M.A. RAHEEM vs P. SUDHAKAR REDDY

THIS appeal by OppParty No.1 is directed against the order dated 12.7.1993 passed by the District Forum, Bidar in Complaint No. 108 of 1992, directing Opp. Party No. 1 to pay a sum of Rs. 10/359/- to the complainant with interest thereon.

THE facts, briefly stated, are as follows: THE complainant, a P.W.D. contractor, in the month of June, 1992, took the Tipper bearing No. AEE-3123 of Opp. Party No.1 on hire basis. THE consideration per month was fixed at Rs. 22,000/-. It is the grievance of the complainant that the said Tipper worked only for a period of 20 days and thereafter on 11.8.1992 Opp. Party No. 2 took away the said Tipper from the complainant. By that time the complainant had made payment of excess amount in a sum of Rs. 10,359/- to Opp. Party No. 1. The complainant in this complaint sought payment of the said excess amount from Opp. Party No. 1.

Opp. party No. 2 remained ex-parte. Opp Party No. 1 though appeared did not file any version.

DURING enquiry the complainant filed his affidavit. On behalf of the opp. parties no evidence came to be adduced. The complainant filed Ex. P.I the account book; Ex. P.2 a voucher of the Bank; Ex. P.3 office copy of the notice sent to Opp. Party No. 1 and Ex. P.4 a reply notice given by Opp. Party No. 1. The District Forum heard the parties and held the Opp. Party No. 1 had received an excess amount of Rs. 10,359/- from the complainant and so directed Opp. Party No. 1 to pay the said sum with interest thereon to the complainant.

WE have called for the records and received. WE have also heard the learned Counsel for the appellant and perused the material on record. It is not disputed that the complainant had hired the Tipper of Opp. Party No. 1 for a consideration of a sum of Rs. 22,000/- per menses. It is the case of the complainant that the said Tipper worked with him only for a period of 20 days and thereafter it was taken away from him but in the meanwhile he had made payment in excess of a sum of Rs. 10,359/- to Opp. Party No. 1 to which amount the complainant had sought payment in his complaint. The District Forum considered the affidavit and the accounts maintained by the complainant and held that there was excess payment in a sum of Rs. 10,359/- by the complainant to Opp. Party No. 1. 10. Having regard to these facts and in the circumstances of the case, we are constrained to hold that it is not a consumer dispute.

THE complainant has not made any allegation regarding deficiency in the service rendered by Opp. Party No. 1.

UNDER the provisions of Section 14(1)(e) of the Consumer Protection Act, the Forum has got power to direct to remove defects or deficiencies in the service in question. The expression ''Deficiency'' has been defined under Section 2(1)(g) of the Act, which reads as under: " ''Deficiency'' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

It is not the case of the complainant that there was any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance of the services. It is only a claim made by the complainant alleging that he had made the excess payment to Opp. Party No. 1.

HAVING regard to these facts we are of the considered opinion that this is not a consumer dispute. The remedy left to the complainant is only a civil remedy seeking refund of the excess payment alleged to have been made by him to Opp. Party No. 1. The District Forum has not considered this material question and so come to an erroneous conclusion in directing Opp. Party No. 1 to refund a sum of Rs. 10,359 /- to the complainant. Hence, the finding recorded by the District Forum is clearly erroneous and inadmissible.

IN the result, therefore, this appeal is allowed. The order of the District Forum, Bidar passed in Complaint No. 108/1992 on 12.7.1993 is set aside and the complaint is dismissed. The parties are directed to pay and bear their own costs. Appeal allowed.