Haryana

Kurukshetra

188/2017

Tilak Raj - Complainant(s)

Versus

HDC Copreative - Opp.Party(s)

K.S.Rana

06 Sep 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KURUKSHETRA.

                                                     Complaint Case No.188 of 2017.

                                                     Date of institution: 12.09.2017.

                                                     Date of decision: 06.09.2019.

 

Tilak Raj aged about 52 years son of Sh. Budh Raj, resident of House No.2071, Sector-3, Urban Estate, Kurukshetra.

…Complainant.

                        Versus

1. The Managing Director HDC, Cooperative Federation Sector-2, Panchkula. 
2. The General Manager Marketing Haryana Dairy Development Cooperative Federation Limited (HDBCF) VITA Bhawan, Bay No.21-22, Sector-2, Panchkula.
3. M/s Kurukshetra & Karnal Cooperative Milk producers’ Limited Karnal at Kurukshetra through its Chief Executive Officer, Milk Union KKR-KNL.
4. M/s Chetan Dairy, Shop No.28, (VITA) Sector-5, Kurukshetra, through its Distributor.

….Opposite parties.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh. Sunil Mohan Trikha, Member.

       

Present:     Sh. K.S.Rana, Advocate for complainant.   

                Sh. Sandeep Madhan, Advocate for opposite parties No.1 to 3.

                Sh. Pankaj Kalra, Advocate for opposite party No.4

               

ORDER

                This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Tilak Raj against the Managing Director, HDC, Cooperative Federation Sector-2, Panchkula and others, the opposite parties.

2.            It is stated in the complaint that complainant is running a VITA milk booth on the road side of Sector-3 market in Kurukshetra as per term and conditions contained in letter No.MUK/11/2223 dated 8.7.2011. That this booth was allotted to the complainant at the rate of Rs.1500/- per month as site charges and Rs.1000/- per month as booth rent. It is further averred that the milk and milk products are supplied by op no.4 on the complainant’s booth ever since the inception of the booth i.e. w.e.f. 8.7.2011 but as per information obtained through RTI Act, the milk products have been supplied to the complainant by ops at a very low commission as shown below, than the commission fixed by the Union up to 1^st July, 2017:-

Sr. No.	Name of product	Quantity	Rate of commission fixed by Union	Rate of commission given by op no.4.
i)	One packet of milk	1 liter	Rs.2/-	Rs.1/-
ii)	Milk	12 liter	One extra packet	Nil
iii)	Milk	1 crate	Rs.50/-	Rs.12/-
iv)	Curd	1 packet of curd	Rs.4.50/-	Rs.3/-
v)	Cheese	1Kg	Rs.28/-	Rs.20/-

 

                It is further averred that in this way, the complainant has borne loss to the tune of Rs.7080/- per month up to 1.7.2017 on account of less commission given by the ops during the course of last six years i.e. from 8.7.2011 to 1.7.2017 meaning thereby that the ops have given loss to the complainant to the tune of Rs.5,09,760/- during the last six years. It is further averred that besides above, the ops are selling the milk and milk products in open market directly by passing the complainant’s booth illegally, fraudulently with malafide intention. The complainant who is an authorized dealer of VITA products is being supplied less quantity of milk products than the ones receiving directly from the ops in open market giving loss of thousands of rupees to the complainant every month. This is all because of hobnobbing of ops and shop keepers of Sector-3 market whereas the complainant is selling the VITA products legally and earning his livelihood honestly and sincerely. It is further averred that not only above but also the ops are taking Rs.1000/- per month from the complainant on account of wear and tear of booth but no such maintenance is carried out and as a result in rainy season water generally enters in the booth installed in the low-lying area of roadside in kacha portion and resultantly many items of products kept in booth are destroyed during the season and the complainant has to bear the unnecessarily loss every year. It is further averred that besides above, as per list of details of booths rent received through RTI Act, in Sector-5, two booths have been shown to be installed in all but their monthly rent is shown as Rs.1500/- of one booth and Rs.2500/- of another booth, whereas the rent of booth of complainant installed in Sector is being charged as Rs.2500/- per month which is quite discriminatory. The complainant had preferred a written complaint at C.M. Window in Kurukshetra on 21.8.2017 but of no avail and the complainant has faced unnecessary harassment and mental agony at the hands of ops for such a long duration of six years. It is further averred that the entire act of the ops amounts to not only deficiency in service but also an act of unfair trade practice redressable under the provisions of Consumer Protection Act as the livelihood of the complainant and his family members entirely depends upon the commission/ sale of the milk products. Hence, this complaint.

3.             Upon notice, opposite parties appeared. Ops no.1 to 3 filed reply raising certain preliminary objections that the complaint is not maintainable in the present form because the complainant does not fall within the definition of a consumer as there is contractual agreement between the complainant and the answering ops and contractual liability is not covered under the Consumer Protection Act. Even otherwise, as per clause no.29 of the agreement, it is a commercial agreement and not one of employment. The complainant is doing commercial business for making profit and thus is not a consumer. The complainant is not getting the milk and its products for his own personal use rather getting the same for the resale/ commercial purpose. Even otherwise, there is a an arbitration clause in the said agreement. Other preliminary objections regarding cause of action, jurisdiction, locus standi, non joinder and mis joinder of necessary parties, limitation and suppression of true and material facts are also taken. It is submitted that true facts are that op no.3 and complainant executed a commercial agreement dated 30.8.2012 for supplying the milk and milk products from his VITA booth and the same were supplied to the complainant by the distributor of the area on cash payment as per price structure applicable from time to time. The distributor of the area is op no.4. In fact, the complainant has not cleared the dues of the answering ops and even he did not clear the dues of op no.4. When the dues were demanded from him, he has filed the present false and frivolous complaint on the basis of misrepresentation and concealment of facts without any basis. In fact, the complainant had to make the cash payment of milk and its products to the distributor itself and the margin is to be paid by the distributor. The answering ops only get the rent as per clause no.2 of the agreement. Thus, the answering ops are not responsible for any liability. It is further submitted that it is specifically mentioned in the clause no.2 of the agreement that rent of booth structure shall be Rs.2500/- (Rs.1500+Rs.1000) per month and milk union can increase and decrease the same. It is further submitted that no information under RTI was ever demanded by the complainant regarding this particular booth in question nor the same was ever supplied to him. The rates as mentioned above are the recently increased prices but these rates do not pertain to the alleged period. The answering ops are not responsible for any such payment/ commission. Moreover, the complainant cannot raise any claim for six years as it is barred by limitation. It is further submitted that there is no bar in the contractual agreement for any such supply by the ops. Even otherwise, the ops are supplying the milk products to the distributors and it is the distributor who is supplying the milk and milk products to the complainant and other persons and not the answering ops. It is further submitted that even as per the agreement, the structure of booth is the property of the answering ops and the operation of the booth is allowed to the complainant. The booth is being maintained as per requirement. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.

4.             Opposite party no.4 in its separate written statement took preliminary objections that complaint is not maintainable at all before this Forum, as there is no relationship of consumer and service provider in between the complainant and the ops, as envisaged under the Consumer Protection Act. From the averments made in the complaint by the complainant himself, it is clear that there is contract-agreement in between the complainant and op no.3 and under the terms and conditions of the contract-agreement, the complainant has been running Vita milk booth at Sector-3, Kurukshetra for commercial purpose for further supply of the products in the open market. The parties are governed by the terms and conditions of the contract-agreement and therefore, there is no relationship of consumer and service provider. It is further submitted that complainant himself is the dealer/ retailer/ seller of the vita milk and other products having been supplied to him by the ops. The products are supplied to the complainant for re-sale in open market and to the shop keepers and not for his own use and therefore, the complainant does not fall in the definition of “Consumer” as enshrined in Consumer Protection Act, hence the complaint is liable to be dismissed. It is further submitted that claim raised by the complainant in his complaint involves disputed and complicated questions which require comprehensive and detailed evidence and the complainant has claimed the specific sum of amount and complainant has invoked the jurisdiction of this Forum only to escape from paying the court fee and has abused the process of law. It is further submitted that present complaint is barred by limitation. Under the Consumer Protection Act, the limitation period is two years, whereas, the claim of complainant relates since 8.7.2011 i.e. for about last six years and thus, the complaint is liable to be dismissed being time barred. On merits, it is submitted that the products are supplied to the complainant as per his demand and the commission is also paid to the complainant as per the rates fixed by op no.3 from time to time. It is specifically denied that complainant has been paid the commission on lower side. The complainant has not given the proper description of the products in the table given. It is further submitted that complaint is also vague and ambiguous and complainant has given arbitrary and fictitious figure of alleged loss in the complaint, without mentioning the details of the products supplied to him and without specifying as to on which product the commission has been paid less to him and on which date, month and year, the commission has been paid less to him. Furthermore, the commission varies on each and every quantity of product as per the schedule rates fixed from time to time and the complainant has been paid proper commission as fixed from time to time. On the other hand, the complainant defaulted in making the payment of the products supplied to him from time to time and kept withholding the payment without any reason or cause despite condition in the contract-agreement that he will pay the price of the products in cash. A substantial amount was due against him payable to op no.4 and in order to grab the said amount, the complainant filed the present complaint and only after issue of legal notice to the complainant, he made the payment subsequent to the filing of the complaint. Remaining contents of the complaint are also denied and prayer for dismissal of complaint made.

5.             Learned counsel for complainant tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C5 and documents mark C1 to mark C29. On the other hand, learned counsel for op no.4 tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R12. Ops no.1 to 3 tendered affidavit Ex.RW2/A and document Ex.RW2/B.            

6.             We have heard learned counsel for the parties and have perused the case file carefully.

7.             The counsel of complainant argued as mentioned in his complaint. He has relied upon judgments reported as M/s Cheema Engineering Services Vs. Rajan Singh decided on 01.11.1996 (Supreme Court of India), Luxmi Engineering Works Vs. P.S.G. Industrial Institute decided on 04.04.1995 (Supreme Court of India) and Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited and others decided on 23.04.2013 (Supreme Court of India).

8.             Learned counsel for opposite parties No.1 to 3 argued that the complainant is not a consumer within the meaning of Consumer Protection Act, 1986 and he again argued that there is a contract between complainant and opposite parties No.1 to 3. The copy of agreement i.e R-19, in which all the terms and conditions are written, according to this agreement the complainant have to pay Rs.2500/- (1500/-+1000/-) per month to the opposite parties No.1 to 3.  The counsel for the opposite parties No.1 to 3 again argued that the complainant has not pay rent as per conditions mentioned in Ex.R-19 on account of non-payment of rent opposite parties No.1 to 3 have given notice to the complainant to deposit the rent as per agreement i.e Ex.R-19. Complainant instead of giving the rent to the opposite parties No.1 to 3 has filed this complaint with bad intention. The counsel for the opposite parties No.1 to 3 again argued that the complainant has demanded in this case six years excess commission and rent amount from the opposite parties. So, this is barred by limitation of two years which is provided in Consumer Protection Act, 1986. He is not a consumer within the meaning of Consumer Protection Act, 1986. The counsel of the opposite parties No. 1 to 3 argued that the complainant has taken one RTI i.e Mark C-3 on dated 01.08.2017 and Mark C-4 in RTI which show the rate of vita products and commission only on the year 2017 and Mark C-4 shows the different rent and different booths in Kurukshetra. The agreement between the complainant and opposite parties i.e Ex.R-4. Ex.R-4 which shows that the rent of vita booth amount to Rs.2500/- (1500/-+1000/-) per month and counsel for opposite parties No.1 to 3 has again argued that they have no taken more rent from the complainant. The counsel of the opposite parties No.1 to 3 again argued that the commission of products is changed time to time i.e Ex.R-1.  Ex.R-1 to Ex.R-17 clearly shows that in different year’s commissions and rates of vita products. The counsel of opposite party No.4 argued that the complainant had not paid the cost of milk product which is supplied by us. After non-payment of price of vita products his client sent a legal notice to the complainant for payment of money i.e Ex.R-21 but the complainant, instead of paying the price of milk products which was supplied by opposite party No.4, has filed this complaint with bad intention.

9.             We have considered the rival contentions of both the parties and have also gone through the file.

 10.           On perusal of this file the complainant have failed to prove his case by leading cogent and reliable evidence and has also failed to prove any deficiency in service and unfair trade practice on the part of opposite parties. Mark C-3 shows that the rate of commission given by Opposite party to the booth holders of vita. Mark C-4 shows the different rent rate of booth in Kurukshetra in 2017. Ex.C-19 shows that there is an agreement between the both parties regarding rent of booth. Ex.R-1 to Ex.R-17 clearly shows that the commission which was given by the opposite party to the booth holders of vita in different year. These documents clearly show that the commissions of booth holders of vita are changes year by year. This clearly shows that there is no deficiency in services of Ops. The rent rate taken by the opposite parties No.1 to 3 is according to the agreement which is Ex.C-19. Ex.21 and Mark-Z shows that the complainant had to paid amount of rent and amount of milk product to the opposite party when the opposite party demands these amounts from complainant, the complainant filed this case was bad intention. The complainant has demanded in this case six years excess commission and rent amount which was barred by limitation of two years which is provided in Consumer Protection Act 1986.

11.            In view of our above discussion, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.      

Announced in open court:                                                  Dt.:06.09.2019.    

                                                                                                                                               (Neelam Kashyap)                                                                    

                                                                                                                                                       President.

                                  (Sunil Mohan Trikha),           (Neelam)                        

                                        Member                             Member.