D.O.F:24/02/2023

                                                                                                      D.O.O:21/06/2023

IN THE CONSUMER DISPUTES  REDRESSAL COMMISSION, KASARAGOD

CC.52/2023

Dated this, the 21^th day of June 2023

PRESENT:

SRI.KRISHNAN.K                          : PRESIDENT

SMT.BEENA.K.G                          : MEMBER

Kittu Naik Shankarappa @ Rajesh,

S/o Kittu, R/at SR Distributor,

1^st floor, 32/1182, Arafa Building,

M.G Road, Kasaragod – 671121                                : Complainant

(Adv: B. Ramakrishna Bhat and Chethanakrishna. B)

                                        And

Sabeena Mol. P.L

Proprietor

M/s  J-Force Industries,

Kollam – 691577                                                       : Opposite Party

ORDER

SMT.BEENA.K.G : MEMBER

The gist of the complaint is that the complainant and Opposite party entered in to an agreement as per which the complainant was entrusted to the distribution of fixed brand multipurpose solvent cement of Opposite party in Kasaragod district for the year 2022-2023.  As per the agreement complainant paid an advance amount of Rs. 2,50,000/- to Opposite party for purchasing the commodity on 23/03/2022 through a cheque of Bank of Baroda and it was encashed by Opposite party.  As per the agreement GST loading and unloading transporting toll and other expences are to be borne by the complainant.  But the Opposite party has not sent the equal value of commodity for the amount paid by the complainant.  The Opposite party had sent the commodity worth only Rs.1,63,199/-.  But the Gst stated in the bill given by the Opposite party is not uploaded and hence the complainant lost the entire GST amount since it is not paid by Opposite party in accordance with the conditions of agreement.  Hence the complainant was not in a position to sell the product and is a total loss for him.  The commodities are lying without any distribution and it has become a dead investment.   The Opposite party acting utter violation of terms and conditions of agreement which clearly shows that opposite party’s intention is to cheat and defraud the complainant and to make unlawful enrichment by Opposite party.  All these show deficiency of service on the part of Opposite party.  The complainant caused to sent a registered notice dated: 06/12/2022 to the Opposite party requesting to repay the amount stated in the notice.  The said notice was duly served to Opposite party on 08/12/2022.  But he has not sent any reply to said notice hence the complainant seeking direction against opposite party for the advance amount paid by him with interest at 12% per annum from 23/03/2022 till the date of payment and take back the product which was sent to the complainant, with a compensation of Rs. 50,000/- with interest and cost.

Notice to Opposite party served but she remained absent name of Opposite party called absent set exparte.

The complainant filed proof affidavit in lieu of chief examination and Ext A1 to A8 marked .  Ext A1 is the agreement entered into between complainant and Opposite party dated: 05/03/2022.  Ext A2,A3, and A4 tax invoices.  Ext A5 is the computer copy of the bank statement.  Ext A6 is the bank cheque and RTGS (Photocopy) , Ext A7 is the true copy of the registered notice sent to Opposite party.  Ext A8 is acknowledgment copy of the Opposite party.

The main question raised for consideration are

1. Whether the complainant is a consumer?
2. Whether there is any deficiency of service on the part of Opposite party?
3. Whether the complainant is entitled for relief?
4. If so what is the relief?

For convenience issues No: 1to 4 can be discussed together.

The case of the complainant is that he entered to an agreement with Opposite party and as per the agreement the complainant was entrusted to distribution of fixed brand multipurpose solvent cement of Opposite party in Kasaragod District for the year 2022-2023.  Ext A1 agreement is produced to prove the case of the complainant.  As per Ext A1 the complainant had paid an advance amount of Rs. 2,50,000/- to the Opposite party for purchasing the commodity on 23/03/2022 through a cheque of bank of Baroda and it was enchased by Opposite party.  Thereafter Opposite party has not sent the value of commodity for the amount paid by the complainant.  The Opposite party had sent the commodity worth only for Rs. 1,63,199/- .moreover GST stated in the bill is not uploaded.  So the complainant will loose the entire GST amount.  The complainant was not in a position to sell the product and it is a total loss for him.  The complainant sent a registered notice Dated: 06/12/2022 to the Opposite party requesting to repay the amount stated here under, even though the notice was duly served opposite party has not sent any reply to the said notice till this day.  The complainant is alleging deficiency of service on the part of Opposite party which caused severe mental agony and discomfort to the complainant.

Sec 2 (1) (d) defines ‘consumer’ as a person who:-

1. buys any goods for a consideration which has been paid or promised or 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
2. 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.

As per the definition of consumer in CP Act 2019 the complainant neither purchased anything from the opposite party nor availed any service for consideration.  The relationship between the complainant and opposite party is a commercial one.  Hence the complainant not a consumer as per the Act.

Therefore the complaint is dismissed with no order as to cost.

     Sd/-                                                                                              Sd/-

MEMBER                                                                                      PRESIDENT

Exhibits

A1- Agreement

A2 to A4 – Tax Invoices

A5- Bank Statement

A6- Bank Cheque and RTGS Photo copy

A7- Registered notice

A8- Postal acknowledgment card

     Sd/-                                                                                                 Sd/-

MEMBER                                                                                      PRESIDENT

Forwarded by Order

                                                                      Assistant Registrar

Ps/