By: Sri. Mohandasan  K., President

                The complaint in short is as follows:-

1.         The  complainant is a LLP doing the business of buy , lease plan, develop  construct or sell or other else deal with movable and immovable properties including lands ,buildings ,villas apartments commercial spaces shopping arcades , auditorium and residential house whether developed or not and to provide for maintenances and interior solutions of such project. The present the complainant is carrying out the construction of a commercial building in the site of Leena Hospitality services Pvt Ltd at Kondotty in accordance with the agreement excused between complainant and Leena Hospitality Pvt. Ltd. The agreement contain specific stipulation that construction should be carried out in a time frame and if not done the complainant will be liable to compensate the company. he complainant has got 3 years experience in the construction field .  The opposite party is a concrete ready mix company which supplies the ready full concrete to the needful persons.  The supply of concrete will be according to the terms and conditions agreed between the parties.  The complainant contacted opposite party for supply of ready mix concrete. When the complainant contacted and enquired about the product the opposite party assured the quality, timely supply etc of their product. Thereafter the complainant sent their conditions to be applied while making and serving the concrete ready-mix at its site.  On 04/04/2019 the opposite party agreed to provide ready mix concrete to the complainant’s site at Kondotty with the quality agreed by the parties.  The complainant required 127.96 M3 of ready-mix for the site at Kondotty and as an abundant  caution on 05/04/2019 the complainant has given purchase order  for a quantity of 130M3 of ready-mix along with 9,49,000/- rupees towards full payment . The full amount was paid at the request of the opposite party.

2.         On 06/04/2019 the opposite parties sent seven vehicles with ready-mix with a quantity of 52M3 concrete to the complainant’s site at Kondotty from Perinthalmanna. As agreed between the complainant and opposite party the complainant had made all the arrangements or doing concrete work at the site.  But the ready-mix concrete had been reached  at the site of the complainant  he was compel to reject the four vehicle among  seven vehicles due to the lack of quality and purity required a claim by the opposite party  and agreed between the parties.  Concrete contained in one of the vehicles has been used by the complainant and when the half of the concrete in the other vehicle is used the concrete stucked in the pump.  Thus he complainant could use only 1 ½ load of concrete and four vehicles has rejected with sufficient reason. The first vehicle has been rejected due to addition of water at site which is not permitted as the strength of the concrete will decrease by addition of water and it exceeds the initial setting time of concrete at site by the time of final preparation of pump machine and slump checking.  The third vehicle has been rejected due to initial setting time of concrete which exceeds 3.30 hours. The fourth vehicle rejected for the reason that exceeds the initial setting time. Duration of concrete was 3.40 hours at site. 5^th vehicle was mainly rejected for addition of water at site. In fact the parties agreed to serve 130m3 ready-mix for Rs.9,49,000/- (130x7300) the opposite party brought only 52M3 in seven vehicle to the work spot out of which, only 14.5M3 could be used due to various reasons.   As per the terms of agreement the opposite party is bound to    keep the initial setting time of concrete by 3 hours and not to add water.  Adding of water reduces the strength of concrete.  As a result of the above fact the complainant could not proceed with its concrete and only portion of the concrete of slab was completed on that day.  All these happened only due to the act of the opposite party in keeping purity and quality of the ready-mix concrete.  The complainant contacted the opposite party and asked to supply the remaining quantity immediately to complete the work the opposite party has not done so. Due to the refusal of the opposite party to supply the required quantity of ready-mix to complete the concrete on 08/04/2019 the complainant has suffered extra cost.   For rectification of partial slab the complainant had spent extra money for labour and material. On 10/04/2019 the opposite party sent an email to the complainant stating that the supply of concrete to the site is stop and the deal is canceled and they made a refund of Rs.6,29,400/- .  The act of the opposite party is unilateral and arbitrary.

3.         Thereafter the complainant contacted the opposite party for an amicable settlement the opposite party was not turned up. The complainant contended that they used only 14.5M3 of ready-mix for the amount of Rs.1,05,850/- was used at the site out of the 52M3 sent by the opposite party to the site , the opposite party made refund of Rs.6,29,400/- only to the complainant .  Hence the remaining amount of Rs. 2,13,750/- which the complainant is legally entitled is illegally retained by the opposite party is not legally entitled to do so. The complainant submitted that he has suffered other loss and damage also due to the irresponsible and arbitrary act of the opposite party. The complainant claims an amount of Rs.13,89,456/- including loss and damages. The complainant furnished details of his claim for sum of Rs.13,89,456/- . The damage and loss caused to the complainant due to the low quality and defects of the products supplied by the opposite party and their unwillingness to supply the required and agreed quantity of 130M3 of concrete at site unilateral and arbitrary act of the opposite party. The prayer of the complainant is that direct the opposite party to pay an amount of Rs.8,89,456/- towards the balance amount and also loss and damages. The opposite party may be directed to pay Rs.5,00,000/- to the complainant towards damages for mental strain caused to  the complainant  on account of delay of work and also cost of the proceedings.

4.         On admission of the complaint notice was issued to the opposite party and the opposite part entered appearance and filed version denying the entire averments and allegation s in the complaint. The submission of the opposite party is that the complaint is not maintainable since the complainant is not a consumer as defined under the consumer protection act and so there is not a consumer dispute. The averment in the complaint itself revealed that the complainant is a firm involved in the commercial building constructions and the instant dispute is part of commercial activity. The opposite party sited the provision to (1)(d) of the consumer protection act 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 ; or
2. [ 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 [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 are availed of with  the approval of the first mentioned person [but does not  include a person who avails of such services  for any commercial purpose]

5.         Hence the submission of the opposite party is that the complainant is not a consumer as he is using the concert mix purchased from the opposite party for constructing a commercial building and hence the purpose of the purchase of ready-mix concrete was commercial. The opposite party also contended that the complainant is representing LLP and he is involved in large scale commercial activities that makes the complainant ineligible to approach the consumer Forum which is designated to deal and settle the consumers grievances alone. The product purchased from the opposite party is for commercial purpose and so the complainant is out of the purview of the definition as envisaged under Consumer Protection Act. Hence the submission of the opposite party to consider the issue of maintainability and the complaint be dismissed on that score itself.

6.         The opposite party submitted that they have never committed any unfair trade practice or deficiency in service in the commercial transaction with the complainant. The opposite party denied   the averment in the complaint regarding the terms of agreement between the complainant and Leena Hospitality Pvt. Ltd and that has to be proved through ample, cogent and documentary evidence. The opposite party did not deny the claim of the complainant regarding the experience in the field of construction.  The opposite party submitted that they are doing the business  of supplying ready-mix concrete to the needy people and has got wide and waste experience in that filed for a decay. Many of the building contractors and constructors availed the service of the opposite party and they can figure out a number of happy customers. The opposite party had supplied ready mix concrete to the complainant on earlier occasion also to their construction works. There was no complaint from the side of complainant against the product of complainant and was quite happy in the quality, standard, punctuality and efficacy etc. It is submitted that may be reason why the complainant again opted the opposite party for the supply of ready-mix concrete. Hence the opposite party issued a letter to the sales executive many a times for the collection of outstanding balance amount.

7.         The opposite party submitted that as per the enquiry came through the marketing executive of complainant emailed purchase order for 130M3 of M40 grade concrete mix and this opposite party agreed to supply the M40 ready-mix at their work site on 06/04/2019 at 5Pm. The rate of one M3 was fixed as Rs.7,300/- and order placed for 130M3.  While placing the purchase order the complainant made certain terms and conditions also in the delivery of the product. But the opposite party sent a reply e-mail stating that one of their condition cannot be accepted. After admitting the stipulations, complainant sent another e-mail confirming the order Rs.9,49,000/- was paid by the first opposite party in advance . There was understanding to supply the concrete ready mix to the site on 06/04/2019  The opposite party therefore made all arrangements to supply 130 M3 concrete ready-mix . The   credit invoices produced by the complainants reveals the date and time when the concrete ready mix is taken for delivery from the concrete batching plant. It is submitted that the opposite party sent 7 vehicles with transit mixture concrete having a total quantity of 52 M3 to the work site of the complainant. The transit mixture was of superior quality and this high quality M 40 grade concrete mix would be used for constructing the main slab of the multi storied building.  The content of the cement in M40 grade will be high and hence it should be used for concreting in a time bound manner, otherwise it may be set in the rotating mixing drum on in the iron pipes through which it is pumped to the concreting surface.    The site were the proposed construction is going on was adjacent to a bar attached hotel.  The first transit mix concrete vehicle reached at the spot in peak hours of bar a number of vehicles were parked near the work site. It took considerable time to clear the parking slot for parking the transit mixer vehicle. The concrete mix was intended for the main slab of the fourth floor of the building. The iron pipes were fitted to the discharge chute of the first vehicle started pumping the concrete mix.  Since there was delay in discharging the concrete mix, redosing has to be done to regain the slump on concrete.  This is done to achieve high workability of the concrete mix.  In the process of re-dosing and admixture as added to the concrete mix. But when the re-dosing is stared, the employees of the complainant obstructed and not allowed to do it and rejected the concrete mix.  In the meanwhile the other vehicles started from the batching plant also reached at the site one by one got delayed and therefore no fault on the part of the opposite party and complainant rejected 4 loads out of 7 loads.  The reason shown in the complaint is not correct.  The product of the opposite party was of superior quality and purity .  The concrete stuck on the pump was not because of its lack of purity but because of the delay occurred in clearing the site by the complaint himself and thereby  losing it’s slump , for that the opposite party is not liable . The opposite party denied as per the terms they are bound to keep initial setting time of concrete by three hours.  In fact the opposite party sent a reply email on 04/04/2019 indicating that the slump specification asked by the complainant could not be accepted as the slump result may varies according to the humidity as well as distance to the site . The complainant placed the order accepting the facts.  The delay caused to clear the parking site was the sole reason for the issues happened for that opposite party is not liable. The opposite party submitted that they only tried to re-dose the concrete mix to retain its slump. The complainant did not allow the same and that is one of the reason for stucking the concrete mix in the pipes attached to discharge chute. The opposite party submitted that all the things were done by the opposite party to keep purity and quality of the ready mix concrete is not due to the act of the opposite party. If the allegation of the complainant was correct they should not have used even a single load of the ready mix concrete sent from the same batching plant in a uniform grade and mix design. The complainant used a portion of the concrete and which used that the ready-mix concrete was not having any lack of purity or quality. The complainant was acting with an ill will and tried their level best to interfere in every stage. Due to the attitude of the complainant towards the opposite party, the opposite party cancelled the deal and stopped supplying the balance concrete mix to the complainant. The balance amount deducting the GST i.e Rs.6,29,400/- was refunded  to the complainant .The opposite party  immediately refunded the balance amount deducting the price of 52 M3 which is loaded to the work site of the complainant from the batching plant . The opposite party submitted that since there is no fault on the side of opposite party and the opposite party already spent the price for the raw material for the concrete mix of 52 M3 quantity. The opposite party is not liable to refund Rs.2,13,750/- as claimed by the complainant. The opposite party has not done any irresponsible or arbitrary act in the deal with complaint. He submitted that due to the inability to manage the situation the mishandling is caused. The complainant is not entitled any further claim from the opposite party and the claim of compensation by the complainant for Rs..13,89,456/- is without any basis the opposite party  was always  willing and ready to supply the entire quantity as agreed  and it is the attitude of the complainant forced the opposite party to rescind the contract. The opposite party to deny the claim and the entitlement of the complainant for Rs.13,89,456/- on various counts. There is no right for any claim against the opposite party but the opposite party has forced damages on account of the ill will, malfide attitude shown by the complainant towards the opposite party. The opposite party further submitted that they lost a total product loss of 37.5 M3 worth RS.2,73,750/-. But the opposite party submitted that the cost of the product was already had recovered from the complainant and so not claiming the same. In addition that the opposite party  incurred expenses  of Rs.9400/- towards employees overtime charges , Rs.14,000/- towards transit mixture chipping from inside the rotating drum , Rs.59,400/- for concrete pipe line damage an d Rs.12,500/- towards concrete pipe maintenance . The complainant is liable to pay the above said amount to the opposite party on account of the loss sustained to the opposite party due to the irresponsible and malfide act. The opposite party submitted that they are intending to initiate legal proceedings against the complainant   to recover the loss sustained to them. The Opposite party submitted that the entire allegations are baseless, frivolous, vexatious and attract action under section 26 of the consumer protection act.

8.         The complainant and opposite party filed affidavit and documents. The documents on the side of the complainant marked as Ext. A1 to A5. No documents filed on opposite party. Ext. A1 is coy of email regarding cancelation of concrete supply and refunding balance. Ext. A2 is copy of credit invoice dated 06/04/2019. Ext. A3 is LLP agreement. Ext. A4 is copy of e- mail dated 08/04/2019 regarding reason for rejecting concrete vehicle. Ext. A5 is copy of article of agreement.

9.         Heard complainant and opposite party, perused affidavits and documents.      Both side filed notes of argument.

10.       The following points arise for consideration:-

1. Whether the complainant is a consumer as defined under the consumer protection act?
2. Whether there is deficiency in service or unfair trade practice on the part of the opposite party?
3. Relief and cost?

11.       Point No.1

The opposite party contended that the complaint is not maintainable before this commission since the complainant is not a consumer under the Consumer Protection Act. The complainant contended that for considering whether the complainant is a consumer is not the activity engaged by the status of consumer.  It is the goods and its use that the thing to be looked in to. According to the complainants the goods involved in this complaint is the concrete ready-mix which supplied by the opposite party to the complainant and the complainant has not sold the same to anybody. The submission is that the goods obtained from the complainant is not for resale.  The concrete ready mix bought by the complainant is used by the complainant itself. The submission of the opposite party, according to the complainant   the concrete ready-mix used to do concrete a commercial building and so the concrete is used for commercial purpose. There is no definition for the word commercial purpose in the consumer protection act and so the definition has to be in its ordinary meaning.  The dictionary meaning of the work “commercial purpose” is “pertaining to commerce that means” “connected with or engaged in commerce, mercantile, having profit as the main aim“.  “Commerce” means financial transactions especially buying and selling of merchandise on large scale.  Here in the complainant engaged in commercial activity but that does not mean the complainant can never be a consumer. Despite “commercial activity”, whether a person would fall within the definition of “consumer” or not would be a question of fact in every case. Such a question of fact ought to be decided in the fact and circumstances each case . The person or legal entity deemed to be consumer in this sense should make use of the product or service, provided that it constitutes the “end-user” of such products or service. In this complaint according to complainant concrete ready –mix is the product and not the commercial building. Hence he complainant is the end user of the product.  The complainant submit that they ordered for ready–mix concrete from the opposite party and they supplied it an d the complainant itself as used the ready-mix concrete. The complainant is not engaged in buying and selling of ready–mix concrete and so the complaint is maintainable and the complainant is a consumer as per the law. 

12.       The submission of the opposite party is that the complainant is a firm of limited liability partnership doing the business of buy, lease, plan, develop, construct or sell or otherwise deal with movable and immovable properties including lands villas, apartments, commercial spaces, shopping arcades, auditoriums and residential houses whether developed or and to provide for maintenance and interior solutions of such projects.  Ext. A3 the partnership agreement prove that the complainant is a construction firm in involved in large scale commercial construction activities. It is also submitted that Ext. A5 is an agreement executed between the complainant M/s Leena Hospitality services which shows that the complainant is involved in a multi storied hotel building construction. Hence the ready-mix concrete supply was intended for the construction of this hotel so the complainant will not come under the definition of the consumer under the consumer Protection Act 1986.  The opposite party cited  Laxmi Engineering works Vs PSG Industrial Institute AIR 1995 SC 1428.  The opposite party quoted the following lines from the decision.

13.       ’12.Now coming back to the definition of the expression ‘Consumer’ in Section 2(d), a consumer means in so far as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it Is immaterial whether the consideration  is paid or promised, or partly paid or partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not include a person who buys such goods for resale or for any commercial purpose.  The expression “resale” is clear enough.  Controversy has, however, arisen with respect to meaning of the expression “commercial purpose“. It is also not defined in the act. In the absence of a definition, we have to go by its ordinary meaning. “commercial “ denotes “pertaining to commerce” (Chamber’s 20^th  century dictionary ) ; it means “connected with , or engaged in commerce ; mercantile ; having profit as the main aim”  (Collins English dictionary) whereas the word “commerce” means “financial transactions especially buying and selling of merchandise , on a large scale” “(Concise  Oxford  Dictionary ). The National Commission appears to have been taking a consistent view that where a person purchase goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit “ he will not be a “consumer “ within the meaning of Section 2(d) (i) of the Act.  Broadly affirming the said view and more particularly with a view two obviate any confusion the expression “large scale“ is not a very precious expression the Parliament stepped in and added the explanation to Section 2(d) (i) by Ordinance / Amendment Act 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose”- a case of exception to an exception.  Let us elaborate: a person who buys a typewriter or car and uses them for his personal use is certainly a consumer but a person who buys a typewriter a car for typing other,s work for consideration  or for plying the car as a taxi can be said to be using the typewriter / car for a commercial purpose . The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchase and out of the definition of expression “consumer “.  If the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “consumer”. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e, by self employment, for earning his lively hood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purpose of act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the fact of each case.  It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses by them himself”, “exclusively for the purpose of earning his livelihood “ and “ by means of self employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his lively hood.  A few more illustrations would serve to emphasis what we say.  A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. ( In the above illustrations, if such buyer takes the assistances of one two or persons to assist / help him in operating the vehicle or machinery, he does not cease to be consumer. ) As against this a person who purchases an auto-rickshaw , a car or a lathe machine or other machine to be plied or operated exclusively by another person  would not be a consumer.   This is the necessary limitation floating from the expression “used by him”, and “by means of self employment “in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.

14.       It is right to hold that the expression “commercial purpose” to be decided in the facts of each case in this complaint the complainant is a limited liability partner ship. The complainant have no case that the product is or the work is not for the exclusively for the purpose of earning livelihood or there is no case of the work is undertaken by means of self-employment. The complainant engaged in the construction of a commercial building through an agreement Ext.A5. So it can be seen that though the goods involved in the complaint concrete ready-mix purchased by the complainant from the opposite party and used for the purpose of construction of the building belongs to a third party.  So the purchaser of the goods is complainant but not the end user of the product. In the light of the above referred decision it can be seen that the complainant herein do not fault within the   with n the definition  of consumer  as defined  under Consumer Protection Act and the goods purchased by the complainant  appears for the commercial purpose . The fact pertaining to the present complaint reveals that the contention of the opposite party that the complainant is not a consumer and the goods involved in this complaint purchased by the opposite party for and part of commercial purpose.

15.       In the light of above fact and circumstances we find that the complaintn is not a consumer and so the complaint is not maintainable before this Commission and so we are  not considering  the issues 2 and 3 accordingly. The complaint stands dismissed.

Dated this 8^th  day of November  , 2022.

Mohandasan  K., President

PreethiSivaraman C., Member

     Mohamed Ismayil C.V., Member

APPENDIX

Witness examined on the side of the complainant:

Documents marked on the side of the complainant: Ext.A1 to A5

Ext.A1: Coy of email regarding cancelation of concrete supply and refunding balance.

Ext.A2: Copy of credit invoice dated 06/04/2019.

Ext A3: LLP agreement.

Ext A4: Copy of e- mail dated 08/04/2019 regarding reason for rejecting concrete vehicle.

Ext A5: Copy of article of agreement.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Nil

Mohandasan  K., President

PreethiSivaraman C., Member

     Mohamed Ismayil C.V., Member