Appeal No.1835/08

Gajendra Kumar Jain V. M/s Ram Chandra Ramesh Kumar Murti Wala


Before:


Mr.Justice Sunil Kumar Garg-President

Mrs.Vimla Sethiya-Member


Shri Dinesh Kala,counsel for the appellant

None for respondent inspite of service of the notice.




Date of judgement: 21.4.2009


This appeal has been filed by the complainant appellant against the order dated 15.9.08 passed by the District Forum-I, Jaipur in complaint no.193/08,by which the complaint of the complainant appellant was dismissed.


It arises in the following circumstances:


That the complainant appellant had filed a complaint against the respondent before the District Forum-I,Jaipur on 22.2.08 interalia stating that in the general meeting of Managing Committee of Shri Digamber Jain Shanti Nath Mandir,Lal Kothi,Jaipur which was held in the month of August,07 it was decided to raise some construction of the temple, but the complainant appellant had given an assurance or had declared that he would provide a pair of Erawat Elephants and single elephant on marble stone and the same would be affixed in the temple and for that the complainant appellant had contacted the respondent and the respondent had agreed to do the work through letter dated 22.8.07

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annex.1 stating that the respondent would charge Rs.30,000/- and out that amount Rs.10,000/- were paid by the complainant appellant in advance and agreement between the parties in shape of annex.1 dated 22.8.07 was executed, but in compliance of that agreement,the respondent had not performed its part and legal notice was also served and thereafter the present complaint was filed for demanding Rs.10,000/- alongwith interest and further compensation as there was deficiency in service on the part of the respondent in not providing erawat elephants as per terms of the agreement.


The respondent had not appeared before the District Forum though notice was served on him and the District Forum after hearing the learned counsel for the complainant appellant had dismissed the complaint interalia holding that since the matter in question was a breach of the contract and,therefore,such type of cases are outside the perview of the District Forum.


Aggrieved from that order,this appeal has been filed by the complainant appellant and in this appeal,the main contention of the learned counsel for the complainant appellant is that the impugned order passed by the District Forum suffers from basic infirmity and illegality as the complainant appellant is a consumer within the meaning section 2(1) (g) of the C.P.Act,1986 and thus,dismissal of the complaint on the grounds mentioned in the impugned order are wholly illegal and be set aside and appeal be allowed.


Even in appeal,the respondent had not appeared inspite of the service of the notice on him.


A bare perusal of the agreement annex.1 dated 22.8.07 clearly reveals that the work which was to be done by the respondent was to provide a pair of erawat elephants and a single elephant on marble stone

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and for that he would charge a sum of Rs.30,000/- and out of that Rs.10,000/- were taken by him in advance and there is no dispute on the point that the work was not done by the respondent.

In our considered opinion,the definition of Section 2 (1) (g) of Act,1986 clearly reveals that deficiency may be in quality,nature and manner of performance and which has been undertaken to be performed by a person in pursuance of the contract or otherwise in relation to any service. Thus from that point of view, if the respondent had not performed its obligations in terms of the contract annex.1,it would certainly amount deficiency in service on the part of the respondent that would be covered under the definition of service defined in section 2 (1) (g) of Act,1986.


For reasons as stated above,the impugned order passed by the District Forum could not be sustained and deserves to be quashed and set aside.


On point of compensation, it may be stated here that the complainant appellant is entitled to a sum of Rs.10,000/- which were paid by him to the respondent on 22.8.07 alongwith interest @ 9% p.a wef 22.8.07 on the above amount and further he is entitled to a sum of Rs.5000/- as amount of cost of litigation as the complainant appellant had to face the District Forum as well as this Commission.


The result is that this appeal filed by the complainant appellant is allowed,impugned order dated 15.5.08 passed by the District Forum-I,Jaipur is quashed and set aside and the complaint filed by the complainant appellant is allowed in the manner that the respondent would pay a sum of Rs.10,000/- which were paid by him to the respondent on

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22.8.07 alongwith interest @ 9% p.a wef 22.8.07 on the above amount till the payment is made and further he is entitled to a sum of Rs.5000/- as amount of cost of litigation.




Member President