Orissa

Dhenkanal

CC/2/2014

Avaya Kumar Naik - Complainant(s)

Versus

Mr. Lalit KishorTrivedi, A.U.P(Civil) Others - Opp.Party(s)

27 Oct 2017

ORDER

BEFORE THE DIST. CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                               C.C.Case No. 2 of 2014

Abhaya Kumar Naik, aged about 31 years

S/o Hadibandhu Naik, Vill: Mahisiapat,

PS: Town,  Po/District: Dhenkanal                                            …....Complainant

                                                              Versus

1) Mr. Lalit Kishore Trivedi,

     A.U.P ( Civil), Bhusan steel Limited

2) Mr. Ranvijay Singh, Sr: Manager Civil

     Bhubasan Steel Ltd.

3) Mr.  B.D.Das, Manager,

    Bhubasan Steel Limited

   All are at Bhusan Steel Ltd, Narendrapur,

    PO: Kusupanga, Via: Meramundali, Dist: Dhekanal

    Pin-759121, Odisha                                                              …......Opp. Parties

Present: Sri Badal Bihari Pattanaik, President,

               Miss Bijayalaxmi Satapathy, Member

               Sri Purna Ch. Mishra, Member

 

Counsel: For the complainant: Bhabagrahi Panda & Associates

                For the Opp. Parties: Sibasai Mohapatra & Associates

Date of hearing argument: 18.10.2017

Date of order: 27.10.2017

                                                                              JUDGMENT

Miss Bijayalaxmi Satapathy, Member

              The complainant has filed this case U/s 12 of Consumer Protection Act, 1986 alleging deficiency of service on the part of the Opp. Parties with a prayer to direct the Opp. Parties to pay a sum of Rs. 91,324/- towards the rest amount along with interest and compensation of Rs. 50,000/- for mental agony and harassment.

              1) Very briefly, the case of the complainant stated are that he belongs to Scheduled Caste category and proprietor of Lucky Nursery   and for his livelihood he approached the Opp. Parties for maintenance of tree planted by them on the road side area of the road runs from Nimabahali to Kankalu and in the premises of Shiva Mandir.  The offer given by the complainant was accepted by the O.Ps and accordingly, they placed work order No. BSL/TEMP/POROJ/MISC/ Horticulture/13/030 dated 1.3.2013 in favour of the complainant as per the terms and conditions.  The complainant did all his job by investing his own funds. The complainant has completed the work in time during period from 1.3.2013 to 30.6.2013 for which he is entitled to the entire amount of Rs. 1,36,660/- from the O.Ps. All the plants are still survived and the O.Ps are liable to pay the entire amount to the complainant.  As per the direction of the Opp. Parties the complainant submitted the final bill on 4.7.2013 for Rs. 1,14,140/- and Rs. 17,160/- for road side work and for temple premises.  The O.Ps have paid only two  cheques amounting to Rs. 31,981/- on 21.9.2013 and Rs. 7,995/- on 28.9.2013 respectively.  The balance amount of Rs. 91,324/- has not yet been paid despite several requests and reminders which amounts to deficiency in service.  Therefore, the complainant has come up before this Forum praying for a direction to the O.Ps to pay the balance amount of Rs. 91,324/- along with interest @ 12% per annum along with compensation of Rs. 50,000/-.

              2)  The Opp. Parties No.1 & 2 appeared and filed their written version. It is in the version of the O.Ps that M/s Lucky Nursery was awarded two contracts by BSL vide Work Order No. Bsl/temp/proj/misc/horticulture/13/029 Dt. 1.4.2013 for watering and soil working of avenue plantation of 1445 nos of saplings and road side from Nimabahali to Kankalu for a value of Rs. 31,790/-   under Contract No.1 and Work Order No Bsl/Temp/Proj/Misc/Horticulture/13/030 Dt. 1.4.2013 for soil working of plantation of 34150 nos of saplings at Mataleswar Mahadev Temple area, Kankalu for a value of Rs. 1,36,6000/- under contract No.2 as per terms and conditions stipulated therein.  It is stated that the complainant has no locus standi to file this complaint. The complainant is not a consumer under   Consumer Protection Act as he has neither hired nor availed any service either from the present O.Ps or from their employer i.e. BSL.  The complainant in the case is a service provider under the contract who is providing service.  The O.Ps have no capacity to pay or disburse any amount under any work orders on their personal capacity.  The complaint is not maintainable as the case is not a consumer dispute.  This Forum has no jurisdiction to adjudicate open the matter.  The Civil court having jurisdiction is proper forum for adjudication of any claim arising out of the contracts.  M/s Lucky Nursery which is a commercial establishment undertaking many commercial ventures for profit at different companies, institutions.  The complainant has not entered into these contracts exclusively for the purposes of earning his livelihood only.   It is denied and disputed that the complainant has did all the jobs agreed for.  A joint inspection was made by the BSL representative and the complainant for both the contract No.1 & 2 and as per the findings of the inspection it reveals that a megre quantity of saplings was planted against the original order.  Therefore, the claim of the complainant is false and misleading with ulterior motive.  The complainant has never submitted his bill due to the delay and non-performance at his side.  After joint inspection, as per terms and contracts deduction of an amount of Rs.  15,210/- and Rs. 27,752/- totaling Rs. 42,962/- was passed respectively for Contract No.1 & 2.  Out of the said amount, a sum of Rs. 430/- for TDS, Rs. 1718/- for WCT and Rs. 838/- for ESI has been deducted as statutory deduction for both the contracts and an amount of Rs. 39,976/- was paid through two cheques Dt. 21.9.2013 and 28.9.2013. . Accordingly, it is pleaded to dismiss the complaint on the above grounds as the case is not maintainable and direct the complainant to proceed the proper Forum.

              3)  On the aforesaid pleadings the pivotal point needs our consideration as to whether the complaint is maintainable and the complainant is a consumer?  The sole allegation as reveals from the complaint petition we observed that the complainant has claimed for release of the rest amount of Rs. 91,324/- as the complainant has   completed the work in time during period 1.3.2013 to 30.6.2013 as per the contract.  The Opp. Party No.1 & 2 in their written version have categorically pleaded that the complainant is not a consumer under the Provisions of the Consumer Protection Act as the complainant is the service provider and the Opp. Parties have  availed the service of the complainant on payment of consideration.  Therefore, it is pleaded that the complainant is not a consumer and the case is liable to be dismissed on this ground alone.  On the above pleadings of the Opp. Parties it is to be seen first of all as to whether the complainant is a consumer or not?  The definition of Consumer as provided under the Act  2 (d) (i) and (ii)   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 and 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; or

              (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 payment, 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.

              On our bare reading of the definition of consumer U/s 2 (d) (i) & (ii)  and the complaint petition we find that the complainant has neither purchased any goods nor hired any services of the Opp. Parties on payment of consideration.  The complainant has failed to establish by adducing any cogent evidence that he has paid consideration to the Opp. Parties rather the Opp. Parties have hired the services of the complainant for maintenance of tree planted at different places as per the work order on payment of consideration.   Further it may be mentioned that the service provider cannot maintain the status of a Consumer.  As the complainant has failed to prove that he is a consumer, the case is not maintainable before this Forum and the complainant is at liberty to approach appropriate authority having jurisdiction if he so desire.  Hence ordered.

                                                                              ORDER

              The complaint stands dismissed on contest in the light of the observations made in the preceding paragraphs.  In the peculiar facts and circumstances, parties are left to bear their own cost.  However, the complainant is at liberty to approach appropriate Forum having jurisdiction if he so desire.

 

              (Purna Ch. Mishra)             (Badal Bihari Pattanaik)   (Miss Bijayalaxmi Satapathy)

                       Member                                  President                              Member