Birendra Kumar Shrivastava vs Ajay Girish Verma Proprietor Samrat Enterprises Ujjawal Apartment

N this revisioN there is challeNge to order dated 19.7.2011 passed by State CoNsumer Disputes Redressal CommissioN, Nagpur (for short as ?State CommissioN?). Vide impugNed order appeal of the petitioNer was dismissed.

BRIEF facts of this case are that petitioner/complainant, filed consumer complaint against respondent alleging deficiency in service in not constructing the house as per contract. It was the case of the petitioner before the District Consumer Disputes Redressal Forum, Nagpur (for short as ?District Forum?) that he had entered into a contract for construction of his house with respondent, as per quotation dated 1/4/2002 for a sum of Rs.2,92,500/-. However, there were defects in the construction, therefore, he had filed consumer complaint claiming reliefs by way of direction to the respondent to rectify the substandard work. Petitioner also claimed Rs.1,50,000/- towards mental agony, loss etc. and also the cost of the proceeding. According to respondent, he had simply given quotation of the work to be constructed at the site of the petitioner. In the quotation, some items were mentioned and its probable expenditure was mentioned. It is further pleaded that giving quotation to the petitioner, itself was not a contract of construction of the house between him and the petitioner. The quotation was not a contract in itself. In the quotation, no specifications, no standardization of the work to be done, no mention of quality of the goods to be used was mentioned. So, respondent specifically pleaded that the quotation cannot be termed as an agreement between him and the petitioner.

District Forum vide its order dated 30.8.2003, disposed of the complaint of the petitioner and held ; "The present dispute there being no written agreement, the forum will not be able to take any decision and the preliminary objection of the non- applicant is decided by the Forum as the complaint being disposed of. The complainant will be at liberty to approach the Civil Court for redressal of his grievance. The preliminary objection of the non-applicant is upheld."

AGGRIEVED by the order of District Forum, petitioner filed an appeal before the State Commission, which was dismissed. The present revision petition has been sent by the petitioner by post. Alongwith it, petitioner has sent an application for exemption from personal appearance stating that he is aged 72 years and in failing health and under financial constraint, therefore he will not be in a position to undertake the long journey for personal appearance to argue his case and has prayed for exemption for appearing in person. He has also prayed that revision may be allowed on the written notes of arguments.

VIDE order dated 17.1.2012, petitioner has been granted exemption from personal appearance. We have gone through the record of the case as well as the written notes of arguments. The short question which arise for consideration is as to whether the quotations submitted by the respondent to the petitioner amounts to an agreement and whether the complaint on the basis of quotation is maintainable or not.

IN this regard, District Forum has observed : "The copy of the quotation filed by the complainant is of importance. It cannot be said that it is an agreement. No details are given opposite every work "As required" is written. The contention of the Non-applicant is liable to be accepted. The preliminary objection of the non-applicant shows it is a complicated issue therefore the case is of civil nature. The jurisdiction of the consumers disputes redressal forum is limited. The forum can take a decision on the documents filed before the forum. It is clear that there is no written agreement. Everything is not clear about the work. Therefore complicated question of law has arisen. Hon. National Commission in case of Chunnilal Pranjiwan Das v/s. Tamil Nadu Mercantile Banks Ltd. 2002 C.T.J. (III) in deciding the issue has held that where ever complicated question arise they will be out of the purview of the forum where evidence is to be recorded such cases are to be decided by the civil court. The jurisdiction of the forum is very limited and the cases are to be decided within 90 days. Sinco INdustries vs. State Bank of Ajmer and Jaipur C.P.J. (1) 16 in this case the Hon. Supreme Court has held that where complicated questions are in the time of the forum will be wasted. The present dispute there being no written agreement the forum will not be able to take any decision, and the preliminary objection of the Non-applicant is decided by the forum as the complaint being disposed of. The complainant will be at liberty to approach the civil court for redressal of his grievance. The preliminary objection of the Non-applicant is up held."

STATE Commission while dismissing the appeal of the petitioner, has observed in the impugned order that; "Since both the parties are absent; we perused the impugned judgement and record. We are finding that the order passed by the forum is just and proper. On the basis of quotation itself, no clear cut finding could be recorded and if there is an oral contract between the parties, it would be difficult for the forum to decide the consumer complaint in a summary manner. For this, oral evidence will have to be adduced as to what sort of construction material was agreed to be used for the construction of the house by the opponent etc. We agree with the District Forum that the quotation does not amount to conclusive contract between the parties. The forum was right in directing the complainant to approach Civil Court for redressal of his grievance since the forum was unable to decide the matter in a summary jurisdiction. Said order, in our considered view is just proper and sustainable in law and there is no substance in the appeal."

Since petitioner has based its complaint upon the quotation submitted by the respondent, the quotation under these circumstances is a material piece of document in this case so as to decide the controversy between the parties. However, the so called quotation, has not been placed on the record and in the absence of that quotation, no relief can be granted to the petitioner. Moreover, as per averments made in the complaint, petitioner has stated that he has made endorsement on the body of the quotation which amounts to an agreement.

Since the quotation, in question, is not before us, inference has to be drawn against the petitioner. In the absence of the quotation before us and in view of the concurrent finding of facts given by two fora below, we find that there is no legal issue is involved in this case.

HON?ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

Since, in this petition no jurisdiction or legal error has been shown to call for interference in the exercise of power under section 21 (b) of the Consumer Protection Act,1986 as two fora below have given cogent reasons in their orders which does not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

ACCORDINGLY, the present revision petition is hereby dismissed with no order as to costs.