Sri A.C.Modagi                       ... Appellant
Vs.
Cross Well Tailor & others       ... Respondents

                                                 ORDER

B.S.YADAV, J. MEMBER

           The  question for determination in this revision petition is whether the hiring of services of a tailor to whom a piece of cloth is entrusted by a customer for stitching against charges can be said to be 'under a contract of personal service' under the Consumer Protection Act,1986 (hereinafter referred to as the Act).  Under the Act, a consumer can make a complaint to the appropriate forum under the Act if there is a deficiency in 'service'.  However, the word 'service' as defined in clause (o) of section 2(1) of the Act makes a specific exclusion of 'rendering of any service free of charge or under a contract of personal service'.

          The facts leading to the present petition are that the revision petitioner, Shri Modagi had given a pant-piece to the respondent, who is tailor by profession, for stitching a pant.  The respondent stitched the pant and delivered it to the petitioner after receiving Rs.75/- as stitching charges.  On wearing it the petitioner found it to be tight fitting and shapeless.  The petitioner complained to the respondent about the defects in the pant.  The latter agreed to alter it. However, inspite of the alterations made by the respondent a couple of times, the petitioner found that the pant was not fit to be worn as it had not been properly stitched.  The petitioner asked the respondent to pay him Rs.295,00/- as the price of pant piece plus Rs.75/- , the stitching charges which the respondent had received.  The respondent refused to pay. Thereupon the petitioner filed a complaint under the Act before the District Forum, Belgaum on the 22nd February,1990 claiming Rs.365/- towards the price of the pant-piece and stitching charges plus Rs.1,000/- as compensation for mental agony as he had to visit the respondent a couple of times.

          The respondent filed a written statement before the District Forum, but thereafter he did not appear.  In the written statement the respondent contended that the pant had been stitched as per measurements given by Shri Modagi, present petitioner, who on trying had found it fit to wear.  He repudiated his liability to pay anything to the petitioner.

          After examining the evidence led by the petitioner who was the claimant in the original case, the District Forum came to the conclusion that there was deficiency in service rendered by the present respondent and, therefore, the claimant was entitled to recover from the respondent Rs.365/- as the price of the cloth and stitching charges plus Rs.200/- as compensation for mental agony.  It also awarded Rs.100/- as costs of the proceedings to the claimant.  The respondent was further ordered to pay to the claimant interest at the rate of 12 per cent per annum on the sum of Rs.565/- from the date of the complaint till realisation.

          Feeling aggrieved by the order of the District Forum the respondent filed an appeal before the state Commission, Bangalore, who came to the conclusion that the service rendered by the respondent was under a contract of personal service and, therefore, the service rendered by him was not 'service' for the purpose of the Act and hence the claimant would not be a consumer in terms of section 2(1) (d) of the Act. Consequently the appeal was allowed and the order of the District Forum was set aside.  As a result the complaint of the present petitioner was dimissed.

          The present petitioner is not saeisfied with order of the State Commission and has filed this revision petition before us.

          The respondent has not put in appearnce before us in spite of service.

          We have heard Shri Narendra Kaushik, Advocate who was appeared for the petitioner.  According to his contention, the service rendered by the respondent was 'under a contract of personal service'.  We are inclined to agree with his contention for the reason given below.

          Before we proceed further we may mention here that a distinction is to be drawn between a 'contract for service' and 'contract of service' . "In the one case the master can order or require what is to be done while in the other case he cannot only order or require what is to be done but how itself it shall be done" (per Hilbery,J.in Collins v.Hertfordshire county Council,1947 KB 598 at page 615 quoted in Dharangadhara Chemical Works Ltd. Vs. State of Saurashtra and Ors.,1957 S.C.264 at p.267).

          In Oxford companion to Law (page 1134) contract for services has been defined as follows:
                           "In Roman Law - locatio operis faciend, the contract whereby one party undertakes to render services,e.g.professional or technical services, to or for another in the perfermance of which he is not subject to detailed direction and control but exercises professional or technical skill and uses his own knowledge and discretion.  There are two major groups of such services, professional services of lawyers, accountants, surgeons and the like and technical services of builders, garages and many more".

          In Strouds Judicial Dictionary (page 540, 5th Edn.) it is mentioned :

          A contract to render services is not the same thing as a 'contract of service' ; semble, the latter implies some relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of  performance.,,

          We may also quote here the following oassage occurring at page 268 of the report of the case of Dharangadhara Chemical Works(supra) :

          " The principle which emerges form these authorities is that the prima facie test for the determination of the relationship between master and servant is the existence of the right in the master to supervice and control the work done by the servant not only in the matter of directing what work the servant is to do but also the manner in which he shall do his work.............."

          It was further remarked in the above case(page 268 of the report) :

          The correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer or to use the words of Fletcher Moulton,L.J. , at page 549 Simmons vs. Heath Laundry Co. 1910-1 KB 543 at pp. 549,550.

          "In my opinion it is impossible to lay down any rule of law distinguishing the one from the other.  It is a question of fact to be decided by all the circumstances of the case.  The greater the amount of direct control exercised over the person rendering the service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that rhe contract is not one of services".

          The following passage from the judgement in Executive Commitee of Vaish College Vs. Laxmi-Narain and Ors.(AIR 1976 supreme court 888 at p. 902) will also be useful for further discussions in the case :

          "It must be noted that all these doctrines of contract of service as personal, non-assignable, unenforceable and so on grew in an age when contract of service was still frequently a 'personal relation ' between the owner of a small work-shop or trade or business and servant."

          Of course in a narrow sense there is personal element in practically all services such as a servant's or  aya's service.  However, it will be incorrect and even crude to call the professional or technical service as personal service.

          From the above authorities it is clear that personal service stems from a master and servant relationship which is totally different from a lawyer-client relationship or other professional or technical relationship. The reason for excluding the rendering of service 'under a contract of personal service' from the definition of 'service' under the Act is obvious.  Such an employee can be turned of service by the master at will and, therefore, no occasion can arise for the master to complain about the deficiency in the rendering of service by the employee.

          Applying the above tests to the present case it will be clear that the petitioner was not in a position to exercise any sort of control or supervision over the work of the respondent. The respondent was independent of any supervision or control of the petitioner while he (i. e. respondent) was cutting the cloth for stitching the pant or was stitching it. While doing his work the respondent was not bound to obey any direction given by the petitioner about design of the pant but not further.  Thus the service rendered by the respondent was in the course of his profession and the service was not rendered by him under any contract pf personal service.

          It appears that the State Commission fell into error from the beginning about the nature of relationship between the parties.  In part No.2 of their order it is mentioned," The appellant stitched the pant and on receiving Rs. 75/- as his wages, he gave the pant to the respondent  No.2" .  Generally ' wages' is the amount paid periodically for the time during which the workman or servant is at the employer's disposal.  In fact usually the word ' salary ' is used for payment of servants of a higher class and  ' wages'  is confined to the earnings of labourers and artisans. A tailor 'charges' a sum for the stitching work done by him. He is not paid the amount as wages.

          The District Forum, as mentioned earlier, has given a finding that there was deficiency in the service rendered by the respondent.  That finding has not been set aside by the State Commission.

          As a result,we accept the present petition, set aside the order of the State Commission and restore that of the District Forum. We make no order about the costs of the present proceedings.