IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Saturday the 25^th day of September, 2021.

                                      Filed on 16-11-2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)

In

CC/No.300/2020

between

Complainant:-                                                     Opposite party:-

Sri.T.K Rafeek                                                   City Tarpaulins

Makkath Traders                                                10/112, MLA Road

Punnapra,  PVSIS Building                              Chandiroor, Aroor, Punnapra, Alappuzha- 688004                                            Alappuzha-688537

(Party in person)                                                 (Adv.Sri.K.Jayakumar)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.35 of the Consumer Protection Act, 2019. 

        Complainant’s case briefly stated is as follows:-

        Complainant is conducting a cement wholesale supply firm by name M/s Makkath traders.  For his business purpose he is using trailers of M/s Bharath Benz.  Cement bags are loaded in the vehicle and it is covered with tarpaulin sheets.  For the said purpose on 29.02.2020 complainant purchased two tarpaulins from the opposite party for Rs.30,780/-.  When the use of the product was explained to the opposite party they informed that the tarpaulin sheets are having high quality and believing the same it was purchased.  Contrary to the guarantee given by the opposite party when the tarpaulin sheets were tied with the vehicle using rope the sheets got damaged and water came and the cement bags became useless.  Complainant sustained a loss of Rs.1,50,000/-.  Though the matter was informed to the opposite party there was no response.  Complainant sustained the loss due to the deficiency of service and unfair trade practice and hence complaint is filed to exchange the tarpaulin sheets and claiming an amount of Rs.1,50,000/- being the price of cement bags lost due to water logging.

2.     Opposite parties filed a version mainly contenting as follows:-

        Opposite party has not sold any tarpaulins to T.K Rafeek at any point of time and hence he is not a consumer of this opposite party.  Hence he has no locus standi to file this complaint.  Opposite party sold two tarpaulins to M/s Makketh traders Punnapra on 29.02.2020.  This opposite party is only a dealer of the said tarpaulins and it was manufactured by M/s SRF Ltd Thiruvallur Dist., Tamil Nadu.  Since the manufacturer is not made a party the complaint is bad for non-joinder of necessary parties. 

3.     From the complaint it is revealed that the purchase was for business purpose and hence the transaction comes under commercial purpose.  So the complainant will not come under the definition of consumer under Sec.2 (7) of the Consumer Protection Act 2019.  Hence the complaint is only to be dismissed inlimine.

4.     The tarpaulins were purchased for using in trucks having metal bodies.  Rough usages are the only cause of puncture holes and damages as seen in the picture.  No person from M/s Makketh traders have visited the opposite party at any time.  The purchase was through phone calls and the products were delivered by courier.   No prudent man will cover cement bags with damaged or so called decayed tarpaulins as alleged.   Damage can occur only due to rough handling or such holes are purposefully made by somebody.

5.     The averments that cement worth Rs.1,50,000/- got damaged due to rain water leakage through the holes in the tarpaulin are only false and cooked up.  On receiving the complaint opposite party made enquiries about the business of M/s Makketh traders and it was revealed that they are dealers and suppliers of building materials such as steel rodes, rubble, cement, stone, metal, M.sand etc.  The punctured holes as seen can be cause by steel rodes, rubbles or metals.  The said fact was purposefully suppressed to extract illegal gain from this opposite party.  Complainant has not suffered any loss.  There was no deficiency of service or unfair trade practice from the part of the opposite party and hence the complaint may be dismissed with cost.    

6.     On the above pleadings following points were raised for consideration :-

1. Whether the complainant will come under the definition consumer as per Sec.2 (7) of the Consumer Protection Act,2019?
2. Whether there is deficiency of service on the part of the opposite party as alleged?
3. Whether the complainant is entitled to get an order to get the product exchanged as alleged?
4. Whether the complainant is entitled to realize an amount of Rs.1,50,000/- being the price of the cement bags damaged due to rain water leakage?
5. Reliefs and costs?

7.     Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A3 from the side of the complainant.  Opposite parties have not adduced any evidence either oral or documentary.

8.     Point No.1

        In the version it is contented that since the complainant purchased tarpaulins for business purposes it is a commercial transaction and he will not come under 2 (7) of the Consumer Protection Act, 2019.  Section 2 (7) of the Consumer Protection Act reads as follows:-

        “Consumer” means any person who-

1. 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.

1. the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.

In this case the complaint starts saying that complainant is conducting M/s Mukkath traders for cement wholesale supply.He is using Bharath Benz trailers for spot delivery of the cement at site.The same averment is repeated in the affidavit also.During cross examination PW1 admitted that he purchased the tarpaulins for business purpose.So the compliant, chief affidavitand the cross examination of PW1 shows that complainant is doing business and the purpose of purchase was business purpose.In such circumstances as rightly pointed out in the version the purchase was for commercial purpose and the complainant will not come under the definition of consumer.This point is found against the complainant.

9.     Point No.2 to 4

The case advanced by PW1 is that he purchased two tarpaulins as per Ext.A1 bill dated 29.02.2020 for Rs.30,780/-.It was used for covering trucks which is loaded with cement bags.The tarpaulins got damaged during use and certain holes were developed in it.Through the holes there was rain water leakage which resulted the damage of cement bags.According to PW1, he lost Rs.1.5 lakhs due to the damage.Hence he has filed the complaint for exchanging the tarpaulins and claiming Rs.1,50,000/- as compensation for the damage sustained to him.During cross examination PW1 admitted that he is conducting business in the name and style in Makkah traders.He has no firm by name M/s Makkath traders.However in the complaint as well as in the chief affidavit the name is mentioned as Makkath traders.Ext.A1 bill is also issued to Makkath traders, Punnapra.So PW1 himself disowned the name of the firm shown in the complaint, chief affidavit as well as in Ext.A1 bill.If that is so as rightly pointed out by the learned counsel appearing for the opposite party PW1 has no authority to represent M/s Makkath traders and file the complaint.

Admittedly opposite party is only a dealer and it is manufactured by M/s SRF Ltd. Gummudypoondi, Thiruvallur Dist., Tamil Nadu.The said manufacturer is not made a party in the complaint.Since PW1 is alleging manufacturing defect manufacturer is a necessary party.In the complaint as well as chief affidavit it is stated that cement bags are stored in the lorry.However in cross examination PW1 stated that, that is not correct.The allegation of Pw1 is that when tarpaulin was tied using ropes it got damaged.Ext.A2 and A3 are the photographs to prove the damage.However except the interested testimony of PW1coupled with Ext.A2 and A3 no reliable evidence is available to prove the damage.Though PW1 has gotserious allegation that cement bags worth Rs.1.5 lakhs got damaged due to leakage of water no evidence is adduced to prove the same except the solitary interested testimony of PW1. In such circumstances assessing the evidence as a whole we are of the view that the complaint is not maintainable since the purchase was for commercial purpose and on merits also, the complaint is not maintainable.These points are found against the complainant.

10.   Point No.5

In the result complaint is dismissed.Parties are directed to bear their respective cost.

Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 25^th day of September, 2021.

Sd/-Sri.S.Santhosh Kumar (President)

Sd/-Smt.P.R Sholy (Member)

Appendix:-

Evidence of the complainant:-

PW1                    -        Sri.TK Rafeek (Witness)

Ext.A1                -        Bill dtd.29.02.2020

Ext.A2                -        Copy of photograph

Ext.A3                -        Copy of photograph

Evidence of the opposite parties:- Nil

// True Copy //

To

          Complainant/Oppo. party/S.F.

                                                                                         By Order

                                                                                    Senior Superintendent

Typed by:- Sa/-

Compared by:-