KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

                      VAZHUTHACAUD THIRUVANANTHAPURA

APPEAL NO.201/06

JUDGMENT DATED 30.3.2011

PRESENT

SHRI.M.V.VISWANATHAN                     --  JUDICIAL MEMBER

SHRI.M.K.ABDULLA SONA                    --  MEMBER

The President

Uralungal Labour Contract Co-operative

Society Lt.No10957,

P.O.Madappally College,                         --  APPELLANT

Vadakara, Kozhikode.

    (By Adv.M.Sasindran)

                   Vs.

Manager

Raj Electricals and Engineering

Industries, Parambithara Road,               --       RESPONDENT

Kochi.                                                       

                                                JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT

          Appellant is the complainant and respondent is the opposite party in OP.No.302/05 on the file of CDRF, Ernakulam.  The complaint in the said OP.No.302/05 was filed alleging deficiency in service on the part of the opposite party in not supplying the Elevator (builders hoist) to the complainant even after accepting Rs.50,000/- by way of advance.    Thus, the complainant claimed refund of the advance amount of Rs.50,000/- with interest at the rate of 18% per annum and also for compensation of Rs.3 lakhs.

2. The opposite party entered appearance before the Forum below and filed written version denying the alleged deficiency in service.  The opposite party raised the contention that the complainant is not a consumer under Consumer Protection Act and that the complainant failed to comply with the terms and conditions of the quotation, that the opposite party collected the engine from M/s Kirlosker Company but the complainant failed to pay the balance sale consideration before dispatch.  Thus, the opposite party prayed for dismissal of the complaint.

3. Before the Forum below, the President of the complainant  society was examined as PW1 and the authorized representative of the opposite party was examined as DW1.  Exts.A1 to A11 and B1 & B2 documents were marked on the side of the parties to the complaint in OP.302/05.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated 23.11.05 dismissing the complaint in OP.302/05 by finding that the  complainant is not a consumer as defined in the Consumer Protection Act and that there was no deficiency in service on the part of the opposite party.  Aggrieved by the said order, the  present appeal is filed by the complainant therein.

4. When this appeal was taken for final hearing, there was no representation for the respondent/opposite party.  We heard the learned counsel for the appellant/complainant.  He submitted his arguments based on the grounds urged in the memorandum of the present appeal.  The learned counsel for the appellant submitted that the payment of Rs.50,000/- by way of advance was made by the complainant with the oral understanding and agreement that the opposite party will deliver the Elevator  within one month of the purchase order, but the opposite party totally failed to deliver the   Elevator (builders hoist).  It is further submitted that the complainant/society was constituted for providing employment to the members of the society and that the main object of the complainant/society was to provide employment to its members for their livelihood  that  the complainant/society is to be considered as a consumer as defined in the Consumer Protection Act, 1986.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below and to allow the complaint in OP.302/05.

5. The points that arise for consideration are:-

1.                                        Whether the appellant/complainant can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986?

2.                                        Whether the appellant/complainant has succeeded in establishing the alleged deficiency in service on the part of the respondent/opposite party?

6. POINT NO.1

          Admittedly, the appellant/complainant is a Co-operative Society registered under Co-operative Societies Act with No.10957.  The complainant/society is known as Uralungal Labour Contract Co-operative Society.  Ext.A2 is the Byelaw of the complainant/society.  It  would show that the complainant/society is having   the capital investment of Rs.1 crore and that the  said society is also constituted for providing employment  facilities to its members.  The other objectives of the complainant/society are to take work contracts and implementation of the contract works   and to purchase building materials and machineries for executing the work contracts and also setting up of workshops for execution of the work contracts (labour contracts).  It would also show that the society is also authorized to do the business of taking fixed deposits and other investments from the general public and to carry on the business.  An overall study of A2 byelaw would show that the appellant/complainant society is engaged in commercial activities for earning profit.  The Forum below has rightly held that the complainant/society is engaged in large number of work contracts and doing business on a large scale and engaged in commercial activities.   The complainant has not succeeded in establishing his case that the complainant/society is a consumer coming within the ambit of the Consumer Protection Act.  On the other hand, the admitted facts and available evidence would show that the complainant/society is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection  Act.  Thus, the finding of the Forum below that the complainant is not a consumer coming within the ambit of the Consumer Protection Act is to be upheld.      

          7. The mere fact that a Co-operative society can be treated as a person as defined under Section 2 (1) (m) of the Consumer Protection Act, 1986 cannot be taken as a ground to hold that the Co-operative society like the complainant/society  is a consumer as defined under Section 2 (1) (d) of the   Consumer Protection Act, 1986.  In order to bring the complainant/society as a consumer coming within the ambit of the Consumer Protection Act, 1986, the complainant/society should satisfy the terms and conditions incorporated under Section 2 (1) (d) of the Consumer protection Act, 1986.  The aforesaid definition of consumer would make it clear that the person who availed the services or purchased goods for commercial purpose will be outside the purview of the Consumer Protection Act, 1986.  Admittedly, the complainant/society entered into an agreement or understanding with the opposite party for purchase of   Elevator (builders hoist) on payment of an advance of Rs.50,000/-.  The complainant/society has been engaged in commercial activity and the society entered into an agreement with the opposite party/society for purchase of an Elevator for the commercial activities of the complainant/society.  If that be so, it can   very safely be concluded that the complainant/society entered into an agreement with the opposite party for purchase of elevator for commercial purpose.  Hence, we have no hesitation to endorse the finding of the Forum below that the complainant/society is not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.  This point is found against the appellant/complainant.

8. POINT NO 2:-

          Appellant/complainant obtained A4 quotation dated 24.9.04 from the respondent/ opposite party for purchase of builders Elevator (builders hoist).  Ext.A4 quotation dated 24.9.04 would make it clear that the total consideration fixed for the said builders hoist was Rs.1,55,700/-.  Terms and conditions of the quotation regarding sale of   builders hoist are also incorporated  in the quotation.  It would make it clear that 50% of the sale consideration is to be paid by way of advance and the balance sale consideration is to be paid before dispatch of the elevator.  Delivery of the elevator will be made within 20 days on receiving the purchase order with advance.  Price details and specification of the elevator are also incorporated in A4 quotation.

          9. Admittedly, appellant/complainant society had only paid Rs.50,000/- by way of advance.  As per A4 quotation, Rs.77,850/- ought to have been paid by way of advance.  Moreover, it was the specific conditions  that  the entire consideration is to be paid  before dispatch of the elevator.  There is nothing on record to show that the appellant/complainant society paid the balance sale consideration to the respondent/opposite party.  Thus, the evidence on record would show that the appellant/complainant  society failed to comply with the terms and conditions of A4 quotation. 

10. Ext.A3 is the purchase order dated 25.9.04.  A3 purchase order would show that the said order was placed with reference to the A4 quotation dated 24.9.04.  As per the purchase order,  the complainant/society paid Rs.50,000 by way of advance towards the sale consideration of Rs.1,55,700/-.  There is nothing in A3 purchase order regarding waiver of the condition for payment of   balance sale consideration before dispatch.  Thus, it can be concluded that it was incumbent upon the appellant/complainant society to pay the balance sale consideration of Rs.1,05,700/-  before dispatch.  But, the appellant/complainant society failed to pay the balance sale consideration before dispatch.  Thus, the respondent/opposite party   is well justified in not dispatching or not delivering the elevator to the appellant/complainant society.    The Forum below has rightly held that there was no deficiency in service on the part of the opposite party.  

          11. Ext.A9 is the letter dated 28.3.05 issued by opposite party/Raj Electricals and Engineering Industries to the complainant  the Uralungal Labour Contract Co-operative  Society, Vadakara, Kozhikode.  As per A9 letter, the opposite party informed the complainant/society regarding the manufacturing of the elevator before 10.4.05.  The A9 letter was issued with reference to the quotation dated 24.9.04.  The mere fact  that the A9 letter dated 28.3.05 was issued by the opposite party regarding the manufacturing of the elevator before 10.4.05 would not absolve the complainant from the liability   to pay the balance sale consideration before dispatch.  There is no case for the appellant/complainant society that they were ready to pay the balance sale consideration before dispatch.    The argument of the learned counsel for the appellant based on A9 letter cannot be accepted as such.

 12. The President of the complainant/society as PW1 has admitted the failure on the part of the complainant/society to pay the balance sale consideration as per the quotation.  It is the case of PW1 that there was an oral agreement between the complainant and opposite party and thereby the opposite party agreed to deliver he elevator without obtaining the balance consideration.  But, the said case of PW1 cannot be believed or accepted.  Moreover, PW1 cannot be permitted to adduce oral evidence against the terms and conditions of the A4 quotation and A3 purchase order.  The evidence of PW1 is more than enough to hold that there occurred failure on the part of the complainant/society to pay the balance sale consideration as stipulated in A4 quotation.  It would give another inference that the opposite party failed to deliver the elevator to the complainant/society only because of the failure of the complainant to pay the balance sale consideration before dispatch.  DW1, the authorized representative of the opposite party has also deposed that there was no oral agreement  in addition to the terms and conditions incorporated in A4 quotation.  He further deposed that the machine was ready for delivery, but the opposite party could not dispatch the machine because of the failure of the complainant/society to pay the balance sale consideration.  The documentary evidence available on record would  support the case of DW1.  Thus, the Forum below has rightly held that there was no deficiency in service on the part of the opposite party in delivering the    Elevator (builders hoist);  but the failure to dispatch the elevator occurred only due to the failure on the part of the complainant/society to pay the balance sale consideration before dispatch.    It can be concluded that the appellant/complainant society failed to establish the alleged deficiency in service.  The finding of the Forum below on this point is to be upheld.  Hence we do so.  The point is answered accordingly.

          13. The forgoing discussions and the findings thereon would show that the present appeal is devoid of merits and the same is liable to be dismissed.

          In the result, the appeal is dismissed.  The impugned order dated 23.11.05 passed by CDRF, Ernakulam in OP.302/05 is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

 M.V.VISWANATHAN --  JUDICIAL MEMBER

 M.K.ABDULLA SONA --  MEMBER