Chandigarh

StateCommission

A/187/2023

MR RAJEEV GUPTA - Complainant(s)

Versus

ACC LIMITED - Opp.Party(s)

KSHITIJ SHARMA ADV.

10 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

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Appeal No	:	A/187/2023
Date  of  Institution	:	01/08/2023
Date   of   Decision	:	10/01/2024

 

 

 

 

 

Rajeev Gupta son of Late Sh. O.P. Gupta, Resident of House No. 753, Sector 8-B, Chandigarh, Managing Director, M/s Synergy Metals Pvt. Limited, C-143, Industrial Area, Phase-VII, S.A.S. Nagar, Mohali, Punjab.

 

…. Appellant

 

V E R S U S

 

 

ACC Limited, ACC Concrete, Plot No.C-103, Industrial Area, Phase 7, Mohali – 160055, Punjab, through its Authorized Representative.

…… Respondent

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

PRESENT	:	Sh. Kshitij Sharma, Advocate for the Appellant.
		Respondent ex-parte vide order dated 16.10.2023.

 

 

PER PREETINDER SINGH, MEMBER

 

 

 

          This appeal is directed against the order dated 14.03.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it dismissed the Consumer Complaint bearing no.CC/286/2021, in the following terms: -

“[9]      Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby dismissed. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court having territorial jurisdiction in the matter and the time spent herein would stand commuted/ condoned for the purpose of limitation.”

2.      For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.      Before the Ld. Lower Commission, it was the case of the Complainant/Appellant that Complainant is Managing Director of M/s Synergy Metals Pvt. Ltd., an ISO 9001:2008 Certified Company manufacturing, supplying and exporting Scaffoldings, Form Work and Shuttering Products. In order to get the floor of his workshop area re-done, the Complainant contacted the Opposite Party and after having advice of Sh.Kamaljeet Singh, employee of Opposite Party, ordered Ready Mix Concrete of Grade M-20 for flooring purpose. Accordingly, the payment of ₹2,00,000/-, as asked by Opposite Party, was credited in the account of Opposite Party on 05.03.2021 & 06.03.2021 vide Annexures C-3 & C-4, respectively.  It was averred that the Opposite Party delivered the material on 07.03.2021 at the site of Complainant and the Complainant incurred labour charges of ₹90,000/- for getting the material affixed. It was alleged that just after a month, the material/flooring/ready pre-mix concrete started coming out of the floor, which was reported to the Opposite Party vide email dated 21.04.2021, followed by reminders dated 22.04.2021 and 26.04.2021, but the Opposite Party refused to consider. It was alleged that the Opposite Party had supplied defective product/material. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Respondent/Opposite Party.

 

4.      In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, Opposite Party pleaded that as per own case of the Complainant, the RMC in question was purchased by M/s Synergy Metals Pvt. Ltd., which is a company registered under the provision of Companies Act and having separate legal entity. Being so, the present complaint, which has been filed in the name of Sh.Rajeev Gupta, deserves to be dismissed.  It was further pleaded that the Complainant (Sh.Rajeev Gupta) has not been authorized by M/s Synergy Metals Pvt. Ltd. to file the complaint on behalf of the company as no resolution/ authority letter to this effect is on record.  It was asserted that there was no relationship of consumer and seller between complainant (Sh.Rajeev Gupta) and ACC Ltd. as neither he has purchased the RMC in question nor is he having any locus standi or right to file and maintain the present complaint. It was pleaded that RMC supplied by Opposite Party was neither having any deficiencies nor containing adulterant and/or of spurious quality as alleged in the complaint.  The Complainant did not file Purchase Order dated 05.03.2021 which shows that M/s Synergy metals Pvt. Ltd. had purchased the RMC in question. The Cube Testing Report dated 04.04.2021, which is at Annexure-C is self-explanatory. It was further pleaded that on 28 days of casting i.e. from 07.03.2021, the concrete was showing the average strength of 24.17 MPA, which was indeed a good quality of average strength on 28 days of casting. It was asserted that regarding the quality of RMC supplied, quality of other material and workmanship used in the construction, cannot be decided in the present complaint being summary in nature and the same can only be decided by a Civil Court of Competent jurisdiction after adducing the evidence.  It was also asserted that the Quality Engineer of Opposite Party OP namely Sh. Kamal Hans physically visited the site and conducted the inspection and also taken the photographs. The Quality Engineer informed the AR of Complainant Company regarding the shortcomings of M/s Synergy Metals Pvt. Ltd. in applying the wrong grade of RMC for flooring purpose in industrial plot vide Annexure-D. It was further asserted that the complainant was aware of the fact that RMC of grade M-20 was not suitable for flooring in the Industrial Floors since on earlier occasion he has ordered RMC of the grade M-25 along with               M-10. Denying all other allegations and pleading no deficiency in service, the Opposite Parties prayed for dismissal of the Complaint.

 

5.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission dismissed the consumer Complaint of the Complainant/ Appellant, as noticed in the opening para of this order.     

 

6.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Complainant.

 

7.      We have heard Learned Counsel  for the parties and have also gone through the evidence and record of the case, with utmost care and circumspection.

 

8.      The core question that falls for consideration before us is as to whether the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

9.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

10.      Record transpires, Appellant/ Complainant

M/s Synergy Metals Pvt. Limited is a manufacturing concern and is engaged in the activity of manufacturing, supplying and exporting Scaffolding, Form work and Shuttering products. The fact that the Appellant/Complainant has purchased the material in question for its commercial site from the Opposite Party/Respondent, goes a long way to prove that the relationship between the Appellant/ Complainant and the Respondent/ Opposite Party is purely business to business relationship and the Complainant firm is purely indulged into commercial activity. In other words, the transaction would clearly come within the ambit of commercial purpose and it cannot be said that the services were availed for exclusively for the purpose of earning livelihood by means of self employment. In Laxmi Engineering Works Vs.PSG Industrial Institute, (1995) 3 SCC 583, the Hon’ble Supreme Court held that commercial purpose is to be looked into, in the facts and circumstances of each case to consider the purpose for which the goods and services are bought or availed. If it is availed with a view to carrying out large scale commercial activity with profit motive, then the buyer would not qualify as a consumer under the Consumer Protection Act.

 

11.      It is worthwhile to add that the term “commercial purpose” appears as an exclusion clause in the definition of ‘consumer’ under Section 2(1)(7) of the Consumer Protection Act, 2019. Since the cases of resale have been separately referred to in this clause, it becomes obvious that the words “commercial purpose” are intended to include any commercial activity, other than resale, where goods are purchased for being used in any activity directly intended to generate profit. Thus, per material available on record, exception to commercial activity is not available to the Appellant/ Complainant and it cannot be said that the Appellant/Complainant is exclusively earning his livelihood by way of self-employment, in as much as, no such evidence is forthcoming on record which could prove that the activity carried by the Appellant/Complainant is for earning livelihood by way of self-employment. Thus, what is important is the transaction in reference to which the claim has been filed under the Consumer Protection Act, 2019 by a person who claims himself to be a consumer covered under Section 2(7) of the Act, such exposition of law on the subject has been reiterated by the Hon’ble Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, which has duly been noticed by the Ld. Lower Commission while passing the order impugned before us.   

 

12.      The Ld. Lower Commission has, therefore, rightly held the Complaint to be not maintainable as the activity carried on by the Appellant/ Complainant firm is for commercial purposes and not for earning livelihood by way of self employment. To our mind no case is made for any interference in the findings recorded by the Ld. Lower Commission. 

 

13.      No other point was urged, by the Learned Counsel for the parties.

 

14.      It is demonstrable from a reading of the impugned Order of the Ld. Lower Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

15.      In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. Lower Commission is upheld.

 

16.      The pending application(s), if any, stand disposed off as having become infructuous.

 

17.      Certified copies of this order be sent to the parties free of charge.

 

18.      The file be consigned to Record Room, after completion.

Pronounced

10^th Jan., 2024

               Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”