Complaint filed on: 01-10-2021

                                                      Disposed on: 09-03-2023

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 9^th DAY OF MARCH, 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

CC.No.75/2021

Mr. Pavan Kumar

Represented by Sri.Shivakumar

GPA Holder, Nerelekere,

Gubbi Taluk.

Tumkur District.

……………….Complainant/s

(In Person/GPA Holder)

                                                V/s

1.       M/S Maruthi Enterprises,

          Sampige, Turuvekere Taluk,

          Tumkur District-572225

          Mr.S.R.Praveen

2.       M/S Finolex Pipes Ltd

          Corporate Office,

          D-1/10, MIDC Chinchwad, Pune,

          Maharashtra-411 019.

……………….Opposite Party/s

(OP1 By Sri. B.R.Sathish, Adv.,)

(OP2 By Sri. G.R.Praveen Kumar, Adv.,)

:ORDER:

BY SRI.KUMARA.N., MEMBER

This complaint was filed by the complainant under Section 35 of the Consumer Protection Act, 2019, with a prayer to direct the OPs 1 & 2 to refund the amount which is already paid by the complainant to the OPs and also prays to direct the OPs to pay Rs.5,00,000/- as compensation along with cost and such other reliefs as this Hon’ble Commission deems fit to grant.

2.       The Opposite Parties were, M/S Maruthi Enterprises Sampige, Turuvekere Taluk, Tumkur District. and M/S Finolex Pipes Ltd, Corporate Office, D-1/10, MIDC Chinchwad, Pune, Maharashtra-411 019. (Hereinafter called as OP No 1 and OP No 2 or OPs).

3.       It’s a case of the complaint that the complainant purchased Finolex 2.5 Inch, 4 Gauge PVC Pipes of 200 +150 Qty with cost of 700/EA on 30.05.2021 from the local distributor based on distributor confirmation and installed the said pipes in his cultivable land and after many people feedback, the complainant compared the pipes purchased from the OPs with authorized dealer product, then the complainant came to know that the purchased pipes do not meet the quality ,which noted as, Finolex name not Embossed on collar, No batch number throughout the length of the pipes and Finolex seal also not good, as a result the complainant disappointed as the complainant has lot of trust in OP’s company and therefore requested the OPs several time over phone to send a person to visit for verify the said pipes and to give service, but OPs not replied. The complainant further submitted that, he invested near about Rs 2.5 lakh and Rs 1.50 Lakh towards pipes installation and pipe purchases respectively. 

          The complainant further contended that due to quality issue/duplicate product, the complainant several times tried to contact the OPs over telephone, but the OPs did not reply.  The complainant deprived of the proper and facilitated procurement, he again and again intimated the OPs by way of phone, but the OPs did not solve the issue.  The OPs have miserably failed in providing right and proper services, despite the complainant has paid the full amount to the OPs and this act of OPs leads to deficiency and unfair trade practices, hence, this complaint.    

4.       The case registered, and notice served to OP No 1, on 06-12-2021 Sri BRS advocate filed version and on 10-01-2021, Sri Shivakumar S/o Basavaraj T.C. A/a 61 years, GPA holder of the complainant filed IA along with affidavit, stating that the Sri Shivakumar S/o Basavaraj T.C. A/a 61 years, GPA holder, will representing the complainant in the future trail of this commission, since the OP No 1 counsel absent, said IA allowed. Later the OP No 1 counsel raised the objection, that GPA holder not provided the information on his Age and address, on 16-05-2022, the GPA holder, Sri Sri Shivakumar, filed his adhar card and other details and filed IA and application under Order 1 Rule 10 R/w section 151of CPC to implead M/S Finolex pipes Ltd as OP No 2 as necessary party to the case, after hearing, said IA allowed and Notice to OP No 2 served. On 15-06-2022 Sri Shivakumar Advocate filed power to OP No 2, on 15-07-2022, Sri TRA filed NOC vakalath from previous counsel and filed version.

5.       The OP No.1 in their version contended that the complainant is not a consumer U/s 12 of the Consumer Protection Act and hence the complainant has no right to seek remedy before this Hon’ble Commission.  The complainant has filed this complaint with false allegations and hence the complaint filed by the complainant is not maintainable.  The OP No.1 further contended that the complainant has not purchased any Finolex pipes from the OP No 1 shop and the OP No 1 is not a dealer of Finolex PVC pipes or any other pipes.  There is no single document to show that the complainant has purchased the pipes from the OP No 1.  The complainant has sent the legal notice to wrong person.  The OP No.1 denied the averments made by the complainant in the complaint. On these among other grounds, the OP No.1 prays to dismiss the complaint with costs. 

6.       The OP No.2 in their version contended that the complaint is not maintainable either in law or on facts and the complainant has filed this complaint only to harass the OP No.2.  The OP No.2 is a Finolex Industries Limited is a public company incorporated under the Companies Act 1956.   The OP No.2 contended that manufacturer of PVC-U pipes and fittings for the plumbing-sanitation and agricultural sectors which was established in 1981 inter-alia in the business of manufacturing and marketing of Finolex Rigid PVC/CPVC pipes and fittings and PVC resin.  The OP No.2 is having its own authorised dealer distributor, wholesaler, retailer in around all states of India including the state of Karnataka.  Similarly respondent No.2 is also having its authorised dealer, distributor, wholesaler retailer in Tumkur District.  The OP No.2 is maintaining its own squad team to survey the market and find out the imitators of name and duplicator of its products.  The OP No.2 indemnifies its customer about the quality of the products supplied by them directly or through authorised dealers.   There is no relationship or transactions of direct or indirect, whatsoever between the OP No.2 and the OP No 1 or the complainant.  The complainant has cooked up a false story and same is based on false frivolous and concocted averments to make false grounds to extract money from this OP No.2.  It is further contended that the OP No.1 is not the authorised dealer, distributor, wholesaler, retailer of the OP No.2 and the complainant has not purchased any goods either from the OP No.2 directly or through its authorised dealer/distributor.  It is pertinent to note that initially, the complainant has filed this complaint initially only against OP No.1 and after filing counter statement by OP No.1, the complainant impleded this OP No.2.

          The OP No.2 further contended that the complainant had emailed on 02.06.2021 complaining about the damaged product, thereafter this OP No 2 has called the complainant to send sample of pipes for analysis, and after the analysis OP No 2 has given a detailed report stating that the samples sent for genuinely is duplicate and the product is not belonging to OP No.2.  In the meantime the OP No.1 is not a dealer/distributor of the OP No.2 or nay relationship whatsoever with the OP No.2 and hence informed the complainant to give police complaint who has cheated/supplied the duplicate goods to him.  However, the representative of the OP No.2 has also contacted the jurisdictional police station to give complaint, but the police informed them, that the without accused person, they cannot take complaint and register the FIR.  It is further contended that the present complaint is not maintainable as the claimant has failed to disclose the true and material facts and hence in the absence of true and material facts, the instant complaint is liable to be dismissed.   Further, it is contended that there is no cause of action accrued to the complainant as because the complainant neither placed any order nor not received any of the products from this OP No.2.  The OP No.2 denied all other allegations made by the complainant in his complaint.  On these among other grounds it is prayed to dismiss the complaint against the OP No.2 with heavy cost.

7.       On 26-04-2022 the GPA holder of the complainant filed his affidavit evidence on behalf of the complainant and produced some copies of some documents.  On behalf of OP No.1 one Mr.S.R.Praveen, Proprietor has filed his affidavit evidence and marked the documents at Ex.OP1 to OP6. (Said documents by mistake in order sheet written as Ex R1 to Ex R16 and later it was corrected by the OP No.1 in their documents as Ex.R1 to R6).                                  Sri. R.N.Vishnumurthy, Manager-Sales has filed its affidavit evidence on behalf of OP No.2 with copy of email transaction with the complainant and pipe analysis report. 

8.       The OP No 1 and OP No 2 counsels filed IA & application U/S 38(6) of Consumer protection Act 2019 R/w 151 of CPC to seek permission to cross examination of the complainant, after the objections filed by the both the parties and heard the arguments, this commission passed order that, IA not allowed, since it’s a summery trail and permitted the OP No 1 and OP No 2 to construct interrogatives, accordingly OP No 1 & OP No 2, developed interrogatives and served to the complainant, and the complainant given the reply to the said interrogatives. In interrogatives both OP No 1 and OP No 2, seeks the complainant original invoice/bill after the sales.

9.       We have heard the arguments of complainant GPA holder and counsel for OP Nos. 1 & 2 in addition to written brief submitted by the GPA holder of the complainant.  

The points that would arise for determination are as here under:

1. Whether the complainant proves the Dealer / seller and customer / consumer relationship established with OPs and the complainant and sales process taken?.

2. Whether the complainant proves the deficiency of service on the part of OPs /unfair trade practices of OPs ?

3. Is complainant entitled to the reliefs sought for?

4. What order      ?

10.     Our findings on the aforesaid points are as follows:

Point No.1to 3 :  in the Negative

Point No.4:   As per the final order.

:REASONS:

Point Nos.(1) (2) (3) & (4):

11.     GPA holder of the complainant argued that, the complainant intended to purchase finolux pvc pipes, in turn the complainant after the  advice and information of the distributor of the OP No 1, the complainant purchased the 200 units of 75 mm pvc pipes and paid Rs 70000/- and Rs 70000/-, and installed the same in their agriculture land, as performance was poor, by suspecting the quality, they send sample of said pipes to the OP No 2 for analysis, and the OP No 2 after the analysis given report as poor quality pipes and pipes are not manufactured by the finolux industries Ltd. The GPA holder of the complainant further argued that, the invoices bearing number 0001247 & 0001248, dated 30-05-2021, billed in the name of the complainant i.e. Sri Pavan Kumar for Rs 70000/- each, for the supply of 100 finolux Rpvc pipes each ie 200 Finolux pipes, which were sent by the whats up Number of the OP No 1, i.e. 85553694969,which belong to the OP no 1 and further contended that the complainant made payments of Rs 19500/- on online, which was not reflected in the GST filing. The complainant as a farmer, by believing OPs, invested and spent more than Rs 5.00 lakh, but the purpose of the complainant not achieved because of the poor quality PVC pipes supplied by the OP No 1, there by the complainant suffered and prayed to allow the complaint and award compensation. The GPA holder of the complainant produced copy of UPI transaction ID 113509263246 for Rs 19500/-, wherein said amount transferred to the OP no 1 by the complainant (Exp1),copy of Adhar card (Ex P2), Copy of legal notice dated,15-07-2021, copy of the said pipes installed in the complainant land (EX 2), copy of the phone screen shot dated 30-05-2021, wherein the complainant called the OP No 1, many time over phone and OP NO 1 phone named as Praveen Sampige (EX 3), Email correspondence with the OP No 2 by the complainant (EX 4 & 5), Test report of the Pipes (EX6), copy of the legal notice dated 15-07-2021 (EX 7), copy of the damaged pipes photos (EX 8), Copy of phone screen shot of the complainant, wherein invoices, which were send by what sup, on 30-05-2021 bearing No 0001247 and 0001248  for Rs 70000/- each, of 100 finolux PVC pipes ,which were in the name of the complainant and the sender phone named as Sampige (EX 9). Copy of the OP No 1 GST number (EX10) and also filed copy of Adhar card of the complainant, copy of the postal track, Copy of the photo of OP No 1 Retail shop.

12.     The OP No 1 counsel argued that, the complainant not purchased said pipes with the OP No.1 and there is no relationship of consumer and the seller established with the complainant and the OP No 1.   Allegation of the complainant, that cash paid and invoices bearing number 0001247 & 0001248, dated 30-05-2021, billed in the name of the complainant i.e. Sri Pavan Kumar for Rs 70000/- each, for the supply of 100 each Finolux Rpvc pipes i.e. 200 Finolux pipes, which were sent by the WhatsApp Number of the OP No 1, i.e. 85553694969, which belong to the OP No.1(ExP9), the OP No 1 counsel taken defense that, the said document(EXP9), shows sender name as Sampige, but number not reflected, which is created by the complainant and unbelievable, any number can be saved as sampige. The OP No.1 counsel further argued that, why the complainant not produced the original invoice, if at all sales / transaction happened by the complainant with the OP No1, hence the OP No 1 counsel prayed to dismiss the complaint with cost. The OP No 1 counsel produced copy of invoice bearing No 0001247 dated 30-05-2021, wherein product was NPK 10;26;26 IFFCO 42 bags, which is in the name of Sri Rajanna (Purchaser), for Rs 48300/- (EX. R1), copy of invoice copy bearing No.0001248 dated 30-05-2021, wherein product was NPK 10;26;26 IFFCO 40 bags, which is in the name of Sri Manju (Purchaser) for Rs 46800/-(EX.R2),copy of the sales report for the period April 2022 to June 2022 EX P03, Copies of GSTR-3B for the month of April 2022, May 2022 and June 2022 (EX.R4, EX.R5, EX.R6).

13.     The OP No 2, counsel argued that, there is no relationship of consumer and dealer with the complainant and the OP No 2. And OP No 1, was not the distributor or dealer of OP No 2, and there were no transactions with the complainant or OP No 1, directly or indirectly. The complainant approached the OP No 2, on 2^nd June 2021through Email and requested the OP No 2 to do the analyses of quality of PVC pipes purchased, accordingly the OP NO 2, conducted the analysis of said pipes sample received from the complainant, and on 23^rd June 2021 test report of the said pipes send to the complainant as said pipes were duplicate, not having quality. The OP No 2 advised the complainant to lodge Police complaint against the said pipes supplier, but the complainant not initiated any action. The OP No 2 counsel filed copy of the analysis report of the pipes. The Op No 2 counsel prayed to dismiss the complaint with heavy cost.

14.     Distributor is an agent of a manufacturer, who supplies goods to retailers, where as retailers are agent of manufacturer / distributor who sell goods to the end-users/customers/consumers.

A sales contract is a special type of contract. Wherein the exchange of a commodity for money take place, which includes.

1. Transfer of ownership: Ownership of the goods must be moved from the seller to the buyer, or there should be an agreement in which the transfer of ownership is made.
2. Price: The buyer in the contract must pay a price for the goods.

Essentials elements of a Contract of Sale are,

• There must be at least two parties; one is the buyer, and other is the seller.
• The subject matter of the sale is the goods.
• The goods should pass from seller to buyer.
• Payment should be made in the country’s legal currency

15. Generally, the person who commits invoice fraud is liable for his or her actions. However, if someone else ordered the fraudulent invoicing, that person may also be held criminally liable.
16. Sec 476 of IPC provides for a punishment of imprisonment of either description for a term which may be extended to seven years and also liable for fine. Counterfeiting can also be considered an Act of cheating U/S 415 of IPC.

17. CGST Rule 55: Transportation of Goods without issue of Invoice (Chapter-VI: Tax Invoice, Credit and Debit Notes)

The consigner may issue a delivery challan, serially numbered not exceeding sixteen characters, in one or multiple series, in lieu of invoice at the time of removal of goods for transportation, containing the following details, namely:-

(i) date and number of the delivery challan;

(ii) name, address and Goods and Services Tax Identification Number of the consigner, if registered;

(iii) name, address and Goods and Services Tax Identification Number or Unique Identity Number of the consignee, if registered;

(iv) Harmonised System of Nomenclature code and description of goods.

(v) quantity (provisional, where the exact quantity being supplied is not known);

(vi) taxable value;

(vii) tax rate and tax amount – central tax, State tax, integrated tax, Union territory tax or cess, where the transportation is for supply to the consignee;

(viii) place of supply, in case of inter-State movement; and

(ix) signature.

(2) The delivery challan shall be prepared in triplicate, in case of supply of goods, in the following manner, namely:–

(a) the original copy being marked as ORIGINAL FOR CONSIGNEE;

(b) the duplicate copy being marked as DUPLICATE FOR TRANSPORTER; and

(c) the triplicate copy being marked as TRIPLICATE FOR CONSIGNER.

(3) Where goods are being transported on a delivery challan in lieu of invoice, the same shall be declared as specified in rule 138.

18. Section 2(11) of the consumer protection Act 2019, defines deficiency to mean, “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes

(a) any act of negligence or omission or commission by such person to the consumer and

(b) deliberate withholding of relevant information by such person to the consumer.”

19. Section 2(47) of the Consumer Protection Act, 2019 defines the term ‘unfair trade practices’ which include: Manufacturing spurious goods or providing defective services. Not issuing cash memos or bills for the goods purchased or services rendered.

20.     The Hon'ble Supreme Court of India, while deciding the matter of South Delhi Municipal Corporation V/s a consortium comprising A2Z Infraservices and another entity, the bench of Chief Justice N V Ramana & Justices A S Bopanna & Hrishikesh Roy. On July 14, 2021 ruled that “messages exchanged on social media platform WhatsApp have no evidential value & that the author of such WhatsApp messages cannot be tied to them. “What is evidential value of WhatsApp messages these days? Anything can be created & deleted on social media these days. We don’t attach any value to the WhatsApp messages,”

21.     That no evidence was put forth by the complainant, to establish the relationship of Dealer and customer / consumer, between the OPs and the Complainant and sales process taken by producing Original Cash receipt / invoice/ Delivery note.

22.     It was denied by the OP No 1 and OP No 2, that the complainant was customer of the OPs and sales / transactions done. The OPs submitted that the complainant was stranger and unknown to them, As alleged by the complainant that, he purchased the said pipes on 30-05-2021 from OP No 1,to disprove, the OP No 1 produced Copy of the Invoice bearing No 0001247 dated 30-05-2021, wherein product was NPK 10;26;26 IFFCO 42 bags, which is in the name of Sri Rajanna (Purchaser), for Rs 48300/- (EX. R1), copy of invoice copy bearing No.0001248 dated 30-05-2021, wherein product was NPK 10;26;26 IFFCO 40 bags, which is in the name of Sri Manju (Purchaser) for Rs 46800/-(EX.R2),copy of the sales report for the period April 2022 to June 2022 EX P03, Copies of GSTR-3B for the month of April 2022, May 2022 and June 2022 (EX.R4, EX.R5, EX.R6).

23.     The OP No 2, conducted analysis/ test of damaged pipes samples sent by the complainant, and after the test, reported sub standard quality and duplicate pipes. The OP NO 2, with the objective of serving society by supplying quality products and to avoid duplicate products supply, requested the complainant to file complaint (FIR) in jurisdiction police station against the supplier, As alleged by the OP No 2 the complainant not shown interest even though the complainant knows the supplier. There after the OP NO 2 team approached the jurisdiction police station to file complaint against duplicate pipe supplier, but police officials stressed the aggrieved person to file the complaint.

24.     In this case, the complainant in complaint stated that, he purchased the Finolex 205 inch. 4 Gauge PVC pipes of 200+150 qty with cost of 700/EA on, on contrary in amended complaint dated 04-06-2022 the complainant stated that, Purchased the Finolex 205 inch. 4 Gauge PVC pipes of 200 qty with cost of 700/EA. The complainant either in the complaint or in the amended complaint not stated the money paid details to the OPs i.e. Cash paid and balance paid details, but in Evidence of Affidavit dated 26-04-2022, the complainant stated that, Rs 120500/- paid in cash and balance of Rs 19500/-paid online, which were contrary, EX 1,copy of UPI transaction ID 113509263246 for Rs 19500/-,dated 15-05-2021,wherein said amount transferred to the OP No 1 by the complainant (Exp1), when sales take place on 30-05-2021 and complainant paid Rs 120500/- Cash and balance of Rs 19500/- must be paid after the 30-05-2021, but not on 15-05-2021. EX 9 phone screen shot of the complainant WhatsApp Number, wherein the complainant at 10.05 AM received message from Sampige (Name of the contact Number saved by the complainant in his mobile phone) with two invoices bearing number 0001247 & 0001248, dated 30-05-2021, but message received Number not disclosed by the complainant, and the complainant not proved, that invoices sent by the OP No1mobile / cell number. When sales / purchases happened on 30-05-2021 and the complainant paid the cash directly to the OP No 1, the complainant would have taken cash receipt / Invoice/ delivery challan/ Delivery Note of said pipes in original instead of taken via WhatsApp Number and these documents are necessary while transporting said pipes from retail shop to end-users spot.

25.     The complainant in the complaint stated that, purchased the said pipes on 30-05-2021 from the local distributor based on distributor confirmation, and in Evidence of Affidavit dated 26-04-2022, the complainant stated as purchased the said pipes based on advise and confirmation of the distributor of OP No 1, its shows that the complainant has knowledge about the distributor, who is an agent of manufacturer, who, distribute products / goods, to the dealers / sellers/ retailers, who sells the products / goods to the end-users / consumers, but the complainant not disclosed the name and address of the distributor nor impleaded as necessary party to the complaint.

26.     In the above discussion, we are of the opinion that the complainant has not produced the believable evidence to prove, dealer / seller and customer / consumer relationship established between OPs and the complainant and also the complainant money paid to the OPs and ownership of goods transferred from the OPs to the complainant. By considering the above discussion, in our view, the complainant has not proved any deficiency and unfair trade practice on the part of OP Nos.1 & 2, hence, we proceed to pass the following;

The complaint against OP No.1 & OP No.2 is dismissed with no costs

Furnish the copy of order to the complainant and opposite parties at free of cost.

(