IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
C.C.No. 284/2022
PRESENT
SMT. S.K.SREELA, B.A.L, LL.B, PRESIDENT
SMT. S.SANDHYA RANI. BSC, LL.B, MEMBER
SRI. STANLY HAROLD, B.A.LL.B, MEMBER
ORDER DATED: 09-05-2023.
BETWEEN
Dr.Basheerkutty,
Proprietor,
Rising Star Pharmaceuticals,
C.T.Junction, TKMC P.O.,
Kollam 691005.
(By Adv.K.P.Jabbar & Ambili Jabbar) : Complainant
AND
The Manager,
M/s Vantage enterprises,
291 Kamla Market Khair Nagar,
Meerut, Uttar Pradesh 250002. : Opposite Party
ORDER
Stanly Harold, B.A.LLB, Member
This complaint is filed U/s 35 of the Consumer Protection Act 2019.
The averments in the complaint in short are as follows:-
The complainant is conducting business of pharmaceuticals in the name ‘Rising Star Pharmaceuticals’ at Kollam district. The opposite party is the
authorized distributors of the “Coviden Slim Body Skin Stapler 35 W”, which is used for the post surgery stitching on the part of operations, for healing of wounds of patient subject to the same. The complainant was attracted with the fabulous announcement of supply of the “Coviden Slim Body Skin Stapler 35 W”. The opposite party made to believe the complainant that the firm is a leading suppliers and marketing firm of “Coviden Slim Body Skin Stapler 35 W” product. The complainant initially paid the opposite party an amount of Rs.5,000/- and Rs.19192/- on 03.08.2022 through SBI, Kollam and forwarded to the opposite party’s account as the value of the product of the “Coviden Slim Body Skin Stapler 35 W”. The opposite party has not supplied the “Coviden Slim Body Skin Stapler 35 W” materials as per the agreement in the business. But they have sent a parcel containing one pair of artificial flash football canvass shoes to the complainant’s address through DTDC which was delivered to the complainant on 10.08.2022 instead of sending them the “Coviden Slim Body Skin Stapler 35 W” materials as per the agreement in the business. The complainant was surprised on seeing the contents in the parcel and the complainant tried to contact the opposite party over phone and email address also. The opposite party has not responded to the complainant so far with a malafide intention of cheating the complainant. The entire business of the complainant stands collapsed only due to the non-supply of the “Coviden Slim Body Skin Stapler 35 W” materials by the opposite party even after repeated demands. The opposite party has not made any further contact with the complainant and his staff as per the agreement. All the terms and conditions of the contract were performed by the complainant but the opposite party has failed to perform their part as per the agreement.
The complainant sustained huge loss, financial instability, mental pain and agony due to the deficiency in service and unfair trade practice on the part of the opposite party. The opposite party is liable to pay damages, compensation and costs etc. to the complainant for lack of services and unfair trade practices in their services as per the agreement. Hence the complaint.
The opposite party received the notice from the Commission and failed to appear before the Commission or to take any effort to file any version. Hence the opposite party was set exparte. Complainant filed proof affidavit in lieu of chief examination by reiterating the averments in the complaint and got marked Ext.P1 to P6 documents. Ext.P1 is the copy of SBI Bank Account Statement of the complainant dated 07.07.2022 to 04.08.2022. Ext.P2 is the copy of parcel served to the complainant by the opposite party on 10.08.2022. Ext.P3 is the copy of the photograph of the bogus product in the parcel. Ext.P4 is the demand notice. The postal receipt dated 13.08.2022 of the notice is produced as Ext.P5. The return of notice by the opposite party is marked as Ext.P6.
The specific case of the complainant is that he had initially paid Rs.5,000/- and Rs.19,192/- on 03.08.2022 through bank transaction via SBT. But the opposite party had failed to supply the “Coviden Slim Body Skin Stapler 35 W” as per the business agreement. The complainant is conducting a business of pharmaceuticals namely ‘Rising Star Pharmaceuticals’ at Kollam district. However the complainant has been doing the business of resale of the said surgery stitching product. In the complaint it is pleaded that there is an agreement of business with the opposite party so from this itself it can be inferred that the business conducted by the complainant is for the commercial purpose of resale which will not come under the purview of Consumer Protection Act 2019. S 2 (7) 1 of the Consumer Protection Act 2019 clearly define the meaning of a consumer. Consumer means any person who buys any goods for a consideration which is 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 obtain such goods for resale or for any commercial purpose”. So it is crystal clear from the available materials that complainant failed to establish that he will come under the definition of consumer U/s 2(7) (1) of the Consumer Protection Act 2019. However there is no pleading that the complainant is running his business for livelihood. In this regard complainant has not produced any document having nexus to prove he is doing the business for livelihood. In the complaint, the complainant has pleaded that opposite party had committed the offence of cheating. It is well settled that there is no provision in the Consumer Protection Act to deal with the aforesaid offence of cheating. The Consumer Disputes Redressal Commission is not vested with any sort of power to entertain an offence coming under the provision of Indian Penal Code and it is very pertinent to note that this Act is purely a consumer friendly Act. In view of the materials discussed above and in the lack of specific pleading regarding consumer and service provider relationship the complainant who is conducting a pharmacy in the nature of commercial purpose cannot claim it is for his livelihood and in the absence of same, we are inclined to hold that the complainant will not come under the definition of consumer as envisaged in the Consumer Protection Act 2019.
On evaluating the entire materials available on record we hold the view that this Commission has no jurisdiction to entertain this complaint and hence the complaint is only to be dismissed.
In the result complaint stands dismissed.
Dictated to the Confidential Assistant Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the Open Commission on this the 9th day of May 2023.
Sd/-
STANLY HAROLD
MEMBER
Sd/-
S.K.SREELA
PRESIDENT
Sd/-
S.SANDHYA RANI
MEMBER
Forwarded/by Order
Senior superintendent
INDEX
Witnesses Examined for the Complainant:-Nil
Documents marked for the complainant
Ext.P1 : copy of SBI Bank Account Statement of the complainant dated 07.07.2022 to 04.08.2022.
Ext.P2 : copy of parcel served to the complainant by the opposite party on 10.08.2022
Ext.P3 : copy of the photograph of the bogus product in the parcel
Ext.P4 : demand notice
Ext.P5 : postal receipt dated 13.08.2022
Ext.P6 : return of notice by the opposite party
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:-Nil
