7.00 Lacs. The opposite party on the contrary demanded Rs.12.00 Lacs from him on false allegations that contract was for Rs.22.00 Lacs. The complainant gave reply to that notice to him and then filed the consumer complaint before the District Forum below alleging deficiency in service on the part of opposite party and he claimed from opposite party refund of Rs.7.00 Lacs, compensation of Rs.2.00 Lacs for physical & mental harassment and further compensation of Rs.1.00 Lac for loss caused to him and cost of Rs.1.00 Lac.
3. The opposite party appeared before the Forum below and filed reply. The opposite party raised preliminary objection that he is not a "Service provider" and therefore the complaint is not maintainable before the Forum. The dispute involved is of purely contractual nature and the complaint is therefore liable to be dismissed on this sole ground. The case of the opposite party as set out before the Forum below in reply in brief is that he was working as a petty contractor and the complainant put proposal to him for construction of two sheds, two rooms and a well in his land at Village Pipala (Kinkhede) and oral agreement was entered into both the parties and consideration was fixed at Rs.22.00 Lacs. The opposite party was also required to do installation of electrical equipments and he was also entrusted with the work of purchase of material, arranging labour for doing construction work, plumbing work and also electrification work and to construct the well for which blasting was to be done. After construction of the two sheds till plinth level, the complainant changed his plan and demolished the construction as according to him the same was not in accordance with "Vastushastra" and therefore, the opposite party suffered loss. Thereafter, the opposite party constructed two sheds till column level. The well is also constructed up to depth of four feet. Roof was required to be constructed for two rooms. The opposite party engaged two security guards at the site and paid salary to them. The opposite party thus incurred expenses of Rs.9.70 Lacs out of Rs.10.00 Lacs received from the complainant. The agreement in writing was reduced on 06.05.2014 as the complainant represented that the same was required for obtaining loan from financial institution. The opposite party is ready to complete remaining work, provided the complainant pays him balance amount out of Rs.22.00 Lacs. He, therefore, requested that the complaint may be dismissed.
The Forum below after hearing both parties and considering evidence on record, passed impugned order on 23.02.2015. The Forum below came to the conclusion under impugned order that the complainant failed to prove that the opposite party is working with Rachana Builders at Nagpur as a petty contractor. The Forum found that the agreement entered into both parties is in between two individuals and it is a private contract and therefore the complaint does not fall within the definition of Consumer as given under Section 2(1)(d) of Consumer Protection Act, 1986 (for short CPA). The Forum below also observed in the impugned order that the agreement entered into both parties does not come within the purview of a contract for providing service as contemplated under Section 2(1) (o) of CPA. Therefore, the opposite party does not fall within the definition of "Service provider" under CPA. Thus, the Forum below without considering other issues involved in the complaint, dismissed the complaint by passing impugned order. The Forum gave liberty to the complainant to approach competent Civil Court for seeking redressal of his grievance.
As observed above, feeling aggrieved by that order, this appeal is filed by the original complainant.
Notice dtd.22.07.2015 of this appeal was issued to the respondent and it was given Hamdast to the appellant's advocate on 27.07.2016 for posting the same to the respondent by Registered Post A.D. Therefore, accordingly, the same was sent to the respondent by Registered Post A.D. on 29.07.2016. Appellant's advocate produced copy of the postal receipt to show that he sent the said notice to the respondent on 29.07.2016. He also produced a track report duly obtained from India Post through Internet showing that notice was duly served to the respondent on 30.07.2016. Thus considering the said track report, this Commission found that notice has been duly served to the respondent, which was issued on his correct address. The respondent failed to appear despite service of that notice. Therefore, this Commission proceeded exparte against respondent as per order dtd.02.09.2017.
We have heard learned advocate of the appellant finally and perused the entire record of the appeal. The learned advocate of the appellant mainly relied on the decision of the Hon'ble Supreme Court in the case of Luknow Development Authority Vs. M K Gupta, AIR 1994, Supreme Court 787, in support of his submission that when the original opposite party / respondent herein admitted that he is a petty contractor and he entered into an agreement with the original complainant / appellant to make construction of his poultry farm sheds, rooms and a well for a fixed consideration, he falls within the purview of "Service provider" as given under Section 2(1)(o) of CPA, 1986 and the Forum below did not properly appreciate the said legal and factual aspects of the case and erred in dismissing the complaint. He, therefore, requested that the impugned order may be set aside and complaint may be allowed.
The opposite party / respondent herein as specified above, admitted in his reply filed before the Forum below that he is a petty contractor and he had entered into an agreement with the original complainant / respondent herein to make construction of his two poultry farm sheds, two rooms and a well for a consideration. He was also entrusted work of installation of electrical equipments, purchase of material, arranging labour, plumbing work and construction of well for a fixed consideration. The Hon'ble Supreme Court in the aforesaid case of Luknow Development Authority Vs. M K Gupta, AIR 1994, Supreme Court 787 in paragraph No.6 & 7 has made the following observations.
"Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of Immovable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) of Section 2 as unfair trade practice. If a builder of a house uses substandard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or substandard floor is denial of service. Similarly when a statutory authority undertakes to develop land and frame housing scheme, it, while performing statutory duty renders service to the society in general and individual in particular. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression 'service of any description'. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993. The inclusion of the expression 'housing construction' in clause (o) and word 'avail' in clause (d) in 1993 was more to clarify than to add something new."
9. In our view, the aforesaid observations made by the Hon'ble Supreme Court are applicable to the facts & circumstances of the present case. The Supreme Court thus very specifically observed that construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Consumer Protection Act, 1986. The Hon'ble Supreme Court also observed that if the service is defective or it is not what was represented then it would be unfair trade practice as defined in the CPA. Thus, complainant had hired services of the opposite party, who is a contractor, for construction of two poultry farm sheds, two rooms and a well in his land.
10. The Forum has given undue importance to a technical fact that the complainant has not proved that the opposite party was working with Rachana Builders. In our view, when it is not disputed that the opposite party that he is working regularly as a petty contractor and that he entered into agreement with the complainant for construction of his poultry farm sheds, two rooms and a well for fixed consideration, then as observed by Hon'ble Supreme Court in the aforesaid case, he is covered under the definition of "Service provider" given under CPA and that the complainant falls within the definition of "Consumer" as given under Section 2(1) (d) of CPA as he hired services of the opposite party for valuable consideration. Therefore, we hold that the Forum has not properly appreciated the said factual aspect vis-à-vis legal aspects involved in the present case and erred in holding that the complaint is not maintainable before it under CPA. We find that complaint is maintainable before the Forum as complainant is a "Consumer" and the opposite party is a "Service provider" as contemplated under CPA 1986. Hence, the impugned order deserves to be set aside.
11. The complaint deserves to be remanded to the Additional District Consumer Forum, Nagpur as it has not touched other issues involved in the complaint while passing the impugned order. Thus, following order is passed.
ORDER i. The appeal is partly allowed. ii. Impugned order is set aside. iii. The complaint is remanded to Additional District Consumer Forum, Nagpur for deciding it on merits after giving opportunity of adducing additional evidence to both parties.
iv. Both parties shall appear before the Forum below on 18th July, 2017. If opposite party does not appear before it on 18.07.201, then the Forum shall serve notice to him by Registered Post A.D. and then proceed to decide the complaint on merits.
v. Copy of the order be furnished to both parties free of cost and its one copy be also forwarded to Additional District Consumer Forum, Nagpur for information. [HON'BLE MR. B.A.SHAIKH] PRESIDING MEMBER [HON'BLE MRS. Jayshree Yengal] MEMBER