MANSUKHBHAI GANDABHAI PATEL vs JAGDISHBHAI MAVJIBHAI PATEL

THIS appeal arises from order dated 26th December, 2002 rendered by the learned Ahmedabad Rural Consumer Disputes Redressal Forum in Complaint No. 52/2001 relegating the complainant to his remedy before a Civil Court while deciding that the time taken in proceeding with the complaint before the learned Forum would be given set-off while computing the period of limitation in the proposed civil proceedings.

IT was the case of the complainant that the complainant purchased a tenement in question for the consideration of Rs. 1,54,000/-. He was informed that initially he would have to pay Rs. 25,000/-. He, therefore, paid Rs. 1,000/- on 14.3.1999 and Rs. 10,000/- on 21.3.1999 at the time of booking of the tenement in question and balance consideration of Rs. 1,45,000/- was paid from time-to-time as alleged in the complaint. IT was the case of the complainant before the learned Forum that the payments were to be made by the complainant to the opponent without receipts being issued by the opponents on the assurance that a note would be made in a diary with regard to the payments to be made from time-to-time and made from time-to-time. The opponent resisted the complaint inter alia on the ground that the complainant became member of the society by making initial payment of Rs. 10,000/- and the tenement was given for residence on account of urgency of the complainant who was acquainted with concerned opponent. However, as the complainant needed money the opponent had given advance of Rs. 98,000/- for a period of 2 months. Complainant gave cheque in repayment of that amount. Upon presentation of the cheque the same bounced back resulting into the opponent filing a criminal complaint under Section 138 of Negotiable Instruments Act before the concerned Court of Magistrate and that complaint is pending for adjudication. Number of cases have been filed before the parties in respect of the alleged transactions which were entered into between the parties on account of relations between them. Upon appreciation of the material that was placed before the learned Forum, learned Forum came to the conclusion that highly disputed questions of facts with regard to payment of consideration on various terms and conditions alleged agreements entered into between the parties, over and above number of proceedings which have been undertaken between the parties would arise in the matter. The learned Forum, therefore, passed the impugned order relegating the complainant his remedy before the Civil Court.

We have heard the learned Advocate appearing for the appellant at this stage of admission. In the first place we would refer to the decision of the Hon''ble Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=AIR 1994 SC 787. In the first place we would reproduce the observations relied upon on behalf of the appellant. Following observations from para 5 might first be quoted : "In fact the Act requires provider of services to be more objective and care taking. It is still more in public services. When private undertakings are taken over by the Government or Corporations are created to discharge what is otherwise State''s function, one of the inherent objectives of such social welfare measures is to provide better, efficient and cheaper services to the people. Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it." Following observations from para-6 have also been relied upon :

"Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) of Section 2 as unfair trade practice. If a builder of a house uses sub-standard material in construction of a building or makes false or misleading representation about the condition of the house then it is denial of the facility or benefit of which a consumer is entitled to claim value under the Act. When the contractor or builder undertakes to erect a house or flat then it is inherent in it that he shall perform his obligation as agreed to. A flat with a leaking roof, or cracking wall or sub-standard floor is denial of service."

Finally following observations from para-8 have also been relied upon : "Each hierarchy in the Act is empowered to entertain a complaint by the consumer for value of the goods or services and compensation. The word ''compensation'' is again of very wide connotation. It has not been defined in the Act. According to dictionary it means, ''compensating or being compensated; thing given as recompense''. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been vested with jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. Any other construction would defeat the very purpose of the Act. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him."

IN our considered opinion the question which arises for determination in the present case is not at all relatable to the aforesaid observations. Jurisdiction of Consumer Fora or the Commission as the case may be under Section 3 of the Consumer Protection Act, 1986 (Act for short) is in addition to and not in derogation to other remedy which is available to a consumer under the provisions of any other law. It can hardly be said that in all such cases the consumer will not have any remedy before a Civil Court. IN fact that is basically larger remedy available to all the consumers. However, where the questions for adjudications are not time-consuming and not involving detailed evidence by production of number of witnesses, Consumer Fora or Consumer Commission can undertake the process of redressal of such disputes under the Act. If they are time-consuming in the sense that they would require prolonged trial on examination of number of witnesses, other consumers requiring redressal of their disputes in much shorter time would suffer. IN the case before the Hon''ble Supreme Court question in respect of consideration was hardly under dispute. IN the present case the very facts regarding consideration and payment thereof from time-to-time in cash or otherwise have remained under dispute. Besides, it is not certain as to whether endorsements are made in the diary of the complainant which is not produced or are made in the diary maintained by the opponent. It is also not understandable how a criminal complaint would have seen the light of the day in the background of the fact that the cheque given by the complainant bounced back. It is finally not understandable how and under what circumstances the cheque was given by the complainant to the opponent and it bounced back. All those questions of facts are highly disputed questions which would need detailed trial on production of evidence, both documentary as well as oral. IN our considered opinion, therefore, the finding of the learned Forum in that regard cannot be faulted. Besides, the matter was not old before the learned Forum. It was filed in the year 2001 and decided by the learned Forum in the year 2002. Bearing in mind all the facts and circumstances of the case we do not propose to drag the complainant in any further proceeding under Consumer Protection Act, 1986. Instead it would be in the interest of the complainant also to follow the remedy as suggested by the learned Forum. Hence we dismiss this appeal at the stage of admission. Appeal dismissed.