Tamil Nadu

South Chennai

CC/149/2022

D.V.Karunaakar - Complainant(s)

Versus

M/S.Bitzer India Pvt Ltd, Rep by its Managing Director - Opp.Party(s)

M/s. Govind Chandrasekar

02 Jan 2023

ORDER

                                                 Date of Complaint Filed : 19.02.2021

                                                 Date of Reservation      : 20.12.2022

                                                 Date of Order               : 02.01.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                                   : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,                  :  MEMBER  I 

                        THIRU. S. NANDAGOPALAN., B.Sc., MBA.,          : MEMBER II

 

CONSUMER COMPLAINT No.149 /2022

MONDAY, THE 2^nd DAY OF JANUARY 2023

D.V. Karunaakar,

S/o of D.C Krishnaswamy,

Proprietor of M/s.Antartica,

T.Nagar,

Chennai – 600 017.                                                                                                                                            ...  Complainant                

 

..Vs..

 

M/s. Bitzer India Pvt Ltd,

Rep by its Manging Director,

Vishnu Arcade No.111,

1^st C Main Road,

2^nd Phase, Peenya,

Industrial Area,

Bangalore-560058.                                                                                                                                                ...  Opposite Party

                                                                                                           ******

Counsel for the Complainant          : M/s. Govind Chandrasekhar

Counsel for the Opposite Party       : M/s. P. Karunakaran

On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Party, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.      The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to direct the Opposite Party to repay the balance sum of Rs.11,150/- illegally retained by it together with interest, to pay a sum of Rs.2,50,000/- as compensation for deficiency in service and unfair trade practices, to pay a sum of Rs.2,50,000/- as damages for mental agony caused to the Complainant and to pay a sum of Rs.50,000/- as litigation expenses.

2.     The averments of Complaint in brief are as follows:-

The Complainant is the proprietor of the biggest cold storage unit in the State of Tamil Nadu operating under the name and style of "Antarrtica". The Complainant had been purchasing compressor spares from the Opposite Party company from time to time. The Complainant issued purchase order dated 13.11.2020 against Opposite Party in pro-forma invoice (Ref No. GPB/SO/2021/0514) dated 13.11.2020 for a sum of Rs.58,120/- towards compressor spares. The Complainant was surprised by the mail dated 19.11.2020 sent by the Opposite Party that the aforesaid sum would be adjusted towards pending C Form dues. The payment for a sum of Rs.58,120/- was made in respect of the purchase order and not towards any dues. Already Opposite Party sent a mail dated 10.11.2020 and made clear that the Opposite Party company was claiming only a sum of Rs.46,970 towards C Form dues. In the same e- mail the last date for such payment was given as 20.11.2020. Under these circumstances, the deduction of the aforesaid sum on 19.11.2020 was clearly uncalled for. In fact, the Complainant had offered to pay the C Form dues provided the Opposite Party gave a letter to that effect. Despite repeated requests, this was never done. In view of the aforesaid conduct of the Opposite Party, by way of a lawyer's notice dated 01.12.2020, the Complainant cancelled the purchase order dated 13.11.2020 and asked for a refund of Rs.11,150/-, being the excess money available with the Opposite Party after deducting the C Form dues of Rs.46,970/-. Shockingly, by way of a vague and largely incomprehensible reply dated 15.12.2020, the Opposite Party alleged that a sum of Rs.11,337/- was due and payable by the Complainant to the Opposite Party. Such an assertion is contrary to the e-mail dated 19.11.2020 sent by their representative Mr. Karthik admitting that the Opposite Party was holding the excess money of the Complainant. Ex- facie, the Opposite Party was resorting to pleading falsehood contrary to their own communications. The Complainant sent a rejoinder dated 04.01.2021, which has been received by the Opposite Party. None of the allegations therein have been controverted. Consequently, the unethical act of unilaterally using the money towards the purchase order for adjusting C Form dues and then alleging that more money was due, when their own records indicated that excess money belonging to this Complainant was available in their hands, clearly shows that the Opposite Party is guilty of deficiency in service by engaging in conduct which is, ex-facie, fraudulent and unethical. The Complainant has suffered grave hardship as it was forced to partially close the cold storage unit since the spares were not delivered by the Opposite Party. The Complainant was put to the trouble and expense of placing a fresh order from another supplier, resulting in a delay of almost 2 weeks in replacing the spares. On account of the aforesaid, the Complainant has suffered irreparable mental agony apart from economic loss which is tentatively quantified at Rs 2.5 lakhs. The Opposite Party have caused loss and suffering to the Complainant and still continue to do so and therefore have to be severely penalized by imposing damages against the opposite and heavy cost as deficiency in service and unfair trade practice. Hence the complaint.

3. Written Version filed by the Opposite Party in brief is as follows:-

 The Opposite Party is the one of manufacturers of compressor for the past 20 years. During the course of business in the year 2015, the Complainant Mr. Karunaakar had added one of the customers to the Opposite Party company. The Opposite Party company as manufacturer used to pay as Tax on every order of Invoice at the rate of 14.5% to concerned authority, but the Opposite Party received from the customer on every invoice amount only 2%, remaining 12.5% the purchaser have to produce "C" Form to our company. Thereafter the company used to have claim through "C" forms the remaining 12.5% from the concern tax department. The Complainant company M/s. Antartica did not produce "C" Form to our company in the year 2016-2017 financial year. That period the Opposite Party company already paid 14.5% of Tax, to the transaction happened with Complainant company's purchased. The Opposite Party had paid a sum of Rs.46,970/-  and interest to an amount of Rs.28,487/- totally a sum of Rs.75,457/-  to concerned authority. That amount was not able to claim by Opposite Party from concerned authority because of non-producing of "C" Form. They demanded the "C" Form from Complainant for the above said years through phone calls and emails which ended in vain. Hence, no other way to recover that amount from Complainant company. In the mean time at the request of Complainant on 12.11.2020, the Opposite Party company's service men attended and serviced one of the complaint of a compressor in considering the customer satisfaction. They offered to pay the "C' Form due on or before November 2020 as mentioned in the email waiving the interest of Rs.28,487/-  and to pay the tax amount of Rs.46,970/-. But Complainant company not utilized the offer. Hence, no other way to recover the "C" Form amount of Rs.75,457/-, the Opposite Party adjusted that Complainant purchase order amount a sum of Rs.58,120/- instead of Rs.75,457/-  and the remaining amount of Rs.17,337/- has to be paid by the Complainant to the Opposite Party. The Complainant cheated the Opposite Party without submitting the "C" form for the past 4 years. The Opposite Party paid the tax and interest before the concerned authority. Hence, the Complainant approached this Commission with unclean hands. Hence prayed to dismiss the complaint. 

4. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents were marked as Ex.A-1 to Ex.A-9. The Opposite Party submitted its Proof Affidavit and Written Arguments. On the side of Opposite Party documents were marked as Ex.B-1 to Ex.B-4.

Points for Consideration:-

1. Whether the Complaint is maintainable under the Provisions of the Consumer Protection Act, 2019?

2. Whether there is deficiency in service on the part of the Opposite Party?

3. Whether the Complainant is entitled for reliefs claimed?

4. To what other reliefs the Complainant is entitled to?

Point No.1:

The contention of the Complainant is that he owns the biggest cold storage unit in the state of Tamilnadu operating in the name and style of “Antarrtica”. He used to purchase compressor spare parts from the Opposite Party  from time to time. The Complainant placed purchase order dated 13.11.2020 vide proforma invoice dated 13.11.2020 for a sum of Rs.58,120/- towards compressor spare parts. The Opposite Party had sent a mail dated 19.11.2020 stating that the aforesaid sum would be adjusted towards pending C Form dues.  The payment for a sum of Rs.58,120/- was made towards the purchase order and not for any dues.  The Complainant further contended that the Opposite Party had sent a mail dated 10.11.2020  claiming only a sum of Rs.46,970/- towards C Form dues. However the Opposite Party had deducted the entire sum of Rs.58,120/- and  sought for the remaining amount of Rs.17,337/- as due and payable by the Complainant.

        The contention of the Opposite Party is that they as manufacturer used to pay tax on every order of invoice at the rate of 14.5% to the concerned authority  but the Opposite Party received from customer on every invoice amount only 2% remaining 12.5% the purchaser have to produce C Form to the Opposite Party. Thereafter the Opposite Party company used to claim through C Forms the remaining 12.5% from the concerned tax department. The Complainant had not produced C Form to the Opposite Party in the financial year 2016-2017.  For the said period the Opposite Party had already paid 14.5% of tax, for the transaction with the Complainant. The Opposite Party had paid Rs.46,970/- and interest for a sum of Rs.28,487/- in all a sum of Rs.75,457/- to the concerned authority. As the Complainant did not produce the C Form inspite of repeated demands the Opposite Party had recovered the sum of Rs.58,120/- and the balance amount of Rs.17,337/- had to be paid by the Complainant.

        In the given facts the first and foremost point for consideration is whether the complaint is maintainable under the provisions of the Consumer Protection Act, 2019?

The definition of a consumer can be found in Section 2(7) of the Consumer Protection Act, 2019:

 “consumer” means any person who—

(i) 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

(ii) 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 who 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.

Explanation—For the purposes of this clause,-

1. The expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.” 

On a reading of Section 2(7) of the Act, it becomes clear that the Act specifically excludes any person from its purview who intends to use the purchased/hired goods or services for a commercial purpose. However, the intention behind this exception was to exclude commercial transactions with profit as the motive from taking the benefit of the beneficial legislation, that is the Act.  By way of explanation it has been clarified that “the expression  ‘Commercial Purpose’ does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self exploymnt”. Any person who is using the purchased/hired goods or services exclusively for the purpose of earning a livelihood would be included within the meaning of a consumer within the Act.

• In any given case, the facts will be of paramount importance in ascertaining whether a person can take the benefit of the exclusion carved out to the exception laid down in Section 2(7) of the Act. Purchase of goods or hiring of services in the course of normal business activity would certainly entail a profit motive at its core and thus would generally be covered by the exception disqualifying one from taking the benefit of the Act. However, in spite of purchasing goods or availing of services for a profit motive, if the person is able to satisfy goods or services are to be used by the person, exclusively for the purpose of earning livelihood by way of self-employment laid down in the exclusion to the exception, one will still be entitled to take the benefit of the Act.

As laid down in the exclusion it requires the person intending to avail of the remedies under the Act to plead and prove that not only are the goods/services going to be utilized by the person (as opposed to situations where the goods/services are resold or passed on to a third party) but also that the person requires such utilization of goods/services for the purpose of earning his living.

If it is pleaded and proved that the goods/services are being availed by the person himself for the purpose of securing a livelihood and the said activity is being done, the person will be entitled to call himself a consumer for the purposes of the Act. On the other hand, if goods/services are being availed for the purpose of expanding and/or supplementing business income and/or a full-fledged workforce is being employed for the purpose of carrying out such activity then one may be hard pressed to claim benefit of the exclusion to the explanation laid down in Section 2(7) of the Act. The Complainant has neither pleaded nor proved that the goods/services were availed from the Opposite Party for the purpose of securing his livelihood. On the other hand the Complainant had admitted that he is running the biggest Cold Storage Unit in the State of Tamil Nadu under the name of “Antarrtica” and involved in the purchase of compressor spares from the Opposite Party from time to time. As the dispute involves on refund of amounts on either side which arises out of the commercial transactions between the Complainant and the Opposite Party and the business transaction made by the Complainant clearly establish / proves that the same is made for commercial purpose. Further the disputes of payment of dues towards “C” Form and seeking refund of balance amount of Rs.11,150/- by the Complainant as found in Ex.A-7 and as the Complainant had not availed the offer of waiving interest on two “C” Forms and claiming further sum of Rs.17,337/- by the Opposite Party as found in Ex.A-8, does not fall under the purview of Consumer Protection Act, 2019.

As the Complainant failed to plead and prove that the goods/services availed by him is for the purpose of securing his livelihood it is concluded that the Complainant is not a consumer under the purview of Consumer Protection Act, 2019. Hence this Commission is of the considered view that the complaint is not maintainable. Accordingly, Point No.1 is answered.

Point No.2 to 4:

As discussed and decided Point No.1 that the Complainant is not a consumer, as per the Consumer Protection Act, 2019, the complaint filed by the Complainant itself is liable to be dismissed as not maintainable, the Complainant is not entitled for the reliefs claimed in the complaint and for any other relief/s. Accordingly Point Nos. 2 to 4 are answered.

In the result the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 2^nd of January 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

List of documents filed on the side of the Complainant:-

Ex.A1	21.09.2020	Mail sent by the Complainant to Opposite Party
Ex.A2	13.11.2020	Purchased order issued by the Complainant
Ex.A3	10.11.2020	Mail sent by Opposite Party to the Complainant
Ex.A4	18.11.2020	Mail sent by the Complainant to Opposite Party
Ex.A5	19.11.2020	Mail sent by the Complainant to Opposite Party
Ex.A6	23.11.2020	Mail sent by the Complainant to Opposite Party
Ex.A7	01.12.2020	Notice sent by the Complainant
Ex.A8	15.12.2020	Reply Notice by the Opposite Party
Ex.A9	04.01.2021	Rejoinder sent by the Complainant

List of documents filed on the side of the Opposite Party:-

Ex.B1	18.03.2022	Extract of Board Resolution
Ex.B2	-	Mail sent for demanding “C” form to Complainant
Ex.B3	21.09.2020	Mail sent to Complainant
Ex.B4	15.12.2020	Reply Notice sent by Opposite Party

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT