THE DISTRICT CONSUMER DISPUTES REDRESSAL    

                 COMMISSION, AT MADIKERI, KODAGU

             Dated this the 29^th day of October,2021

PRESENT

SRI .PRAKASHA K.                                    : HON’BLE PRESIDENT

SRI. B.NIRMAL KUMAR                            : HON’BLE MEMBER

SRI. C.RENUKAMBHA                               : HON’BLE MEMBER

ORDERS IN

CONSUMER COMPLAINT NO.21/2020

(Admitted on:22.06.2020)

Mr. Deviprasad , aged 34 years

S/o . Mr. Shankaranarayana Sharma

M/s Coorg Spices and Crafts.

Madikeri, Kodagu District.

(Advocate for the Complainant: C.S.P)         …..Complainant

VERSUS

The Managing Director

M/s ALFA PEB limited.

No. 162/64/67, Opposite Chamundi Steels

Kalkonda Palli Village, Thalli Road.

Housur, Tamilnadu.

(Opposite Party  : J.J.C)                        ……. Opposite Party

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI .PRAKASHA K.

            1.  This complaint is filed under section 12 of the Consumer Protection Act 1986 praying that this commission  may be pleased to hold that  the respondent is  deficiency in  service and order the respondents  to return Rs.1,00,000=00 with damages of  Rs.55,000=00 with 12% on the  same  from the date of due till realization and complainant  also prays cost of the complaint.

2.      The brief facts of the case are as under:

     The Respondent  is a manufacturer of PUFF panel in colour coated galvanized sheet. The complainant  had taken a  lodge  on lease for his self employment at Madikeri. The complainant  in  order to replace  roofing   of the  lodge which  he had  taken on lease  under invoice  dated 09.02.2018 vide reference  No. ASBS/PI-1231/PU/16-17REV-0 placed order  with  the Respondent  for the  supply of roof PUFF panel in colour  coated  galvanized  sheet  top  0.40MM and  bottom 0.30 MM having  width of 1060 MM pitch 33 MM of 40 KG/M3 density of blue colour  from Madikeri.  The  total  cost was  fixed  to a sum of  Rs.3,80,614=84 which included the cost of  the  material  and GST.  The complainant  transferred  a sum of Rs.1,000,00=00 from Madikeri to the account of the  Respondent  as advance which the  Respondent   has Acknowledged. It was agreed  that on  supply of the materials agreed,  balance amount has to be paid.  The  Respondent  promised  that  the materials will be  supplied on  24.02.2018 without fail. Time was the essence  of the contract.

        3. The Respondent failed  to supply the materials  as agreed  on 24.02.2018.  As the  Respondent did not supply the materials  on 24.02.2018 as promised, the complainant   expressed  his displeasure for which the Respondent  promised  of supplying the  materials  without  fail on 26.02.2018.  The Respondent failed to keep his promise.  As  the Respondent  violated  the terms  of the contract. As the  Respondent  failed to supply the  goods  in time  as the purpose  to which  the complainant  had placed  the order did not serve  the purpose.  The complainant  on  27.02.2018 cancelled the  contract/transaction and requested  the  Respondent to return  back  Rs. 1,00,000/- which the Respondent did not  return.

     4. The complainant  had taken a lodge  on lease  for his  self employment.  The  complainant  was renovating the lodge  which he had  taken on lease.  The materials to  which order was  placed  for replacement   of the  roofing of the  lodge. The  renovation has to continue  only after  the roofing  work was completed. As the  Respondent did not  supply the materials in time , roofing  work could not be  completed, the complainant   had to  go for  alternative  roofing.  As the complainant   had to waste  five  dates waiting  for the  materials  the complainant  suffered following    loss.

1. Loss of labour  amounting  to Rs.1000x5 days=Rs.05.000=00
2. Loss incurred for going  to alternative  roofing=Rs.25,000=00
3. Loss incurred for delay in  opening the lodge    =Rs.25,000=00

By legal notice the Respondent was calledupon to return Rs. 1,00,000=00 along with damages.Noticewas dulyserved, the Respondent did not reply the notice and did not comply the requestof the notice.Therebythe Respondent is guilty of deficiency inservice.

   5.  After service of notice to Opposite Party,   Opposite Party   appeared through  his counsel  and filed version as under:

He denied all the allegations made in the complaint and Opposite Party contends that complainant  suppress the truth.

    6. Opposite Party  further contends that as per agreement and according to invoice the colour of the product was to be off white and same is   forthcoming in the  invoice , which has been  annexed along with the complaint. And thereafter Opposite Party manufactured the product, as agreed  between party the parties.  The complainant  came for  inspection and rejected the same stating  that  he required the product in sky blue colour as against agreed  colour of off white.

      7. Opposite Party contends that  even  though the complainant  had paid  an advance of Rs.1,00,000/- yet the cost of manufacturing the entire  product was  Rs. 3,80,614/- and due to the rejection of the product  by the complainant , the  Opposite Party has suffered a huge loss up to the  tune of Rs.3,000,00/-.

    8.  Opposite Party  further contends that, the complainant  is not a consumer  as defined  under the Consumer Protection Act as  he has signed  as the proprietor for M/s  Coorg Spices and crafts in the  invoice and hence  the same is  covered  under the  purview of Commercial  Contract and not  as a consumer.

      9. Opposite Party  further contends that, in the light  of the above, it is most  humbly submitted, that  the complainant  has not  approached  the Hon’ble Court  with clean hands and they have sought  to abuse  the  process of this Court for ulterior and illegal motives. Therefore  Opposite Party submitted that  the  case of the complainant  is not maintainable the same is to be dismissed and he is not liable to pay the amount / damages  as prayed for in this complaint  

10. In this case in support of his case complainant  filed  his examination in chief  by way of affidavit and his  evidence  as considered as CW-1. Complainant also furnished 7 documents and said documents are now marked as EXc.1 to ExC7.  Opposite Party also filed his examination in chief by way of affidavit and his evidence  considered as RW-1. However  Opposite Party did not produce  any document.  We heard the arguments on  complainant  side  Opposite Party  counsel  absent.  Hence oral argument on Opposite Party side taken as nil.  Both  parties  filed  written notes of arguments.

11. In view of the above said facts, the points that arise for our consideration in the case are:

(1)  Whether the complainant   is a consumer   

       and  dispute   between  the parties is a  

       consumer dispute.  

         (2)  Whether the Complainant proves that   

                there  is deficiency in service on the  

                part  of Opposite Party?

 (3) Whether the Complainant is        

       entitled to get reliefs as prayed for?

 (4)  What order?

12.    We have considered the arguments submitted by the party and also considered the materials that, placed before the Commission and answered the points are as follows:

        Point No.(1) :  In the  affirmative

        Point No.(2) :  In the  negative     

        Point No.(3) :  In the negative 

        Point No.(4) :  As per the final order below.

REASONS

 13.   Point No. 1

         In the version Opposite Party specifically contends that complainant  is not a consumer as defined under the Consumer Protection Act as he has signed as  the proprietor of M/s Coorg Spices and Crafts invoice and  hence the same is covered under the purview of commercial contract  and not as a consumer. Section 2 (7) Consumer Protection Act which read as under :-

(7) "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 service 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 service 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 service for any commercial purpose.”

Further explanation section 7 ( a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment”.

14. Similarly in the  present case it is specifically stated that the complainant  had taken  a lodge  on lease  as self employment   at Madikeri  and  in order to  replace roofing of the lodge which he  had taken  on lease under invoice dated 09.02.2018 vide reference  No. ASBS/PI-1231/PU/16-17REV-0 placed order  with  the Respondent  for the  supply of roof PUFF panel in colour  coated  galvanized  sheet  top  0.40MM and  bottom 0.30 MM having  width of 1060 MM pitch 33 MM of 40 KG/M3 density of blue colour  from Madikeri.  

      15. Thus in this case  he does not obtained such goods  for resale or for  any commercial  purpose and he had taken a lodge for his self employment, complainant   order  the said coated  galvanized  sheet  for a consideration for some of Rs.3,80,614/-.  Thus  on perusal of  entire complaint  the goods  which ordered by him exclusively for the purpose of earning his livelihood by  means of self-employment.  Therefore  complainant  is a  consumer  and dispute is  a consumer dispute.  Accordingly, Point No. 1 answered in the affirmative.

16. Point No.2

          The specific  case of the complainant  that  in order  to replace roofing of the  lodge which he had   taken lodge on 09.02.2018 vide reference  No. ASBS/PI-1231/PU/16-17REV-0 placed order  with  the Respondent  for the  supply of roof PUFF panel in colour  coated  galvanized  sheet  top  0.40MM and  bottom 0.30 MM having  width of 1060 MM pitch 33  of 40 KG/M3 density of blue colour  from Madikeri. And  the crux of the  point is as per  agreement  between  parties, Whether the complainant  ordered the respondent that he required the  product  in sky blue colour.

     17.  In this case  complainant  produce  7 documents which are  now marked  ExC1 to ExC7. Further  ExC.1 is the performa  invoice and it is the admitted document on both side.  We perused  the description  of properly  shown  in ExC.1 which read as  under ;-

“SUPPLY OF ROOF PUFF IN COLOUR  COATED  GALVANIZED  SHEET TOP 0.40MM & BOTTOM 0.30MM HAVING WIDTH 1060MMPITCH 33 MM ACTUAL WIDTH 1000MM OF 40 KG/M3 DENSITY”.

     Colour of the  alleged sheet also mentioned  in ExC.1 which read as under :-

“TOP & BOTTOM OFF WITE”

      Thus as per  ExC.1 the complainant  placed an order  for off  white product  not blue where as  in the complaint   and         affidavit evidence complainant  stated  that he placed an  order for  blue colour.  At the time  of contract  if invoice  Performa   (ExC.1) in  colour Colum colour  of product shown as sky blue then defiantly complainant  as  the good case.     Thus in  this case  complainant  not  followed  the contract duty signed  by him. Thus there is no deficiency of service  on the part of Opposite Party.   Accordingly,   point No.2 also   answered in the negative.

18. Point No.3.

   When there is no defect or deficiency of service on the part of  Opposite Party. Then complainant cannot get any relief before this commission. Accordingly, we also answered point No.3 in the negative.

19. Point No.4

In the result, we proceed to pass the following:

ORDER

          The complaint filed by the Complainant under section 12 of Consumer Protection Act 1986 is dismissed  with cost of Rs.5,000/-.  

                Copy of this order as per statutory requirements be

forwarded to the parties free of cost and file shall be consigned to record room.

(Page No.1 to 13 dictated to the Stenographer typed by her, revised and pronounced in the open Commission on this the 29^th day of October, 2021)

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 –   Mr. Deviprasad (Complainant)

Documents marked on behalf of the complainant   

Ex.C-7:   Postal Acknowledgement.

Witnesses examined on behalf of the Opposite Party:

 RW-1. R.Karunakaran s/o Mr. Rangaswamy.

Documents marked on behalf of the Opposite Party:

                           NIL

Dated:29.10.2021                                                  PRESIDENT