Tamil Nadu

South Chennai

CC/193/2017

M.Poongavanam - Complainant(s)

Versus

M/s.Hatsun Argo Product Ltd - Opp.Party(s)

M.S.P Gunaraj

20 May 2022

ORDER

Date of Complaint Filed : 10.02.2017

Date of Reservation      : 29.04.2022

Date of Order               : 20.05.2022

 

                                             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.193/2017

FRIDAY, THE 20^th DAY OF MAY 2022

Mrs. M. Poongavanam, aged about 52 yerars,

W/o (late) A. Murugesan,

C/o Mr. K. Alfred,

New No.34/2 Old No.109/2,

East Vanniar Street,

K.K. Nagar – West,

Chennai -600 078.                                                                                                                ... Complainant                          

 

..Versus..

1.M/s Hatsun Agro Product Ltd,

   Rep by its Managing Director,

   No.1/20, - A, Rajiv Gandhi Salai (OMR),

   Karapakkam,

   Chennai -600 097.

 

2.M/s Hatsun Agro Products Ltd,

   Having their shop rep by its Managing Director,

   No.1, Kamarajar Street,

   M.G.R Nagar,

   Chennai – 600 078.                                                                                                           … Opposite Parties

******

Counsel for the Complainant            : M/s. P. Gunaraj

Counsel for the Opposite Parties       : M/s. Ramalingam & Associates

 

        On perusal of records and after having heard the oral arguments of  both 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 12 of the Consumer Protection Act, 1986 and prays to direct the Opposite Parties to pay Rs.6,84,000/- to the Complainant towards loss of income due to the sudden termination of milk supply, or to pay Rs.1,15,000/- with interest at the rate of 120% which was taken from the money lenders, o pay Rs.1,60,000/- for the investment made for TVS-50, mini Auto and fridges, etc, to pay Rs.11,500/- for the legal notice and the Advocates fees for the suit in O.S.No.4300/2015 and to pay Rs.5,00,000/- for the mental agony caused by the Opposite Party to the Complainant along with cost.

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

        The Complainant is a poor widow and educated up to 5^th standard. To carry on her livelihood the Complainant had an unilateral agreement dated 07.10.2013 to sell the Opposite Party milk products in their leased shop bearing Door No.1, Kamarajar street, M.G.R Nagar, Chennai – 600 078 given to her, to deliver their milk products to various provision shops, after depositing Rs.1,15,000/- with the Opposite Party as security deposit which was borrowed from money lenders demanding high interest rate at 120%. The Complainant knows no English language and even signed the agreement as prepared by the Opposite Party in the fond hopes of making the survival. The Complainant states that the Complainant and her son worked day and night and never ever were defaulters in the matter of payment to the Opposite Party. The Complainant paid the dues regularly by even suffering high interest payments to money lenders. The Complainant starts the day at 10.00 am in the morning and toil till 23.00 pm in the night. On 23.06.2015 after making supplies for Rs.76,253/- vide their bill No.75000737460 their supervisor one Mr. Srinivasan told the Complainant the future milk supply will be stopped from 24-06-2015 and no need to pay the bill amount in to the bank and vacate the premises immediately which was leased to us as per the agreement. When the Complainant questioned this, the complainant was verbally abused by the Opposite Party employee Mr.Srinivasan. The Complainant states that no cheque amount was due even for next day. Some  time because of provision shop payment delay to the Complainant  the cheque being returned by the bank at 11.11 am and the same were honoured before 15.00 pm on that day itself. The Complainant states that for her livelihood she immediately issued a legal notice to the Opposite Party on 30.06.2015. No reply received from the Opposite Party. The Complainant apprehended forcible eviction from the shop at No.1, Kamarajar street, M.G.R. Nagar, Chennai – 600 078. Therefore the Complainant filed an original suit and injunction suit before the 17^th Assistant Judge in the Court of City Civil Court at Chennai on 23.07.2015 in I.A. No.10962/2015 in O.S.No.4300/2015 and notice was ordered on 31.07.2015 to restrict the Opposite Party from interfering with the peaceful possession till the refund of the security deposit with interest and loss of damages for the livelihood and the investments. The Complainant states that the Opposite Party filed an I.A No.15175/2015 u/s 8 of the Arbitration and Conciliation Act, 1996 R/w section 151 of C.P.C to refer the parties to the Arbitration in terms of Arbitration clause in agreement dated 07.10.2013 entered in to them and prayed to dismiss the O.S. No.4300 / 2015. The same was allowed on 05.04.2016. The Complainant filed a Civil Revision Petition before the Hon’ble Madras High Court, Chennai in C.R.P (SR) No.48725/2016. In the mean time the Opposite Party issued a notice on 26.09.2016 to hand over the shop which is kept closed till date storing the milk trays instead of appointing an Arbitrator. The Complainant issued notice dated 24.11.2016 to the Opposite Party to appoint an Arbitrator and reminded the Court Order in I.A.No.15175/15 in O.S.No.4300/2015. The Complainant had lost 19 months earning of Rs.36,000/- ( Rs.200/- per day) because of the sudden termination of milk supply. The Opposite Party is liable to pay totally a sum of Rs.14,55,500/- plus deposit amount of Rs.1,15,000/- with 120% interest. The Complainant has utilized the sales supplied by the Opposite Party for her livelihood after taking high interest rate loans for her security deposit and investments. The Opposite Party miserable failed in their duty to provide supply. Due to the deficiency of service of the Opposite Party, the Complainant not only suffered financially but also the Complainant was put to a lot of mental agony and pain which needs to be compensated by money. Hence the Complaint.

3.    Version filed by the Opposite Parties in brief are as follows:-

The Opposite Parties state that the Complainant is not at all a consumer as prescribed in the Consumer Protection Act, 1986 (Act 68 of 1986) as amended.

The Complainant is the proprietor of M/s. M.P.K Annai Milk, who entered into a distribution agreement dated 07.10.2013 with the Opposite Parties for sale of Milk and Milk products manufactured and supplied by the Opposite Parties. The entire transaction was commercial in nature and therefore the Complainant will not come under the purview of consumer as defined in the consumer Protection Act, 1986 (as amended). The Complainant’s firm is a chronic defaulter in making payments to the supplies made by the Opposite Parties and there was clear breach of the agreement and cheques issued towards the payment of liability for supplies made were dishonoured for more than 24 times and hence the Opposite Parties were forced to stop the supply to the Complainant’s firm on and from 23.06.2015. The Complainant had filed a Civil Suit before the City Civil Court Chennai in O.S.No.4300 of 2015 and the same was dismissed. The Opposite Parties state that since the Complainant has defaulted in making payments for the supply and that the Cheques issued by her towards the payment for supply made by the Opposite Parties were dishonoured, the Opposite Parties stopped the supply to the complaint in terms of the agreement and requested the Complainant to vacate the premises which was leased out to the Complainant for the purpose of the distribution of the Opposite Parties products. As per the clauses of the distributor agreement the Opposite Parties have right to terminate the contact without any prior notice. The Complainant is not entitled for any relief as claimed in the above complaint. The Opposite Parties state that the above complaint is not maintainable and ought to be dismissed at the threshold with costs as against the Opposite Parties as the Complainant has totally concealed the fact that the distributor agreement was entered by her as the proprietor of the concern MPK Annai Milk and not in her individual capacity and the total terms and conditions of the agreement is entirely for distribution and sale of the Opposite Parties products is a commercial transaction which is purely for commercial purpose and therefore the above Complainant will not come under the purview of the Consumer Protection Act and therefore the above complaint is not at all maintainable. The Opposite Parties state that there was no default or deficiency in service on the part of the Opposite Parties and the Opposite Parties acted as per the terms and conditions of the distributor agreement. Hence the complaint is not maintainable and it is a clear abuse of process of law and the same ought to be dismissed.

4.      The Complainant submitted her Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-9 were marked. The Opposite Parties filed their Proof Affidavit and Written Arguments. On the side of Opposite Parties Ex.B-1 to Ex.B-7 were marked.  

5.     Points for Consideration:-

1. Whether the Complainant is a consumer?

2. Whether the Opposite Parties had committed deficiency in service on their part?

3. Whether the Complainant is entitled for reliefs claimed in the complaint?

4. To what other reliefs the Complainant is entitled?

6.     Point No.1:-

        It is an undisputed fact that the Complainant had entered into a Distribution Agreement dated 07.10.2013 with the Opposite Parties as found in Ex.B-1. It is disputed that the Complainant would not fall under the purview of Consumer as defined under section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, as entire transaction taken place between the Complainant and the Opposite Parties were commercial in nature. In this regard the contention put forth by the Counsel for Complainant is that the Complainant is sole proprietor of M/s PK Annai Milk and entered in to a Distribution Agreement dated 07.10.2013 with the Opposite Parties for sale of milk and milk products manufactured and supplied by the Opposite Parties for the sole purpose of earning for her livelihood by means of self employment for her survival and of her sons, she is the sole bread winner of the family who had lost her husband. On the other hand, the Opposite Parties contended that the entire transaction taken place between the Complainant, were for the supply of milk and milk products manufactured and supplied by the Opposite Parties. From Ex.B-1 it is clear that the Complainant was engaged by the Opposite Parties to distribute their milk and milk products in the area allotted to her by collecting security deposit from the Complainant. Further the Opposite Parties by themselves had taken a property for lease and allotted the same to the Complainant, further they selling price was fixed by the Opposite Parties, the supply of their milk and milk products were made through their vehicle to the Complainant. However the Complainant had to make arrangement for freezer to store the products of the Opposite Parties at the cost of the Complainant. The contention of the Counsel for complainant is that though the Complainant got supply of the Opposite Parties products and sold to the third parties the same were done for her livelihood by means of self-employment relying upon the Judgments of the Apex Court reported in 199 (1) Supreme Court Cases Page 131, 2020 (2) Supreme Court Cases Page 265, 2020 (12) Supreme Court Cases Page 235, 1995 (3) Supreme Court Cases Page 583, 2019 (12) Supreme Court Cases Page 751 in support of the contention made. The contention of the Counsel for Opposite Parties is that the supply of their Products were end products, as no consideration was paid to the Complainant and no service had been provided to the Complainant by the Opposite Parties and the transaction was purely of commercial nature and hence the Complainant is not a Consumer and they had terminated the contract based on the terms and conditions of the Distribution Agreement (Ex.B1) singed and accepted by the Complainant, further the Complainant also had not adhered the terms and conditions of the Distribution Agreement and committed default in making the payments to the Opposite Parties as per the statement of accounts filed as Ex.B2, which resulted in termination of Distribution agreement, hence they had not committed any deficiency of service or unfair fair trade practice committed to the Complainant. Further there was an arbitration clause in the said agreement (Ex.B1) and they had succeeded in the Application filed by them in n I.A.No.15175 of 2015 in the suit filed by the Complainant herein in O.S.No.4300 of 2015 before the Hon’ble XVII City Civil Court, Chennai, referring the Arbitration Clause, the said application was allowed and the suit filed by the Complainant was dismissed.

The question that arose is whether the Complainant is a Consumer. Based on the arguments and on perusal of the documents filed on either side, as the Complainant was engaged by the Opposite Parties to sell their end products under Ex.B-1 for no consideration paid except by way of Security Deposit which had been agreed to be refunded without interest to the complainant Parties by the Opposite Parties and not purchased for any consideration from the Opposite Parties and further had not availed any service from the Opposite Parties and no service found to be provided to the Complainant by the Opposite Parties, hence the transaction taken place between the Complainant and the Opposite parties is business to business transaction and the same is commercial nature and the contention of the Complainant the transaction of commercial purpose is only for the earnings of the complainant by means of self-employment is not at all sustainable to the present case and the reliance on Judgments made in support of her contention to prove she is a consumer, did not apply to her case, as the facts and circumstances in the present case clearly proves that the transaction involves commercial purpose. Hence, we are of the considered view that the Complainant would not come under the purview of Consumer as defined in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, hence the Complainant is not a Consumer. Accordingly point No.1 is answered.

7.       Point No.2:-

        As we have discussed and decided on point No.1, the Complainant had not availed any service for consideration from the Opposite Parties and the stoppage of supply to the Complainant by the Opposite Parties is based on the terms and conditions of the Distribution Agreement (Ex.B1) accepted and signed by the Complainant, further from Ex.B-2 the statement of accounts of the Complainant filed by the Opposite Parties, it is clear that the Complainant had chronically defaulted payments to the Opposite Parties which resulted in stoppage of supplies by the Opposite Parties to the Complainant, though the complainant had denied the statement of accounts marked as Ex.B2, had not filed any authenticated document to support her claim, hence we are of the considered view that the Opposite Parties had not committed any deficiency of service to the Complainant.

8.       Point No.3 and 4 :-

        As discussed and decided on point No.1 and 2, we are considered view that the Complainant is not entitled for reliefs claimed in her complaint or for any other relief. Accordingly point No.3 and 4 are answered.

In the result the complaint is dismissed. No Cost.    

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on  20^th of May 2022.

 

S. NANDAGOPALAN                        T.R. SIVAKUMHAR                        B.JIJAA

         MEMBER II                                         MEMBER I                        PRESIDENT

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

Ex.A1	16.09.2013	Security deposit receipt for Rs.50,000/-
Ex.A2	17.06.2014	Security deposit receipt for Rs.20,000/-
Ex.A3	03.09.2014	Security deposit receipt for Rs.20,000/-
Ex.A4	17.04.2015	Security deposit receipt for Rs.15,000/-
Ex.A5	28.04.2015	Security deposit receipt for Rs.10,000/-
Ex.A6	30.06.2015	Legal notice to the Opposite Party
Ex.A7	05.04.2016	17th Asst. Judge, City Civil Court Order
Ex.A8	26.09.2016	Notice from the Opposite Party
Ex.A9	24.11.2016	Notice to the Opposite Party

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

 

Ex.B1	07.10.2013	Distributor agreement
Ex.B2		Complainant’s statement of account
Ex.B3		Details of the cheques dishonoured
Ex.B4	05.04.2015	Copies of the Judgment and order in O.S.4300/2015
Ex.B5	26.09.2016	Letter from Opposite Party to Complainant
Ex.B6	10.06.2014	Deed of monthly Lease Agreement
Ex.B7	09.02.2017	Order passed in RCOP No.1386/2016

 

S. NANDAGOPALAN                              T.R. SIVAKUMHAR                               B.JIJAA

         MEMBER II                                           MEMBER I                                    PRESIDENT