STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.
Present: HON’BLE THIRU. JUSTICE. R. SUBBIAH , PRESIDENT
TMT. S.M. LATHA MAHESWARI, MEMBER
F.A.No.235/2018
(Against the order passed in C.C.No.21/2015, dated 24.09.2018 on the file of the District Commission, Thiruvallur)
THURSDAY, THE 02nd DAY OF SEPTEMBER 2021.
1. Tamilnadu Dairy Foods,
No.73/75, Bangala Road, Madras Trunk Road,
Kannoor Village, Samayapuram,
Tiruchi – 621 112.
2. Tasmilnadu Dairy Foods,
No.7, Ambathur Estate,
Chennai – 58. Appellants/Opposite Parties 1 & 2
Vs
1. Kalpana,
Prop. Janani Ice Crèam Land,
No.62/D, Poonamallee High Road,
Manavala Nagar,
Thiruvallur Taluk & District. 1st Respondent/Complainant
2. Mr. Rajendran,
Marketing Manager,
Tamilnadu Dairy Foods,
No.7, Ambathur Estate,
Chennai – 58. 2nd Respondent/3rd opposite party
Counsel for the Appellants/Oppositre parties 1 & 2 : M/s. V. Shankar, Advocate.
Counsel for the Respondent-1/Complainant : Served & Called absent.
Counsel for the Respondent-2/3rd opposite party : Served & Called absent.
Amicus Curiae for Respondent-1/complainant : M/s. V. Balaji, Advocate.
This appeal coming before us for final hearing on 19.08.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-
ORDER
HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.
1. This appeal has been filed by the appellants/opposite parties 1 & 2 under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the Learned District Commission, Thiruvallur made in C.C.No.21/2015, dated 24.09.2018, allowing the complaint in part.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redressal Commission, Thiruvallur.
3. The factual matrix giving rise to the present appeal is as follows; - The 3rd opposite party, an agent of the opposite parties 1 & 2 Dairy Foods, requested the complainant to take up dealership of the 1st opposite party Dairy Foods to run a freezer and sell the Ice Cream. Accordingly, the complainant entered into a dealership agreement with the 1st opposite party and paid a sum of Rs.30,000/- as advance. As per the terms and conditions of the agreement, the 2nd opposite party supplied Udelict Defreeze 500 Ltr. 1 No. 6 x 3 main board and side board along with the receipt for Rs.10,000/- M.R.P. being the deposit for the Ice Cream stock. The 2nd opposite party agreed to bear the freezer tariff charge as per condition. As per the terms and conditions of the agreement, freezer must save energy. The Freezer runs nearly 13 units daily. But, the freezer supplied to the complainant was not saving energy and the same was also informed to the 2nd opposite party by the complainant. Hence, the 2nd opposite party agreed to pay the difference of tariff. Thereafter, on the advice of the opposite parties 2 & 3, the complainant was running the freezer and selling the ice cream. One of the conditions of the agreement is that the complainant should not keep any other Food items inside the freezer other than the Ice Cream supplied by the opposite parties 1 & 2. While so, one day, the complainant handed over the key to the 3rd opposite party who is the collecting agent of the opposite parties 1 & 2 and went away to her native place. Nearly, after 3 days the complainant’s neighbour informed her that the 3rd opposite party was removing all the items kept in the freezer and taking them away to their office. Immediately, the complainant came from her native place and found that the 3rd opposite party had removed all the items kept in the Freezer in her absence and got very much perturbed. The complainant contacted the 3rd opposite party on 14.11.2013 at about 9.40 p.m but he did not give any proper response. The complainant had also developed chest pain and was admitted in Sri Ramachandra Hospital on 18.11.2013 where she was taking treatment till 25.11.2013. She had spent a sum of Rs.30,000/- towards treatment charges. The complainant had incurred heavy loss in business as the opposite parties highhandedly removed all the items from the freezer. Therefore, she issued a legal notice to the opposite parties 1 & 2 on 13.01.2014 and the same was received by the 2nd opposite party. But, the opposite parties did not comply with the said notice. On the other hand, only a reply dated 22.01.2014 was sent by the 2nd opposite party. The activities of the opposite parties in removing all the stocks from the shop in a highhanded manner would amount to violation of terms and conditions of the agreement. Hence, the complainant filed a consumer complaint alleging deficiency in service against the opposite parties before the District Commission for direction to pay the complainant a sum of Rs.2,00,000/- as compensation for loss in business and another sum of Rs.2,00,000/- as compensation for deficiency in service and Rs.10,000/- as costs with interest at the rate of 18% per annum.
4. Resisting the complaint, the opposite parties 1 & 2 have filed their written version independently wherein they have contended inter alia that the complainant paid a sum of Rs.30,000/- vide Indian Overseas Baank demand Draft bearing No.698163, dated 08.04.2013 towards dealership and freezer deposit and therefore the dealership agreement was entered into with the complainant. Accordingly, she was appointed as a dealer and given a freezer to sell the Ice Cream supplied by the opposite parties 1 & 2. The 2nd opposite party supplied a Udelict 500 ltr freezer along with advertisement board and other materials and ice cream worth Rs.10,000/- in all amounting to Rs.50,000/- on concessional rate of dealership. The 2nd opposite party never sold the freezer to the complainant. As per the agreement, the complainant has to sell only the products of the 2nd opposite party. The complainant violated the terms and conditions of the agreement and misused the freezer to her own whims and fancies. The complainant was using the 2nd opposite party’s freezer for a different business purposes and making profit out of it and thereby caused great loss to the 2nd opposite party’s company. The complainant is a trader and not a consumer and hence the complaint is not maintainable before the Consumer Commission and is liable to be dismissed in limine.
5. Before the District Commission, on the side of the complainant proof affidavit was filed and Exhibits A1 to A3 were marked. On the side of the opposite parties 1 & 2, proof affidavit was filed and Exhibits B1 and B2 were marked. The 3rd opposite party was called absent and set ex-parte before the District Commission.
6. After analysing the evidence available on record, the learned District Commission allowed the complaint in part holding that there was deficiency in service on the part of the opposite parties 1 to 3 and directed them jointly and severally to refund a sum of Rs.30,000/- to the complainant and also to pay a sum of Rs.10,000/- towards compensation for mental agony with cost of Rs.5000/- totalling Rs.45,000/- to the complainant, with default interest at the rate of 9% per annum till the date of payment. Aggrieved over the same, the opposite parties 1 & 2 have preferred this appeal praying for setting aside the same and for dismissal of the complaint.
7. Heard both sides and perused the materials available on record. Since we have discussed the facts in detail above, we refrain from reiterating the same any further in this appeal and only the facts which are germane are discussed hereunder.
8. On considering the submissions made by both sides and on perusing the materials on record, we find that the entire case revolves on the agreement entered into between the parties. It is the case of the complainant that when she was not in the station, the 3rd opposite party highhandedly removed all the items kept inside the freezer and had taken it away to the office of the 2nd opposite party. But, this averment was denied by the 2nd opposite party stating that the 3rd opposite party is only their collecting agent and not their employee working under them. As per the agreement, the complainant ought not to have stocked any other items except the Ice Cream supplied by the opposite parties inside the Ice Cream Freezer delivered by them. Since the complainant was misusing the freezer, she was asked to remove the same and accordingly the complainant removed all the other items kept inside the freezer and handed over the same to the 3rd opposite party. Therefore, absolutely, the act of the 3rd opposite party is only in accordance with the terms and conditions of the agreement, but, on going through the pleadings, we find that in para 5 of the complaint, the complainant has averred that when she was out of station she was informed by her neighbour stating that the 3rd opposite party was removing all the goods and also had taken away the freezer to their office. Therefore, the highhanded activities of the 3rd opposite party would amount to deficiency in service. But, if the version of the complainant is correct, she would have given a police complaint. But no police complaint was lodged in this case. From the reading of the complaint, we can easily infer that since the complainant was not properly using the freezer supplied by the opposite parties 1 & 2, she was asked to remove the other items stocked in the Freezer. Only in order to get unlawful enrichment, the complaint was filed by the complainant. Absolutely, there is no deficiency in service on the part of the opposite parties. However, we find that a sum of Rs.30,000/- deposited by the complainant is still with the 2nd opposite party towards the supply of Udelict defreeze 500 Ltr 1 No. 6 X 3 main board and side board. Since the dealership was cancelled, they are liable to return the deposit amount to the complainant on the Principle of Equity irrespective of terms and conditions of the agreement. Therefore, based on the above discussions, we come to the conclusion that the order of the District Commission directing the opposite parties 1 to 3 jointly and severally to refund the deposit amount of Rs.30,000/- to the complainant with default interest at the rate of 9% per annum thereon is sustainable under law and other directions given by the District Commission is not sustainable and is liable to be set aside.
9. In the result, the appeal is allowed in part by modifying the order of the District Commission as follows;
a) The direction given by the District Commission to the opposite parties 1 to 3 jointly and severally to refund the deposit amount of Rs.30,000/- to the complainant with default interest at the rate of 9% per annum thereon is confirmed.
b) In other respects, the directions of the District Commission are set aside.
Considering the facts and circumstances of the case, there shall be no order as to costs in this appeal.
S.M. LATHA MAHESWARI, R. SUBBIAH,
MEMBER. PRESIDENT.
Index: Yes/No
