Haryana

Ambala

CC/21/2022

M/s Sanghu Energy Saving Systems Pvt ltd - Complainant(s)

Versus

M/s K.S. Plastic Trading Co. - Opp.Party(s)

Mehar Singh

19 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	21 of 2022
Date of Institution	:	21.01.2022
Date of decision	:	19.09.2023

M/S Sanghu Energy Saving Systems Private Limited through its Managing Director/Authorized Representative Sh. Suresh Sangwan age 35 yrs, s/o Sh. Dilbagh Singh, r/o # Floor-II, Plot no.79, Moti Nagar, Ambala City, (Haryana).

          ……. Complainant.

Versus

M/S K S Plastic Trading Company, through its Partners/Authorized Representatives Vipin Marwah AND Nitin Marwah (Partner K S Plastic Traing Co.)

ADDRESS- R/O at Office at F-33, Ground Floor, Ohkla Phase-1, New Delhi-110020

….…. Opposite Party.

 Before:                 Smt. Neena Sandhu, President.

                              Smt. Ruby Sharma, Member.

                 Shri Vinod Kumar Sharma, Member.           

 

Present:                Shri Mehar Singh, Advocate, counsel for the complainant

                              Shri Amol Jain, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund the money amounting to Rs.1,91,352/- alongwith interest @ 18% P.A.
2. To pay Rs.60,000/-  as compensation for harassment, loss of business and mental agony suffered by the complainant.
3. To pay Rs 11,000/- as cost of litigation.

 

2.             Brief facts of this case are that the complainant firm is manufacturing and running a business of Compact Fluorescent Lamps, roads light etc. The company of the complainant is registered Pvt. Ltd. and is having a very good reputation and goodwill in the market. The items manufactured by the company are of very high quality and is having a great name and fame in the business field. The complainant company was in need of wholesale suppliers of raw materials used in manufacturing of final product compact fluorescent lamps and road light etc. The complainant came across the profile business of the OP which looked a professional and honest company in the business affair, although it didn't prove so. The complainant contacted the OP and after some discussions, the OP expressed deep desire to maintain long term business relations with the complainant. The OP company represented its desire to supply the raw material as wholesaler and retailer for a long term business association with complainant, which was accepted by the complainant and as such it placed order for supply of LED fixtures. The complainant, in order to show his bonafide, advanced a sum of Rs 50,000/- on 04-08-2021, which was transferred in the bank account of OP, held in HDFC Bank Ltd, Okhla Phase-I Branch. This advance money was paid as essential element towards the performance of good professional dealing. Again on 20-08-2021 the complainant transferred full and final sum of Rs.1,41,000/-, being the balance amount of final bill dated 20-08-2021 and in this way the complainant paid a total sum of Rs.1,91,352/- in advance for the orders of raw material. On 20-08-2021 the OP sent the material consignment vide invoice no 1814 dated 20-08-2021 through a vehicle of the OP. The complainant checked the raw material which was not in accordance with the orders and it was substandard and very poor in quality. It was informed to the OP and after this the item delivery consignment was rejected and material was not received. An endorsement was made on the Tax Invoice regarding the rejection. This intimation was also communicated to the OP. The OP promised to supply the correct material in the new batch, as required by the complainant, but the OP didn't comply the terms and conditions of the order. Thereafter, many requests were made by the complainant, either to send the correct material or refund the money received by the OP but the OP failed to do so. Ultimately, the complainant issued a legal notice dated 28-08-2021 for refunding the total amount of Rs 1,91,352/- which was paid in advance but to no avail. Hence, the present complaint.
3.           Upon notice, OP appeared and filed written version and raised preliminary objections with regard to maintainability, cause of action, locus standi, not come with clean hands and suppressed the material facts etc. On merits, while admitting factual matrix of the case, regarding sale of the said goods, it was stated that the entire goods were sent by the OP by affixing its seal and after receiving the entire goods from the Transporter of the OP namely Mr. Jaiveer Singh and Driver Mr. Lalu Kumar having Tempo No. DL-1L AB 8692. However, with intention to cheat the OP, the complainant mentioned on e-way bill and invoice of the OP, "as rejected the material and not received". The transporter of OP took another material from another place, from another party and carried the said material to Delhi. The OP has already lodged complaint against the complainant qua cheating at PS Okhla, New Delhi, after receiving the frivolous message from the complainant, which is still pending for investigation. The OP after receiving the legal notice from complainant also sent reply to legal notice on 10.09.2021. Rest of the averments of the complainant were denied by OP and prayed for dismissal of the present complaint with heavy costs.
4.           Learned counsel for the complainant tendered affidavit of Suresh Kumar son of Shri Dilbagh Singh (Managing Director), r/o Floor II, Pot No.79, Moti Nagar, Ambala City as Annexure PW-1 alongwith documents as Annexure C-1 to C-6 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for the OP tendered affidavit of Vipin Marwah son of Shri Tilak Raj Verma, r/o E-231, Ground Floor, Greater Kailash-II, New Delhi-110048, as Annexure OP/A alongwith documents as Annexure OP-1 to OP-3 and closed the evidence on behalf of the OP.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that the complainant is doing the business for earning his livelihood and not for earning huge profit as alleged by the OP. The mere status of complainant being a company is not sufficient to say that it is not a consumer. He further submitted that by not refunding the amount received by the OP towards the said inferior goods, despite the fact that the same were not received by the complainant and were returned back through the transport, vide which said goods were sent by the OP. Many requests were made by the complainant, either to send the correct material or refund the money received by the OP but nothing was done by it. The said act of the OP not only amounts to deficiency in providing services but also indulgance into unfair trade practice.  The learned counsel for the complainant has placed reliance upon the judgments, passed by the Hon’ble Supreme Court of India, New Delhi, in the case of Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, and Cheema Engineering Services Vs. Rajan Singh (1997) 1 SCC 131.  
7.           On the contrary, the learned counsel for the OP vehemently argued that the complainant has purchased the goods in question for the business purpose, to earn huge profit. Thus, he is not a consumer. He further submitted that the said goods were never returned by the complainant, whereas, on the other hand, the complainant took benefit of the illiteracy of the driver of the transport on which the goods were sent to the premises of the complainant. He further submitted that a police complaint has also been lodged against the complainant in the matter, which is pending investigation.
8.           First coming to the plea taken by the OP that complainant is not consumer, it may be stated here that the OP has failed to place on record any cogent and convincing evidence to prove that the goods amounting to Rs.1,91,352/- which were purchased by the complainant, were to be used on such a huge commercial scale by the complainant, to earn huge profits. The mere status of the complainant being a company is not sufficient to say that it is not a consumer. In Laxmi Engineering Works Vs. P.S.G. Industrial Institute (supra), the Hon’ble Supreme Court, while interpreting the expression ‘consumer’ inter-alia observed as under:

          “11.   ……………… The National Commission appears to have been taking a consistent view that where a person purchases goods ‘with a view to using such goods for carrying on any activity on a  large scale for the purpose of earning profit’ he will not be a ‘consumer’ within the meaning of Section 2(d(i) of the Act.  Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “Large scale” is not a very precise expression – Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance / Amendment Act, 1993.  The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate : a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter / car for a commercial purpose.  The explanation however clarifies that in certain situation, purchase of goods for ‘commercial purpose’ would not yet take the purchaser out of the definition of expression ‘consumer’.  If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’.  ……..

It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz. “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.”………….

If such buyer takes the assistance of one or two persons to assist / help him in operating the vehicle or machinery, he does not cease to be a consumer.  As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer.  This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” in the explanation.” The ambiguity in the meaning of the words “for the purpose of earning his livelihood” is explained and clarified by the other two sets of words.”

“14.   Yet another clarification, the explanation, in our opinion is only explanatory, it is more in the nature of a clarification – fact which would become evident if one examines the definition (minus the explanation) in the context and scheme of the enactment.  As indicated earlier, the explanation broadly affirms the decision of the National Commission.  It merely makes explicit what was implicit in the Act.  It is not as if the law is changed by the said explanation, it has been merely made clearer.”

 In Cheema Engineering Services Vs. Rajan Singh (supra), the complainant had been using a machine for clay preparation etc.  It was contended by the appellant before the Hon’ble Supreme Court that the complainant was not a consumer within the meaning of the Consumer Protection Act. The Hon’ble Supreme Court inter-alia held as under:

          “6.     ……….. The word “self-employment” is not defined.  Therefore, it is matter of evidence.  Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment.  Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose.  Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.  ‘He’ includes the members of his family.  Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence.  The burden is on the respondent to prove them.”

 Therefore it is held that the complainant falls under the definition of consumer under Consumer Protection Act, 2019.

9.           Since, it is not in dispute that the goods in question were demanded by the complainant from the OP, for which an amount of Rs.1,91,352/- stood received by it. It may be stated it is clearly coming out from the record that though the goods in question i.e. LED fixtures were sent by the OP to the complainant vide tax invoice dated 20.08.2021, Annexure C-5, yet, the same were rejected by the complainant and it was mentioned on the said invoice as “Rejected. Material Not received”. It is further coming out from the record that thereafter the complainant sent legal notice dated 28.08.2021, Annexure C-6 seeking refund of the amount of Rs.1,91,352/- alongwith cost of the said legal notice. The OP has admitted receipt of the said legal notice.
10.           It is significant to mention here that though the OP has tried to wriggle out of the situation by stating that infact the complainant had retained the said goods, yet, taking benefit of the illiteracy of the driver of the transport in question, it has been written as “Rejected. Material Not received”. However, no reason whatsoever has been given by the OP as to why no steps were taken by it, as soon as the driver concerned handed back the said tax invoice to it. The OP has also failed to give any plausible reason as to why no steps were taken at its end, by way of sending any letter/notice to the complainant, conveying that it has wrongly written on the tax invoice to the effect that material not received.
11.           With regard to the plea taken by the OP that it had lodged a complaint dated 06.09.2021, with the police, the learned counsel for the complainant has submitted that the said police complaint lodged by the OP against the complainant was nothing but an afterthought of the OP, in order to evade its liability. It may be stated here that mere lodging of complaint with the police against the complainant cannot absolve the OP from the fact as to why it maintained silence from 20.08.2021 till 06.09.2021 and did not make any contact with the complainant in the matter.
12.           As far as plea taken by the OP that the said vehicle on which the goods in question were delivered to the complainant, thereafter, loaded some other material on the same day, which fact is evident from the bill dated 20.08.2021, Annexure OP-1 colly (at page 13)and this fact could have been feasible only if the vehicle in question was empty after loading the goods at the premises of the complainant, it may be stated here that we have perused the said bill dated 20.08.2021, Annexure OP-1 colly (at page 13), and found that it relates to some other transporter namely Friends Tempo Service. Whereas, on the other hand, it is evident from the bill dated 20.08.2021, Annexure OP-1 that the name of the transporter is Jaiveer Singh. In this view of the matter, no help can be drawn by the OP from bill dated 20.08.2021, Annexure OP-1 colly (at page 13).
13.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OP, in the following manner:-

    1.  To refund the amount of Rs.1,91,352/- to the complainant alongwith interest @5% p.a. from the respective dates of its                     payment, till realization.

       2.To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.                     3.To pay Rs.3,000/- as litigation expenses. 

                    The OP is further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OP shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 19.09.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President