State Consumer Disputes Redressal Commission
Achaldas, vs P T Jayashree on 23 August, 2021
1 Appeal No.557/2021
Date of Filing : 03.08.2021
Date of Disposal : 23.08.2021
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED THIS THE 23rd DAY OF AUGUST 2021
PRESENT
Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
Mrs. M.DIVYASHREE : LADY MEMBER
APPEAL NO.557/2021
Mr.Achaldas
S/o Tulasidas Revankar
Aged about 64 years,
Occ:Engineer
R/o Prashant Colony,
Vidyanagar,
Hubballi-580020. ..Appellant/s
(By Sri.V.B.Shivakumar, Advocate)
Vs
Mrs.P.T.Jayashree
Aged about 32 years
R/t No.179,
Renuka Nagar,
Gokul Road,
Near Last Bust stop,
Hubballi-580020. ..Respondent/s
2 Appeal No.557/2021
ORDER
BY Mr. K.B.SANGANNANAVAR : JUDICIAL MEMBER
1. This is an Appeal filed U/s 41 of Consumer Protection Act, 2019 by the Opposite Party/Appellant herein, aggrieved by the impugned order dated 02.07.2021 passed by Dharwad District Consumer Disputes Redressal Commission in C.C.No.70/2019 (for short District Forum/Commission and the parties as arrayed in the consumer complaint).
2. The brief facts of the case of the Complainant before the District Forum against OP are that, OP is a civil engineer and on his assurance for repairs and renovation of building, she received estimation for house renovation on 13.12.2016. OP went on collecting amount from complainant, but the work progress was not to the satisfactory level. She has paid a sum of Rs.8,70,500/- to OP. But OP has not brought the materials as agreed and he insisted the Complainant to bring the materials. Accordingly she has purchased the materials costing for Rs.7,75,785/-. The employees of OP damaged the house to the extent of Rs.5 lakhs. Hence she got issued legal notice dtd.09.03.2017 calling upon OP to complete the works and before to this on 08.03.2017, OP got issued legal notice cautioning the Complainant about the bouncing of cheque. The 3 Appeal No.557/2021 complaint filed U/s.138 of N.I.Act is pending before Court of JMFC, Hubballi. The OP issued reply to legal notice on 24.03.2017. As per estimation made by registered valuer, the total value of works done by OP is Rs.6,16,340/-, whereas the bill amount claimed by OP is Rs.10,50,450/-, out of which the Complainant has paid Rs.8 lakhs to OP. In fact the Complainant has paid more than Rs.8,70,500/- to the employee of OP, but OP claims that he has received Rs.8 lakhs. Thus, with such allegations complaint raised by the Complainant and the District Forum, having been enquired by recording version submitted by OP and in appreciation of evidence of the Complainant Smt.P.T.Jayashree and OP Sri.Achaldas, alongwith documents Ex-C1 to C32 and Ex-R1 to R6, recorded findings passing the impugned order. The Form, directed OP to refund Rs.1,50,000/- along with interest at 6% p.a. from the date of legal notice dtd.09.03.2017, till realisation and Rs.10,000/- towards compensation for mental agony and Rs.5,000/- towards cost of litigation, which is now in appeal before this Commission U/s.41 of CPA, 2019 on the ground that the Commission below failed to consider Sec.2(d) of CPA, 1986 and failed to consider the materials on record, entertained the complaint even after 4 Appeal No.557/2021 limitation expires among other grounds and sought impugned order is liable to be set aside.
3. We have examined the impugned order passed by the Commission below in CC.No.70/2019 dtd.02.07.2021 and examined the provisions of Secs.2(d) and S.24A of CPA, 1986, thereby proceed to decide, whether the appeal could be admitted or dismissed at the admission stage itself to avoid further delay?
4. Learned counsel for OP/Appellant submitted, Sec.2(d) of CPA, 1986 is not at all examined before the complaint could be entertained before the Forum below and would submit if the said provision of law along with facts alleged in the complaint could have been examined in right perception, impugned order could have not been passed. It is therefore, we have to examine Sec.2(d)(ii). If this definition provision along with explanation clause would be examined, could say, Complainant availed the service of OP for repair and renovation of her house, which cannot be said from any angle that the said service is availed for the purpose of commercial purpose by the Complainant, as such we hold that such contention of OP holds no legal support is hereby turned down. Secondly, the contention that she has let out Ground Floor of the premises on rent to run school is nothing to do with the service availed by the Complainant in 5 Appeal No.557/2021 respect of property plot No.162 for repair and renovation, is again held untenable, as such Commission below has rightly recorded that the Complainant is a consumer and rightly entertained the complaint to examine, whether she could able to establish deficiency of service on the part of OP.
5. The next contention of OP/Appellant is that the Commission below has entertained the complaint after expiry of two years and would contend that Sec.24A of CPA, 1986 provides for limitation period two years from the date of which cause of action arisen which was ignored by the Commission below. If we examine impugned order could see that the complaint is filed on 25.03.2019, Complainant issued legal notice on 09.03.2017 and the OP gave reply as per Ex-C26 on 24.03.2017 denying the claim and this reply could have reached the Complainant either on 25 or 26.03.2017 or even later, is again held right. The commission below has rightly considered commencement of cause of action to file the complaint is the starting point to run limitation, since the complaint is filed on 25.03.2019, which is perfectly well within time limitation as provided U/s.24A of CPA, 1986 which cannot be held incorrect from any angle or held contrary to the facts and law. 6 Appeal No.557/2021
6. The contention that the complaint filed for the offence of S.138 of NI Act and the same is pending on the file of JMFC II Court, Hubballi in CC.No.1809/2017, is again untenable, since the Commission below during the course of enquiry found, such complaint is already disposed off and the Complainant herein has been acquitted by JMFC II Court, Hubballi and the said matter is nothing to do with consumer complaint allegations made against the OP for deficiency of service and unfair trade practice in the field of construction works.
7. Let us examine as to the reliefs sought by complainant. In fact Complainant has sought for Rs.17,75,785/-, however, the Commission below, having been perceived the facts in right perception, firstly, did not consider payment of Rs.8,70,500/- and held payment of Rs.8 lakhs only. Further rightly held that the Complainant is not entitled for Rs.5 lakhs towards damages on account of damages alleged to have been caused to her building. In such circumstances, the contention of the OP/Appellant that the Commission below has failed to appreciate the materials on record is unacceptable.
8. We have carefully examined the materials on record and impugned order, thereby found, as the core subject matter of the complaint is the alleged deficiency in service in respect of 7 Appeal No.557/2021 repair and renovation of building and found non-completion of the works undertaken by OP and found his collecting of excess amount than the works done on the site, to arrive at such conclusion, Commission below has rightly relied on Ex- C27/valuation report of the registered valuer along with Ex-C1 to C26 and C29 to C32 and R1 to R6 respectively. The Commission below held as the valuer has submitted report stating that total cost for renovation works is Rs.6,16,340/- and has recorded finding that as OP has collected Rs.8 lakhs from the Complainant, thereby held he has collected Rs.1,83,660/- which shall have to be refund to the complainant. Further, commission below reduced Rs.33,660/- from such excess amount, towards supervision charges, thereby recorded she is entitled only for Rs.1,50,000/- along with interest at 6% p.a. from the date of legal notice dtd.09.03.2017 and Rs.10,000/- towards compensation for mental agony and Rs.5,000/- towards cost which cannot be said either contrary to the facts or law.
9. In the above such view of the matter, we are of the considered view that, impugned order passed by Commission below is on record of sound reasoning, as such conclude this appeal could not be entertained U/s.41 of CPA, 2019 is hereby 8 Appeal No.557/2021 dismissed as not admitted with no order as to the costs since notice against respondent/complainant is dispensed with.
10. The amount in deposit is directed to be transferred to District Commission for disbursement in favour of the Complainant.
Notify copy of this Order to the District Commission and parties to this appeal.
Lady Member Judicial Member *NS*