By: Sri. Mohandasan K., President
Complaint in short is as follows: -
1. The complainant is the present managing partner of brother’s agencies, brothers trano Building, Kovilakamkund, Manjeri. Earlier Mr. Krishnanunni, the father of the complainant was running the establishment. They are engaged in erection and distribution of water pumps and incidental equipments and also doing retail sales. The complainant under took contracts with water authority and like other agencies.
2. On 04/12/2018, the complainant side received quotation of the opposite party and the father of the complainant placed order for two Kirlosker multi stage pump RKB 65-19E, 2 stg, coupled with 30 HP, 2900, RPM motors. As per terms, 30% advance amount of Rs.87,450/- paid to the opposite party. The order was on 05/12/2018 and paid the advance amount on 06/12/2018. The said water pumps were for the work of water authority. The opposite party had agreed to supply the ordered articles within 8 weeks but the opposite party did not supply the articles and not refund the advance amount. Subsequently the father of the complainant died on 13/05/2019. The complainant had issued email to the opposite party demanding refund of advance amount and informing cancellation of the order. Thereafter complainant issued register letter on 07/09/2019, but the opposite party despite of receipt of notice did not reply not refund the advance amount.
3. The complainant submits that due to non-delivery of the articles to the complainant, the complainant could not carry out the work under taken with the water authority and thereby complainant was constrained to remit nearly Rs.50,000/- to the water authority towards fine. In addition to that the water authority expressed displeasure on the complainant and refused to allow fresh work to the complainant. The complainant also compelled to availed water pumps from other source. The complainant placed the order before the opposite party relying the words of the opposite party. The complainant alleges deficiency in service and unfair trade practice on the side of the opposite party. Hence the complainant prays for payment of Rs.50,000/- towards the penalty amount remitted before the water authority. The complainant prays for 50,000/- rupees for the loss sustained by not availing contract works from the water authority. The complainant prayed Rs.50,000/- towards compensation and also refund of advance amount of Rs.87,745/-. The complainant also prays for the cost of the proceedings.
4. On admission of the complaint notice was issued to the opposite party and on receipt of the notice the opposite party entered appearance and filed version denying the entire averments and allegations in the complaint. The opposite party contended that the complaint is not maintainable either in law or on facts of the case as there is no negligence or deficiency in service any manner to the complainant. The opposite party submitted that the complainant has placed an order for the supply of 2 numbers of Kirloskar make multistage pump RKB 65-19 E, 2 Stg, coupled as per the purchase order dated 05/12/2018 for the total cost of Rs.2,91,582/-, out of which the complainant has transferred an amount of Rs.87,475/- to the account maintained by the opposite party on 06/12/2018. The opposite party admitted that there was some delay in supply of the items due to the non-availability of stock in the shop of the opposite party at that time. Hence the opposite party had placed an order for the above items to their distributors on the same day. But, instead of paying the balance amount the complainant has cancelled the items without any information or notice to the opposite party. Hence the opposite party met huge business loess due to the non-acceptance of the order by the complainant and paying the balance amount to the opposite party.
5. The opposite party submitted that the complaint is not maintainable before the Consumer Disputes Redressal Commission because the complainant herein is not a consumer under Consumer protection Act. The complainant placed the orders for the items mentioned above for re-sale of the product for better price with a margin of profit. The complainant herein is a firm registered under partnership act dealing with various kinds of pumps.
6. The claim of the complainant for compensation of Rs.50,000/- is baseless but experimental basis and not supported with any document. The opposite party further submitted that they are not with knowledge of contract entered between the complainant and the water authority. The complainant made agreement with the water authority on 01/10/2018 i.e., two months earlier to placing the orders to the opposite party. There is no such condition stipulated in the agreement for compensation of Rs.50000/- for work if not completed by 11/03/2019 and so the claim of loss of Rs.50000/- is without any legal basis and cannot be compensated by the opposite party. The opposite party also contended that the penalty of Rs.50000/- paid to the water authority for non-completion of work on 11/03/2019 is also without any basis and the complainant is bound to produce strict proof for the same. The opposite party further submitted that they are not liable to compensate, to exchange works done by the complainant to the water authority since the work is not controlled or undertaken by the opposite party. The complainant has not produced any proof to show that he sustained losses as claimed.
7. Hence the submission of the opposite party is that the complaint is purely on experimental basis and be pleased to dismiss the complaint with cost to the opposite party.
8. The complainant and opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A7. No documents marked on the side of opposite party. Ext. A1 is copy of purchase order dated 05/12/2018. Ext. A2 is photo copy of cheque for Rs.87,475/-. Ext. A3 is copy of notice issued by Kerala water authority dated 01/10/2018. Ext. A4 is copy of letter issued by the complainant to the opposite party. Ext. A5 is copy of order of Kerala water authority, Malappuram dated 02/12/2019. Ext. A6 is copy of supplementary agreement executed between Kerala water authority and complainant dated 11/02/2020. Ext. A7 is copy of certificate issued by the water authority. The complainant is examined as PW1. No witness was examined on the side of opposite party.
9. Heard complainant and opposite party, perused affidavit and documents.
The following points arise for consideration are: -
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of the opposite party?
- Relief and cost?
10. Point No.1
The opposite party contended that the complaint is not maintainable and so the complaint is liable to be dismissed. The opposite party filed IA 167/2021 challenging the maintainability of the complaint.
11. The contention of the opposite party is that the complainant placed an order for supply of two numbers of Kirloskar make multistage pump set RKB 65-19E, 2Stg, coupled as per the purchase order dated 05/12/2018 for the total cost of Rs.2,91,582/-, out which the complainant transferred an amount of Rs.87,475/- to the account maintained by the opposite party on 06/12/2018. The opposite party admitted that there was some delay in supply of the items due to the non-availability of stock in the shop of the opposite party at the relevant time. The opposite party submitted that they had placed an order for the above items to the distributors on the same date. But instead of paying the balance amount, the complainant cancelled the items without any information or notice to the opposite party. Hence the opposite party met huge business loss due to the non-acceptance of the order by the complainant and paying the balance amount to the opposite party. The contention of the opposite party is that the complainant placed the order for re sale of the product to the consumers of the complainant for better price with margin of profit. The complainant herein is a partnership firm and re seller hence, the complainant is not a consumer as defined under the Consumer Protection Act and the complainant have no locus standi to approach the Consumer Disputes Redressal Commission and the complaint cannot be entertained by Consumer disputes redressal Forum. The opposite party quoted the definition of “Consumer” from the Consumer Protection Act and submitted that the complainant does not include under the definition of consumer since he is a person who obtains goods for re sale or for commercial purpose. In this complaint the opposite party submit that, the complainant had placed the order for the pump sets not for his personal use or for his lively hood by means of self-employment by using the goods so purchased.
12. The complainant herein had examined before the commission as PW1 and he submitted that he is the present managing partner of the complainant institution. He further conceded during cross examination that “പമ്പ് സെറ്റുകw എ¨Ê സ്വന്തം ആവശ്യത്തിനല്ല. ഞാu അത് മറിച്ചു കൊടുത്ത് ലാഭം എടുക്കുകയാണ് പതിവ്“. The perusal of the complaint and affidavit shows that the purchase of pump sets was meant as part of contract work. There is no contention for the complainant that the article ordered from the opposite party was as part of self-employment or for his lively hood. In absence of such contention what can be inferred is the order placed for re sale purpose with commercial nature. Hence it appears the contention of the opposite party is valid one.
13. The opposite party admitted the payment of advance and also admitted that they have not supplied the ordered articles to the complainant. But on examination of the averments in the complaint and affidavit and documents the Commission is of the view that the dispute does not fall under the provisions of Consumer Protection act and so we find the complaint is not maintainable before the Commission. The complainant is entitled to proceed before appropriate authority for the redressal of his grievance. The complaint was filed by the complainant before this Commission on 03/12/2019 and due to Covid Pandemic reason the disposal of the matter was delayed. Hence it will be proper to consider the delay if any is caused in approaching before the appropriate authority in a lenient way.
14. In the above facts and circumstance, we find that the Consumer Disputes Redressal Commission do not have jurisdiction to entertain this complaint and we find the complaint is not maintainable accordingly. The point No.1 being answered against the complainant, the Consideration of remaining points does not arise. The complaint stands dismissed with liberty to the complainant for approaching competent authority for the redressal of grievance.
Dated this 19th day of January, 2023.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
APPENDIX
Witness examined on the side of the complainant: PW1
PW1: Complainant
Documents marked on the side of the complainant: Ext.A1 to A7
Ext.A1: Copy of purchase order dated 05/12/2018.
Ext.A2: Photo copy of cheque for Rs.87,475/-.
Ext A3: Copy of notice issued by Kerala water authority dated 01/10/2018.
Ext A4: Copy of letter issued by the complainant to the opposite party.
Ext A5: Copy of order of Kerala water authority, Malappuram dated 02/12/2019.
Ext A4: Copy of supplementary agreement executed between Kerala water authority and complainant dated 11/02/2020.
Ext A5: Copy of certificate issued by the water authority.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V., Member
