CHANDRA SEKHARA SETTY vs VIJAYALAKSHMI G.

HIS appeal, by the opposite party, is directed against the order dated 31.7.95, passed by the District Forum, D.K. Mangalore, in complaint No. 645/94, directing the opposite party to complete the house work of the complainant at the earliest and settle the accounts as per bills, till such time, it directed the opposite party to pay a sum of Rs. 1,140/- p.m. to the complainant. The facts, briefly stated, are as follows : 1. It is the case of the complainant that the Tehsildar, Puttur Taluk, Puttur, granted 5 Cents of land to her for the construction of a house. The complainant started the construction work on the said site in the year 1989 and completed the work of putting the slab. It is the further case of the complainant that she obtained loan thereafter from the Bank to complete the construction work and during the month of February, 1994 the opposite party was introduced to her as a businessman, financier and building contractor. So the complainant entrusted the construction work of the remaining portion of the building and made a payment of a sum of Rs. 30,000/- to the opposite party. It is the grievance of the complainant that the opposite party, even after receiving full payment from the complainant, did not show any doing of the essential work of the house. The complainant, on several occasions, sent letters to the opposite party and requested him to complete the work. But the opposite party failed to do so. So the complainant filed the complaint seeking refund of the said amount of Rs. 30,000/- with interest thereon and also a sum of Rs. 1,140/- p.m. from the opposite party.

THE opposite party, though appeared, did not file any version. During enquiry, the complainant examined herself as CW 1 and got Ex. C-1 to C-14 marked in evidence. The District Forum, on consideration of this material placed on record, held that the opposite party committed deficiency in service, and in that view, directed the opposite party to complete the house construction work at the earliest and settle the accounts and till such time it directed to pay to the complainant a sum of Rs. 1,140/- p.m. commencing from 1.4.94.

We have called for the records and received. We have also heard the learned Counsel for the parties, perused the material on record.

THE complainant, at para 4 of her complaint as averred, thus : "4 THE opposite party who''s sister''s residence is also near to the house site of the complainant, made the complainant to believe that he would complete the remaining work of the house within 15 days on receiving the entire amount from the Bank. So believing the words of the opposite party the remaining portion of the sanctioned loan, i.e., Rs. 30,000/- was released by the Bank and was paid to the opposite party during the month of Feb., & Mar., 94 in 2 instalments, i.e., Rs. 20,000/- and Rs. 10,000/- respectively."

At para 5 of her complaint, she has further stated, thus: "5. Even after the full payment, the opposite party has not showed required interest in doing the essential work of the house. When oral request failed to get any result, the complainant sent several letters to the opposite party. First she sent a letter dated 8.4.94, for which the opposite party has not given any reply. THEreafter she sent letter dated 29.4.94,10.5.94and 25.5,94 by RPAD. Inspite of receiving the above letters he does not care to send even a reply to the complainant. THE letter dated 22.6.94 sent to the opposite party by the complainant was returned with postal remark ''refused''."

These averments do not show that the opposite party did take up the work after he received the money as averred by the complainant.

THE complainant, in her evidence in respect of this aspect of the matter, has stated, thus : "(5) x x x x x x x x x x x THEse circumstances and the material placed on record, does not show that the opposite party, on receipt of the said sum from the complainant, did at a 11 commence the construction work."

The expression ''complaint'' has been defined under Section 2(1)(c) of the Consumer Protection Act, 1986, as under : "2(1)(c) ''Complaint'' means any allegation in writing made by a complainant that - (i) an unfair trade practice or a restrictive trade practice has been adopted by any trader, (ii) the goods bought by him or agreed to be bought by him suffer from one or more defects; (iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods; with a view to obtaining any relief provided by or under this Act; (v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods."

The averments, contained in the complaint and in the evidence of the complainant, do not show that the alleged service hired or availed of by the complainant did suffer from deficiency in any respect, because the material does not show that the opposite party did commence the work of construction.

SO there is no question of defect or deficiency in the alleged services of the opposite party. Having regard to these facts, the com plaint itself cannot be classified as a ''complaint'' under the provisions of the C.P. Act. The complainant had in her complaint, sought for the refund of the said amount of Rs. 30,000 /- alleged to have been paid by her to the opposite party. The said refund, sought for by the complainant, cannot be classified as ''deficiency'' as provided under the provisions of Section 2(1)(g) of the C.P. Act. Having regard to these facts and in the circumstances of the case, we are constrained to hold that the dispute raised by the complainant cannot be classified as a ''consumer dispute'' and in that view, the complaint itself was untenable.

THE District Forum did not consider this material aspect of the matter, therefore, the finding recorded by the District Forum is erroneous and unsustainable. ORDER In the result, therefore, this appeal is allowed. THE order dated 31.7.95, recorded by the District Forum, D.K. Mangalore, in complaint No. 645/94, is set aside and the complaint is dismissed as untenable. THE parties are directed to pay and bear their own costs in this appeal. Appeal allowed.