Orissa

Jajapur

CC/56/2016

Sikha Panda - Complainant(s)

Versus

The Joint Manager(Marketing) Odisha Small Industries Corporation Ltd. - Opp.Party(s)

Subas Chandra Das

30 Aug 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.

                                              Dated the 30th day of August ,2017.

                                                      C.C.Case No.56 of 2016

Sikha Panda  W/O  Rasmikanta Panda

Vill. Sobara , P.O.Dhabalgiri

P.S.Jajpur Road , Dist.-Jajpur. 

At present:

Manager,of Sikha Enterpreses(Tin No.21183604274)

At.Dhabalgiri,P.O.Sobara,Via / P.S. jajpur Road,

Dist.Jajpur.                                                                         …… ……....Complainant .                                                                       .

                   (Versus)

1.The Joint Manager (Marketing) Odisha Small Industries Corporation ltd

Industrial Estate, Cuttack.

2. The Collector, jajpur

                                                                                                                          ……………..Opp.Parties.                  

For the Complainant:                       Sri S .Ch. Das, Advocate.

For the Opp.Party : No.1                  Sri R.Sahu, T.Begum, B.C. Nayak, S.K.Mohanty,

                                                          Sri R.K.Nanda, Advocates.

For the Opp.Party No.2                     A.G.P  

                                                                                                     Date of order:   30.08.2017.

SHRI  JIBAN BALLAV DAS, PRESIDENT .

            The petitioner claiming herself to be a consumer filed this application against the O.ps for inaction, non performance and deficiency of service.

            The brief facts case of the petitioner is that the petitioner was appointed as a provisional dealer for selling (Double fortified salt) with reference no.3176/OSIC/Marketing in the Jajpur Area on dt.09.07.2015 . The petitioner deposited Rs.10,000/- as security money with the O.P, after which the O.P.no.1  requested the petitioner to lift the stock initially 10,000 kgs) valued Rs.1,50,000/-  which was payable by odisha Small Industries Corporation Ltd, State bank of India, .M.E Branch,Cuttack  A33223591596 IFS code-SBI-N0006658 for supply. The petitioner deposited Rs.10,000/- as security and Rs.93,500/- for supply of (Double Fortified Salt) . As per instruction of the O.P.no.1 the salt was supplied to all  schools and Anganwadi Kendra for use regularly for  their cooked meals by the authority in the preparation of mid day meal as per the guide line of the Govt. of India . The O.P.no.1 also prayed to the Collector, Jajpur vide Ref.No.3768 dt.24.08.15 to issue necessary instruction to the Field Officer for use  of Double fortified salt in preparing  meals  and in every mid day meals of schools and Anganwadi center  as per the  Govt. programmes . The Collector, Jajpur (O.P.no.2) disobeyed the instruction of O.p.no.1 vide letter No.3768 , for which the salt supplied by the petitioner was destroyed and the petitioner suffered from irreparable loss  for the in-action of the O.Ps.

            Thereafter the petitioner issued a pleader notice to O.p.no.1 on 19.05.16 reply of which was given by the O.P.no.1 on 13.06.16 . As the case was not decided by the O.Ps, the petitioner filed this case claiming compensation of Rs.3,53,000/-  which includes rs.1,53,000/- which was spent by the petitioner.

            On the other hand the O.p.no.1 in response to notice entered appearance and filed written version challenging the maintainability of the case. It is contended by the O.P.no.1 that the petitioner is not a consumer as per section -2(d) (i) and (ii) of C.P.Act 1986,so the case is liable to be dismissed. According to O.P.no.1 that there is no cause of action on the part of the petitioner and there was no instruction or involvement of O.P.no.1 for purchase of Double fortified salt by the petitioner and the loss sustained  have got no nexus with the O.P.no.1. . Further challenging the contention of the petitioner it is stated by the o.p.no.1 that there was no unfair trade practice or any deficiency of service e on the part of O.p.no.1  and the petitioner filed this application to cover up her own mis- deed . At no point of time the O.P asked the petitioner for dealership nor instructed the petitioner to purchase the double fortified salt . So the O.P.no.1 was not at all liable for the dealership as well as purchase of salt. It is further contended by the O.p.no.1 that the petitioner was given provisional dealership and was selected to show  her performance for six months i.e from 01.07.15 to 31.12.2015 but she failed to do so inspite of help extended by the O.P.no.1. Therefore her dealership automatically came to an end after 31.12.15 and no further relationship continued or existed after 31.12.15 but she   after lapse of more than one year  this case was filed on 03.08.16 only to harass the o.P.no.1 without any just cause . So the petitioner to suppress her own inefficiency  with malafied intention  drag this O.P.no1, after her failure in the business.

            The O.P.no.1 as stated earlier highlighted the fact that the petitioner is not a consumer as per section-2 (d) (i) and (ii) of C.P.Act as the petitioner is a person who avails the services for commercial purpose .

            The O.P.no.1 fairly admitted that the petitioner in response to the advertisement has applied for dealership of odi food salt at jajpur area and was given provisional dealership for a period of six months till 01.07.15 vide letter no.3176  dt.09.07.15. To promote the sale  of salt all necessary steps and help was extended by the o.p.no.1 but the petitioner some how failed  to do proper retail marketing of the product and due to her own carelessness and unprofessional of way of carrying on business , she utterly failed and to cover up to her own failure .She has tried to tag O.P no.1 in this dispute to shift her burden and failure as well  .

            Lastly it is contended that the O.P.no.1 was never responsible for the act of omission and commission by the petitioner rather the O.P.no.1 helped her to promote  the sale of salt and the petitioner is not a consumer nor coming under the provision of Act and as such she is not entitled to get her any relief and the dispute is liable to be dismissed due to lack of matainability . 

            The O.P.no.2 entered  appearance by  A.G.P and filed the written objection stating that the petitioner is not a consumer as per C.P.Act rather she was in a commercial transaction and is not entitled to get benefit of C.P.Act.

            It is categorically mentioned by the learned A.G.P that the supply of salt to school and Mass Education Department of Child Welfare Development is not within the jurisdiction of Collector though the Collector  is  head of district. The circular and order for purchase of salt is not binding on the Collector as the District officials  has no role in the purchase of salt .  As per the Govt. guide lines, the Collector  can not act as a promoter for sale of double fortified salt nor can go for retailing of salt on behalf of the petitioner .

            The learned A.G.P further mentioned in the written objection that there was no Govt. order issued by Govt. of odisha as alleged by the petitioner ,so there was no negligence on the part of the O.P ( Collector) .Hence the prayer to dismiss the case .

            On the above pleadings of the parties  it is to be determined whether the petitioner is a consumer ?

2.whether she is entitled to  any relief in this application ?

            We heard the argument the learned counsels appearing from both the sides . After going through the case record it is pertinent to mention here  section-2 (d)  (i) and (ii)

 Consumer means :

            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 promises 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

            “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 “.

So it is manifest at the outset that the petitioner was not simply a consumer but was a dealer of double fortified salt  which is only for commercial purpose. So we find much force in the argument for the learned advocate for O.P.no.1 who urged this Fora to look to the principal fact that the petitioner is not a consumer and her application is not maintainable and she is not entitled to any relief. The learned counsel for the petitioner placed reliance a decision reported in CPR-2003(1)-Jhandkhand-275(S.C) .According to the learned counsel for the petitioner that since the petitioner was selected as a provisional dealer for six months,   it is her contention  that after double fortified salt was procured by  her the marketing executive of the O.P will go to the area within seven days and dispatch the salt  to distribution   point and we also do necessary advertisement for sale of the salt. This argument of the learned counsel for the petitioner appears to be misleading as there is no documents on record to support this contention as because after dealership was given to the petitioner it was her out look as a dealer for promotion and advertisement of sale of salt not the O.p.no.1 and 2. The O.ps are the Govt. agencies and we do not doubt about the advertisement of the Govt. .  Merely because there was Govt. advertisement liability can not be fastened  with the O.P.no.1 and 2 for the lapses of the petitioner .The petitioner herself  applied for dealership. Neither the O.P.no.1 and 2 directed the petitioner to apply for dealership. It is out of her won sweet will  she applied for dealership and got it to purchase the double fortified salt  and utterly failed in the exercise after which she came to this  Fora  on 03.08.16 but the dealership was only for 6 months and was completed on 31.12.15. So it is cristal clear from 01.07.15 to 31.12.15 the dealership was given to the petitioner. Thereafter lapses of 8 moths the petitioner suddenly came to this Fora and filed an application on 03.08.16 after her dealership was over on 31.07.15 to which  there is no answer by the petitioner . The learned counsel for the petitioner’s  the decisions  is not applicable to this case nor the petitioner can be treated as a consumer as she was given a dealership only.

            Thus after going through the detail materials on record and after hearing on both the sides we are unanimously  of view that the petitioner can not be treated as a consumer and as such she is not entitled to any relief from this Fora.

            Therefore, we ordered that the complaint case filed by the complainant is dismissed. No cost.   

This order is pronounced in the open Forum on this the 30th day of August,2017. under my hand and seal of the Forum.