Minakshi Chakraborty, Presiding Member.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant contracted to buy 31 pieces of sarees for his home uses from the opposite party as on 20.8.2019 through the whatsapp message and the opposite party sent photo copies of some sample sarees through his whatsapp message to the complainant and the complainant made choice of 31 pieces of sarees and ordered to buy from the opponent party and asked to deliver to his residential address and thereafter the opposite party instructed the complainant to send an amount of Rs. 37,200/- for the total invoice amount of ordered sarees and the complainant sent Rs. 37,200/- to the opposite party’s bank A/C through the N.E.F.T. on 12.9.2019.
The opposite party prepared the tax invoice no. 1303 on 12.9.2019 and dispatched 31 pieces of sarees through the post office registered parcel to the complainant’s address and on 20.9.2019 the complainant received the parcel and found that some sarees were not according to his order and then on 21.9.2019 the complainant communicated and informed the opposite party to return those sarees. Having no reply again on 17.10.2019 the complainant informed the matter to the opposite party. But there were no fruitful result.
On 27.2.2020 the complainant returned 15 pieces of sarees through registered parcel to the opposite party’s address and on 2.3.2020 the opposite party received the same. The complainant demanded either to return money or change those sarees and GST charges @ 5% on selling price should be returned/ recovered from the Govt. if the return was made within 6 months as per GST Rule. Thereafter several times the complainant communicated with the opposite party to take action but there were no fruitful result.
The opposite party again returned the parcel of sarees which was returned to him through the VRL Logistics Ltd, Dankuni, Hooghly, W.B. i.e. the courier service booked on 6.8.2020 to the complainant. Surprisingly, the courier service did not deliver the parcel to the complainant’s address and informed him through a registered letter on 28.8.2020 to take delivery of the parcel from their Dankuni, Hooghly office. The complainant informed the courier service office that he was unable to take delivery the parcel to perform 50 km of long journey from his house and told them to return the parcel to the opposite party. Then the complainant sent his Advocate notice dt. 16.12.2020 but the opposite party refused to receive the same.
Complainant filed the complaint petition praying direction upon the opposite party to return/ refund the amount of Rs. 18,816/- of returned goods with GST charges and pay a sum of Rs.30,000/- towards compensation for mental agony, anxiety and harassment and to pass any other order/ orders as deem fit and proper.
Be it mentioned herein that inspite of receipt of notice on 31/12/2020 as is evident from the track consignment received by this commission on 18/2/2021 the O.P. has not dared to make its appearance to contest the instant proceeding and hence this case is running ex parte against O.P vide order no 10 dated 22.03.2022.
Evidence on record
The complainant has filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
Argument highlighted by the ld. Lawyer of the complainant
Complainant has filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of complainant shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of complainant at length. In course of argument ld. Lawyer of complainant has given emphasis on evidence and documents produced by the complainant.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
DECISION WITH REASONS
All the issues are taken up simultaneously for disposal.
The facts, in brief, are that the complainant has purchased 31 number of sarees from AGS KANCHIPURAM HANDLOOM SILK HOUSE(O.P) for which he has sent Rs. 37200/ . On receipt of the sarees the complainant found that 15 numbers of sarees were not according to his choice for which those were returned to the O.P which were received by the O.P on 2.3.2020. The complainant demanded either to return the money or change those sarees but he did not receive any reply from the O.P. At the time of argument the Advocate of the complainant side plead that all those 31 sarees were purchased for his home uses but no such evidence has been adduced by the complainant with regard to this.
Subsequently the O.P returned the parcel of sarees through the VRL LOGISTICS LTD. Dankuni, HOOGLY, which company, in turn, informed the complainant to receive the same from its office, to which the complainant could not agree and asked to return the parcel to the consigner. The complainant sent a letter of his Ld. Advocate on 16.12.2020 to return the money for 15 pieces of sarees but the O.P declined to receive the same which gives rise to the present proceeding.
On perusal of the record in question it appears that the petitioner sent Rs. 27200/ on 12.09.2019 to the O.P as is evident from annexure -1 and also tax invoice dated 12.9.19 .
On appreciation of evince on affidavit of the complainant dated 10.6.22 it appears that there is no question of doubt as to whether there was any transaction of business between the complainant and the O.P.I this connection which attracts notice of the commission is annexure-3 which is a letter of the complainant himself addressed to the O.P where from it can be gathered that 15 numbers of sarees were returned to the O.P and demand has been made for return of money/ exchange. A scrutiny of the letter in question reveals that the complainant himself has admitted about purchase of 31 sarees for his shop in September 2019. It further appears that he has mentioned therein about his keen interest to buy attractive more sarees for the purpose of sale in his shop in future and those are required for retail sale. In this connection this commission cannot resist but to quote a portion of the letter in question which runs as, “I would like to draw your kind attention to the fact that I purchased 31(thirty one) sarees for my shop in September 2019………I have keen interest to buy attractive more sarees at wholesale rate in my shop in future…..I can buy those for my shop for retail sale.”
The quotations referred to above univocally leads this commission to conclude that those 31 pieces of sarees were asked for his shop and the complainant intends to make communication to the O.P for supply of sarees for wholesale rate for retail purpose. The relevant question appears in this connection in view of above whether the complainant is a consumer within the meaning of Consumer Protection Act 2019 as the complainant appears to have availed of the services of the O.P for his business purpose and as such the relevant question in this connection is whether the complainant is a consumer as defined in the Act.
For a decision in the matter, reference to section 2(7) of the Consumer Protection Act 2019 seems to be relevant. Therein consumer means a person who buys goods for consideration which has been paid…..but does not include a person who obtains such goods for resale or for any commercial purpose.
It can easily be assumed in view of the above discussion that the complainant intended to purchase 31 pieces of sarees for the purpose of his business activity and as such this activity has its direct connection with his business activities which were being carried out for commercial purpose in order to generate profit.
Once this commission has come to this conclusion that the complainant required those sarees in question for commercial purpose it is needless to discuss the matter more in this connection. In view of the aforesaid discussion the complaint of the petitioner lacks merit and hence the instant proceeding should be dismissed.
Hence,
Ordered
that the Complaint Case No. 33 of 2021 be and the same stands dismissed .
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
