IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 11th day of November, 2021
Filed on 29.10.2019
Present
1. Sri.S.Santhosh kumar.Bsc.LLB(President)
2. Smt. Sholly.P.R ,LLB (Member)
In
CC/No.278/2019
Between
Complainant:- Opposite parties:-
Sri.Susheelkumar, 1. Rajesh,K.R., CEO
Radha Sadanam Pottakkanayathu Anarks
Mankamkuzhy Communications, Kottamuri Jn.
Vettiyar Chennithala P.O
Mavelikkara Pin-690105
(Adv. Shajahan.P)
2. Sri. Rajesh.K.R., CEO
Delta Automation Solutions
(Marketing Partner of GPS Tracking
Device NIPPON SECURA),
Tc9/1377-1, Piepinmoodu
Sasthamangalam, Trivandurm
Kerala-695010.
3. Sri. Rajesh.KR
Yellow Bee Solutions
Mekkathil Buildings, 2nd Floor,
V/652-B, Above Muthoot Finance
Pulimoodu Junction, Mavelikkara (Adv. Sreedev.U for Op)
O R D E R
SMT. SHOLLY.P.R (MEMBER)
Complaint filed u/s 12 of the Consumer Protection Act, 1986.
The complainant case in brief are as follows:-
The complainant living in the above address is the director of PRASANTHY AUTO EMISSION TESTING CENTRE mankamkuzhy.P.O, conducting the business by himself, working hard for earning his livelihood. However, since the business was not prospering as expected he was experiencing much difficulty to earn his daily bread. The opposite parties 1 to 3 Sri. Rajesh is known to be the CEO of Pottakkanayathu Anarks Communications, Delta Automation Solutions, Yellow Bee Solutions and authorized dealer/ marketing partner of GPS TRACKING DEVICE “NIPPON SECURA”. Being the dealer of NIPPON SECURA, the opposite party wanted to find markets for his product. He met the complainant informed him of the monthly target and requested his help in the matter of canvassing orders and sale of the product. The opposite party also informed that if the target fixed by Producer Company was not met, he will lose his dealership. Hence if the complainant helped him by working hard and succeeded in finding markets for the product, he will be gifted by appointing as a sub dealer of NIPPON SECURA. Since the income from the complainant’s firm was too low to earn his daily bread and considering the fact that the sale of this product would earn him income and a sub dealership to earn a living, the complainant decided to help in the sale of the product.
2. On informing the willingness to help to find markets for the product opposite party supplied complainant’s firm 44 pieces of NIPPON AIS 140 TRACING DEVICE on 23/8/2018 ( Invoice no. DAS/18-1001/Rs.4,93,240/- of DELTA AUTOMATION SOLUTIONS, TRIVANDRUM) even before entering into an agreement. Believing the words of opposite party the complainant paid Rs.5,75,000/- on 21/9/2018, through cheque no. 005630-690810153 of Alleppey District Co-operative bank.
3. As per the direction of opposite party to find markets for the product, to take steps for advertisement to the product and expecting fresh supplies of the device, so as to supply them to the customers, the complainant worked hard by using all sources of advertisement for which, he had incurred Rs.2,24,000/- towards expenses for rent for office, remuneration for executives, advertisement, transport expense etc.
4. Eventhough there existed tough competition from several other companies to find markets for their product, the complainant and his team had traced several customers. Accordingly the opposite party had appointed the complainant as the sub-dealer for the sale, service and technical support of the product NIPPON SECURA in the RTO limits of Alappuzha, Cherthala and Kuttanadu, as per the sub-dealer dtd. 21/9/2018. However after appointing the complainant as a sub-dealer there was no fresh supply of stock, eventhough there was an excess amount of Rs.81760/- with opposite party out of Rs. 5,75,000/- already remitted. In the mean while the opposite party had taken back 29 devices stating that there were orders for them and will be replaced immediately. Eventhough complainant requested several times for either retuning the stock or payment at the selling price of Rs.13,500/-, there was no reply.
5. The complainant had to file a petition in the matter before the DYSP, Kayamkulam. As per the direction of DYSP opposite party paid back Rs. 3,25,090/- on 20/6/2019 which is the only wholesale cost price of the item and not at the selling price of Rs.13,500/-. Thus an amount of Rs. 66,410/- is yet to be paid in respect of the 29 devices.
6. After the 1st supply, no further stock has been supplied to the complainant, inspite of continuous request over phone. It results he was answerable to the canvassed persons to request excuses which affected him much mentally. An amount of Rs. 81760/- + Rs.66410/- =Rs.1,48,170/- is pending with the opposite party. The above said amount of Rs.2,24,000/- and Rs.1,48,170/- is due to the complainant from the opposite party as explained below.
A) Cost of 44 no’s of the device as per the invoice dtd.23/8/2018 Rs.4,93,240/-
Amount paid as on 21/09/2018…………… …………………. Rs.5,75,000/-
Excess amount paid /Balance amount due Rs. 81,760/-
B) Cost of 29 no’s at Rs.11210/- per device, taken away by R1 Rs.3,25,090/-
Amount due at Rs.13,500/- for 29 nos of the device Rs.3,91,500/-
Margin due…………………………………………. Rs.66,410/-
C) Amount due to the complainant = Rs.81760 +66410+3,25,090. Rs.4,73,260/-
D) Amount already paid to the petitioner on 20/6/2019 Rs.3,25,090/-
E) Balance amount due………………………………… Rs. 1,48,170/-
7. However inspite of requesting refund of the said amount opposite party was not turned up. Which amounts cheating , unfair trade practice and deficiency of service from the part of opposite party. The act has caused mental agony tension and pain to the complainant for which the opposite party is liable to pay compensation. Hence this complaint to refund Rs.3,72,170/- with interest @ of 15% from 21/09/2018 till the date of payment of the amount and an amount of Rs.50000/- as cost and an amount of Rs.50,000/- as compensation.
8. Version of opposite party 1 to 3 are as follows:-
Opposite parties 1 to 3 are one and the same person.
Complaint is not maintainable either in law or on facts. This complaint is an abuse of process of this Commission filed on a experimental basis on order to make unlawful gain from the opposite parties. There is no defect or deficiency in service provided by the opposite party entitling the complainant to appraoch this Commission.
9. The opposite party is a dealer of vehicle tracking devices under the brand name NIPPON SECURA in the State of Kerala. Complainant was only a franchisee/sub-dealer of the opposite party on the basis of a sub-dealer ship agreement executed between the parties on 21/9/2018. The entire allegations and prayers sought are only in course of the sub-dealership transactions and not in the instance of consumption of goods or services from the opposite party.
10. The complaint is filed on an experimental basis stating that the opposite parties are the service providers under the Consumer Protection Act, 1986. Sec. 12 of the Consumer Protection Act mandates that a complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Commission by;
(a) The consumer to whom such goods are sold or delivered or agreed to deliver or such service provided or agreed to be provided.
(b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Commission, on behalf of, or for the benefit of, all consumers so interest; or
(d) the Central Government or the State Government as the case may be either in its capacity or as a representative of interests of the consumer in general.
11. Sec.2(d) of the Act defines the “(d)” Consumer’ means any person who:-
(i) buys any goods for a consideration which has been paid or promised or partly paid or 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 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 or partly promised, under any system of deferred payment and includes any beneficiary of such services other then the person who hires or avails of the services for consideration paid or promised, or partly paid or 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 such services for any commercial purposes.
12. In this case it is submitted that the complainant is not a consumer as mandated in Sec.2(d) of the Act. He is only a sub dealer of the opposite party, who is appointed on the basis of a clear and cogent Sub-dealership Agreement, for the sale of Nippon Secura Vehicle Tracking Devices, in the RTO limit of Alappuzha, Cherthala and Kuttanadu, whereas the opposite party is the authorized dealer of this product in the State of Kerala
13. After the request of the complainant the opposite party explained the terms and conditions followed by them for the appointment of a sub dealer. After being convinced about the terms and conditions of the sub dealership complainant himself agreed for sub dealership and signed the agreement. As per conditions 1 and 2 of the sub dealership agreement the sub dealer has to pay Rs. 75,000/- as non refundable franchise fee for the locations and the sub dealer has to take an initial stock for Rs. 5,00,000/-. On the basis of this agreement complainant issued a cheque for an amount of Rs.5,75,000/- on the date of agreement in favour of the complainant. In return to this opposite party handed over 44 units of Nippon AIS 140 Vehicle Tracking Devices to the complainant for a wholesale price of Rs.11,200/- each, the retail price for which is Rs.13,500/- each.
14. It is the procedure usually adopted by businessmen to introduce their product in the market in order to establish their business and good will and to generate more income from the business. As per the condition No.1 and 2 of agreement complainant purchased 44 pieces of devices from the opposite party. When the complainant failed to sell all this products, he approached the opposite party and intimated his incapacity to sell it. On continuous request the opposite party agreed to take back 29 pieces of unsold devices on its wholesale price of Rs.11,200/- each. This dead stock was taken back from the complainant by the opposite party on a clear and specific condition that its payment will be effected only after its sale, and the complainant admitted the same.
15. When the payment of the returned stock was delayed due to the delay in its sale, the complainant approached the DYSP Kayamkulam against the above condition. As per the direction of Dy.S.P opposite party forced to pay an amount of Rs. 3,25,090/- being the whole sale price of 29 devices @ Rs.11,200/- each, even though that stock was not sold out by the opposite party. No such demand of retail price of these units was raised by the complainant in the presence of the Dy.S.P. Even after the 1st supply of 44 units of devices from the opposite party itself, the complainant failed to sell the major portion of the stock. Thereafter the complainant has not demanded a single piece of this product from the opposite party. Actually the complainant himself withdrawn from the sub dealership due to his incapacity to find out customers. Hence no case of any cheating or mental agony on the part of the opposite party is made out. So it is most humbly prayed to dismiss the complaint with cost of this opposite party.
16. On the basis of above pleading the points to be considered as:-
1. Whether the complainant come under the definition of Consumer as defined in Consumer Protection Act?
2. Whether there is any deficiency in service on the part of opposite party?
3. Whether the complainant is entitled to get reliefs sought for in the complaint.?
4. Reliefs and cost?
17. Evidence in this case consists oral evidence of PW1 to PW3 and Ext.A1 to A12 on the part of complainant and oral evidence of RW1 on the part of opposite party. Heard both sides.
18. Point No1:-
The case of PW1, the complainant is that for improving his own income and on request of the opposite party he had agreed to help the opposite party by selling the Nippon AIS 140 Tracking Device for which the opposite party is the wholesale dealer of the Nippon Toyota. The conditions agreed by both parties reduced into writing in stamp paper on 21/9/2018. The said document is marked as Ext.A2. Ext.A1 is the invoice of the said product issued by RW1 in the name of Prasanthy Auto Emission Testing Centre, Mankamkuzhi, Mavelikkara, admitting it was running by PW1. Alleging deficiency in service by taking back 29 pieces of total purchase of 44 devices without paying its retail price and not providing sufficient products for distribution to PW1’s customer he filed this complaint.
19. Consumer is defined u/s 2(7) of Consumer Protection Act, 2019 as follows:-
“Consumer” means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid or 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 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.”
20. In the version the RW1 contented that the PW1 has no authority to file the complaint before this Commission since the PW1 was a sub dealer of the opposite party and the products purchased from the opposite party were used to resale and not for his personal use.
PW1, the complainant as well as 2 witness were examined on the part of complainant and marked Ext.A1 to A12 on his part.
21. On perusal of Ext.A2 itself reveals that PW1 had taken a sub dealership of the products from RW1. From the recitals of Ext.A2 in almost conditions the word “with respect to the sales, services and technical support of the product” the contention of RW1 was having no doubts to take such a view. Further it is noted that in Ext.A1 44 numbers of devices purchased by PW1. Moreover during cross examination also PW1 to PW3 deposed that the said GPS devices were used to supply at 3 centers of RTO ie, Alappuzha, Cherthala, and Kuttanadu.
22. Under the said circumstances the transactions between the PW1 and RW1 was hit by Sec.2 (7) of the Consumer Protection Act,2019 and thereby PW1 was not entitled to file a complaint under the provisions of Consumer Protection Act. In other words if the products are purchased for re-sale will not come under the provisions of the said Act.
23. During the cross examination of PW2 and PW3 deposed that there were 4 more employees deputed by PW1 in his institution and PW1 has conducting other business also. In the said circumstance it was not come under the exemption clause of explanation under Sec.2(7) as earning of livelihood by means of self employment as averred in the complaint as well as in chief affidavit. Coupled with the admissions of PW1 to Pw3 and Ext.A1 and A2 it is crystal clear that the products purchased by PW1 from RW1 were used to re sale at different centres of RTO. PW1 could not produce any evidence to show that he was conducting the said business for livelihood by means of self employment. In this circumstances we are agreed with the contention of the learned counsel appearing for opposite party and so PW1 will not come under the definition of consumer.
24. Point No. 2 and 3:-
On evaluation of the entire evidence of this case we could not found even a scrap of paper to elucidate the allegation of PW1 as a consumer of RW1 under the provisions of Consumer Protection Act. Since it was substantially proved that the PW1 was not a consumer for filing this complaint in the status of a complainant under the provisions of Consumer Protection Act, the discussion these two points are not necessary. Mere statement of running a business for earning one’s livelihood would not attract the exemption clause in explanation of Sec.2 (7) of Consumer Protection Act. It must be conducted by means of self employment. Here in this particular case now here in the evidence of complainant we could not seen such a fact. On the other hand in the complaint, proof affidavit, deposition of PW2 and PW3 and in Ext.A2 it was understood that the transaction between the complainant and opposite party was for the purpose of resale of the products with regard to the transaction and hence the complainant would not come under the definition of “consumer” as defined in the Consumer Protection Act. In this circumstance this Commission could not entertain the claim and we are not in a position to discuss the merits of these points.
25. Point No.4:-
In the result the complaint stands dismissed with cost of Rs.3000/-
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 06th day of November, 2021.
Sd/-Smt. Sholy.P.R(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Susheelkumar (Complainant)
PW2 - Manoj Kumar(Witness)
PW3 - Rajasekharan Pillai(Witness)
Ext.A1 - Tax Invoice dtd. 23/8/2018
Ext.A2 - Copy of Sub Dealer Agreement
Ext.A3 - Copy of Cheque
Ext.A4 - Copy of Letter from DELTA SOLUTIONS
Ext.A5 - Letter dtd. 11/10/2018
Ext.A6 - Copy of Agreement
Ext.A7 - Complaint filed before Dy.S.P, Kayamkulam
Ext.A8 - Acknowledgement Receipt of Petition
Ext.A9 - Catalog Nippon GPS Tracking Device.
Ext.A10 - Copy of AD card
Ext.A11 - Copy of Envelop with AD card
Ext.A12 - Copy of Registered Letter dtd. 24/9/2019
Evidence of the opposite parties:-
Ext.RW1 - Rajesh.K.R(Opposite party)
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
