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Saturday, January 12, 2013

consumer under Section 2 (d) of the C.P. Act. = complainant hired architectural and structural consultancy of the petitioner/OP for renovation and extension of the Himmatgarh Palace Hotel complex at Jaisalmer. This service was to be provided in two stages, namely; conceptual stage and schematic stage. Complainant paid a sum of Rs.5,30,600/- as consultancy fee to the opposite party but as conceptual design was not complete, complainant filed complaint for refund of fee along with compensation and cost of litigation. OP/respondent filed written statement and submitted that complainant is not a consumer as defined in the Consumer Protection Act, hence, complaint may be dismissed.= hotel was to be developed for self-employment which argument cannot be accepted because, firstly, no averment has been made in the complaint that services were availed for earning livelihood by means of self-employment and secondly complainant being branch of Thar Hotels (P) Ltd.,Jaisalmer, this business cannot come within the purview of business for earning livelihood by means of self-employment. In such circumstances, complainant/respondent does not fall within the purview of consumer under Section 2 (d) of the C.P. Act. Complaint was not maintainable before District Forum and learned District Forum has not committed any error in dismissing complaint, though, on other grounds and learned State Commission has committed error in partly allowing the complaint and petition is liable to be accepted. 7. Consequently, the revision petition filed by the petitioner against the respondent is allowed and impugned order dated 13.4.2011 passed by the learned State Commission is set aside and complaint is dismissed. Complainant/respondent may initiate appropriate proceedings for recovery of fees, etc. before any other Forum/Civil Court. Parties to bear their own cost.


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
                                                NEW DELHI        

REVISION PETITION NO. 1660  OF 2011

(From the order dated 13.04.2011 in Appeal No.610/08 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Abhikram, Through its Partner
Mr. Nimish Patel,
Amrit-Lila Bungalow,
Off Nagari Hospital Road,
Near Gujarat College,
Ahmedabad – 380 006                                             …        Petitioner/OP

         Versus

Hotel Himmatgarh Palace, through Col. Mansingh
Managing Director, Thar Hotel (P) Ltd.,
Jaisalmer – 345 001                                     …    Respondent/Complainant

BEFORE

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER

            For the Petitioner
:
Mr. Shivram, Advocate     
          For the Respondent
:
Mr. Bharat Bhushan, Advocate

PRONOUNCED ON   8th January,  2013

 

O R D E R


 PER JUSTICE K.S. CHAUDHARI, MEMBER
          This revision petition has been filed against the order dated 13.4.2011 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal No. 610/08 – Hotel Himmatgarh Palace Vs. Abhikram by which order of District Forum dismissing complaint was set aside and appeal was partly allowed and respondent/petitioner was directed to pay Rs.2,65,300/- along with 9% p.a. interest to the complainant.
2.       Brief facts of the case are that respondent/
complainant hired architectural and structural consultancy of the petitioner/OP for renovation and extension of the Himmatgarh Palace Hotel complex at Jaisalmer.  
This service was to be provided in two stages, namely; conceptual stage and schematic stage.  
Complainant paid a sum of Rs.5,30,600/- as consultancy fee to the opposite party but as conceptual design was not complete, complainant filed complaint for refund of fee along with compensation and cost of litigation.  OP/respondent filed written statement and submitted that complainant is not a consumer as defined in the Consumer Protection Act, hence, complaint may be dismissed.  Further, it was alleged that complaint has been filed with the illegal motive to get the work completed without paying fees and took many other objections regarding jurisdiction, etc.  Learned District Forum vide its order dated 4.3.2008 dismissed the complaint holding that complaint does not fall within the purview of consumer against which State Commission vide impugned order partly allowed the complaint.  Hence, this revision petition has been filed.
3.       Heard learned Counsel for the parties and perused record.
4.       Learned Counsel for the petitioner submitted that complainant/respondent does not fall within the purview of consumer and learned State Commission has committed error in allowing complaint partly as the purpose of availing services of the petitioner was for commercial purposes, hence, petition may be allowed and order of the State Commission may be set aside.  On the other hand, learned Counsel for the respondent submitted that order passed by the learned State Commission is in accordance with law as complainant after retirement from military services tried to develop his palace for his livelihood, hence, the petition may be dismissed.
5.       As per averment of the complaint, complainant is Hotel Himmatgarh Palace.  Nowhere it has been mentioned in the complaint that its Director, Man Singh is running this Palace for earning his livelihood by means of self-employment.  Perusal of paragraph 10 of the District Forum order reveals that about 80 rooms were to be developed in complainant’s hotel. Memo of appeal filed before the learned State Commission also reveals that complainant, Himmatgarh Palace is branch of Thar Hotels (P) Ltd. which is registered under Company’s Act.  Thus, it becomes very clear that complainant, Himmatgarh Palace is branch of Thar Hotels (P) Ltd. and about 80 rooms were to be developed in this hotel and for this purpose architectural services were taken from the petitioner/OP.
6.       Learned Counsel for the petitioner has rightly argued that developing 80 rooms for hotel purposes cannot come within the purview of earning livelihood by means of self-employment.  Learned Counsel for the respondent has simply argued that 
hotel was to be developed for self-employment which argument cannot be accepted 
because, 
firstly, no averment has been made in the complaint that services were availed for earning livelihood by means of self-employment and 
secondly complainant being branch of Thar Hotels (P) Ltd.,Jaisalmer, this business cannot come within the purview of business for earning livelihood by means of self-employment.  
In such circumstances, complainant/respondent does not fall within the purview of consumer under Section 2 (d) of the C.P. Act.  
Complaint was not maintainable before District Forum and learned District Forum has not committed any error in dismissing complaint, though, on other grounds and learned State Commission has committed error in partly allowing the complaint and petition is liable to be accepted.
7.       Consequently, the revision petition filed by the petitioner against the respondent is allowed and impugned order dated 13.4.2011 passed by the learned State Commission is set aside and complaint is dismissed.  Complainant/respondent may initiate appropriate proceedings for recovery of fees, etc. before any other Forum/Civil Court.  Parties to bear their own cost.
                                                                         ..……………Sd/-……………
( V.B. GUPTA, J)
PRESIDING MEMBER


..……………Sd/-………………
( K.S. CHAUDHARI, J)
 MEMBER
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