Date of Filing: 03.06.2013. Date of Final Order: 25.03.2014
Simple version of the Complainant is that he being the Proprietor of “Papia Enterprise” runs Agency Business to earn his livelihood at Cooch Behar Town. On the other hand, the Opposite Party No.1 & 2 is the Company & its Regional Sales Manager, respectively. The Opposite Party No.1 runs its business through the Opposite Party No.2 at Cooch Behar area. While taking the agency of the Opposite Party No.1 this Complainant had given five blank Cheques of U.B.K.G.B, as security to Opposite Party No.1 amounting to Rs. 2,15,000/-.
By sending Rs.20,000/-through TRGS on 21-08-2012, this Complainant received goods from the Opposite Party No.1 vide:-Invoice No. SIKOL 1/1213/00806 dated 31-08-2012 and subsequently received goods through various Invoices and made another payment of Rs.39,711/-.
When this Complainant faced difficulties to run the agency business returned all the unsold goods lying at his stock-point and those goods were received by the authorized Sales Personnel of the Company with proper written endorsement, finally by 20-11-2012. The Complainant, by a letter dated 01-02-2013 had placed demand for refund of amount & cheques lying with the company.
Complainant also alleged that during the propaganda of the company, through display, a sum of Rs.33,500/- had spent by him and although Opposite Party No.1 had assured to reimburse; but that is yet to be done. According to the version of this Complainant that he received goods of value approx Rs.2,00,818/- as per Invoice and in lieu of the same had made payment in two occasions and also returned goods of Rs. 1,56,000/-approx. which includes goods under Invoice No. SIKIL/1213/01202 dated 16-10-2012 which were returned intact.
Although, the Complainant clearly informed not to continue the Agency Business with the Opposite Party; but the Opposite Party without finalizing the account by reimbursing the amount receivable by the Complainant, en-cashed three cheques out of five cheques given by the Complainant amounting to Rs. 39,717/- in cheque No.011886, Rs.60,803/-in cheque No.011896 and lastly Rs.68,617/-in cheque No.68617 i.e. the Opposite Party Company has taken illegally huge amount of money from the C.C. Account of this Complainant. So, the Complainant is entitled to get back Rs.2,15,000/-from the Opposite Party company. As the Opposite Party Company blocked a huge amount of money of this Complainant, he is in great peril and cannot even run his business and he is compelled to bear the interest of the money in the bank which is kept illegally by this Opposite Party.
At this juncture this Complainant served an Advocate Notice to the Opposite Party No.2 informing everything. On receipt of the Notice one Company Personnel, claiming to be In-charge of Marketing on behalf of the Opposite Party Company informed the Complainant that he would be sending one of the company personnel to resolve the matter amicably within a short period. The Opposite Party Company also assured through telephone to resolve the matter shortly; but no step has been taken. Finding no other alternative the Complainant filed this petition of complaint before Ld. Forum relief(s) as prayed for in the prayer portion of the Complaint.
The Opposite Parties (1) The VLCC Personal Care Ltd. represented by it’s Director, having Corporate Office at Sector-18, Maruti Industrial Area, Gurgaon-122015, (2) The Regional Sales Manager of The VLCC Personal Care Ltd. by appearing through their Ld. Agent filed written statement denying the allegations as leveled against them. They averred that the Complainant is not a “Consumer” according to definition as envisaged in Sec.2(l)(d) of the C.P.Act,1986 and referred a case Decision in Kores India Ltd. Vs. Shakti Prem Sethi, Published in [ll (1998) CPJ 248 : 1997 (2) CPR 226 (U.P.)]. As the Complainant bought the products of the Opposite Party Company to sale for the purpose of earning profit and commercial purpose so he does not come within the purview of “Consumer” under the Consumer Protection Act, 1986. The Opposite Parties have no Branch Office at Cooch Behar District and he carries on its business from it’s Registered Office at Delhi and Branch Office at Kolkata. During the institution of the Complaint the Opposite Parties were not carrying on business at Cooch Behar and had no Office at Cooch Behar, so the Complainant lacks jurisdiction in accordance with the provision of Sec.11 of C.P. Act, 1986. According to Tax Invoice dated 16-10-2012, it is stated that any claim shall be subject to Delhi Jurisdiction. So, the Complainant has got no cause of action to bring such a complaint against the answering Opposite Parties before the D.C.D.R.F., Cooch Behar; but filing such complaint with malice intention for his personal gain and to harass the Opposite Parties. As the complaint relates to dispute like Indian Contract Act, Specific Performance Act, Specific Relief Act, so the disputes between the parties is to be decided before a Civil Court rather than Consumer Forum. As a customary trade practice the Opposite Parties accepted signed cheques from the Complainant and deposited the same in the bank for encashment only after obtaining approval of the Complainant. This Opposite Parties send products to the Complainant who in turn issued cheques in favour of Opposite Parties and the same was dishonored by the Bank and this Opposite Parties did not proceed under The Negotiable Instrument Act, 1881 just to maintain healthy business relationship. The Opposite Parties also denied the due amount of Rs.33,500/- that incurred during the sale promotion by the Complainant as it has been adjusted against the product sold to the Complainant by Opposite Parties. The Opposite Parties denied that the goods sold to the Complainant is valued at Rs.2,00,818/-and the Complainant returned goods worth of Rs. 1,56,000/- as it required to be proved by oral and/or documentary evidences and not proved by substantive evidence. The answering Opposite Parties vehemently denied that they have taken illegal money from the Complainant and the Complainant is entitled to get an amount of Rs. 2,15,000/-from them and admitted to repay the advance amount of Rs. 61,274/-to the Complainant, if required. The Opposite Parties also averred that they have never blocked any amount of the Complainant and they approached to reconcile the statement of account after getting Notice of the Complainant; but the Complainant filed the instant complaint before this Forum to achieve some monetary benefit with ill motive. Therefore, the Opposite Party denied the question of payment or any compensation to the Complainant for the alleged deficiency in service or negligence or mental harassment or mental agony and pain or litigation cost as they are in no way deficient in providing service in course of business transaction with the Complainant.
On the other hand the Evidence adduced by the Complainant on affidavit reflects almost alike matters as has been stated in his petition of complaint but in a different format and hence we refrained from discussing here to avoid duplication of work but the Annexure have been marked Exhibits 1 to 6 for the complainant. Simultaneously, the document i.e. two sheets said to be “Customer Ledger” marked Exhibit-A, A/1respectively.
In the light of contentions made available in the complaint the following points, necessarily come up before this Forum for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a “Consumer” as mandated by the provisions of the Consumer Protection Act, 1986?
- Whether the Complaint fall within the Territorial/pecuniary Jurisdiction of this Forum.
- Are the Opposite Parties liable for deficiency in service by not refunding the due amount of the Complainant or not rendering appropriate/proper service towards their Consumer?
- Whether the so called company personnel received the stored goods and/or on behalf of the Opposite Party.
- Whether the complainant has proved his case by evidence.
- Is the Complainant entitled to get relief(s) as prayed for?
Decision with Reasons
Point No. 1 & 2.
It is established from the documents made available in record that the Complainant purchased goods from the Opposite Parties for sale in market having Certificate of Enlistment of the Cooch Behar Municipality from years relate to 2009-2010 for carrying on business for Consumer Goods for earning his livelihood. He employed his skill for earning his livelihood as only source of income from agency business namely “Papia Enterprise” at his place at Cooch Behar, even if, it may hardly be possible to decide as to whether the complainant carried on his business exclusively for the purpose of earning his livelihood by means of self employment as provided in the Explanation of Section 2(d) of the Consumer Protection Act,1986; and there is no iota of documentary evidence that it was under any of the self-employment schemes of the Government of India and/or of the Govt. of West Bengal by Bank Loan and/or under any subsidy scheme and acted as dealer to receive and deliver the same of the concerned business as a mere Agent it can be reasonably presumed that one runs a business/carries on profession for maintenance of one’s livelihood and/or for the family or others whatsoever and whosoever he may be, the same may be by selling the goods to Customers/Consumers. As such the Complainant is not a Consumer u/s 2(l)(d) of the Consumer Protection Act, 1986; but from the contention in the Written Version of the Ops, on affidavit, though they have not filed their Evidence, adducing documents relied on, filed some reported decisions for argument sake thereby impliedly admits that the complainant is a consumer in the fact and circumstances as appeared on record. Now, from the document produced by the complainant in this case, as annexure -1 with the so called written statement said to be “Customer Ledger” in two sheets, clearly depicts that an amount of Rs.20,000.00 was credited and Balance was Rs.20,000.00 in Cr. The amounts (1) Rs.39,711.00 was debited on 31-08-12 & it was again credited on 12-10-12 in the said Customer Ledger. Again the same amount was debited on 12-10-12 & again credited on 16-10-12 in the said Ledger. Further, it was credited in the Ledger on 31-10-12. The amount Rs.68,617.00 was debited on 16-10-12 & it was credited on 23-11-12. Besides, another amount of Rs.60, 803.00 appears to have been credited on 08-11-12. These amounts appears to have been dealt in the process by Cheques. The amounts appear to have been stated in the petition of complaint by the complainant; but therein also he erred in putting the cheque number. As to other amounts mentioned there appears no corroborative document on record. The said customer ledger shows total transaction of Rs.2,40,779.00 as Debit & Rs.3,02,053.00 as Credit and Balance Rs.61,274.00 as Cr. for the period 28-08-12 to 23-11-12 in respect of the business transaction. Surprisingly, the Balance appears as Cr. only on 28-08-12 and on 23-11-12. Rest Balance has been shown as Dr.
On the other hand from the Annexure ‘A’ to ‘F’ xerox copies of the documents on behalf of the complainant speak as and marked Exhibits:
- Annexure ‘A’ (i) Advocate Letter dated 22-03-13 to the Regional Manager, The VLCC P.C Ltd., (ii) A/D Card received. Date 28-03-13, marked Exbt.-1,1/1
- Annexure ‘B’ (8-Sheets) List of some articles with MRP, Quantity, Amount etc. on Pads of Papia Enterprise marked Exbt.-2,2/1 to 2/7;
- Annexure ‘C’ UKG Bank Statement(2-Sheets) in the name of Papia Enterprise for the period 01-10-2012 to 22-01-2013, Type: Cash Credit-SMEINRRECT dated 24-01-2013 marked Exbt.-3,3/1;
- Annexure ‘D’ Letter of Papia Enterprise to The VLCC P.C Ltd. dated 01-02-2013 marked Exbt.-4;
- Annexure ‘E’ (3-Sheets) Tax Invoice No. SIKOL/1213/01202 of VLCC date of posting 16-10-12 marked EXBT.-5,5/1,5/2;
- Annexure ‘F’ Letter of S. Pal to The VLCC P.C Ltd. Date 20-11-2012 marked Exbt.6.
We have gone through and considered the entire materials i.e. the complaint/evidence of the Complainant on affidavit and written version of the Opposite Party, (though no evidence on affidavit filed) as adduced by the Opposite Party and made available on record also heard the argument at a length advanced by both side Ld. Agents.
Besides, in the present case the Complainant being the Proprietor of Papia Enterprise, running his agency business for his livelihood has been claimed. The Complainant is an Agent of the Opposite Party No.1 Company and running his business at Cooch Behar District by purchasing the goods from the Opposite Party No. 2 and re-sale the same, so far it appears. In such a situation the Complainant apparently would not be a “Consumer” under Section 2(l)(d)(i) of the C.P.Act,1986, for that reason that he purchased goods for re-sale purposes, thus, ousting him from the purview of being a “Consumer” under the law; and it also appears from the record that the Opposite Parties are not residing within the territorial jurisdiction of this District. Further, none of the Opposite Parties have any Branch Office within the jurisdiction of this Forum for which this complaint lacks jurisdiction of this Forum as per the provisions of Section 11(2) of the C.P. Act, has been claimed by ready reference from the face of the complaint by the Opposite Party Nos. 1 & 2. But from the evidence on record i.e. the Exhibits of both sides marked, contents of the Written Version of the Ops it is crystal clear that they have not specifically denied that the said person who had received goods was in no way connected with them and/or they have not received those goods. On the other hand they have agitated that the complainant could file his case in Delhi where jurisdiction lies. They have half-heartedly challenged the point of jurisdiction and that the petitioner is not a consumer but not specifically. The relied on cited Decision of the Ops vide-II(2008)CPJ(NC) Kiloskar Electric Co. Ltd -VS-Fabionix India Pvt. Ltd. & Anr. Revision Petition No.2331 of 2005 (ii) Consumer-Agent/dealer-goods purchased for re-sale purpose-Not a Consumer-Remedy for grouse on quality of material supplied by manufacturer not lie before Fora has been banked upon. Herein, Section 182 of the Indian Contract Act, defines the word ‘agent’ as a person employed to do any act for another, or to represent another in dealing with third person. Ops have not filed any such document that the complainant was their Agent for the purpose though assailed at different places in their W/V. They have also not challenged that the complainant has not proved that he does not fall under the purview of the Explanation of the Section 2(1)(d) of the C.P. Act. Thus, these two points are decided in favour of the complainant.
Point No. 3, 4 & 5.
On the other hand, Complainant has not filed any copy of argument; but the Opposite Parties claimed that the Complainant is an Agent of Opposite Party as per the Indian Contract Act. On perusal of the documents there appears no paper to show that the Opposite Parties authorized the Complainant to deal with their business with the Third Party and delivered their goods handed over to a stranger and thus the Complainant does not fall within the definition of “Agent”. It is not proved that he delivered those goods to a stranger and he was not the authorized Agent to deal on behalf of the Opposite Parties, so allegation of “deficiency in service” can be brought against the Opposite Parties by the Complainant.
The complainant though claimed himself as Agent of the Opposite Party No. 1 (Regional sales Manager, Kolkata-700023) in Para-3 of the complaint no Agency Certificate/record produced by him before this forum.
Annexure “E” is the Tax Invoice where Mr. Subrata Paul is a Proprietor of. Papia Enterprise, Magazine Road Extension, Cooch Behar-736101 and “Consumer” of the Opposite Party No1.The face of the document (Computer Generated Invoice of some Cosmetic goods) speaks of different goods with quantity, items, rate value etc.
Whereas, Invoice No. SIKOL /1213/01202 posting dated 16-10-2012, Bank name U.B.K.G.B. due date 06-11-2012 [cheque detail Illegible – Round amount Illegible in figure but in writing it is Sixty Eight thousand Six hundred Seventeen rupees and Zero paisa only] which has been deposited to U.B.K.G.B. vide annexure “D” letter of Complainant dated 01-02-2013 to Opposite Party No. 1 vide cheque No. 011899 Rs. 68,617/- dated 26-11-2012 as to payment of goods value by cheque of the Complainant’s A/c. with U.B.K.G.B., Cooch Behar A/c. No. 4000121310000051 statement sheet dated 24-01-2013 (annexure “C”) cannot be disputed; but claim of return of the goods against the said Invoice cannot and should be accepted from the endorsement on the face of the two sheets as “all goods returned to company. Authorised sign of company person” “received Subrata Roy” “dated 16-10-2012, 20-11-2012” though in spite of endorsement bears others writing may be reasonably perused to have been received on signature of one Subrata Roy but there is no iota of evidence as to identity/authorization of such Subrata Roy before this Forum hence “not proved beyond reasonable doubt” and though said Subrata Roy has not been adduced before this Forum as a witness/proforma opposite party, we have reason to believe that the said goods had been delivered in good faith to the self-introducer Subrata Roy, which in normal practice happens in business as normally the business men do not always strictly follow the procedure of such transaction. Of course such deals should be condemned. Further the Exbt-‘3’,’3/1’ if compared with the Exbt.-‘A,’ ’A/1’ there appears non-corroboration rather more contradictions and which could not be clarified from the Ld. Advocates of the parties in litigation appeared before this Forum. May whatever it be, we are convinced that the Ops contributed negligence and deficiency in service to the complainant by their acts/omissions and liable to compensate to the reasonable extent, as the Act itself is Consumer friendly and the relief(s) are in addition to and not in derogation.
Further, the annexure “D” letter dated 01-02-2013 does not bear any endorsement as to its receipt by the Opposite Party No.1 (addressed) and though the endorsement on “F” letter to Opposite Party No.1 by S. Paul dated 20-11-2012 on Letter Head Pad of Papia Enterprise (Distributor of Consumer Products) bears endorsement an “received Subrata Roy” naturally be accepted as to receipt of the letter containing contention “not interest for the distribution of VLCC Personal Care Ltd.” “I have some stock so please do the MRP of my stock. Hence, do my full & final settlement as soon as possible. Dated 20-11-2012 but it does not speaks that the goods have been returned to the Authorized person/Agent of the Opposite Party No. 1 on 16-10-2012/20-11-2012 at sheet 1 of annexure “B” bears endorsement “all goods returned to company authorized sign of company person” with an eligible signature with date 20-11-2012 but that does not prove that said Subrata Roy received the goods and not the Invoice. Neither the signatory nor the endorsers has been examined/cited as witness/necessary party. Even identity of said Subrata Roy remained unveiled and hence not proved cannot be altogether denied though can be disputed.
If we scrutiny annexure “B” 8 Xerox sheets it speaks various matters i.e. list of Articles, MRP, Quantity, Amount in value of Cosmetics serial etc. various confusing endorsements/signatures “received Subrata Roy” written by someone as Subrata Roy but dates 20-11-2012 sheets 1 to 3 appears to have been put by someone else. Page 4 and 6 relates to 50 items serial with signature of Subrata Roy VLCC Personal Care stock return A & G impex 06-09-2012 but no endorsement as received.
So also page 7 & 8 speaks of 18 items serial signature of “Subrata Roy VLCC Personal Care” “cost Rs. 200/- (two hundred rupees only) Subrata Roy VLCC Personal Care appears to be of above Subrata Roy are not disputed on the point of identity of writing and dated 05-09-2012 appears on Letter Head Pad with endorsement “Das brothers” (display) then what does it mean is not transparent.
The letter of Ld. Advocate Mr. Tarun Das dated 22-03-2013 has been acknowledged by the Opposite Party No. 1 on 28-03-2013 by on Md. Aslam has not been specifically denied by the Opposite Party No. 1 so far.
On the other hand the Opposite Party No. 1 in respect of “Written Version” has filed “Written statement” on affidavit on behalf of Opposite Party Nos. 1 & 2 even if literally having some meaning is accepted it reflects referee of some decided cases emplacing at Para-2 that the Opposite Parties have no Branch Office at District Cooch Behar and earners on its business from its Registered office at Delhi, and Branch Office at Kolkata and none reside at District Cooch Behar at the time of institution of the complaint but remained silent as to whether there was such Branch Office/carrying on its business at Cooch Behar on the relevant period of transaction of business though admitted to have received the cheques, encashment and even claimed dishonor of the cheque they have not initiated any cost and also as to jurisdiction of Complainant at Delhi only as per Tax Invoice No.SIKOL+/1213/01202 dated 16-10-2012 which do not mean that they had no business deal in Cooch Behar. At so that they had no business deal with the Complainant then how and what for the Opposite Parties have accepted cheques, en-cashed claimed dishonor of cheques etc. against Invoice have not replied in the W/V / W/S of the Opposite Party Nos. 1 & 2.
They have also claimed it as a case Civil in nature, Indian Contract Act, Specific Relief Act etc. in such cases of complex in nature and in Civil Court and not in Consumer Forum to which it can reasonably placed on record that the Forums are empowered by Section 13(5), 13(6) and 13(7) of the Consumer Protection Act,1986 and to conduct the proceedings & deal with the disputes under those inherent powers by virtue of and according to the Rules 1987 and Regulations,2005.
They also have claimed non-joinder of necessary parties in W/V / W/S at Para-5 (besides other matters which are beyond the provision of the C.P. Act, 1986 and kept aside). They have stated the transaction as “Customary trade practice”. It has been admitted in Para-9 “Opposite Parties send products to the Complainant again which Complainant issued cheque in favour of Opposite Parties” which implies that.
At Para-12 of W/V / W/S admitted goods value of Rs. 2,00,818/- but denied return of goods with Rs. 1,56,000/- which required to be proved by adding both oral and documentary evidence. They have vehemently denied the claim of Rs.2,15,000/- from Opposite Party as per Current A/c statement. However, the Opposite Parties have admitted Rs. 61,274/- paid by the Complainant towards advance payment for purchase of products from the Opposite Parties and they are ready to repay the same if it is required by the Complainant vide Para-13 of W/V / W/S; but has claimed that the Complainant is not entitled to get any compensation for deficiency in service or negligence or mental harassment or mental agony and pain or litigation cost claimed by the Complainant. Surprisingly, at Para-20 of the W/V / W/S disagreed to admit documents “B” “C” “D” and “F” of the Complainant and claimed annexure “E” to be proved before the Ld. Court at Delhi by adding oral and documentary evidence and prayed for dismissal of the Complaint with cost implies that they have not specifically denied that they have received back these goods from the Complainant.
Point No,6.
Thus, we find that it is not the Complainant who has proved its case beyond reasonable doubt but it is the Opposite Parties by W/V / W/S have admitted some matters which impliedly speaks that the articles were received by it that goods were delivered at Cooch Behar from Papia Enterprise is admitted hence “cause of action” partly arose beyond reasonable doubt and this Forum has jurisdiction to decide the case of the Complainant. Further, treating the complainant as customer annexure “E” in relation of business of the Opposite Parties he may be an Agent or Customer we have no reason to believe that the Complainant is not a Consumer.
Further, annexure “A” of the Opposite Party with W/V / W/S shows that amount of Rs. 68,717/- was debited by cheque deposit for the A/c of customer “Papia Enterprise” on 16-10-2012 whereas it has been credited on 23-11-2012 in the said A/c as per customer ledger. So, it cannot be said that the Opposite Parties have received the said amount. We also agree with the contention of the Opposite Party that the cheque was dishonored.
In this context, it may be placed upon the decision of Hon’ble State Commission, Bhopal in Appeal No. 358 of 2008 decided on 20-02-2008 where it is decided that “the respondent carries on his business of body building at Jaipur (Rajasthan) and no branch office of respondent is situated at Satna (M.P.), where the complaint was filed. Satna Forum has no jurisdiction to entertain the complaint” to rely on.
In the present case also the Opposite Party No. 1, VLCC has it is Corporate Office at Gurgaon, and the office of the Opposite Party No. 2 is in Kolkata i.e. beyond the jurisdiction of this Forum. There is also no branch office of VLCC at Cooch Behar. Moreover, the entire material on record did not prove that the cause of action wholly/partly has not arisen within the jurisdiction of this Forum as there appears no such Agreement/Endorsement.
Finally thus, considering all the aspects, precluding the latches and lacunae, we are constrained to hold that this Forum has jurisdiction to entertain the complaint, the petitioner is a “consumer” and as such Complainant and the Opposite parties contributed negligence & deficiency in service to the complainant and hence, liable to compensate.
ORDER
Hence, it is ordered that the case be and the same is maintainable and the same is allowed. The Complainant Shri Subrata Paul do get an award of (1) Rs.5,000/-towards litigation cost, (2) Rs.61,274/- rounded of Rs.61,300/- together with Interest @10% per annum w.e.f.24-11-2012 till the payment is made as compensation, i.e. the amount lying in the credit of Papia Enterprise, as per Customer Ledger since their business transaction stopped, subject to adjustment of the account by the parties in contest for the deficiency in service and Rs.10,000/-as further compensation for harassment by the Ops. No award against mental agony, pain and the like, prayed as for is allowed.
The Representative Mr. Harish Joshi, in whatsoever capacity he contested the case on behalf of OP 1 and 2, is directed to pay/cause the aforesaid awarded amount paid accordingly to the aforesaid Complainant within, 60 days from the date of this Final Order, failure of which the Ops shall pay @ Rs.50/- for each day’s delay on expiry of the aforesaid 60 days by depositing the accumulated amount, if any as such by depositing the same in the “State Consumer Welfare Fund, West Bengal”.
Let plain copy of this Final Order be supplied, free of cost, to the concerned party/ld. Advocate by hand/ be sent under Registered Post with A/D forthwith for information and necessary action, as per Rules.
Dictated and corrected by me.
President President
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
Member Member
District Consumer Disputes District Consume Disputes
Redressal Forum, Cooch Behar Redressal Forum, Cooch Behar.
