Complaint filed on: 30-09-2019
Disposed on: 23-12-2020
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMKURU
CC.No.165/2019
DATED THIS THE 23th DAY DECEMBER, 2020
PRESENT
SRI.C.V.MARGOOR, B.Com, L.L.M, PRESIDENT
SRI.KUMARA.N, B.Sc., L.L.B, MEMBER
SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER
Complainant: -
K.M.B. INDUSTRIES
By its Proprietrix
Smt.KAVITHA
W/o Manjunath.C.S
Aged about 42 years,
Working place at
K.M.B. Industries, Plot No.136-A,
Part-1, Antharasanahalli Industrial
Area, Tumakuru City
(By Sri.T.K.Jayaram, Advocate)
V/s
Opposite party:-
Mr.S.Chandrasekaran
The Senior General Manager,
Wipro Enterprises (P) Ltd,
Antharasanahalli Industrial Area,
Tumakuru city
(By Sri.P.Mahesh, Advocate)
ORDER
SRI.C.V.MARGOOR, PRESIDENT
This complaint is filed under Section 12 of Consumer Protection Act, 1986 to direct the opposite party to pay a sum of Rs.10.00 lakh since the complainant has sustained loss by paying the amount towards rental charges, salary to the workers, electricity and water charges and other incidental charges. Further the complainant asked for a sum of Rs.5.00 lakh compensation with interest at 12% p.a for mental and physical agony.
2. The complainant K.M.B Industries is run by Smt.Kavitha W/o Manjunath.C.S and she has entered into an agreement with the OP Wipro Enterprises (p) Ltd. represented by its Senior General Manager Mr.S.Chandrasekaran. The OP has entered into an agreement on 20-10-2018 with the complainant for carrying work of packing, re-packing, sorting and arranging of cosmetics and toiletries. The complainant to carry out the said work had taken building measuring 4,500=00 square feet on rental basis from one Vinoda W/o G.V Ramamurthy resident of Tumkur agreeing to pay the monthly rent of Rs.47,250=00 and paid advanced amount of Rs.4,00,000=00. The OP had assured the complainant that it would entrust the work of packing etc., for a period of three years. The complainant to attend the assigned work has obtained electric supply by paying necessary charges to the KEB, arranged water facility to the building, engaged security men, supervisor, building cleaners and labours.
3. It is further case of complainant that the OP had placed orders only for sixteen days and thereafter without issuing notice in terms of the agreement has terminated the contract on 16-4-2019. On account of sudden termination of contract the complainant has to bear the rent of building, expenses of maintenance etc., Thereafter the complainant has got issued notice to the OP on 26-7-2019 calling upon it to pay the loss suffered by her but the OP has given untenable reply to the notice of complainant. Hence, this complaint.
4. The OP after the service of notice put in appearance through their learned counsel and filed written version raising preliminary objection with regard to maintainability of complaint as the complainant is not consumer under the Act. The OP admitted the agreement entered between it and complainant for packing, sorting etc., It is further case of OP that the complainant did not carried out the assigned work correctly as a result the OP have received complaints from its customer consequently, it sustained loss in the business. The opposite party has sent mails to the complainant to rectify the mistakes committed by her but in spite of repeated mails the complainant went on committing mistakes in packing of the OP materials. Therefore, the OP has terminated the contract on 16-4-2019 in terms of the agreement. The OP has denied rest of the allegation made in the complaint with regard loss sustained by the complainant and suffering of physical and mental agony. On amongst other grounds, the OP asked to dismiss the complaint.
5. The complainant filed their affidavit evidence and got marked Exs.P1 to P9 documents. On the other hand the OP Senior General Manager S.Chandrasekaran filed affidavit evidence.
6. We have heard the oral arguments advance by the learned counsel for the complainant and OP in addition to written brief submitted by the complainant and the points that would arise for determination are as under;
1) Whether the complainant proves the
deficiency in service on the part of OP?
2) Is complainant entitled to the relief sought
for?
7. Our findings on the above points are as under;
Point No.1: In the negative;
Point No.2: In the negative for the below
REASONS
8. Point No.1 and 2:- The learned counsel for the complainant have submitted that the OP has agreed to entrust the work of packing, re-packing, sorting etc., for a period of three years but without notice abruptly terminated the contract. The complainant has invested huge amount to perform the assigned work of the OP by taking building on rent, spent amount for supply of electricity, water connection and engaged security men and labors. As against this the learned counsel for the OP urged that the relationship between the complainant and OP as principal to principal. No relationship between the complainant and OP as consumer and dealer. The OP has sustained loss on account of non-satisfactory work of the complainant and the OP has not terminated the contract on 16-4-2019 abruptly but it has sent mails to the complainant on many times to avoid short supply of stock in the market. The efforts made by the OP to correct the mistakes committed by the complainant went in vain.
9. The OP has not disputed the fact of entering into an agreement with the complainant on 20-10-2018 and the complainant marked Ex.P1 agreement entered between her and the opposite party. It is recited in the agreement that the complainant is carrying on the business of packing, re-packing, sorting and arranging of cosmetics and toiletries at its works location. Clause No.4 of the agreement says with regard to relationship of the parties. This agreement between the parties is on principal to principal basis. The learned counsel for the OP has brought to the Commission notice the definition of Consumer. Section 2(1) (d) defines “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 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 payments, 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];
[Explanation: for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;]
10. According to the complainant the OP has availed the service of the complainant for packing, re-packing, sorting etc., for consideration. The complainant in the complaint nowhere whispered that she has agreed the assignment of work or job for her livelihood or self employment. The averments of complaint and affidavit evidence is clear that the complainant has engaged security men and employed labors to carry out the work of packing, re-packing, sorting of cosmetics and toiletries. It shows that the work under taken by the complainant from the OP is for commercial purpose. The complainant has taken building to carry out the said work on monthly rent of Rs.47,250=00. It indicates that the complainant has not taken the said work for her livelihood.
11. The allegation made in the complaint that the OP without service of three months prior notice has terminated the contract entered between them. Clause No.9.1 of the agreement says that the agreement may be terminated by either party by giving the other party advance notice of three months of such termination. However clause No.9.2 says that notwithstanding anything to the contrary hear in contained, either party hear to shall be entitled to terminate this agreement forthwith without notice or any compensation in lieu of notice upon then happening of any of the following events.
a) If either of the parties commits a breach of any of the terms or provisions of this agreement.
(b) XXXX
(c) XXXX
Clause No.9.2 says that in case of breach of contract by either of the parties any one of them may terminate the contract without service of three months prior notice.
12. The OP has made allegation that the complainant has violated the terms of agreement by not packing the materials properly and sent to the parties as a result it has sustained loss and further lost reputation in the market. The allegation made against the complainant and abrupt termination of contract made by the complainant requires trial. To prove the allegation of breach of contract by either of the parties it requires lengthy trial. Breach of the contract or breach of the terms of agreement shall not be determined by the Consumer Commission and on the contrary it shall be determent by Civil Court. The complaint is liable to be dismissed on two fold, first ground is that the complainant not becomes consumer since the job under taken by the complainant is of commercial purpose i.e., the complainant has engaged security men, labors and agreed to pay huge rent of Rs.47,250=00 per month for building to carry out the work of OP. Secondly the Consumer Commission has no jurisdiction to determine as to whether who has committed the breach of the terms of contract. For the above reasons, we proceed to pass the following;
ORDER
The complaint filed by the complainant fails hence, it is dismissed without cost.
Furnish the copy of order to the complainant and opposite party at free of cost.
(Dictated to the Stenographer, got it transcribed, corrected and then pronounced in the Open Commission on this the 23th day of December, 2020).
LADY MEMBER MEMBER PRESIDENT
