DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM
Dated this the 24th day of April 2024.
Filed on: 08/03/2023
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 174/2023
COMPLAINANT
Jeason Mathew, S/o P.J. Mathew, aged 37, Pynel Mammen Villa, Athirampuzha P.O., Kottayam
(By Adv.N.Retheesh, Suma Retheesh, Shankar Retheesh, Sree Vihar, Karimpatta Road, Ernakulam, Cochin-16)
OPPOSITE PARTIES
1) M.R. Spark Tech Pvt. Ltd., #164, S & P Residency, Rajankuppam, Vanagaram, Chennai - 600 095, represented by its Director Managing
2) Sreenivasan, M.R. Spark Tech Pvt. Ltd., #164, S & P Residency, Rajankuppam, Vanagaram, Chennai - 600 095.
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019.In this case, the complainant, owner of M/s Rice Problems Polymers in Muvattupuzha, Kerala, seeks redressal for grievances against a Chennai-based company specialized in supplying industrial equipment, and its Managing Director. The 2nd opposite party is the Managing Director of the 1st opposite party registered private limited company who engages in supply of industrial equipment having its registered office in Chennai. The complainant alleges that despite fulfilling his contractual obligations by paying the full price of Rs. 6,24,810 for various machinery parts essential for his business, he encountered multiple issues with the opposite parties, including non-delivery of some parts and unexpected additional charges.
The complainant asserts that after making the full payment, as per the purchase agreement, the goods were not delivered as specified. The shipment was incomplete, missing critical components such as a 20 HP Motor and a 3 phase Starter, cumulatively valued at Rs. 1,00,000/-. This deficiency significantly impacted the operational capabilities of his business, leading to financial losses.
Additionally, the complainant was unexpectedly charged Rs. 21,000/- by the logistics company, a cost that was supposed to be included in the total payment already made to the opposite parties. This led to further financial strain and was viewed as a breach of the agreed terms.
Despite multiple attempts to resolve these issues amicably, the opposite parties allegedly evaded responsibility and failed to address the complainant’s concerns effectively. This lack of response and the perceived negligence in fulfilling the agreement prompted the complainant to seek legal recourse.
The complainant has thus approached the District Consumer Redressal commission, requesting that the opposite parties be directed to pay Rs. 1,00,000 for the undelivered parts, and additional compensation for mental agony and legal costs, amounting to Rs. 1,20,000. The complainant stated that the opposite parties have not only failed to deliver the agreed goods but have also engaged in unfair trade practices, thereby justifying his claim for damages and emphasizing the necessity for consumer protection laws to uphold justice and ensure accountability.
2) Notice
The Commission sent notice to the opposite parties, which was returned as refused by the opposite parties and is treated as deemed service, they did not file their versions. Therefore, they have been set as ex-parte.
3) . Evidence
The complainants submitted an ex-parte proof affidavit along with seven documents, marked as Exhibits-A-1 to A-7.
Exhibit A1: Purchase Order dated 08.06.2022, Issued by the proprietor, M/s Rice Problems Polymers, Muvattupuzha to M.R. SparkTech Pvt. Ltd., Chennai.
Exhibit A2: Counterfoil of Cheque Deposit Slip dated 16.06.2022, Evidences the advance payment of Rs. 3,00,023.60 by Rice Problems Polymers in favour of M.R. SparkTech Pvt. Ltd., bearing Account No. 12730500000020 of Bank of Baroda, Egmore Branch, through Cheque number 070210.
Exhibit A3: Counterfoil of Cheque Deposit Slip dated 14.07.2022, Evidences the final payment of Rs. 3,13,033.60 by Rice Problems Polymers in favour of M.R. SparkTech Pvt. Ltd., bearing Account No. 12730500000020 of Bank of Baroda, Egmore Branch, through Cheque number 070214.
Exhibit A4: Tax Invoice dated 28.09.2022 bearing number MRST/139/22-23, Issued by M.R. SparkTech Pvt. Ltd., Chennai in favour of M/s Rice Problems Polymers, Muvattupuzha acknowledging the receipt of advance payment totalling Rs. 6,13,010.
Exhibit A5: Counterfoil of Cheque Deposit Slip dated 06/10/2022, Evidences the payment of Rs. 21,004.72 by Mr. Jeason Mathew (proprietor of M/s Rice Problems Polymers) to Ecologistics for logistics services, bearing Account No. 919020002081970 of Axis Bank, Selaiyur Branch, through Cheque number 728904.
Exhibit A6: Copy of Tax Invoice dated 28.09.2022 bearing number MRST/139/22-23, Issued by M.R. SparkTech Pvt. Ltd., Chennai in favour of M/s Rice Problems Polymers, Muvattupuzha. Sent back by Mr. Jeason Mathew marking the items actually received by him.
Exhibit A7: Legal Notice dated 28.11.2022 with Postal Receipt Issued to the Managing Director of M.R. Spark Tech Pvt. Ltd., Chennai by Jeason Mathew.
4) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iv) Costs of the proceedings if any?
5) The issues mentioned above are considered together and are answered as follows:
The complainant, Mr. Jeason Mathew, proprietor of M/s Rice Problems Polymers, has approached this commission under Section 35 of the Consumer Protection Act, 2019, seeking redressal for grievances against M.R. SparkTech Pvt. Ltd., and its Managing Director concerning the purchase of industrial machinery.
Argument Notes Submitted by the Counsel for the Complainant, N. Retheesh
The complainant, proprietor of M/s Rice Problems Polymers, operates a PET bottle manufacturing business in Muvattupuzha, Kerala. In 2022, he ordered industrial machinery from a Chennai-based company, managed by the second party involved in this case. The order included a variety of machinery components amounting to Rs. 6,24,810, inclusive of transportation from Chennai to Muvattupuzha. The complainant made an initial 50% advance payment and later completed the full payment as stipulated in their agreement.
Despite full payment, the machinery was delivered with missing components and additional unexpected logistics charges amounting to Rs. 21,000, which the complainant had to pay out of pocket. This situation significantly disrupted the operations at his manufacturing unit, leading to considerable financial losses.
The missing components were essential for the operation of his business, and the delay in their delivery caused by the opposite parties have led to severe operational disruptions. The complainant has fulfilled all contractual obligations including full payment evidenced by bank transaction records.
After multiple failed attempts to resolve the issue amicably, and in response to the lack of action from the opposite parties, the complainant was forced to issue a legal notice. The opposite parties’ failure to respond to the legal notice or engage in the proceedings despite being properly notified led the forum to set them ex parte.
The complainant argues that he is a consumer as defined by the Consumer Protection Act, 2019, suffering from a deficiency in service and unfair trade practices by the opposite parties. Given the opposite parties' non-participation in the dispute resolution, their silence is deemed an admission of the claims against them. Therefore, the complainant seeks full redress including compensation for the missing parts, mental agony, and the costs of litigation. The commission is asked to enforce these compensations based on the unchallenged evidence and legal precedence that supports the complainant's position.
THE CONSUMER PROTECTION ACT, 2019, 2(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
Explanation. —For the purposes of this clause, — (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;
In the case of Standard Auto Agencies vs State Bank of India, adjudicated by the M.P. State Consumer Disputes Redressal Commission on June 2, 2022, under case number 55 of 2019, it was ruled that:
“The complainant has not availed the services of the bank exclusively for the purposes of earning his livelihood by means of self-employment but for commercial purpose. The complainant is therefore not at all falls within the purview of 'consumer' as defined under Section 2(1)(d)(ii) of the Act and it cannot be said that he had hired services of the opposite party bank exclusively for the purposes of earning his livelihood by means of self-employment.”
In the decision of Rohit Chaudhary and Another v. Vipul Limited, (2024) 1 SCC, Civil Appeal No. 5858 of 2015, which was concluded on September 6, 2023, the Honourable Supreme Court held that:
“19. When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold.”
On perusal of the complaint, we find that though the complainant is a proprietorship firm. it cannot be said that the business of the complainant and goods purchased by the complainant from the opposite party solely for the purpose of earning livelihood of the complainant's proprietor by means of self-employment. The complainant nowhere in his complaint has stated that he has purchased the goods from the opposite party exclusively for the purposes of earning his livelihood by means of self-employment.
The complainant acknowledged in his complaint, as quoted below:
“10. The complainant is a honest and hardworking man who had saved years of hard earned money to operate a proprietorship concern such as his and there are many workers who are working under him and are dependent on the running of the proprietorship concern of the complainant. Soon the complainant's proprietorship concern will have to be shut down to because till date the respondents are actively evading the complainant.”
This Commission has deliberated extensively on the facts presented, the submissions made by the complainant through his counsel, and the absence of any rebuttal from the opposite parties who are set ex-parte. The core issues revolve around the maintainability of the complaint, the alleged deficiency in service, unfair trade practices, and the subsequent entitlement of any relief to the complainant.
A. Maintainability of the Complaint:
Under Section 2(7) of the Consumer Protection Act, 2019, a "consumer" is defined primarily as a person who buys goods for consideration for personal use and not for resale or commercial purposes. An exception exists for individuals purchasing goods exclusively for the purpose of earning a livelihood by self-employment.
In light of the judgement in Standard Auto Agencies vs State Bank of India and considering the guiding principles laid down in Rohit Chaudhary and Another v. Vipul Limited, it is critical to establish whether the complainant falls within the definition of 'consumer' under the Act.
The evidence presented indicates that the complainant, M/s Rice Problems Polymers, is a business engaged in manufacturing which employs multiple workers and engages in commercial activities. There is no explicit evidence to suggest that the goods purchased were solely for the purpose of personal use or exclusively for earning a livelihood by means of self-employment.
The complainant's activities fall within the ambit of commercial purposes; hence he does not qualify as a consumer under the Act. This Commission, therefore, holds that the complaint is not maintainable on this ground alone.
B. Deficiency in Service and Negligence:
Given that the complaint is not maintainable, the question of deficiency in service or negligence does not arise.
C. Relief and Costs:
As the primary issue regarding the status of the complainant as a consumer negates the maintainability of the complaint, no relief under the Consumer Protection Act can be granted. Costs of the proceedings are not awarded given the dismissal on jurisdictional grounds.
ORDER
The complaint is hereby dismissed on grounds of the complainant not being a 'consumer' as per the Consumer Protection Act, 2019. The Commission advises the complainant to seek redressal through appropriate civil court channels where commercial transactions are adjudicated.
Pronounced in the Open Commission this is the 24th day of April 2024.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/- Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exhibit A1: Purchase Order dated 08.06.2022, Issued by the proprietor, M/s Rice Problems Polymers, Muvattupuzha to M.R. SparkTech Pvt. Ltd., Chennai.
Exhibit A2: Counterfoil of Cheque Deposit Slip dated 16.06.2022, Evidences the advance payment of Rs. 3,00,023.60 by Rice Problems Polymers in favour of M.R. SparkTech Pvt. Ltd., bearing Account No. 12730500000020 of Bank of Baroda, Egmore Branch, through Cheque number 070210.
Exhibit A3: Counterfoil of Cheque Deposit Slip dated 14.07.2022, Evidences the final payment of Rs. 3,13,033.60 by Rice Problems Polymers in favour of M.R. SparkTech Pvt. Ltd., bearing Account No. 12730500000020 of Bank of Baroda, Egmore Branch, through Cheque number 070214.
Exhibit A4: Tax Invoice dated 28.09.2022 bearing number MRST/139/22-23, Issued by M.R. SparkTech Pvt. Ltd., Chennai in favour of M/s Rice Problems Polymers, Muvattupuzha acknowledging the receipt of advance payment totaling Rs. 6,13,010.
Exhibit A5: Counterfoil of Cheque Deposit Slip dated 06/10/2022, Evidences the payment of Rs. 21,004.72 by Mr. Jeason Mathew (proprietor of M/s Rice Problems Polymers) to Ecologistics for logistics services, bearing Account No. 919020002081970 of Axis Bank, Selaiyur Branch, through Cheque number 728904.
Exhibit A6: Copy of Tax Invoice dated 28.09.2022 bearing number MRST/139/22-23, Issued by M.R. SparkTech Pvt. Ltd., Chennai in favour of M/s Rice Problems Polymers, Muvattupuzha. Sent back by Mr. Jeason Mathew marking the items actually received by him.
Exhibit A7: Legal Notice dated 28.11.2022 with Postal Receipt Issued to the Managing Director of M.R. Spark Tech Pvt. Ltd., Chennai by Jeason Mathew.
Date of Despatch ::
By Hand :: By Post ::
uk
