JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

1.      The complainant, an unemployed woman eager to earn her livelihood by self-employment, deposited a sum of Rs.1,53,975/- with the petitioner by becoming its member, for supply of goods. Out of the aforesaid amount of Rs.1,53,975/-, Rs.1,00,775/- were deposited by way of a demand draft and Rs.53,200/- were collected from other 18 persons for becoming a member of the petitioner-company. Alleging that despite aforesaid payment the goods were not supplied to her, the complainant approached the concerned District Forum by way of a complaint seeking the following payments:

(i)      security deposit                                        Rs.1,01,000/-

(ii)      commission                                               Rs.20,000/-

(iii)     communication cost                                 Rs.2,000/-

(iv)    montus agency & suffering                     Rs.10,000/-

(v)     interest                                                       Rs.3,600/-

(vi)    loss of business                                       Rs.12,000/-

2.      The complaint was resisted by the petitioner-company, inter alia on the grounds that it had supplied goods to the complainant which were still in her custody and for which no payment has been made. However, neither receipt of the payment of Rs.1,00,775/- by way of a demand draft nor receipt of Rs.55,200/- collected from other 18 persons was disputed in the reply filed by the petitioner.

3.      The District Forum vide its order dated 16-02-2006 directed the petitioner to refund the aforesaid amount of Rs.1,53,975/- to the complainant along with interest on that amount at the rate of 12% per annum from the date of deposit. It was further directed that if the amount is not paid within that period a further interest of 5% would be payable till the date of payment.

4.      Being aggrieved from the order of the District Forum the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed the petitioner is before us by way of this revision petition.

5.      It is not in dispute that a sum of Rs.1,53,975/- was deposited by the complainant with the petitioner. The only issue involved in this case was as to whether the petitioner had supplied goods against the aforesaid payment and if so to what extent. The learned counsel for the petitioner states that the goods worth Rs.1,23,000/- were supplied to the complainant against the aforesaid payment. The aforesaid contention has been rejected by the State Commission, noticing that the same could not be proved. During the course of hearing we asked the learned counsel for the petitioner to show us the acknowledgement from the complainant in case goods worth Rs.1,23,000/- were supplied to her. However, no such acknowledgement could be shown by her. She relied upon a letter written to them by Maa Annapurna Transport Agency Pvt. Ltd. stating therein that the goods relating to buity No.8544564 X 5 dated 07-01-2005 had been delivered to Neelam Chabaria. However, no acknowledgement from the complainant is annexed to the aforesaid letter. In the absence of any proof of actual delivery of the aforesaid goods to the complainant, no reliance on the letter of the transport company can be placed. The onus was upon the petitioner to prove before the District Forum that it had actually supplied goods worth Rs.1,23,000/- to the complainant. That onus could have been discharged by producing the acknowledgement which the transport company would have obtained from the complainant in case the aforesaid goods were actually delivered to her. The failure of the petitioner to produce any such acknowledgement from the complainant leads to an irresistible conclusion that in fact no such delivery was actually made. We find that the petitioner had examined the official of Maa Annapurna Transport Agency Pvt. Ltd. along with concerned register of the said transport agency, but the writing in the said register was found to be manipulated and no acknowledgment from the complainant with respect to the delivery of the goods was produced.

5.      In any case, a finding of fact has been returned by the District Forum and endorsed by the State Commission, that no goods against the aforesaid payment of Rs.1,53,975/- were supplied by the petitioner to the complainant. We cannot interfere with the aforesaid finding of fact, while exercising our revisional jurisdiction, unless the said finding is shown to be perverse. Considering that no acknowledgement from the complainant has been produced, the finding recorded by the District Forum and accepted by the State Commission cannot be said to be such which no reasonable person acting on the material available before him could have recorded.

6.      During the course of arguments it is contended by the learned counsel for the petitioner that the complainant was not a consumer since she had purchased the goods for the purpose of resale she being a stockist of the goods. Section 2(1)(d) of the Consumer Protection
Act, 1986 to the extent it is relevant provides that consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, but does not include a person who obtains such goods for resale or for any commercial purpose. This is not the case of either party, in the pleadings, that the goods which the petitioner was to make available to the complainant were purchased by her and were meant for resale by her. Under the scheme of the petitioner company, the complainant became a member of the said scheme by depositing security amount of Rs.1,01,000/- and the remaining amount of Rs.53,200/- was collected by her from other persons who were desirous of becoming the members of the aforesaid scheme. Obviously, the complainant was to sell the goods on behalf of the petitioner. This was not a case of the complainant having purchased the goods from the petitioner and then reselling them.

7.      The next question which arises is as to whether the complainant had become a member of the aforesaid scheme of the petitioner for the purpose of earning her livelihood by means of self-employment. It is clearly stated in the complaint that the complainant was an unemployed educated longing for entrepreneurship for the purpose of self-employment and earning her livelihood therefrom. The aforesaid averment contained in para 1 of the complaint has not been denied in the reply filed by the petitioner. Rather it was stated in the reply that para 1 to 3 of the complaint were a matter of record on which the petitioner had nothing to say. There is no evidence that the complainant was engaged in any other business at the time she became member of the aforesaid scheme of the petitioner. Therefore, it can hardly be disputed that she had become member of the said scheme in order to earn her livelihood by way of self-employment.

8.      The learned counsel for the petitioner has placed reliance upon the decision of this Commission in Sanjay Nag Vs. Hari Om Masala Industries & Ors., 2014 Lawsuit (CO) 398. We find that the aforesaid decision is clearly inapplicable since the complainant in that case was already have business under the name Nag Electricals & Electronics before he took stockistship of the products of the opposite party and, therefore, he was not unemployed at the time the said stockistship was taken. In the case before us the complainant was unemployed and there is no evidence of her being engaged in any business at the time she became member of the scheme floated by the petitioner.

9.      For the reasons stated hereinabove, we find no merit in the revision petition and the same is hereby dismissed.