SRI.K. VIJAYAKUMARAN, PRESIDENT.

            Complaint for realization of compensation damages costs etc.

          The averments in  the complaint can be briefly summarized as follows:

          The complainant is conducting an Ayurvedic Nursing Home at Ayoor .  The opp.party contracted to supply 3000 kgs of Molasses to the complainant  at the rate of Rs.11/- per kgs for the purpose of using the same  for manufacturing Ayurvedic Medicines like Arishtams, Asavams etc.    The Molasses was supplied  to the complainant on 2.4.99 at the nursing home at Ayoor.  At the time  of supplying the said goods   a sum of Rs.20,000/-  was received by the opp.party and the balance was agreed to be paid on  issue of bill. On 10.4.99 the complainant used the Molasses for manufacturing Ayurvedic medicines such as arishtams and asavams  Batch No.604, Dasamoola Kadathrayam, Batch No.605 Abhayarishtam, Batch No.607 Amritharishtam, Batch No.606 Khadirarishtam, Batch No. 608 Dasamoolarishtam, Batch No.609, Lohasavam, Batch No.610 Balarishtam, Batch No.611, Asokarishtam,  Batch No.612 Jeerakarishtam.  The medicines manufactured under Batch NOs. 604 to 612 turned useless due to  the defects in the quality of molasses  supplied by the opp.party, thereby the complainant sustained a loss of Rs. 1 lakh.   The complainant thereupon informed the matter to the opp.party and demanded  him to make good  his loss amounting  to Rs.1,00,000/-  with a request  to take back the balance molasses.  But the opp.party did not turn up.   The opp.party  is evading  from his liability to issue bill and to pay damages to the complainant .  The opp.party thereafter filed  a complaint before the Chadayamangalam Police on 21.6.99 against the complainant alleging that the complainant defaulted payment of a sum of Rs.13,000/-  The complainant informed  the true facts  to the police and the police directed the opp.party to    issue bills to the complainant and also to take samples from the balance goods kept with the complainant for sending the same for analysis.  Thereafter the complainant issued a notice  requiring the opp.party to issue proper bill and to take back unused molasses remaining with him and to repay the amount of Rs.20,000/-  paid by him.  Though the opp.party accepted the notice  he did not turn up to take  the remaining goods or  repay the value of goods.   The conduct of the opp.party amounts to  unfair trade practice.   The complainant is a  consumer who sustained  damages due to the unfair trade practice adopted by the opp.party.  Hence the complaint.

          The opp.party filed version contending interalia, that the complaint is not maintainable either in law or on facts.   The complainant is not a consumer within the meaning of Consumer Protection Act.  It is  evident from the statement that he purchased 3000 kgs of molasses from the opp.party.   The opp.party has no branch office or residence within the jurisdiction of this Forum.  He is not working for gain or carrier on business  within the jurisdiction of this Forum.   Therefore  this Forum has no territorial jurisdiction to entertain this  complaint.  It is true that the complainant on 2.4.99 purchased 3000 kgs of molasses from the opp.party at the rate of Rs.11/- per kgm. but there was no agreement .  The averment that the molasses was supplied at  his nursing home  at Ayoor  on 2.4.99 is denied.   The opp.party is a small scale  Sugar Cain farmer and running a small scale mill in the name and style Narendra .  On 2.4.99 the complainant came to his mill and after satisfying the quality of molasses purchased 3000 kgms molasses at the rate of Rs.11/- per kgm. A sum of Rs.20,000/-  was paid in cash and the balance  amount of Rs.13000/- was agreed to be paid within a week.   The complainant told the opp.party that he is running an Ayurvedic nursing home.   The balance amount was not paid by the complainant inspite of several demands and therefore the opp.party filed a complaint before the police.  Even  after that the amount was not paid and  therefore the opp.party issued a registered notice demanding the amount.   Though a reply notice was  issued, he did not pay the amount and therefore the opp.party filed a case before the Munsiff Court, Thiruvalla which is  pending.  The  averments in para 2 and 3 are   false.  The molasses purchased by the complainant is of  high quality  one and the complainant was satisfied  of the quality   of the same and the Ayurvedic Medicine prepared using that molasses will never become useless.   The complainant has not suffered any damages due to the use of the molasses supplied by the opp.party.    The complainant never demanded Rs.1,00,000/-  as compensation  from the opp.party or to take back the balance molasses.  The complaint is filed only with a view  to harass the opp.party.  The complainant has manufactured medicines using molasses purchased from elsewhere and that is the  reason for the medicines  manufactured became useless.   The averments in pars 4 to 9 are also false and hence denied.   Since the complainant filed frivolous complaint causing hardship  and mental agony to the opp.party, the complainant  may be directed to pay Rs.20,000/- to the opp.party as compensatory costs.  Hence the opp.party prays to dismiss the complaint.

Points that would arise for consideration:

1.     Whether this Forum has territorial jurisdiction to entertain this

Complaint?

2.     Whether the complainant is a consumer ?

3.     Whether the Ayurvedic medicines manufactured by the complainant is using the molasses supplied by the opp.party

4.     Whether there is deficiency in service on the part of the opp.party?

5.     Reliefs and costs.

Point:1

The contention of the opp.party is that this Forum has no territorial  jurisdiction to entertain this complaint, as the transaction has taken place at Thiruvalla  in the factory of the opp.party which situates outside the territorial jurisdiction of this Forum.   The opp.party  further contends that he has no branch office in Kollam District and that he is  not actually or voluntarily residing within the jurisdiction of this Forum nor carries on business or working for gain  in the Kollam District  and  therefore this Forum has no  territorial jurisdiction to entertain this complaint.   The contention of the complainant is that the cause of action of the  transaction in this case has taken place in his Nursing Home  at Ayoor  which situates   within the jurisdiction of this Forum and as such this Forum has jurisdiction to entertain this complaint.

As a matter of fact there is no documentary evidence to show the place where the transaction has actually taken place.  The complainant has examined PW.3 and 4 to establish that  the transaction has actually taken place in his nursing  home at Ayoor.   The veracity of  the evidences   PW.3 and 4 have been seriously assailed on the ground that they are hired witness  one being an   employee of the complainant and the other an employee in the neighbouring shop and so no credibility can be given to their evidence.  .   It is    well settled principle of law that question as to territorial jurisdiction has to be raised at the  earliest opportunity.   The complaint was filed in the year 1999 and   the opp.party herein who appeared after remand  though raised the contention  in their  version  filed on 21.11.2006 that this Forum has no jurisdiction to entertain this complaint,   the  opp.party has not filed any petition for hearing the question of jurisdiction as a preliminary issue.   Apart from that they have participated in the proceedings all along   In these circumstances we find  the point in favour of the complainant.

Point:II

 As a matter of fact there is no pleading that the complainant is a consumer within the meaning of Sec.2[1][d] of the Consumer Protection Act 1986 and that the income derived  from the business carried on by him is his only source of livelihood. The contention of the opp.party is that the complainant herein is not a consumer within the meaning of Section 2 [1`] [d] of the Consumer Protection Act 1986 is obvious from the absence of a pleading to that effect and as he is manufacturing Ayurvedic medicines for the purpose of sale  on a commercial basis with a view to generate  profit  and not as a means for earning livelihood  by self employment.  It is argued  by the  complainant  that he  is manufacturing Ayurvedic medicines for the purpose of earning his livelihood and therefore he would come within the purview of  definition ‘consumer’ under  section 2 [1] [d]  of the Consumer Protection Act 1986.  Under section 2[1][d]  Consumer  means any person who 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 payments 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 to  section 2 [1] [d] says that commercial purpose  is excluded if it is  exclusively for the purpose of earning a livelihood by means of self employment.    From the definition it is clear that for the application of the clause  a person must establish that the goods purchased and used by him is for the purpose of earning livelihood by means of self employment.   The evidence in this case shows that the manufacturing process is not carried on by the complainant alone lbut he has engaged other workers who are not member  of his family.   PW.2 admitted that there is one Doctor Latha Renjan in his Nursing Home.  PW.3 is working in the Nursing Home of  PW.2 from 1990 onwards and he is writing OP tickets.  He has stated in cross examination “99 tYf agkr\rk ijMjugkr\rk tr\rk eyulR eMjh\h  Ll period H  3%4%5 Swlhj]lG Kn\mlujgkr\rk.  From the evidence of PW.3 it is obvious that complainant is not manufacturing medicines to make a living  but it is a  trading activity carried on for profit.   The bulk purchaser of molasses of 3000 Kg itself would make it clear that the intention is profit making by  large scale production PW.2  has stated that he is given license by the Government of Kerala for manufacturing and sale of medicines through out India  and export to 195 foreign countries.  If such a license was given and he is exporting medicines through out India and 195 foreign countries it can be only by a large scale production of Ayurvedic  medicines and such a person by any stretch of imagination can be said to be earning his livelihood by means of self employment  but he is purchasing goods for being used in an activity directly  intending to generates profit.   Therefore, the complainant will not come within the purview of explanation to Section 2[1][d] .  PW.2 has state in cross examination that he is practicing for the last 35 years and everyday not less than 50 patients come to his nursing home.   To use his words  dqjB\B 35 ig,Aaluj ssipU Swlhj svu\ukr\rkn\mk\ pjicA dkyulsf 50 SglzjdX tsRymkf\fk vjdjcu\]k igkA;  dkmlsf tn\nukA ssfhb\bX akfhlui ilb\bj]kilrkA PlglxA LlX]lG igkA  That clearly  indicates that he is  not only giving medicines to his patients but also selling medicines to more than 50 persons every day.  It has also come in evidence that he has purchased 3000 Kg of molasses from the opp.party.  It is obvious from such a bulk purchase that the purpose  is for manufacturing Ayurvedic medicines in large quantity  with a view to generate profit and not for earning a livelihood by self employment.   For all that has been discussed above  he cannot be said to be a person coming within the explanation to section 2[1][d]  Point found accordingly.

Point III to IV

          The contention of the complainant is that he has used molasses purchased from the opp.party for manufacturing Arishtams, Asavamss etc. and because of the impure molasses supplied by the opp.party the medicines manufactured by him were damaged.   The definite contention of the complaint is that the molasses supplied by the opp.party are sub standard items which is the sole reason for the medicines getting damaged.  PW.2 has stated in cross examination that the molasses brought by the opp.party was of inferior quality and had colour change and on tasting the same it felt salty  and he informed  this fact orally to the  opp.party.  To a pointed question as to how he identified the quality of molasses he has answered ‘by tasting’   According to him if it is of an inferior quality  or adulterated when tasting taste of salt would be very high .  In further cross examination he has stated that before purchase of the molasses from the opp.party also he has tasted the same   To another question  CG]g gkvjv\vk Srl]j S>lp\PUe\se}lSnl ilb\bjufk\   he  answered gkvjv\vk Srl]julnk\ ilb\bjufk.  Then he added that  the molasses have change of colour and taste.  If that be so, there is no reason as to why the complainant has purchased such a large quality.  No prudent man would purchase such a large quality of mollases when he notices the change in colour and the  taste of salt in the molasses is very high.  According to PW.2 he purchased such a large quantity as the opp.party gave a discount of Rs.3/- per kg.  It is worth pointing out in this context  that PW.2 has stated that he is seeing the opp.party for the first time on that day .  When the molasses had change in colour and  high taste of salt no prudent person would  purchase from an utter stranger  a huge quantity of 3000 Kg of the same paying Rs.20,000/- in cash and Rs.13,000/- on  credit even if  a discount of more than Rs.3/- per kg was offered .   The conduct of the complainant  in purchasing 3000 kg. of aforesaid  molasses itself would lead to an irresistible conclusion that the molasses was not of inferior quality but he is saying so for the purpose of this case.

            There is also no material to establish that the complainant has used the molasses purchased from the opp.party for manufacturing Arishtams  Asavams etc. which are alleged to have been damaged.   There is no receipt, no container   or any other material to show that the molasses purchased from the opp.party has been used to manufacture the medicine which are alleged to have been damaged other than  the oral assertions of the complainant.  It is worth pointing out in this context  another aspect.   PW.2 has stated in cross examination  that the molasses would be melted before using the same for manufacturing medicine.   To use his own words CG]g Kgk]julnk agkr\rjH SvG]kr\rfk;  Cg]g Kgk]kgr\SelX alhjrUb\bX Kn\smb\djH arc\cjhldkA  If so , why  the complainant failed to notice impurities,  if any,  when the molasses purchased from the opp.party was melted.  Had there been any impurities he would have noticed the same and it is quite improbable that he  would  have used the same for manufacturing medicines.   So the only inference that can be drawn in these circumstances is   that the molasses used for manufacturing the medicines which are alleged to have got damaged cannot be the one purchased from the opp.party.   The conduct of the complainant in purchasing 3000 kg a bulk quantity  of molasses from an ulter stranger especially  after knowing it  to be of inferior quality on the date of purchase itself when he tested the same is suspicious.  There is no satisfactory explanation as to why on melting  the molasses for manufacturing medicine  he did not  notice   impurities.  No explanation is also forthcoming as to why he  used the same for manufacturing   huge quantity medicines if he noticed impurities.  In the absence of  satisfactory explanation  the only inference that can be drawn is that there was no impurities at all.  With regard to the manufacturing of the medicine using the molasses supplied by the opp.party also .   PWs 2 to 4 have no consistent versions.   According to PW.2 the medicines manufactured  using the above molasses was not sold to anybody but the entire quantity was poured off.  But PW3 would state that agkr\rk ekxjv\vk\Seluj tr\rk eyB\Bk ehLX]lgkA agkr\rk fjgjv\vk\ sdln\mkir\rk;  Std[\S[CA 100 SegjH domkfH …… According to PW.4agkr\rk vJf\fuluj fjgjsdsdln\mkir\r ijigA   PW.3     eyB\ByjB\Bk;  ilb\bjsdln\mkSeluigkA eyB\Bk.  The inconsistent versions of PWs 2 to 4 also raises doubts about the credibility of the  case set up by the complainant.

          PW2 has admitted in cross examination that medicine manufactured could be damaged due to other reasons also.   To a pointed  question  QO,Pdo}kdX zknajh\hffflsnb\djhkA agkr\rk vJf\fuldkA?  Qgk batch  H tb\blrkA iglA ; th\hl batch  hkA iglR clp\PUfujh\h;   PW.2  admitted that there is no document evidencing purchase of the medicine  mixture [QO,Pdo}k ] and so he cannot say whether the medicine mixture was defective or not.  So the case of PW.2 that the medicine manufactured by  him was  damaged due to adulterated or  inferior quality molasses supplied by the opp.party cannot be swallowed without a pinch of salt.  PW.1 is the expert who conducted chemical analysis of the molasses sent by the complainant and filed Ext. C1  report .  There is no material, worth believable, for corroborating the version of PW.2 that sample  was taken from the molasses supplied by the opp.party.  PW.1 has stated that due  to various reasons the molasses may get damaged. viz dampness, Hygienie condition etc.  PW.1 would further state in cross examination  that neither the manufacturing date of the medicines sent for examination  or as to how much old the molasses were not shown. He would further say that he do not know where the molasses was stocked or whether it was kept neatly or not   In re examination the witness has stated in answer to a pointed question 9 agkr\rkdxkA SdmldlR tr\flnk\ dlgnA flb\dxksm egjSClPrujH eyulR dqjukSal?  Th\h though he suddenly add      CG]guksm LCkPjukA aMk Zmdb\bxkAsdln\mk\ Kn\mldlA  From the evidence of PW.1 it cannot be said that the medicines got damaged due to the inferior quality molasses.  From the available materials it cannot be said that the molasses sent for examination is the same molasses purchased from the opp.party.  Other than the interested testimony of the complainant there is no material worth believable, to show that it is the molasses supplied by the opp.party which was send for chemical analysis or that the same was used for manufacturing the medicines.   As pointed out earlier there is nothing to show that the sample was taken from the molasses supplied by the opp.party.   The definite case of the opp.party is that the molasses supplied by him is  of superior quality and only because of that PW.2 purchased such a large quantity and there is considerable force in that contention.  It is also pertinent to note that though the molasses was purchased on 2.4.1999 the sample was sent for analysis on 9^th  December 1999 that is about 8 months after the purchase.  DWs.2 and 3 have stated that the molasses get contaminated if it is kept for more than one year PW.1 has also stated that if the molasses are kept in un hygienic condition it may get contaminated within 6 months unfortunately there is no evidence to show  as to how and where the molasses were stocked .  The evidence  adduced by the complainant is far from satisfactory to come to a conclusion that the molasses purchased from the opp.party was a sub standard or contaminated one.   There is also no believable evidence to show that the medicines were manufactured using those molasses or that the medicines got damaged because of the inferior quality of the molasses supplied by the opp.party.    In these circumstances it cannot be said that there is any  unfair trade practice or deficiency in service on the part of the opp.party .  Points found accordingly.

In the  result the complaint fails and the same is here by dismissed.  No costs

            Dated this the 29^th day of May, 2009.

                                                          .

I N D E X

List of  witnesses for the com plainant

PW.1. – M. Ansary

PW.2. -  Viswambaran Vaidyan

PW.3. – Rejani

PW.4. – Daizy Raju

List of documents for the complainant

– P1. – Notice

P2. – Reply notice

P3. – Postal receipt

P4. – Acknowledgement card

P5. – Renewal certificate R.M.P.

P6 [a]. -  Form 25-D

P6. – [b] Letter sent by Drugs controller to the complainant dt. 20.12.95

P7. Form 26-

P8. – Form No. 26 E-1

List of witnesses for the opp.party

DW.1. – N. Narendra Prasad

DW.2. – A.K. Sivanandan

DW.3. – Jose Joseph

List of documents for the opp.party: NIL

X1. – Copy of Fair copy register

X2. – Fair copy register vide para 116, Mnual  of office procedure

C1. – Certificate issued by Quality Control Laboratory