Complaint filed on: 05-07-2013

                                                      Disposed on: 25-08-2014

BEFORE THE BENGALURU IV ADDITIONAL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BENGALURU – 560 052           

C.C.No.1207/2013

DATED THIS THE 25^th AUGUST 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -   

                                                Sri. Sai Services,

                                                No.94, Ramakrishna Nagar,

                                                4^th Block, Nandini Layout,

                                                Bangalore-96

                                                Reptd by its Prop.

                                                K.G.Ramakrishna s/o.

                                                Late K.N.Gopalakrishnaiah, 

                                                Residing at Bangalore.  

V/s

Opposite party: -

                                                MPS Food Products Ltd,

                                                Promises no.15, 2^nd and 3^rd Floor,

                                                Rest House, Crescent road,

                                                Bangalore-01

                                                Reptd by Sri.Subhro Bose,

                                                General Manager,

                                                Beverages, Bangalore

                                                And also:-

                                                Having its Regd. Office at

                                                Dighisole Dahijuri,

                                                Jharjam, West Midanapure,

                                                West Bengal.

                                                Corporate officer,

                                                Home Towers,

                                                32, Chowrange Road, 

                                                Calcutta – 71

                                                West Bengal.

                                                Head office at:-

                                                MPS Enclave,

                                                P.176, Block-B,

                                                Lake Gower,

                                                Calcutta – 89

                                                West Bengal.        

ORDER

SRI.H.JANARDHANA, MEMBER

        This is a complaint filed by the complainant against the OP, under Section 12 of the Consumer Protection Act 1986, praying to pass an order, directing the OP to refund the entire amount deposited by complainant amounting to Rs.5.00 lakhs and mental agony for Rs.2.00 lakhs, and harassment, conveyance with miscellaneous expenses amounting to Rs.1.00 lakh along with interest @ 18% per annum.

2. The brief facts of the complaint can be stated as under.

          The complainant is the proprietor of Sri Sai services and he is senior citizen and is entirely depending on the said business for his livelihood. In the month of May-June 2012 the OP company representative officer approached the complainant and persuaded him to take the distribution of their company’s drinking water bottle i.e. MPS package water having all necessary certificates from the ISI and represented that their products are widely accepted in the market. After their representation they appointed the complainant as a distributor for the areas of Bengaluru covering Basaveshwaranagar, Mahalakshmi-lay-out, Nandini-lay-out, T.Dasarahalli, Peenya and Jalahalli etc. As per their appointment they issued appointment letter dated 19-7-2012 and from July 2012 to Dec.2012, the complainant has established the retail market in the above said areas by purchasing the eater boxes from the OP by paying the cash as per the terms and conditions. As the turnover of the said business was not sufficient and was too low to run the business in the open market due to abnormal competition and also due to non-availability of water the complainant intended to expand his business. During 2013 the General Manager of MPS products Ltd had a meeting about the development of business and also the complainant was happy about the wide distribution of the customers and in the said meeting the complainant was offered by the OP as a super-stockiest for the northern parts of the Bengaluru and Memorandum of understanding was entered by the complainant and OP on 14-1-2013. The OP’s General Manager was also assured and declared that the appointment letter as a super-stockiest will follow from the Head office at Calcutta within a short time, assuring the complainant to achieve the sale target of Rs.2.00 lakhs approximately and have deep penetration in the market for the MPS water. On the assurance of OP, the complainant deposited Rs.1,50,000=00 on 18-1-2013 and the complainant has also made arrangement for a bigger godown to stock about 2000 cases of water bottle at a time by paying exorbitant rent and advances. As per the terms of MOU the OP should have to depute one sale official and two field executive of promotion of sale, advantage and also for the development of business to reach the sale of Rs.2.00 lakhs per month constantly. Unfortunately the OP did not appoint anybody nor took any interest in the promotion of the sales in spite of repeated requests and demands through several meetings, telephones, emails and also by personal approach. The OP did not yield nor cared to solve the problems. As per the terms of the agreement the OP had to replace expired water bottle at the regular interval and also they have to make arrangement to quick market sales by advertisement through the samples, advertisement in local newspaper and TV etc. But unfortunately the OP has not done any of these things nor made any arrangements to replace the expired water bottles of complainant. Hence the present complaint is filed.

3. After service of the notice, OP did not appear before the forum and he was called out absent and he has been placed ex-parte and posted the case for filing the affidavit of the complainant.

          4. So as to prove the case, the complainant has filed his affidavit and produced nine copies of documents along with complaint. We have heard the arguments of the complainant and we have gone through the oral and documentary evidence of the complainant meticulously. 

5. One K.G.Rangaswamy, who being the complainant has stated in his affidavit that, he is the proprietor of Sri Sai services and he is senior citizen and is entirely depending on the said business for his livelihood. In the month of May-June 2012 the OP company representative officer approached him and persuaded him to take the distribution of their company’s drinking water bottle i.e. MPS package water having all necessary certificates from the ISI and represented that their products are widely accepted in the market. After their representation they appointed him as a distributor for the areas of Bengaluru covering Basaveshwaranagar, Mahalakshmi-lay-out, Nandini-lay-out, T.Dasarahalli, Peenya and Jalahalli etc. As per their appointment they also issued appointment letter dated 19-7-2012 and from July 2012 to Dec.2012, he has established the retail market in the above said areas by purchasing the eater boxes from the OP by paying the cash as per the terms and conditions. As the turnover of the said business was not sufficient and was too low to run the business in the open market due to abnormal competition and also due to non-availability of water, he intended to expand his business. During 2013 the General Manager of MPS products Ltd had a meeting with him about the development of business and he was also happy about the wide distribution of the customers in the said meeting he was offered by the OP as a super-stockiest for the northern parts of the Bengaluru and Memorandum of understanding was entered by him and OP on 14-1-2013. The OP’s General Manager was also assured and declared that the appointment letter as a super-stockiest will follow from the Head office at Calcutta within a short time, assuring him to achieve the sale target of Rs.2.00 lakhs approximately of MPS water. On the assurance of OP, he deposited Rs.1,50,000=00 on 18-1-2013 and he has also made arrangement for a bigger godown to stock about 2000 cases of water bottle at a time by paying exorbitant rent and advances. As per the terms of MOU the OP should have to depute one sale official and two field executive of promotion of sale, advantage and also for the development of business to reach the sale of Rs.2.00 lakhs per month constantly. Unfortunately the OP did not appoint anybody nor took any interest in the promotion of the sales in spite of repeated requests and demands through several meetings, telephones, emails and also by personal approach. The OP did not yield nor cared to solve the problems. As per the terms of the agreement the OP had to replace expired water bottle at the regular interval and also they have to make arrangement to quick market sales by advertisement through the samples, advertisement in local newspaper and TV etc. But unfortunately the OP has not done any of these things nor made any arrangements to replace the expired water bottles of complainant. So he has come up with the present complaint and he prays to pass an order as prayed for.

          6. Let us have a cursory glance at the relevant documents of complainant. Document no.1 of the complainant’s list is the copy of letter issued by the OP addressed to complainant for having engaged the complainant as distributor of the OP. Document no.2 is the copy of MOU issued by the OP to the complainant as Super Stockiest. Document no.3 is the copy notice with email letters sent by the complainant to OP. Document no.4 is the copy of pay order dated 18-1-2013 for Rs.1,48,000=00 paid by the complainant to the OP for his appointment as a super stockiest to expand his business. Document no.5 is the copy of check list for vehicle delivery. Document no.6 is the copy of Tax invoice. Document no.7 is the copy of vehicle insurance cover note. Document no.8 is the copy of payment vouchers made by complainant to OP for delivery of water bottles. Document no.9 is the copy of rental agreement made by the complainant to stock the water bottle in the premises.

7. On making careful scrutiny of the case of complainant on the back ground of oral and documentary evidence of complainant, it is an undisputed fact that, the complainant is a proprietor of Sri Sai Services and is entirely depending on the said business for his livelihood. In the month of May-June 2012 the OP company representative officer approached the complainant and persuaded him to take the distribution of their company’s drinking water bottles i.e. MPS package water. After representation they appointed the complainant as a distributor for the areas of Bengaluru covering Basaveshwaranagar, Mahalakshmi-lay-out, Nandini-lay-out, T.Dasarahalli, Peenya and Jalahalli etc. and the complainant was issued an appointment letter to the said effect dated 19-7-2012. The complainant had established the retail market in the above said areas and turn over the of the said business was not sufficient and was too low to run the business in the open market due to abnormal competition and also due to non-availability of water the complainant intended to expand his business. During 2013 the General Manager of MPS products Ltd had a meeting with the complainant about the development of business and the complainant was also happy about the wide distribution of the customers and in the said meeting the complainant was offered by the OP as a super-stockiest for the northern parts of the Bengaluru and Memorandum of understanding was entered by the complainant and OP on 14-1-2013.

8. At this stage, we would like to quote a judgment rendered by the Hon’ble National Commission in Sanjay Nag –Vs- Hari Om Masala industries and Ors. II (2014) CPJ 554 (NC) wherein the Hon’ble National Commission has observed as under:

“The complainant started the work of a stockiest of the OP products under Stockiest agreement it is a commercial purpose to earn profit and not for earning his livelihood, hence the complainant is not consumer of the OP the said matter is for a recovery of amount, hence the Civil Court has the jurisdiction the complainant himself is a service provider and the transaction of goods done by him was of commercial purpose. The security amount deposited by the complainant was deposited under stockiest agreement. The work of stockiest and a dealer is a commercial activity and the complainant is not a consumer of the OP”.

9. Taking the present case on hand on the back ground of guidelines of the said decision, it is no doubt true that, the transaction of complainant on hand is of commercial nature to earn profit and not for earning his livelihood, hence the complainant is not a consumer of the OP. The said matter is for a recovery of the amount and the Civil Court gets the jurisdiction. The complainant is a service provider and the transaction done by him is for commercial purpose. The security amount deposited by the complainant was deposited under MOU stockiest agreement. The work of the stockiest and a dealer is a commercial activity and the complainant is not a consumer under the CP Act and the complainant has not approached the forum with clean hands and issue of complainant is of commercial nature. So the complaint is not maintainable under the CP Act 1986 as per the yardstick of the said decision. So from the material evidence of complainant and obiter dicta of said decision of Hon’ble National Commission, we are of the view that, the present complaint is not maintainable as complainant does not fall within the ambit of consumer of CP Act. In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint of complainant is dismissed. No cost.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, Got it transcribed and corrected, Pronounced on the Open Forum on this, 25^th -day of August 2014).

-:ANNEXURES:-

1.      Witness examined on behalf of the complainant by way of affidavit:

1. K.G.Rangaswamy, who being the complainant was examined on 31-10-2013.

2.      Documents produced on behalf of the complainant:-

a) Document no.1:         Copy of letter issued by the OP to

Complainant.

1. Document no.2:        Copy of MOU issued by OP to 

Complainant.

1. Document no.3:        Dopy of notice with email letter

                                  Sent by the complainant to OP.

1. Document no.4:        Copy of pay order dated 18-1-

2013 for Rs.1,48,000=00

1. Document no.5:        Copy of check list for vehicle

Delivery.

1. Document no.6:        Copy of Tax invoice
2. Document no.7:        Copy of vehicle insurance cover

Note.

1. Document no.8:        Copy of payment voucher
2. Document no.9:        Copy of rental agreement

MEMBER                                 PRESIDENT