SHIVAPUTRAPPA vs SHIVAJI NANASAHEB NIMBALKAR

THIS appeal by the opposite party is directed against the order dated 22.3.95 passed by the District Forum, Dharwad in Complaint No. 342/ 94, directing the opposite party to pay to the complainant a sum of Rs. 14,620/- with interest thereon and also awarded a compensation in a sum of Rs. 500/- to the complainant.

THE facts, briefly stated, are as follows : It is the case of the complainant that he had entrusted electrification work of his newly constructed shops at Dharwad to the opposite party who had given estimation of Rs. 20,000/- for the said work. THE complainant during the period from 11.2.93 to 12.7.93 paid in all a sum of Rs. 14,620/- to the opposite party towards the said electrification work. But the opposite party did not even start the work. When the opposite party did not start the work even on repeated demands by the complainant, the complainant got the said electrical work done by some other agency and demanded refund of the said amount from the opposite party. When the opposite party failed to refund the said amount, filed the complaint seeking refund of the said amount paid by him to the opposite party. The opposite party filed its version, admitted the fact that the complainant had paid him a sum of Rs. 14,620/- but the opposite party averred that this amount paid by the complainant was in repayment of a loan of Rs. 20,000/- taken by him in the month of November, 1992. So the opposite party averred that he had not undertaken to do any electrification work nor the complainant had advanced the said amount of Rs. 14,620/- for doing such a work.

During enquiry the complainant filed his affidavit and the affidavit of one Parashuram Shinde and also got Exts. P 1 to P 7 marked in evidence. The opposite party filed his affidavit in evidence.

THE District Forum, considering this material placed on record by the parties, held that the complainant had advanced a sum of Rs. 14,620/- to the opposite party for doing the electrification work to his newly constructed shops. Having regard to this finding the District Forum directed the opposite party to refund the said amount with interest thereon to the complainant. We have called for the records and received. We have also heard the learned Counsel for the parties and perused the material on record.

THE District Forum while considering the evidence of the parties observed thus : "..It is of importance to note that, if respondent had really given that heavy loan amount of Rs. 20,000/- to complainant, then he must have taken that amount from his bank account or from any shop, if he had deposited, with it. Moreover, if respondent had really given that much loan to complainant, then respondent would have taken a promissory note, or any writing from complainant in that regard. That appears to have not been done, and no documents have been produced by him to prove it"

The District Forum has failed to see that the complainant who has come to the FORA seeking certain reliefs has not placed any material to show that he had made payment of the said amount of Rs. 14,620/- to the opposite party towards electrification work. In our opinion, the reasoning adopted by the District Forum is not just and proper. Having regard to the facts averred in the complaint, we are constrained to hold that the dispute raised by the complainant is not a ''consumer'' dispute.

THE complainant has admitted that the opposite party did not even start the work though he had undertaken to start the work of electrifycation. THE amount of Rs. 14,620/- is only an advance amount paid by him. So the complainant is seeking in this complaint refund of the said advance amount paid by him to the opposite} party. It is not the grievance of the complainant that the services hired by him did suffer with any deficiency as the opposite party did not provide any service to the complainant. THE case pleaded by the complainant would amount only to a breach of contract. So the remedy of the complainant lay in a Civil Court by a civil suit and not before the FORA.

THE Rajasthan State Commission considered this aspect of the matter in Anil Kumar v. Vipro G.E. Medical System Ltd. & Anr., reported in II (1995) CPJ 300 and held as under: "It is thus clear that it was not the case of the complainant that there was any defect in the goods. No question of any defect in the goods was involved for the simple reason that no goods was delivered to the complainant according to the terms of the contract. THE averments made by the complainant only pleaded a case of breach of contract for supply of X-ray system and compensation for that breach of contract. No complaint under Consumer Protection. Act, 1986 lies for any compensation based on allegations of breach of contract or repudiation of contract. THE case of the complainant was not at all that of deficiency in service. No services were hired by the complainant to the respondents. THE complaint being based solely on beach of contract or repudiation of contract by the complainant on account of non-delivery of the X-ray system up to 31.6.91, the remedy of the complainant lay in a Civil Court by a civil suit and not for compensation as against the respondents under the provisions of the Consumer Protection Act, 1986."

As referred above, the case of the complainant was not at all that of deficiency in service. So having regard to these facts and in the circumstances of the case, the reasoning adopted and the view taken by the District Forum is erroneous and unsustainable. The District Forum did not consider this material aspect of the matter. So the finding recorded by the District Forum is erroneous and unsustainable.

In the result, therefore, this appeal is allowed. The order passed by the District Forum, Dharwad in Complaint No. 342/94 on 22.3.95 is set aside and the complaint is dismissed.

THE parties are directed to pay and bear their own costs. Appeal allowed.