KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD THIRUVANANTHAPURAM
APPEAL 349/2010
JUDGMENT DATED: 31/1/2011
PRESENT
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
1. The Rubber Producers Society : APPELLANTS
Paduva P.O., Kottayam.
2. The President,
Rubber Producers Society,
Paduva.P.O., Kottayam.
3. M/s Manimalayar Rubbers(P) Ltd.,
Vadavathoor,
Kottayam.
4. The Managing Director,
Manimalayar Rubbers(P) Ltd.,
Vadavthoor, Kottayam.
(By Adv. S.Reghukumar)
Vs.
Binoy James, : RESPONDENT
Anivelikunnel, Paduva.P.O.,
Kottayam.
JUDGMENT
SMT.VALSALA SARANGADHARAN : MEMBER
This appeal is preferred against the order dated 20.5.2010 of CDRF, Kottayam in CC.10/09. The opposite parties are under orders to pay a sum of Rs.10000/- as punitive damages along with costs of Rs.1000/-. It is aggrieved by these directions that the opposite parties filed the present appeal.
2. The case of the complainant is that he is a farmer and the rubber latex collected from his plantation was sold to the 3rd opposite party through the 1st opposite party, who is the agent of the 3rd opposite party. On 28.2.08 he sold 17 barrels of latex to the 1st opposite party and 1st opposite party gave him two samples for the latex he received and the complainant tested the samples in the Regional Laboratory, Pala. The DRC weight of the 1st sample was shown as 36.40 and that of 2nd sample was 36.30. The total weight of the latex given by him to the opposite parties was 3060.500 in wet weight. As per the bill of the 3rd opposite party the provisional DRC was reported as 20.50 and from the same 3% of DRC was deducted and they calculated 17.50 as the DRC of the latex instead of 36.30 as approved by the Regional Laboratory, Pala. According to the complainant the dry rubber value Rs.1,03,874.76/- for the latex he supplied to the opposite party was to be received. But the 3rd opposite party gave only a sum of Rs.58557/- to him. The complainant made representation before the 4th opposite party but they informed that “since there is no sealed sample of your latex separately, Company is not in a position to verify the actual DRC of the latex”. It is also stated that in the sealed sample of the RPS, the DRC was found only 29.55. According to the complainant the 1st opposite party ought to have keep a sample sealed with it for counter checking, when the sample is given to the farmers for testing the same. Thus alleging unfair trade practice and deficiency in service on the part of the opposite parties he filed complaint before the Forum claiming a sum of Rs.58577 with 12% interest alongwith compensation and costs.
3. The 1st opposite party filed version and contended that the complainant is not a farmer as alleged and he is a person who takes on contract rubber estates for slaughter tapping from owners and derive profit from it and therefore he is not a consumer coming under the purview of the Consumer Protection Act. They further submitted that 1st opposite party collects rubber latex from the producers on behalf of the 3rd opposite party and takes the weight of the same and sends the sample to the 3rd opposite party for checking DRC content alongwith total weight of the latex lifted. Thereafter the latex from different producers are mixed and 3rd opposite party checks the DRC content of the sealed sample in their Laboratory and they make payment of the latex on the basis of DRC content in the sample. They further contended that the samples tested at the regional laboratory, Pala are not those which were supplied to the complainant by the 1st opposite party at the time of lifting the latex.
4. The 3rd and 4th opposite parties filed joint version and contended that the complainant is not a consumer as defined under Consumer Protection Act and he is not a farmer and is engaged in the business of slaughter tapping of rubber trees. The latex supplied by the complainant was the one collected from slaughter tapping of rubber trees of various parties. Hence in the case of latex of slaughter tapping, the DRC will be having only around 20. The complainant is not entitled to get the DRC calculated at 36.30 because as per individual sample the DRC content of the latex of the complainant is only 20.50. They further submitted that they had paid the entire amount at the DRC value of 20.50. Hence there is no unfair trade practice from their part and thus they prayed for the dismissal of the complaint.
5. We heard the learned counsel for the appellants/opposite parties. There was no representation for the respondent/complainant. The learned counsel for the appellants argued for the position that the respondent/complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. He further submitted that the Forum below ought to have dismissed the complaint on the ground that the sample of latex given to the Regional Laboratory, Pala is not the sample of latex tested by the 3rd opposite party. Moreover respondent/ complainant has failed to prove that the sample given to the appellants/opposite parties and the sample tested in the Rubber Research Institute Laboratory are one and the same. He argued for the position that the DRC content in the latex derived from slaughter tapping will be very low and the complainant failed to prove the allegations in the complaint. Pleading that there was no deficiency in service and unfair trade practice on their part, he prayed for setting aside the impugned order passed by the Forum below.
On an appreciation of the entire facts and circumstances of the case we find that the first question to be considered is whether the complainant can be treated as a consumer.
Section 2(1)(d)(i) of Consumer Protection Act, 1986 defines ‘ consumer’ as follows:
“Consumer” Means Any Person Who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) 8 [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 9 [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services availed of with the approval of the first mentioned person
10 [but does not include a person who avails of such services for any commercial purpose];
11[Explanation.- For the purposes of this clause,”commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for he purposes of earning his livelihood by means of self-employment];
6. In the present case on hand, the respondent/ complainant in his complaint stated that he had been selling latex collected from his rubber plantation to the 3rd opposite party through the 1st opposite party. Admittedly the dispute is with regard to the sale of a commodity and therefore such dispute cannot be treated as a consumer dispute and the Consumer For a would have no jurisdiction to entertain such complaints. So it is our considered view that the complainant does not come under the purview of Section 2(1)(d)(1) of Consumer Protection Act, 1986. As the complainant is found not a consumer, we are not going into the merits of the case.
In the result the appeal is allowed and thereby the order of the Forum below in CC.10/09 of CDRF, Kottayam is set aside. As far as the present appeal is concerned there shall be no order as to costs.
SMT.VALSALA SARANGADHARAN : MEMBER
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
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