HYDERABAD.

F.A.No.561/2005 in C.D.No.837 of 1998, District Forum, Karimnagar.

Between:

1. The General Manager,

     Venkateswara Hatcheries Ltd.,

     Hyderguda, Hyderabad.

2. Mr.Ravinder,

    Area Sales Representative,

    Venkateswara Hatcheries Ltd.,

    Near Ashoka Hotel,

    Karimnagar District.                                                                                 ..Appellants/

                                                                                                                          Opp.parties.

            And

Konda Sankaraiah, S/o.Mallaiah

Prop:Poultry Farm at Vilichavaram Village,

R/o.Vilichavaram Village,

Manthani Mandal, Karimnagar District.                                          Respondent/

                                                                                                                        Complainant.

Counsel for the Appellants               : M/s.G. Vidya Sagar

Counsel for the Respondents:         : Respondent served.

QUORUM:THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

SMT.M.SHREESHA, MEMBER.

            AND

                                                            SRI G.BHOOPATHY REDDY, MEMBER.

WEDNESDAY, THE ELEVENTH  DAY OF MARCH,

TWO THOUSAND EIGHT

ORAL ORDER: (Per Hon’ble Justice Sri D.Appa Rao, President.)

***

1.         None appears for respondent despite service of notice.

2.         This is an appeal preferred by the opposite parties, against the order dated 30-6-2004 of the District Forum, Karimnagar directing the appellants to supply 700 chicks as per order dated 17-6-1998 and also to pay interest at 12% p.a. on Rs.10,255/- from the date of notice Ex.A1 till realization and Rs.500/- towards costs.

3.         The case of the complainant in brief is that he placed an order with the opposite parties on 17-6-1998 for supply of 700 chicks and paid Rs.10,255/- evidenced under receipt.  However, inspite of several reminders, they did not supply the chicks.  On that he issued a notice for which a reply was given, therefore, he claimed the amount towards the value of the chicks. 

4.         Opposite parties resisted the case and contended that the complainant was engaged in commercial transaction and does not come within the definition of ‘Consumer’ under Section 2(1)(d) of the Act.  In fact in May, 1997 the complainant was supplied 12036 chicks and in June, 1997 again same number of chicks were supplied to him.  An amount of Rs.11,785.25 ps. was due to it. The amount of Rs.10,255/- paid to the company was appropriated.  There was still due a sum of Rs.1,530.25.  They denied that the complainant placed an order by paying Rs.10,255/-  towards supply of 700 chicks.  They admitted that temporary receipt No.4980 dated 17-6-1998 issued, was valid for 15 days.  Since there was an outstanding  amount of Rs.11,785.25  payable by the complainant, Rs.10,255/- was adjusted towards the said outstanding due and, therefore, there is no need of payment of any amount and prayed for its dismissal.

 5.        The complainant filed his affidavit and got marked Exs.A1 to A3 i.e. notice, reply and the receipt.  Opposite parties have filed its affidavit and also Exs.B1 to B10 i.e. receipts as well as subsidiary ledger.

 6.        The District Forum after considering the evidence on record opined that the complainant was entitled for supply of 700 chicks as per order dated 17-6-1998, however, held that there was no proof that an amount of Rs.11,785.25 was due, and that Rs.10,255/- paid could be adjusted towards the said amount.  Therefore, it directed the opposite parties to supply 700 chicks as per order dated 17-6-1998 and pay interest at 12% p.a. on Rs.10,255/- from the date of notice till realization besides costs of Rs.500/-.

7.         Aggrieved by the said order, opposite parties preferred this appeal contending that the District Forum did not appreciate that it was a purely commercial transaction and does not attract the definition of 2(1)(d) of the Act.  It also failed to appreciate that an amount of Rs.11,782.25 was outstanding  and therefore Rs.10,255/- was adjusted towards the arrears and therefore, they need not pay any amount.

8.         The respondent/complainant did not choose to appear or engage an advocate in this appeal. 

9.         It is an undisputed fact that the respondent was purchasing chicks from the appellants, Venkateswara Hatcheries, which supplies chicks to the consumers.  It is not in dispute that the respondent was purchasing chicks under various invoices and was paying the amount.  In fact it is the contention of the appellants that they had supplied chicks in May, 1997, June, 1997, August, 1997 under various invoices filed by them.  They also admitted that the respondent had made payment of Rs.10,255/- duly acknowledged under receipt dated 17-6-1998 and another payment of Rs.7,476.16 covered under receipt dated 17-10-1997. From this it is clear that the respondent was purchasing chicks, selling the same, earning his livelihood.  It is not the case of the appellants that the respondent was pursuing any other avocation. Periodically the respondent was purchasing chicks from the appellants company for selling them and making profit out of them.  May be the respondent did not allege specifically that he was earning only livelihood from it and maintaining his family members.  The fact remains that he was solely depended on his livelihood by selling the chicks after purchasing them from the appellants. 

10.       In fact, the Supreme Court in (1997) 1 Supreme Court Cases 131 had categorically observed that

`the goods used for ‘commercial purpose’ within the meaning of exception

clause (d)(i) or ‘exclusively for the purpose of earnhing his livelihood, by means

of self employment’ within the meaning of the explanation”.

When the respondent has purchased the chicks, selling them to villagers and making small profits, it cannot be said that it was a ‘commercial transaction’.  It would come undoubtedly within the meaning of self employment. He was indulging in small transactions with the appellants for making livelihood out of this business.  The question of pleading to that effect would not arise.  Not mentioning in the pleading, would not debar from considering the reality of the issue.  Non mention of word, ‘self employment’ in the complaint does not change original nature of avocation undertaken by him. It is undoubtedly self employment by which, he was eking out his livelihood.  Strict rules of pleadings and technical questions that could be raised in civil courts, have no place in the proceedings before Consumer Fora.

11.       It is not in dispute that he placed an order on 17-6-1998 and paid Rs.10,255/-.  It is not the case of the appellants that it had supplied 700 chicks for which the amount was paid.  It is their contention that an amount of Rs.11,785.25 was due and therefore, it had adjusted the said amount towards this amount. At no time, the appellants had issued any notice to the respondent, stating that there was outstanding amount and therefore, they need not supply any chicks.  Having received the amount specifically for supply of 700 chicks, it ought to have supplied the chicks.  If really, the respondent was in arrears, the appellants ought to have issued a notice stating that the said amount was due and therefore they were entitled to adjust the same from out of the amount sent towards 700 chicks  only when the respondent had come up with a notice then only by way of reply, it has stated so.  We do not see how the appellants could appropriate the amount when specifically the same was sent for supply of 700 chicks and thereafter allege that the respondent was due an amount of Rs.11,785.25.  This fact was not proved.  Therefore, we see no error in the reasoning adopted by the District Forum while awarding the amount.  There is no flaw of appreciation of evidence in this regard.  We agree with the opinion of the District Forum in this regard.  We do not see any merits in this appeal and it is accordingly dismissed, however no order as to costs.  Time for compliance four weeks.

PRESIDENT.  LADY MEMBER.    MALE MEMBER. 

JM                                                                                           Dated 11-03-2008.