SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the OP to pay Rs.3,38,911/- with interest @8% from October 2022 onwards to the complainant along with Rs.10,000/- as litigation cost for the deficiency of service on the part of OP.
The brief of the complaint :
The complainant is the widow of late Abdul Nazer.KV and she was the sole proprietor of M/s Silver Electronics. The said Abdul Nazar was appointed as super stockist for the SIDCO products for distribution of SIDCO Led Products as per agreement executed between the SIDCO and Abdul Nazar. The above said Abul Nazar deposited a sum of Rs.10,00,000/- as required by SIDCO towards the advance for purchase of LED products. After the death of the said Abdul Nazar recently this complainant came to know about some amount is due from the OP to Abdul Nazar but she was not aware of the amount due and how to recover the same. This complainant filed a petition under right to information Act on 21/10/2020 and the reply dtd. On3/11/2020 was send by the information officer in the office of the OP in which it is shown that there was a balance of Rs.2,09,204/- payable to Abdul Nazar and that for claiming the amount ID proof of the claimant with consent of other legal heirs by way of a notary attested affidavit has to be submitted. The complainant submitted all the documents like notary attested copies of legal heirship certificate, copies of passport as ID proof of all claimants and consent affidavit of all the other legal heirs and the bank account details of the complainant along with letter dtd.30/3/2021. The OP received the documents but he failed to pay the amount. Then the complainant send a registered lawyer notice dtd.22/9/2021 to OP with demanding the amount with interest. The notice received by the OP on 24/9/2021 but not paid the amount nor send a reply to the same. The complainant is an unemployed widow and she was forced to run behind the OP for years and even then the OP failed to make the payment to the complainant. The act of OP, the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OP. Hence the complaint.
After filing the complaint notice issued to OP. The OP received the notice and appeared before the commission and filed his written version. He contended that the complaint is barred by limitation. The agreement executed between the husband of the complainant Sri.Abdul Nazar, M/s Silver Electronics on 10/12/2013 with Kerala SIDCO, a Kerala undertaking and accordingly he deposited an amount of Rs.10 lakhs for the dealership of SIDCO Led lights and during the period from 2013 to 2014 he had conducted sale of led lights for Rs.7,90,796/-. Thereafter the said Abdul Nazar expired on 2/11/2018 and the above complaint filed by the complainant on 7/10/2022 only for the return of the balance amount with interest @8% from 1/2015 to 9/2022. The agreement executed between complainant’s husband and OP was in the year 10/12/2013 to 9/12/2014 and thereafter the agreement was not renewed . Moreover the complainant never intimated the death of the proprietor of the super stockist M/s Silver Electronics and the complainant also did not give 15 days prior notice for the change in the management of the super stockist firm. Moreover the dispute between the SIDCO trading division and the firm silver electronics only the courts of Thiruvananthapuram shall have the exclusive jurisdiction. After December 2014 neither the complainant nor her husband never done any transaction with this OP. Therefore the complainant is not entitled to claim the balance amount kept in her husband’s account in 2022. The dispute cannot be considered as a consumer dispute U/S 7 of the Consumer Protection Act 2019. Hence the complaint may be dismissed with the cost of this OP.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW1 and Exts. A1 to A8 were marked . On OP’s side Ext.B1 marked through the complainant. Both sides filed argument note also.
Issue No.1to 3 taken together:
The Complainant adduced evidence before the commission by submitting her chief affidavit in lieu of her chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. She was cross examined as PW1 by the OP. According to the complainant the documents Exts.A1 to A8 were marked on her part to substantiate her case. In Ext.A1 is the letter dtd.22/10/2020. In Ext.A2 reply by OP dtd.3/11/2020. In Ext.A3 is the letter dtd.3/3/2021, Ext.A4 is the legal heir certificate, Ext.A5 is the affidavit by other legal heirs. Ext.A6(series) copy of the passports, In Ext.A7 is the copy of lawyer notice and Ext.A8 is the acknowledgment card. At the time of evidence PW1 deposed before the commission that “ 2013 ലാണ് Ext.B1 .അതിന്ർറെ കാലാവധി ഒരു വർഷം ആയിരുന്നു. Ext.B1 ൽ ഓരോ വർഷവും പുതുക്കണം എന്ന് പറഞ്ഞിട്ടുണ്ട്. 2014ൽ സ്ഥാപനം close ചെയ്യുമെന്നും ആയതിനാൽ പുതുക്കുന്നില്ല എന്നും OP യെ ഭർത്താവ് അറിയിച്ചിരുന്നു. 2014 മുതൽ 2020 വരെ പണം ലഭിക്കാത്തതിന് OP യ്ക്കെതിരെ നിയമനടപടി സ്വീകരിച്ചോ? ഇല്ല. OP യുടെ product ന്ർറെ stockiest and resale ബന്ധമായിരുന്നു നിങ്ങളുടെ ഭർത്താവിന്? ശരിയാണ്. So it is clear that Sec.2(7) of the Consumer Protection Act 2019, does not include a person who obtains such goods for resale or for any commercial purpose. As per Ext.B1 agreement clause(2) stated that the super stockiest shall directly and through its dealers agrees to promote the distribution and sale of products manufactured by M/s Kalloor Electronics and lighting Pvt. Ltd and marketed under the brand name of SIDCO to the best of its ability. Moreover in clause (6) the profit to the super stockiest will be fixed on product basis. In this Ext.B1 document clearly shows that the distribution and sales of the product in the district by the super stockiest. So the complainant’s husband Mr.K.V.Abdul Nazar is the super stockiest put the signature in the agreement and the said Abdul Nazar died on 2/11/2018. Then the legal heir ie, the complainant Jameela Abdul Nazar is in the same capacity of the super stockiest. So the complainant is not under the definition of consumer in this case. In Ext.B1 clause (30) states that any and all disputes, doubts, controversies, differences arising between the parties here to out of or in relation to these terms or its agreement or any breach thereof shall be settled by mediator appointed by the marketing agent and the matter which cannot be settled amicably shall be referred to and finally settled in accordance with the provision of the Indian Arbitration and conciliation Act 1996 and in respect of all disputes the courts of Thiruvananthapuram shall have the exclusive jurisdiction . So the complaint is not maintainable.
Hence the complaint is dismissed on the ground that Sec.2(7) of the Consumer Protection Act 2019 the complaint is not maintainable before the Consumer Disputes Redressal Commission. It does not include a person who obtains such goods for resale or for any commercial purpose. So the compensation and cost not allowed.
In the result the complaint is dismissed No order as to cost.
Exts:
A1- letter dt.22/10/2020
A2-Reply by OP dtd.3/11/2020
A3-letter dtd.3/3/2021
A4-Legal heir certificate
A5-Affidavit by other legal heirs
A6(series)-Copy of passports
A7- lawyer notice
A8-Acknowledgment card
B1- Agreement
PW1-Jameela Abdul Nazar- complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
