BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^th May 2014

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER                   

COMPLAINT NO.84/2013

(Admitted on 23.3.2013)

Abubakar Siddique,

So G.M.Habeeb,

Aged about 38 years,

Manager, Good Wheel Tyres and Services,

Panemangalore Post,

Bantwal Taluk.                                                      …….. COMPLAINANT

(Advocate for Complainant: Sri P.I. Abdul Rahman)

          VERSUS

1. Spurthi Marketing Private Limited,

    No.18 1, 2 Floor, 25 Cross,

    24 Main Road, Parangipalya,

    H.S.R. Layout, Sector 2,

    Bangalore 560 102.

    Represented by its Managing Director.

2. Sri K.N.Subramani,

     Managing Director,

     Spurthi marketing Private Limited,

     No.18/1, 2^nd Floor, 25^th Cross,

    24^th Main Road, Parangipalya,

    H.S.R. Layout, Sector-2,

    Bangalore-560 102.

3. Sri N.Venkatesh,

     Represented by its Director,

     Spurthi Marketing Private Limited,

    No.18/1, 2^nd Floor, 25^th Cross,

    24^th Main Road, Parangipalya,

    H.S.R. Layout, Sector-2,

    Bangalore-560 102.                               ……OPPOSITE PARTIES

(Advocate for Opposite Party No.1 to 3 : Sri S.N.Manohar)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The complainant stated that, the Opposite Party is dealing with sales and service of multilevel marketing products including the Anti Puncture Sealant Liquid and advertised their product through wide publication by publishing the brouchures, leaflets along with performance report issued by the SRS travels.  It is stated that, the 1^st Opposite Party sent representations for field work throughout with demo  and one of the representatives of the 1^st Opposite party  company visited the complainant and demonstrates the 1^st Opposite Party product and assured  that the product is not reached the standard level.  On believing the Opposite Party complainant paid Rs.57,000/- through Corporation Bank , Mangalore to supply 2 Cane of Anti puncture Sealant on 17.10.2012 but the said product was not worked properly and his vehicle was punctured in the middle of the road.  Aggrieved by the said facts the complainant intimated to the Opposite party through phone and opposite party assured that they will take back the product and money will be refunded to the complainant within a span of one month.  But the opposite party not complied the demand and thereafter the complainant issued legal notice dated 18.1.2013 but Opposite Party  issued a reply  on 5.2.2013 and denied the payment made therein and hence the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties pay back Rs.57,000/- with interest from 16.10.2012 till the date of payment and along with compensation and cost of the proceedings.

II.        1. Version notice served to the Opposite Party No.1 to 3 by R.P.A.D. Opposite Party No.1 to 3 appeared through their counsel filed common version contended that this Forum has no jurisdiction and exclusively triable by a Civil Court and liable to be dismissed on this score  and further contended that the complaint is barred by limitation and stated that the opposite parties are directors of the Spurthi Marketing Private Limited and dealing with Sales and service of Multilevel Marketing products including the Anti Puncture Sealant Liquid and Opposite Parties are sub marketers of Anti Puncture Sealant Liquid . The main marketers of  the said M/s C 7 Solutions and the Opposite Parties are only sub marketers of the Anti Puncture Sealant liquid and complainant not purchased the alleged product directly from the Opposite parties company and Opposite Party company never marketed  a product without demo to any prospective buyers.  It is stated that, inspite of the complainant’s proper use of the said product, if the same failed to give the desired result the complainant should have communicated the same to the Opposite Parties company for replacement and also stated that the complainant is a reseller of the alleged product for commercial purpose for prospective buyers and does not falls within the ambit of definition of Consumer and he is not purchased the alleged product for his  use and denied that the company supplied inferior quality products to any of the customers and prayed for dismissal of the complaint.

III.       1.  In support of the complaint, Mr.Abubakar Siddique (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and the interrogatories served on him and produced Doc.No.1 to 15.

            In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complaint is a consumer?
2. Whether the Complainants proved that the Opposite Parties have committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

                        We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                                      Point No.(i): Negative.

                                       Point No.(ii) to (iv): As per the final order.        

REASONS

IV.       1.  POINT NO. (i):

In the instant case, the complainant came up with a complaint stating that, he is the Manager of Good Wheel Tyres & Services, Panemangalore, Bantwal, wherein he has stated that the Opposite Parties are marketing the products i.e. Anti Puncture Sealant Liquid  by believing to representation of the Opposite Parties, the  complainant purchased Anti Puncture Sealant from the Opposite Parties by transferring cash of Rs.57,000/- but on application of the above said  sealant on the very next day the vehicle has punctured at the middle of the road and it is contended that the service rendered by them amounts to deficiency because the Opposite Parties sold inferior quality product and thereby the complainant loosers of his business.

Now the first point for consideration is that, whether the complainant is a consumer? Answer is negative. Because the contents/admission of the complainant himself reveals that they are running a Good Wheel Tyres & Services and complainant is a manager of that service center filed the above complaint and wherein he has admitted that the Anti Puncture Sealant  was purchased to apply the vehicles and given services to the customers. That means the transaction involved in the present case is a commercial transaction and complainant cannot be considered as a consumer and not falls within the purview of  Section 2 (1)(d)  of the Consumer Protection Act. The above Section reads as under:-

(d) “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 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;]”

When a service is used or availed for a commercial is not a consumer. So even in the present case the complainant is not a consumer. Because he availed the service for commercial purpose. In view of the aforesaid observation the complaint is dismissed with a liberty to approach the appropriate authority. No order as to cost.

Since the Point No.(i) is negative the question of discussing the rest of the issues does not arise. In view of the aforesaid discussion, the complaint is hereby dismissed and the Complainant is at liberty to approach the appropriate authority to redress his grievances. No order as to cost.

In the result, we pass the following:

ORDER

The complaint is dismissed. No order as to cost.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of May 2014)

                        PRESIDENT                                 MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Abubakar Siddique – Complainant.

Documents produced on behalf of the Complainant:

Doc. No.1: Certificate of Incorporation issued by companies.

Doc. No.2: Permanent account number issued by I.T. Dept.

Doc. No.3: List of board of Director’s.

Doc. No.4: Certificate issued by ISO.

Doc. No.5: Value added Tax regn. Certificate.

Doc. No.6: Bank details of 1^st O.P.

Doc. No.7: Performance report issued by S.R.S. Travels.

Doc. No.8: Assessment report issued by TVS Motors.

Doc. No.9: Leaflet issued by 1^st O.P.

Doc. No.10: Leaflet issued by 1^st O.P.

Doc. No.11:Passbook entry for the transaction.

Doc. No.12: 18.10.2012: Bank Statement of complainant.

Doc. No.13: 17.10.2012: Invoice issued by O.P. to complainant.

Doc. No.14: 27.11.2012: Complaint given by Mr.Md. Ashraf.

Doc. No.15:31.12.2012: Complaint given by Mr.Md. Ashraf.

Doc. No.16: 18.1.2013: Office copy of the legal notice.

Doc. No.17: Two served Postal Ad.

Doc. No.18: 5.2.2013: Copy of the reply issued by the O.P.

Witnesses examined on behalf of the Opposite Parties:

- Nil –

Documents produced on behalf of the Opposite Parties:

- Nil –

Dated:30-05-2014                                         PRESIDENT