F.A.No.328/2009 AGAINST  C.C.No.105/2008  DISTRICT FORUM, ADILABAD.

Between:

M.Saddruddin S/o Ramzan Ali Jainoor,

Stage II Transport Contractor,

MLS Point, Jainoor Mandal

Adilabad Dist.                                                     Appellant/Complainant

And

The District Manager

Andhra Pradesh State Civil Supplies Corporation Ltd,

Adilabad Dist.

                                                                             Respondent/opp.party

Counsel for the Appellant:                       Mr.M.Ramgopal Reddy

Counsel for the Respondent:                   M/s.Ganu & Co.,

 QUORUM:                    SRI SYED ABDULLAH, HON’BLE MEMBER.

AND

                        SRI R.LAKSHMI NARASIMHA RAO,  HON’BLE MEMBER

TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBER,

                                          TWO THOUSAND TEN

Oral Order(As per Sri R.Lakhmi Narasimha Rao, Hon’ble Member.)
                                                ***    

1.     The unsuccessful complainant is the appellant.  He has filed the appeal against the order of the District Forum where by it was held that the Civil Court can alone decide the matter.

2      The facts of the case are that the appellant was appointed as contractor wide proceeding number A-2/MOVt/5(1)2006-07, Dt. 24-8-2006.  The appellant entered into the agreement on 8-9-2006 with the respondent and furnished bank guarantee for Rs 1,50,000/- in favour of the respondent.  The appellant was entrusted with the work of Stage -II transportation of Food Grains, Pulses, Levy Sugar etc from MLS points Jainoor to Fair Price shops attached to MLS point Jainoor.  The respondent withheld transporting bill for Rs 38,030/- due to shortage of PDS stocks at Jainoor.  The Revenue Divisional Officer, Utnoor has submitted a report to the respondent stating that the appellant is not involved in shortage of PDA stocks at Jainoor and recommended for release of security deposit and bank guarantee to the appellant as also for payment of the bills for transportation for the month of Feb, 2007. 

3.     The respondent resisted the claim contending that during physical verification of stocks conducted by the District Manager, A.P.S.C.S.C.L, Adilabad on 13-2-2007 at the MLS point godown Jainoor, it was found that there had been huge variation of stocks as per book balance and availability of physical stocks at the MLS Point.  Sri G.Lakshman, Asst.Gr.II&incharge of MLS point Jainoor has misappropriated Public Distribution Stocks at the MLS point godown of Civil Supplies Corporation, Jainoor Adilabad District to a tune of Rs 6,61,048.90ps at single cost and Rs 13,22,097.80ps at double the cost and caused loss to the respondent corporation and the Government exchequer.  The respondent has filed the F.I.R against Sri G.Lakshman.  The Revenue Divisional Officer was appointed as Enquiry Officer in the case.  The Enquiry Report was submitted in respect of the appellant and the enquiry against the in-charge of MLS point Jainoor, Sri G.Lakshman has not been completed.  The respondent was asked the District Manager to pursue for early completion of enquiry against the in-charge of MLS point in order to release the security deposit, bank guarantee and pending bills of the appellant.  It is submitted that the appellant is not a consumer under the provisions of the Consumer Protection Act and the District Forum has no jurisdiction to entertain the complaint.  The agreement contains specific clause restricting the jurisdiction to the City Civil Court, Hyderabad.

4.     The appellant has filed his affidavit and the documents, Ex A1 to A8.  The District Manager of the respondent corporation has filed his affidavit and got marked Ex B1 and B2.

5.     Feeling aggrieved by the order of the District Forum the appellant has filed the appeal contending that the respondent has adopted unfair trade practice and rendered deficient service by not making refund of the security deposit, bank guarantee and pending bill amount.

6.     The points for consideration are

1.                                   Whether the appellant is a consumer with in the meaning of section-2(1)(d) of the Consumer Protection Act?

2.                                   Whether the respondent has committed deficiency in service by not refunding the security deposit and bank guarantee to the appellant?

3.                                   To what relief?

7.     POINT NO.1:  The appellant is a contractor and entered into and agreement on 8-9-2006 with the respondent.  At the time of execution of the agreement, the appellant had deposited a sum of Rs 1,00,000 as security and an amount of Rs 1,50,000/- for performance of the work entrusted, transportation of Food Grains, Pulses, Levy Sugar from MLS point Jainoor to Fair Price shops attached thereto.  The appellant addressed letter dt.16-07-2007 to the Joint Collector with a request to refund the security deposit and bank guarantee.  The respondent corporation has expressed its readiness to refund the amount after completion of the enquiry initiated in regard to the shortage of stocks at MLS point godown Jainoor as the enquiry was still pending against the Grade-II & in-charge Sri G.Lakshman though the enquiry report was received in respect of the appellant. 

8.     The agreement dt.11-9-2006 contains recitals that the appellant was entrusted with the transportation of Food Grains, Pulses and Levy Sugar for which he would get certain percentage of amount as commission which is in essence an element of profit and amounts to commercial purpose and as such he cannot be considered as the consumer within the meaning of Section-2 of the Consumer Protection Act.  Section2(1)(d) of the Consumer Protection Act mandates that the person to be a consumer and come within its ambit should purchase the goods or avail service not for any commercial purpose and in case the goods are purchased or the service is availed for any commercial purpose it should be meant for eking of his livelihood by means of self-employment.  A contractor, by any stretch of imagination can be said to have engaged in doing the work for huge profits to eke out his livelihood by means of self-employment.  The point is answered against the appellant.

9.     POINT NO.2:  In view of our discussion under Point No-1 holding the complaint as not-maintainable, there need not be any discussion under this point. 

10.    POINT NO.3:  In the result the appeal is dismissed.  The order of the District Forum is confirmed.  No costs.

                                                                MEMBER

MEMBER

                                                                        Dt.28-12-2010

GT*