E.J. Bellie, President

1. The opposite parties namely the Divisional Engineer Highways, Nagapattinam against whom an award has been passed by the District Forum in the O.P. is the appellant.

2. It appears that the complainant Ramachandran was a Road Works Contractor. He had entered into an agreement with the opposite party for certain road contract work during 1988-89. The work was entrusted on 4.7.88 and it was to be completed within 3.10.88. The work has not been so completed. The opposite party gave the complainant Ex. A3 order cancelling the contract. The complainant had collected certain materials and kept them on the road side for the use of the contract work. The opposite party measured this and valued it at Rs. 11,282/-. They have given credit for this amount in the account of the complainant and after deducting the amount payable by the complainant to the opposite party they arrived at the balance of Rs. 1,041/- which shall be paid to the complainant. The complainant’s case is that he has collected materials to the value of Rs. 92,000/- and without notice to him the contract work has been cancelled and on these grounds he had gone to the District Forum for the payment of the said sum of Rs. 92,000/- and for damages of Rs. 25,000/-.

3. The opposite party contended that there was no deficiency in service on his part and it was only because the complainant did not finish the contract work in time it has to be cancelled and the work done by him has been measured and for that credit has been given in his account and he was prepared to pay the balance amount to him and therefore the complaint cannot be maintained against him.

4. The District Forum on consideration of the pleadings and evidence came to the conclusion that the transaction in question involves consideration of extensive evidence and legal points and therefore it is a matter to be decided by the Civil Court. However on one point the District Forum had held that there was deficiency in service on the part of the opposite party. According to the District Forum the opposite party had measured the materials collected by the complainant without notice to him and that is improper on their part and this is deficiency in service. On this finding the District Forum had awarded a sum of Rs. 5,000/- as compensation.

5. Here we have to recall that according to the complainant the materials collected by him was of the value of Rs. 92,000/- but the opposite party has valued at Rs. 11,282/-. If on evidence it can be found that the materials collected is worth Rs. 92,000/- then certainly the complainant would be entitled for that amount. Therefore, the decision that has to be arrived at is whether the materials collected is worth Rs. 90,000/- or only Rs. 11,282/- as stated by the opposite party. This is essentially a point that has to be considered by the Civil Court. Therefore, we do not think that the District Forum is correct in awarding Rs. 5,000/- stating that there was deficiency in service on the part of the opposite party in not giving notice before measuring. Incidentally we may say that the opposite party have measured the collected materials as part of the contract work done by the complainant. It has not been pointed out to us any rule or terms of agreement that before the opposite party measured the collection of materials, a notice should have been given to the complainant.

6. We think there is yet another point on which also the complaint cannot be maintained. According to us the complainant is not a consumer within the definition given in the Consumer Protection Act. He is only a contractor of road work. It would be more apt to say that it is the opposite party who had hired or availed of the services of the complainant and not vice versa. There is no question of payment of any consideration by the complainant to the opposite party for hiring or availing of any service of theirs. Therefore it cannot be said that the complainant is a consumer within the mea

ning given in the Consumer Protection Act. Hence on this ground also the complaint cannot be maintained. 7. In the result, we allow the appeal; set aside the order of the District Forum and dismiss the complaint. However we are not interfering with the finding of the District Forum that the complainant can seek his remedy in a Civil Court. The appeal is thus disposed of. There will be no order as to costs. Appeal allowed.