IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri.K.Gopalan: President K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 23rd day of January 2010 C.C.No.34/08 T.P.Janjith, Aged 35 years, S/o. T.P.Narayanan, Laliths, : Complainant P.O.Thottada, Kannur-7. (Rep. by Adv.T.P.Jelna) Vs. S.Santhosh, Managing Partner, Diagnostic Enterprises, Chirakkulam Road, Thiruvananthapuram. : Opposite Party: (Rep. by Adv.B.Rajesh) O R D E R Smt.Preethakumari, Member. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay Rs.1, 00, 000/- (Rupees one lakh) as compensation with interest and cost. The case of the Complainant in brief is that he is a distributor of Allopathic medicine which is the means of livelihood and for this purpose he has as an office at Alfala Complex, Kannur. During October, 2005, the customer care manager of Opposite Party Mr.Satheeshkumar Pamban agreed to give the right of distribution in Kannur and for this the Opposite Party accepted two blank cheques from the Complainant as security and the opposite Party has allotted some medicines to the Complainant for distribution. But due to lack of customers to that medicines only few medicines were sold and the balance are kept as stock and the same was informed to the Opposite Party and he informed the Complainant that he has to pay only for the medicine which he had already sold and he will take back the rest of the medicine and the same was confirmed by the customer care manager, one Sajeevan, staff of the Opposite party. But the Opposite Party had stopped the distribution of the medicines and asked for the money contrary to his promise. But the Complainant reminded the Opposite Party about his promise and as a result the Opposite Party informed him that the account will be cleared at the time of taking stock and he will be returned the balance cheques. The medicines supplied to the Complainant for distribution in Wayanad District was taken out by the above said Sajeevan and he had received the selling price of it. Above all, the above said Sajeevan has received Rs.11,974/- from the Complainant. But instead of taking stock and clearing the account the Opposite Party has filed a criminal case against the Complainant before Additional Chief Judicial Magistrate Court, Vanchiyur, and Thiruvananthapuram. The Opposite Party had persuaded the Complainant for taking agency by giving so many promises and by saying that the medicines have good market and had appointed sales representatives. But giving agency by persuading and giving false promises and filing criminal cases are amount to unfair trade practice and deficiency of service and hence this complaint. Upon receiving notice from the Forum Opposite Party appeared and filed version through Adv.A.K.Santhosh and Adv.B.Rajesh. According to the Opposite Party the Complainant is not a consumer and the complaint is filed only to counterblast against the cheque case filed before the ACJM, Vanchiyur, and Thiruvananthapuram. The nature of transaction between the Complainant and Opposite Party is that if a dealer and stockiest and hence it is purely a commercial transaction and the relation is that of principal and agent. The Opposite Party admits that the complainant is his distributor. According to the Opposite Party, the Complainant was appointed as stockiest as per his own request and the above stated Santhoshkumar Pamban is one of the close relatives of Complainant. The Opposite Party has not received any blank cheques form the Complainant. The Complainant made payment for due discharge of the liability that the Complainant owned towards the cost of the materials purchased. The Opposite Party further denied the contention that due to lack of demand he is still in possession of the stocks and the Opposite Party had agreed to receive back the unsold materials and the amount towards the selling price of the materials which has been sold off. The Opposite Party further denied the contention that the Complainant had entrusted the materials intended to be sold at Wayanad District returned back to the staff of Opposite Party and entrusted Rs.11,974/- as sale proceeds. The Opposite Party denies the contention that he presented the cheques given as security and had initiated criminal proceedings. The criminal proceedings are initiated against the Opposite Party on account of the nonpayment of the amounts covered under the cheques which are legally due to the Opposite Party. The allegation, that the initiative of criminal proceedings is a deficiency in service against the provisions of Consumer Protection Act. No legal proceedings lawfully initiated can be termed as deficiency and the same is beyond purview of Consumer Protection Act. So the Complainant is not entitled to get any relief and hence the complaint is liable to be dismissed. Upon the above pleadings the following issues have been raised for consideration. 1. Whether the Complainant is a consumer? 2. Whether there is any deficiency in service on the part of Opposite Party? 3. Relief and Cost? The evidence in the above case consists of PW1, PW2, DW1, Exts.A1 to A8 and Ext.B1. Issue No.1: The Opposite Party contented that the Complainant is not a consumer, since the nature of transaction between the Complainant and Opposite Party is that of a dealer and stockiest and purely a commercial transaction. He also contented that the complaint is filed as a counter blast for criminal proceedings pending against the Complainant U/s 138 of N.I.Act before ACJM Court, Vanchiyur, and Thiruvananthapuram. But the Complainant pleaded that he is doing distribution of Allopathic medicines for his livelihood by means of self employment. But as per Section 2(d)(i) and (ii) of the ‘Act’, a consumer means any person who buys goods or avails service for consideration which has been promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods or avails service for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made wit the approval of such person, but does not include a person who obtained such goods for resale or for any commercial purpose. The explanation to this says that for the purposes of this clause “Commercial Purpose” does not defined use by a person availed by him exclusively for the purpose of earning his livelihood, by means of self employment. But in Cheema Engineering Services Vs. Rajan Singh which was reported in 1997(1) Supreme Court Cases 131 the Hon’ble Supreme Court held that the word “self employment” is not defined and hence it is a matter of evidence and hence it is to be determined on the basis of evidence. Even though the Complainant contented that he is earning his livelihood through the distribution of medicines he deposed before the Forum that ]e IT-]-\-n-I-fpsS Alloppathy acp-¶p-IÄ hnX-c-WT \S-¯p¶ agent BWv. Cu tIknse FXr-I-£n-bpsS IT-]-\n-bpsS Hcp agency Bbn-cp-¶p. Cu tFP³kn hy-h-Ø-IÄ A\p-k-cn¨v hnX-c-WT sN¿p-¶-Xn\p \n_-Ô-\-IÄ H¸n-Sm-dp-v. OP bpambn written agreement Dm-bn-cp-¶n-Ã. hy-h-Ø-IÄ AT-Ko-I-cn¨v acp-¶p-IÄhn¡m-sa¶p k½-Xn¨v application Rm³ \ÂIn-bn-cp-¶p. So from this itself it is clear that he has purchased coods from Opposite Party for resale under an agency ship. Moreover in Syno Textiles Pvt. Ltd., Vs. Greaves Cotton and Co. Ltd., the National Commission observed that the main determinants of the character of a transaction – whether it is for a commercial purpose or not are the immediate purpose as distinct from the ultimate purpose of purchase or sale in the same form or commodities for self consumption in economic activities in which they are engaged were held to be consumers under the Act. But in the present case in hand, the Complainant is an agent and the goods purchased were for resale. Above all in Ranbaxy Laboratories Vs. Smt. Mamta Sarkar and others, which was reported in 1996-99 Consumer 4937, the National Commission held that, whether the purpose for which a person has bought goods is a commercial purpose within the meaning of the definition of expression Consumer in Sec.2(1)(d) of the Act is always a question of fact to be decided in the fact and circumstances of each case. Any finding on the said question of fact has to be based on a consideration of the evidence adduced in the case and mere pleading without evidence cannot form the basis of a valid finding particularly when the case pleaded in respect of the said matter by one party is seriously disputed by the other party. Fruther, in K.R.Ramaswamy Vs. O.M.Noorudeen and another and O.M.Noorudeen and another Vs. M/s.S.G.S. Petro organic Pvt. Ltd., and another which was reported in 1986-99 Consumer 4537, the Hon’ble National Commission held that the Complainant who wanted sub-dealership to purchase kerosene and sell it to customers in the village is excluded from the purview of Sec.2(1)(d) of C.P.Act and hence the Complainant’s proposed activity is one for resale and the State Commission was right in holding that the remedy for the Complainant may be in Civil Court. Above all from the relevant fact and circumstances of the case we are able to draw a legitimate inference that the Complainant is not a consumer as defined in the Act. So we hold the view that the Complainant is not a consumer and the issue No.1 is found against the Complainant. Since it is found that the Complainant is not a consumer, we are not going deep into the merit of the case. So the complaint is liable to be dismissed and order passed accordingly. In the result, the complaint is dismissed. No cost. Sd/- Sd/- Sd/- Member Member President APPENDIX Exhibits for the complainant A1.Copy of stock statement A2 & 3.copy of the letter dt.25.10.05and21.3.06 sent by Ananth Pharma to OP A4.copy of the letter dt.7.3.06 sent to Anand pharma by OP A5.Summons to an accused person issued byAddl.CJM A6.Photo copy of the order issued by Addl.CJM, Tvm in CC.1480/06 A7.Letter dt.31.3.09 issued by Labour officer,Kannur to Satheesh Kumar Pampan A8.Certificate issued by OP to Satheesh Kumar Pamban Exhibits for the opposite party B1.Copy of Power of attorney Witness examined for the complainant PW1.Complainant PW2.Satheesh Kumar Pamban Witness examined for the opposite party DW1.Subash /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur | 
