Kerala

Idukki

CC/83/2017

Cheriyan V M - Complainant(s)

Versus

Sadasivan - Opp.Party(s)

Adv.Shiji Joseph

30 Mar 2021

ORDER

DATE OF FILING : 4.5.2017

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION IDUKKI

Dated this the 30^th day of March, 2021

Present :

SMT. ASAMOL P. PRESIDENT-IN-CHARGE

SRI. AMPADY K.S. MEMBER

CC NO.83/2017

Between

Complainants : 1. Cheriyan V.M,

Vazhaparambil House,

Kallarkooty P.O.,

Idukki.

2. Sherly, W/o. Cheriyan V.M,

Vazhaparambil House,

Kallarkooty P.O.,

Idukki.

(Both by Adv: Shiji Joseph)

And

Opposite Party : Sadasivan,

Anthiyattu House,

Kathippara,

100 Acre, Adimali.

(By Advs: Babichen V. George

& Pratheesh Prabha)

 

O R D E R

 

SMT. ASAMOL. P., PRESIDENT-IN-CHARGE

 

The facts of the complaint is that, the complainants are agriculturists and they have tapping rubbers. Opposite party is running a rubble band manufacturing unit collecting latex from the complainants and other rubber producers. The opposite party approached the 1^st complainant and offered to collect the raw latex from the complainants' rubber plantation on October, 2016. The opposite party offered the price of R.R.I 4 sheets price as per the DR value when the latex was collected. The complainant agreed for the same. Since it is the custom and practice among the latex collectors of the area on collection of latex and price of the 4 grade rubber sheets were given to the farmers. Hence no separate agreement was entered into between the complainant and the opposite party. As per that, the opposite party began to collect the latex from 2016, October to December 2016. On 15.1.2017, the opposite party settled the account. On that day, the price of RSS4 rubber sheets was Rs.135/-. But the opposite party paid only Rs.93/- per kg. The complainant have given 29 barrels

(cont......2)

- 2 -

of latex to the opposite party and which has a total quantity of 1915.09 kg rubber as per the DR value. For that the opposite party paid only Rs.1,76,412/-. The opposite party as per the understanding and the custom prevailing among latex dealers ought to have paid Rs.61,282/- apart from reducing Rs.32/- per kg. The opposite party also collected Rs.1968/- as testing charges. The reduction of Rs.32/- per kg rubber and also charging of Rs.1968/- as testing charge is unfair trade practices and hence deficiency in service on the part of opposite party. Hence the complaint filed for getting the following reliefs. (1) The opposite parties may be asked to pay Rs.61,282/- as difference in rubber price calculated at the rate of Rs.135/- per kg rubber and also ask to refund Rs.1,698/- collected as testing charge deducted from the amount. (2) The opposite parties may be asked to pay Rs.10,000/- as cost of the complaint.

 

Commission served notice to opposite party. The opposite party appeared before the Commission and filed his objections. The opposite party also filed a petition to challenge the maintainability of the complaint.

 

The opposite party denied all the averments of the complainant in the objection. The opposite party stated that he has not offered to the complainant to give the same price of RSS4 sheet for the latex which is collected from the complainant. There was no agreement for the same. There is separate price for rubber sheets and rubber milk. The opposite party has totally collected 29 barrel rubber milk from the complainant. The opposite party has collected 2 barrel milk on 4.10.2016, 15 barrel on 19.12.2016, 11 barrel on 20.12.2016, 1 barrel on 5.1.2017 respectively. At the time, the complainant said to the opposite party that the bill of 2 barrel milk which is taken on 4.10.2016 has not made now and when he needs the bill, it shall collect from the opposite party. At the time, the price of latex was Rs.78/-. On 19.12.2016, when the opposite party collected the barrel of milk, the price of latex was between Rs.90/- and Rs.95/- and it is admitted by the complainant and there was no different opinion by the complainant. The opposite party gave the latex which is collected from the complainant on 19.12.2016 and 20.12.2016 to Angel Latex Company for Rs.95/- on 31.12.2016. But the price of such latex received by the opposite party only on 13.1.2017 from angel latex company. The opposite party gives the price of latex which collected from rubber producers in every 15^th day of a month. As the bank was holidays on 14.1.2017 and 15.1.2017, the bill amount transferred to the account of the complainants on 16.1.2017 and then the opposite party gave the bill to the complainant. At the time, the complainant not said any different opinion about the price. After that, just on 20.2.2017, the complainant alleged that the opposite party paid very low price for the latex.

(cont......3)

- 3 -

In such period, the price of latex was increased. But, when the price increased in the market, the complainant demanded that such increased price for the latex which is earlier sold by him to the opposite party. It was not admitted by the opposite party. The opposite party also submitted that he is running the business unit with respect to the collection of rubber milk and the transactions are very truthful between the rubber producers and the opposite party. The allegations made by the complainants are not correct. Hence the complaint may be dismissed. On 9.11.2017, the opposite party has filed maintainability petition. The opposite party stated in the petition that the Consumer Protection Act 1986 has been passed by the legislature with a specific purpose for the welfare of a 'consumer' which has been clearly defined in the Act. In this case, the complainant does not come under the purview of the definition of a 'consumer'. The opposite party herein has not sold any goods or services to the complainant and have received any sort of price or service remuneration from him at any capacity of any point of law. Facts and law are being so, the complainant herein can not be construed as a 'consumer' as per the meaning and context purported by the said Act. The complainant has admitted that he has sold the latex to the opposite party and received the price of the latex from the opposite party. Moreover, the opposite party who purchased the latex from the complainant has neither sold any goods nor render any service for money to the complainant. In the light of the above explanation, it is prima facie brought out that the complainant is not a 'consumer' as envisaged by the Consumer Protection Act, 1986. Hence the complaint may be dismissed.

 

The points are that whether the complaint is maintainable or not before the Commission and if it is maintainable, whether there is any deficiency in service from the part of opposite party and if so, for what relief the complainant is entitled to ?

 

The complainant filed proof affidavit and has adduced evidence. The complainant was examined as PW1 and Exts.P1(series) to Ext.P3 were marked. PW2 and PW3 were also examined.

 

The opposite party also filed proof affidavit and DW1 and DW2 examined and Exts.R1 to R8 were marked.

 

The POINT :- We heard the learned counsels for both sides. The learned counsel for the opposite party argued that the complainant is not a consumer within the meaning of Sec.2(1)(d) of the Consumer Protection Act, 1986.

(cont......4)

- 4 -

Firstly, we have considered that whether the complainant can be treated as a Consumer under Consumer Protection Act and whether the complaint is maintainable before the Commission.

 

Sec.2(1)(d) of the Consumer Protection Act, 1986 defines 'Consumer' as follows:- 'Consumer' means any person who-

1. 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

2. [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 : For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment]

 

In this case, the complainant stated in his complaint that he has selling latex which collected from his rubber plantation to the opposite parties and had received the price of latex from opposite party. So it is considered that the complainant was only a seller of latex to the opposite party. There was a dispute between the complainant and the opposite party about variation of price of latex which sold by the complainant. Therefore, the complainant is not a consumer as per Consumer Protection Act. Hence the alleged dispute by the complainant can not be considered as a consumer dispute.

 

Therefore, it is our considered view that the complaint do not come under the purview of Consumer Protection Act. As it is found that the complainant is not a consumer under the Consumer Protection Act, we are not going into the merits of the case.

 

(cont......5)

- 5 -

 

In the result, the complaint is dismissed. The complainant is at liberty to approach proper authority for getting appropriate relief.

 

Pronounced by this Commission on this the 30^th day of March, 2021

 

Sd/-

SMT. ASAMOL P., PRESIDENT-IN-CHARGE

Sd/-

SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Cheriyan V.M.

PW2 - Aji V. Kunnel.

PW3 - Noby John.

On the side of the Opposite Party :

DW1 - Sadasivan A.R..

DW2 - Lukkachan V.K.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - Purchase bills.

Ext.P2 - Estimate of field latex purchase.

Ext.P3 - News paper daily dated 5.12.2020

On the side of the Opposite Party :

Ext.R1 - Laboratory reports.

Ext.R2 - Purchase bill..

Ext.R3 - Bill book.

Ext.R4 - Purchase bill.

Ext.R5 - News paper daily dated 8.12.2016, 9.12.2016, 17.12.2016,

27.12.2016 and 30.12.2016.

Ext.R6 - Certificate issued by Mankuva Rubber Producers' Society.

Ext.R7 - Purchase bill.

Ext.R8 - Purchase bills.

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT