I.J. Kapani vs INTEGRATED MANAGEMENT SERVICES

THE aggrieved opposite party against whom an award has been passed by the District Forum has filed this appeal. THE complainant (respondent herein) entered into an Agreement (Ex. A-1) with the opposite party on 14.9.1991 for setting up of a Manufacturing Unit for manufacture of Mono/Di/Tri Calcium Phosphate. As per Ex. A-1 agreement, the opposite party has been appointed as the Technical Consultant and he has to render four types of services as mentioned in Clause 6 of the agreement, viz., (a) deputing his technicians to prepare a product sample at pilot plant level as per ISI specifications; (b) preparation and submission of a detailed project report within 30 days from the date of agreement; (c) rendition of help to prepare designs and drawings for all the fabrication and machinery works undertaken for fabrication by the complainant at the site and supervision and inspection whenever necessity arises. (d) provision of training to the staff of the complainant for a period of 30 days to run the plant successfully and smoothly.

THE service charges were fixed at Rs. 1,25,000/- and on the date of Ex. A-1 agreement itself, a sum of Rs. 5,000/- in cash and a sum of Rs. 25,000/- by cheque were paid by the complainant to the opposite party towards the said service charges. THEse are all admitted facts. Now, according to the complainant, the opposite party failed to render the services as agreed. THE opposite party failed to do so inspite of a legal notice sent by the complainant on 10.7.1992. Thus alleging and further alleging that there was deficiency in service on the part of the opposite party, the complainant filed the complaint seeking refund of Rs. 30,000/- paid towards service charges and claiming a compensation of Rs. 50,000/- for non-performance of the services, and Rs. 10,000/- compensation for mental agony, pain and sufferings.

THE opposite party contended that after Ex. A-1 agreement, the complainant and the opposite party had entered into several other agreements and if there had been deficiency in service on the part of the opposite party in respect of Ex. A-1 agreement, the other agreements would not have been executed. It was further contended that the complainant is not a consumer and, therefore, the complaint cannot be maintained. The District Forum, on consideration of pleadings and evidence, rejected the contentions of the opposite party and held that the complainant is a consumer and the complaint is maintainable, and there was deficiency in service on the part of the opposite party. It directed the opposite party to return the said sum of Rs. 30,000/- paid by the complainant towards service charges and to pay Rs. 10,000/- as compensation for the hardship and mental agony suffered by the complainant. It also ordered payment of Rs. 500/- as costs.

It may be mentioned here that once before the District Forum passed an award against which an appeal was filed in this Commission in which the award of the District Forum was confirmed and in the Revision filed against that order, the National Commission reversed the said orders of the District Forum and the State Commission and remanded the matter to the District Forum for fresh consideration of the matter and it was then the present impugned order of award of the District Forum was passed.

NOW in the appeal, it is contended on behalf of the appellant/opposite party that the order of the District Forum is erroneous since it is against the evidence and probabilities of the case. It is submitted by the opposite party that considering the facts and circumstances of the case, the complainant is not a consumer within the meaning of the Consumer Protection Act, and that in any event there was no deficiency in service on his part. Regarding the first point raised, viz., that the complainant is not a consumer within the meaning of the Consumer Protection Act, we are of the view that there is no substance in it. 4 is not disputed that Ex. A 1 agreement was executed between the complainant and the opposite party. A reading of that agreement would clearly show that the opposite party had agreed to render several services to the complainant. It is also not in dispute that the service charges had been fixed at Rs. 1,25,000/- and the opposite party has also received even on the date of agreement a sum of Rs. 30,000/- towards the said service charges. Clearly therefore the complainant had availed of the services of the opposite party by payment of consideration and that being the case, the complainant is a consumer well within the meaning of "consumer" defined under Section 2(1)(d)(ii) of the Consumer Protection Act. However, it was also argued that the opposite party agreed to render services not to the complainant but to other people and this position is clear from the agreement Ex. A 1 and other agreements filed as Exs. B-2, B-3, B-4 and B-5, dated 16.11.1991, 19.1.1992, 15.2.1992 and 15.2.1992 respectively. As correctly pointed out by the District Forum, a reading of these documents do not at all show that the agreements were executed in favour of or for the benefit of any other people and not the complainant. Therefore, this submission made by the appellant/opposite party is devoid of any merit.

COMING to the 2nd contention of the appellant/opposite party that there was no deficiency in service on his part, on a careful consideration of the matter, we find it difficult to agree with the finding of the District Forum that there was deficiency in service on the part of the opposite party. Ex. Al agreement is dated 14.9.1991. It is not in dispute that subsequently, Ex. B-2 agreement dated 16.11.1991, Ex. B-3 agreement dated 19.1.1992, Exs. B-4 and B-5 agreements both dated 15.2.1992 were executed. Ex. A 1 shows that the Executant of the first part is Mr. Harry Gomes, Chief Executive of M/s. Integrated Management Services. In Ex. B 2 also the Executant on the first part is the same Mr. Harry Gomes, Chief Executive of M/s. Integrated Management Services. In Ex. B-3 too, the Executant of the first part is Mr. Harry Gomes, Chief Executive, but the Company''s name is M/s. Integrated Machinery Manufactures. In Ex. B-4 also the Executant of the first part is the same Mr. Harry Gomes, Chief Executive, and the Company''s name is mentioned as M/s. Integrated Management Services. Then in Ex. B 5 also the same person viz., Mr. Harry Gomes, Chief Executive has been shown as the Executant of the first part and the Company''s name has been mentioned as M/s. Hitech Machinery and Manufactures. In all these agreements, the opposite party is the Executant of the 2nd Part. The works to be done or the services to be rendered are similar in all these agreements Exs. A-l, B-2 to B-5. The argument of the appellant/opposite party that if he has not done any work under Ex. A-1 the subsequent agreements Exs. B-2 to B-5 between the same parties would not have come into being, appears to have much force. As seen above, the agreement Ex. A-1 is dated 14.9.1991, Ex. B-2 came into being two months after Ex. A-1 i.e. on 16.11.1991, Ex. B-3 dated 19.1.1992 has been executed four months after Ex. A-1; and Esx. B-4 and B-5 both dated 15.2.1992 have been executed after5months of Ex. A-1. It must be remembered that as per Ex. A-1 a detailed Project Report must be submitted by the opposite party within 30 days. According to the complainant, even the said detailed Project Report has not been submitted at all till the date of filing of the complaint i.e. 20.1.1993. The question is, if that be the case, will the complainant enter into subsequent agreements mentioned above. This renders it very difficult to believe the case of the complainant that the opposite party has not done any work as per Ex. A-1. It may be noted that Clause 2 of Ex. A 1 agreement states that the complainant has expressed his wish to take the services of the opposite party for two projects. Clause 3 reads that the remuneration for each project is at Rs. 1.25 lakhs and the complainant shall avail of the services of the opposite party initially to one project and later it shall be extended to another project depending upon the work progress from both ends. (underlining ours). This also, when considered alongwith the later agreements viz. Exs. B-2 to B-5, renders it difficult to believe the case of the complainant that no work has been done under Ex. A-1 agreement by the opposite party Ex. B 3 is a Purchase Order agreement. A perusal of this shows that the complainant, as a party of the first part in that agreement has given a sum of Rs. 7 lakhs as advance for the purchase of machinery by the opposite party. Clause 6(c) of Ex. A-1 agreement reads that "the necessary filter and dryer may be supplied if it is demanded and required by the party to the first part at reasonable cost." Ex. B-3 does not refer to any work agreement but obviously it relates to Ex. A-1 agreement only. Ex. B-10 is a letter dated 2.6.1992 sent by the opposite party to the complainant. Paragraph 2 therein reads as follows : "We also re-call the contract dated 15.2.1992 and subsequently the cheque of Rs. 3 lakhs issued alongwith. Now you want us to accommodate you by having an advance of 2 lakhs and also diverting 2 lakhs temporarily in the first contract. It does not mean that this agreement is over. So far, you have paid us only Rs. 9 lakhs towards the first contract and the cheque of Rs. (sic.) lakhs is under collection whereas the cost of one dryer and one filter comes to roughly 12 lakhs 50 thousand Rs. (inclusive of sales tax.)" This indicates that towards the first contract which must be Ex. A-1, the complainant has paid to the opposite party a sum of Rs. 9 lakhs. The complainant has sent a legal notice Ex. A-2 only on 10.7.1992 to which the opposite party has sent a reply Ex. A-4 disputing the claim on 28.8.1992. Considering all the facts and circumstances discussed above, it cannot at all be believed as claimed by the complainant that the opposite party had not done any work under Ex. A-1 agreement and therefore there was deficiency in service. In this view of the matter, the appeal is allowed, the order of the District Forum is set aside and the complaint is dismissed. However, there will be no order as to costs. Appeal allowed.