Tripura

StateCommission

CC/3/2015

Sri Pannalal Maloo - Complainant(s)

Versus

Sri Rajesh Tewari & 3 Others - Opp.Party(s)

Mr. P.Chakraborty , Ms. S.Debnath , Mr. S.Chakraborty

20 Aug 2015

ORDER

The record is placed for order. This order has arisen out of the hearing on the point of admission of the complaint which includes the question of maintainability of the complaint before the State Commission under the Consumer Protection Act, 1986.

        The fact of the case as narrated in the complaint, in brief, is that one Sri Pannalal Maloo, Proprietor-Cum-Wholesale Licensee of Denatured Spirit as complainant lodged the complaint on 16.07.2015 before this Commission alleging that the complainant is a Wholesale Licensee of denatured spirit and has been awarded licence for procurement, possession and sale of denatured spirit since 1982 and has been doing the said business with reputation. It is also alleged that the demand of the consumers for the said spirit throughout the State of Tripura is solely dependent on the imported denatured spirit. It is also alleged that the complainant has approached for the issuance of one import permit for a volume of 20,000 liters in routine manner and accordingly, the proforma O.P. No.4 has issued the same vide import permit No.2232-43/F.VII-1(1)CEW/DS/12 dated 18.07.2013 and after completion of related formalities the distillery concerned has also arranged to dispatch the consignment in due course vide its PD-25 memo Sl.No. 94 dated 26.09.2013 with the expectation that the transit course of journey would be about 10 days and accordingly, the consignment which was loaded from Balarampur Chini Mills Ltd. (UP) for Agartala, was expected to reach by 06.10.2013.

        It is also alleged that the complainant issued an authorization letter for lifting 20,000 liters of denatured spirit in the tanker No.WB-11B-0951 belonging to M/S Tewari Brothers i.e. the principle O.P. nos. 1 and 2 and the driver was fully authorized to sign all the relevant papers pertaining to the supply of denatured spirit.

        It is also alleged that the permitted consignment did not reach Agartala within the expected date and on making query, the complainant came to know from the reliable sources that in the specified route of journey the said tanker vehicle carrying the permitted consignment has been seized by Excise Officials of Alipurduar Excise Circle in West Bengal and on getting such information the complainant contacted with the O.P. nos.1 and 2 and came to know from them that the said tanker was seized by the Excise Authority of Alipurduar on 03.10.2013 and the cleaner of the said tanker was also arrested and accordingly, a case being CR 491 of 2013 was registered in the ACJM Court, Alipurduar.

        It is also alleged that due to non-delivery of such consignment the proforma O.P. No.4, Superintendent of Excise, Agartala, West Tripura District issued a show cause notice dated 26.10.2013 to the complainant who submitted a show cause reply on 28.10.2013 stating therein the reason for such non-delivery of the consignment.

        It is also alleged that the O.P. nos.1 and 2 being the Transport owners of the vehicle and constituted attorney of the owner of the consignment filed petition before the Ld. ACJM, Alipurduar for releasing the tanker with the consignment and accordingly, the Ld. ACJM passed the order for releasing the tanker with the consignment subject to furnishing a bond of Rs.40,00,000/-, but  the O.P. nos.1 and 2 did not give delivery of the consignment to the complainant, in spite of several requests and reminders vide letters dated  22.09.2014 and 08.10.2014.

        It is also alleged that thereafter the complainant served an advocate’s notice upon the O.P. nos.1 and 2 on 20.12.2014 and 18.05.2015 requesting them to deliver the consignment and in reply to the said notice, the O.P. nos.1 and 2 by letter dated 29.12.2014 narrated the reason of delay of non-delivery of the consignment, but till this date the O.P.nos.1 and 2 did not give delivery of the consignment resulting to the huge financial loss amounting to Rs.21,83,180/- to the complainant on various heads mentioned in the complaint.

        It is also alleged that on 15.06.2015 the O.P. nos.1 and 2 wrote a letter to the complainant with a copy to his advocate stating that they are unable to move the tanker without proper and revalidated excise paper as Alipurduar Excise Officer has refused to revalidate the excise document and requested the complainant to arrange to revalidate the excise paper so that they may deliver 19,800 liters of special denatured spirit without any further delay, although the complainant already informed the O.P. nos.1 and 2 that it is not possible on his part to revalidate the excise paper and the revalidation of excise paper has to be done by the O.P. nos.1 and 2 as because due to their negligence and deficiency in service, the stipulated period of delivery of the consignment has been expired and in spite of that, the O.P. nos.1 and 2 are silent as to the delivery of the consignment to the complainant who has been compelled to lodge the instant complaint before this State Commission seeking reliefs mentioned therein.

        In view of the above brief fact of the case made out in the complaint, some questions have come up before us for consideration which are as follows :—

        Whether the complainant who lodged the instant complaint can be considered as a ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 and whether the transaction in question is for any commercial purpose or whether such transaction would come within the ambit of the Explanation to Section 2(1)(d) of the Consumer Protection Act, 1986 and whether this Commission has got any territorial jurisdiction to entertain the complaint under the C.P.Act, 1986.

        At the outset, it is found necessary to mention that as per the provision of the Consumer Protection Act, 1986, a complaint can be instituted before the State Commission directly under Section 17 of the said Act and a complaint can be lodged directly before the District Forum only under Section 12 of the said Act. Going through the instant complaint, we find that the complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 before this Commission. It appears to us that the quoting of Section 12 of the said Act in the complaint lodged before this Commission is nothing, but an error while drafting the complaint. According to us, it should be under Section 17 of the Consumer Protection Act, 1986. It is well settled principle of law that misquoting of a Section of the Act in a complaint does not render the same untenable in law and as such, the misquoting of Section 12 in place of Section 17 of the Consumer Protection Act, 1986 in the complaint is not a fatal matter. It can be rectified by way of amendment.

        The learned counsel for the complainant submitted before us that the complainant has engaged M/S Tewari Brothers i.e. the O.P. nos.1 and 2 for lifting 20,000 liters of denatured spirit through their tanker bearing No.WB-11B-0951 from Balarampur Chini Mills Ltd. (Uttar Pradesh) on the basis of the import permit issued by the Superintendant of Excise, Agartala, West Tripura District (O.P.No.4) for making delivery of the same at Agartala and thereby the complainant has hired the services of M/S Tewari Brothers for consideration and thus, the complainant has become a consumer as provided under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

        The learned counsel for the complainant also submitted that the complainant is a mere wholesale licensee of denatured spirit in Tripura and by virtue of that licence, the complainant brings the said denatured spirit from Uttar Pradesh to Agartala, Tripura and distributes the same to different retail licensees/consumers throughout the Tripura State. He also submitted that the complainant, thus, is a mere distributor and not a seller of the said denatured spirit and therefore, the transaction in question cannot be termed as commercial purpose as mentioned in the definition of consumer under the Consumer Protection Act.

        The learned counsel for the complainant also submitted that the complainant has been running his business of distributing denatured spirit within Tripura State and as per understanding, the O.P. nos.1 and 2 require to deliver the consigned denatured spirit to the complainant at Agartala, Tripura and the import permit on the basis of which M/S Tewari Brothers has been engaged by the complainant as transporter has also been issued by the Superintendant of Excise, Agartala, West Tripura District. He also submitted that the Superintendant of Excise (O.P. No.4) served a show cause notice upon the complainant who submitted a reply to the show cause notice and as such, this Commission has territorial jurisdiction to entertain the complaint under the Consumer Protection Act.

        In view of the above submission, we find it appropriate to reproduce the definitions of the expressions ‘complainant’ and ‘consumer’ as defined under Section 2(1)(b) and 2(1)(d) respectively in the Consumer Protection Act, 1986 which are as follows,-

        (b) “Complainant” means —

(i) a consumer, or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative;

Who or which makes a complaint;  

(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 payment, 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 purposes of earning his livelihood by means of self-employment;      

        The nature of transaction in question can be gathered from para-1 of the complaint which is as follows,—

        That, the complainant is a Wholesale Licensee of denatured spirit and has been awarded licence for procurement, possession and sale of denatured spirit since 1982 and has been doing the said business with reputation.   

        From the paragraph-1 mentioned above, it is evident that the transaction in question of the complainant is for commercial purpose. This paragraph clearly indicates that the complainant being a Wholesale Licensee procures the denatured spirit and sells the same and he has been running this business with reputation since 1982. From the above, it can be said unambiguously that the transaction in question of the complainant is for commercial purpose. The definition of ‘consumer’ under the C.P.Act does not include a person who obtains goods for resale or for any commercial purpose and also does not include a person who avails of such services for any commercial purpose  as provided under Section 2(1)(d)(i) and under section 2(1)(d)(ii) respectively of the Consumer Protection Act. Of course, there is an Explanation to the said definition of consumer which provides that 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 the instant case, it transpires that the complainant procures the denatured spirit and sells the same to others. He does not procure the same for his own use, rather he sells the same to others. Going through the complaint, we find that not a single word has been used in the complaint indicating that the complainant has been running the said business exclusively for the purposes of earning his livelihood by means of self-employment. So, it is palpable that the complainant is not doing the said business only for the purpose of earning his livelihood by means of self-employment and thereby does not fall within the explanation to the definition of ‘Consumer’. From the affidavit attached to the complaint, it appears that the complainant has described his profession as business. A Wholesale Licencsee who has been authorized by the Excise Department to sell the denatured spirit to authorized consumers or users throughout the State of Tripura after procuring the same from elsewhere outside Tripura as narrated in para-2 of the complaint cannot be said that he has been doing that business only for earning his livelihood by means of self-employment. This, on the other hand, clearly indicates that the complainant has been doing that business only for making his profit from that business.

        From the above, it is palpable that the complainant obtains denatured spirit by way of purchase from outside the State of Tripura on the basis of the import licence and after bringing the same to Tripura he sells the same to different consumers and in doing so he hired the services of M/S Tewari Brothers for consideration and as such, this transaction is found completely for a commercial purpose and this commercial purpose does not fall within the exempted clause by virtue of the Explanation appended to the definition of ‘consumer’ mentioned earlier. That being the position, it cannot be held under any stretch of imagination that the complainant is a consumer as defined in Section 2(1)(d)  of the Consumer Protection Act, 1986 and therefore, the complaint lodged by the complainant claiming himself as a consumer is not entertainable before this State Commission under the Consumer Protection Act.

        The learned counsel for the complainant while making submission before us in connection with our query as to whether this Commission has got any territorial jurisdiction to entertain the complaint under the C.P.Act, replied saying that the Superintendant of Excise, Agartala, West Tripura District who issued a show cause notice to the complainant compelling him to make a reply to the said show cause notice, is a necessary party and as such, the complaint lodged by the complainant falls within the territorial jurisdiction of this Commission and therefore, the same is entertainable under the C.P.Act before this Commission. It transpires that the complainant at the time of lodging the complaint filed some documents lying with the record. From the duplicate copy of Import Authorization Pass for Denatured Spirit dated 18.07.2013, it transpires that the said permit would remain valid upto 15.10.2013 for procuring a quantity of 20,000 bulk liters of denatured spirit. It also transpires that a case has been made out in the complaint to the effect that the tanker containing 20,000 liters of special denatured spirit was seized by the Officials of Alipurduar Excise Department while 200 liters of said denatured spirit was off-loading by way of tampering one of the lids of the tanker at Uttarparokata, under Samuktala P.S. along the side of N.H.- 31 about 10K.M. from Barobisha Assam-Bengal Check Post. However, from the show cause notice, it transpires that Government of Tripura earns excise revenue and sale taxes from the continuous sale of the denatured spirit on whole sale basis by the whole-saler, the complainant herein. It further appears from the said show cause notice that the complainant as Wholesale Licencsee is under obligation to fulfil the demand of 35 nos of retail licencsees of denatured spirit throughout the State of Tripura. It also appears that the complainant was asked to show cause by the Excise Department for having lesser quantity of denatured spirit in the stock of the complainant as Whole sale Licencsee on 26.10.2013 not being consistent with the terms and conditions of the licence. So, it is palpable that this show cause notice has got no direct nexus with the allegation of the complainant made against the O.P. nos. 1 and 2 regarding non-delivery of the denatured spirit as per understanding made between the complainant and the O.P. nos.1 and 2. There is no doubt that the O.P. nos.1 and 2 are prima facie negligent and deficient in providing service towards the complainant in not delivering 20,000 liters of denatured spirit in Agartala. But the Superintendant of Excise, Agartala, West Tripura District who has issued a show cause notice dated 26.10.2013 to the complainant has no longer any role to play in the said transaction.

        From the cause-title of the complainant, it transpires that the complainant is a resident of West Agartala P.S. The O.P. No. 1 and 2 of M/S Tewari Brothers are the persons of Kolkata-17, West Bengal. The O.P. No.3 is the Superintendant of Alipurduar Range, West Bengal. The O.P. No.4 is the Superintendent of Excise, Agartala, West Tripura District. As per the verbal submission of the learned counsel for the complainant, the O.P. No.4 who served a show cause notice to the complainant is a necessary party. But we find from the cause-title of the complaint that the Superintendant of Excise, Agartala has been made as proforma O.P. and as such, the O.P. No.4 has not been described as one of the principle O.Ps.

        The Section 17(2) of the Consumer Protection Act, 1986 deals with the matter of territorial jurisdiction of the State Commission which runs as follows,—

        (2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction-

        (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

        (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

        © the cause of action, wholly or in part, arises.

        Going through the provision of Section 17(2) of the Consumer Protection Act, we find that the O.P. nos.1,2 and 3 neither reside nor carry on any business nor have any branch office nor personally work for gain within the State of Tripura. Not only so, neither of the O.P. nos.1,2 and 3 has any such residence or business-place or any branch office or any place of works for gain within the State of Tripura as provided under Section 17(2) of the Consumer Protection Act. The territorial jurisdiction of the State Commission does not depend upon either the residence of the complainant or the place of business of the complainant.

        Section 17(2)© of the C.P.Act deals with the cause of action either wholly or in part if the same arises within the territorial jurisdiction of the State Commission. The cause of action is a bundle of facts. The complainant has brought a matter of show cause notice issued by the Superintendant of Excise,Agartala, West Tripura District and in connection with that show cause notice he submitted a reply before the said Authority. This matter of show cause notice and reply thereto have been brought in the complaint, but it has got no direct or indirect nexus with the allegation of negligence and deficiency in service on the part of the O.P. Nos. 1 and 2 against whom only the complainant has prayed for reliefs. This matter is totally inconsistent with the allegation made against the O.P. Nos. 1 and 2. So, this matter of show cause and reply thereof cannot be called in true sense of the term as a part of the cause of action of the instant case. That being the position, we are of the view that the said isolated matter of show cause notice and reply thereof cannot be treated as a part of the cause of action of the instant case as provided under Section 17(2)© of the C.P.Act, 1986. We are also of the view that the said isolated matter has been added to the actual cause of action of this case only with a view to bring the case within the purview of Section 17(2)© of the C.P.Act for establishing that this State Commission has territorial jurisdiction to entertain the complaint. But the law does not encourage about the said inclusion of an isolated matter with the actual cause of action. According to us, the complainant has lodged the complaint before this Commission with the sole object of bringing the case somehow within the territorial jurisdiction of this Commission by way of inclusion of an isolated matter , but such an attempt on the part of the complainant is not sustainable in the eye of law. So, from the stand point of cause of action also, we find that this Commission lacks of territorial jurisdiction to entertain the instant complaint under the C.P.Act, 1986. 

        It has been mentioned that the O.P. No.4 has been made as proforma O.P. Going through the prayer-portion of the complaint, we find that no relief has been prayed for by the complainant against the O.P. No.3 and the O.P. No.4. The complainant has prayed for compensation along with interest only against the principle O.P. nos. 1 and 2, M/S Tewari Brothers. So, it appears that the submission of the learned counsel for the complainant to the effect that the O.P. No.4 is a necessary party, is found without any basis. The show cause notice and the reply thereto are entirely connected with the less quantity of the stock of denatured spirit in possession of the complainant and the same have got no direct or indirect nexus with the allegation of negligence and deficiency in service made in the instant complaint. Going through the documents and the complaint, it appears to us that the complainant has made the Superintendant of Excise, Agartala, West Tripura District as O.P. No.4 only with a view to lodge the complaint by invoking the territorial jurisdiction of this State Commission and for no other purpose. If the name of the O.P. No.4 is excluded from the cause-title of the complaint, it must be held that this Commission lacks of territorial jurisdiction to entertain the complaint under the Consumer Protection Act. We are also of the view that for the purpose of claiming compensation against the O.P. No.1 and 2, the O.P. No.4 is totally an unnecessary party to the instant case and therefore, we are of the view that the instant complaint cannot be held entertainable under the Consumer Protection Act before this Commission on the ground of lack of territorial jurisdiction. So, from the stand point of territorial jurisdiction also, it has been established that the instant complaint is not entertainable under the Consumer Protection Act before this Commission for want of territorial jurisdiction.

        It has been established that the complainant is not a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act. It has also been established that the transaction in question of the complainant is completely for commercial purpose only for earning profit and not exclusively for the purpose of earning his livelihood by means of self-employment and therefore, the complainant cannot be considered as ‘consumer’ even by application of Explanation appended to the definition of ‘Consumer’. It has also been established that the instant complaint is not entertainable by this Commission under the Consumer Protection Act for lack of territorial jurisdiction. We, therefore, of the view that the instant complaint is not maintainable under the Consumer Protection Act before this Commission and as such, it is dismissed being non-maintainable under the Consumer Protection Act, 1986.