HIMACHAL PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION
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(1.) HEARD learned Counsel for the parties as well as respondent who is present in person.
(2.) WHILE arguing this appeal, Mr. Bhardwaj submitted that there is no consumer dispute between the parties because neither the respondent is a 'consumer' nor his client a 'service provider', as such the Fora under the Consumer Protection Act, 1986, did not have any jurisdiction to have entertained the complaint much less adjudicated upon it. Other plea urged in support of this appeal by Mr. Bhardwaj that dispute if any, though he hastened to add that there is no dispute, could only be determined by a Civil Court. As such District Forum fell into error in having decided the complaint by allowing it in favour of the respondent and against his client. These pleas were resisted by the respondent who submitted that on the proved facts, no case is made out for interference in this appeal.
(3.) IN this behalf when reference is made to Annexure C.2, this is an affidavit sworn by Shri Rattan Lal, appellant. He admits having constructed house of the respondent at Sector -6, Kosrian, District Bilaspur, and he further admits the case of his negligence and poorness of masonry work on account of which damage was caused to the structure. He had undertaken to indemnify the respondent in the sum of Rs. 30,000.
Here the definition of 'consumer' under Section 2(1)(d) assumes significance. It includes hiring or availing of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. That is not the situation in the present case. Moreover, it is not the stand of the appellant in his affidavit, Annexure C.2, that he worked gratis for the respondent. It is not understood as to why he would work without charging anything from the respondent. Respondent at this stage pointed out that there is no relationship muchless friendship and for that matter any other reason for the appellant to have worked free of cost. To the contrary he pointed out that despite payment of requisite remuneration for the construction work to the appellant, he caused loss to the extent of Rs. 30,000. When he (the respondent) pointed out shortcomings to the appellant, it was thereafter that Annexure C.2 was executed by the appellant.
Execution of Annexure C.2 was disputed by Mr. Bhardwaj, learned Counsel for the appellant who had at the same time submitted that so far as his client is concerned for the services rendered by him to the respondent, nothing has been paid even till date. Even if this argument is taken to its logical end, it means that the respondent did engage services of the appellant and those were for consideration. Unless services were for consideration, there is no question of appellant having not been paid therefor. This submission itself belies the stand of the appellant that there is no evidence to suggest that payment has not been made. If this is factually correct, nothing prevents the appellant to take such recourse as is available to him in law. We express no opinion any whatsoever. So far as denial of execution of Annexure C.2 by appellant is concerned, it carries a presumption in law as it has been duly executed before the Notary Public who has the powers to do so under Notaries Act, 1952. So far as dispute being adjudicatable by Civil Court is concerned, in view of the judgment of the Hon'ble Supreme Court in the case of Dr. Merchant and Others v. Shrinath Chaturvedi, 2002 AIR(SC) 2931 this plea is being noted simply to be rejected.;
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