State Consumer Disputes Redressal Commission
K.V.Sathasivam, Proprietor, M/S.Sree ... vs . M/S.Sandeep Industrial Gases Pvt. ... on 2 June, 2011
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
THE TAMILNADU STATE
CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A.,
M.L., M.Phil., Presiding Member
Judicial
Tmt.Vasugi
Ramanan, M.A., B.L., Member
F.A.No.359/2009
[Against order in C.C.No.48/2005
on the file of the DCDRF, Chennai (North)]
THURSDAY,
THE 2nd DAY OF JUNE 2011.
K.V.Sathasivam,
Proprietor,
M/s.Sree
Ganesh Enterprises,
New No.20,
Old No.31,
Alagiri Nagar Main Road,
Chennai
600 026. .. Appellant/Complainant.
Vs.
1.
M/s.Sandeep Industrial Gases Pvt. Ltd.,
9/88, B Type, Sidco Nagar,
Villivakkam, Chennai 600 049,
Rep. by its Managing Director,
Sandeep Agarval.
2.
M/s.Tamilnadu Air Products Pvt. Ltd.,
118, 5th Cross Street,
Collectorate Colony,
Chennai 600 029,
Rep. by its Managing Director, Kannan.
3. M/s.Raj
Enterprises,
77 GST Road,
Chennai 600 047.
Rep. by its Proprietor, Gopi.
.. Respondents/Opposite parties
The Appellant as complainant filed
a complaint before the District Forum, Chennai (North) alleging deficiency
against the opposite parties not to deal with the cylinders which are
contravention of policy of the Government of India and also in violation of
provisions of Explosives Act, 1884 and the rules framed these under, not to
make any demand with the respect to the 100 cylinders which were transferred to
the 3rd opposite party under instructions from the 1st
and 2nd opposite parties,
direct the 3rd opposite party to reimburse the balance amount
of Rs.61,191/- along with the commercial rate of interest @ 18% p.a., direct
the 1st and 2nd opposite parties to pay a compensation of
Rs.1,00,000/- each to the complainant, for the mental agony and to pay costs. The District Forum, dismissed the complaint
against the opposite parties. Against
the said order, this appeal is preferred by the complainant, praying to set
aside the order of the District Forum, Chennai (North), dated 24.09.08 in
C.C.No.48/2005.
This appeal coming before us for
hearing finally on 27.05.2011, upon hearing the arguments of the counsel on both
sides and perused the documents, written submissions as well as the order of
the District Forum, this Commission made the following order :-
Counsel
for the Appellant/Complainant :
M/s.D.Jawahar, Advocate.
Counsel
for the 1st Respondent/1st opp. party : M/s.T.Ravikumar,
Advocate.
Respondents 2 & 3/opposite parties
2&3 : Absent.
ORDER
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. The unsuccessful complainant is the appellant.
2. The Complainant filed a complaint against the opposite parties for the relief of directing the opposite parties not to deal with cylinders in contravention of the Explosives Act 1884 and not to make any demand with respect of 100 cylinders which were transferred to the 3rd opposite party and directing the 3rd opposite party to reimburse the balance amount of Rs.61,191/- with interest and for compensation of Rs.1,00,000/- for 1st and 2nd opposite parties for mental agony and deficiency of service and for costs.
3. The brief details of the complaint are as follows :- The complainant engaged business of industrial gases approached for 1st opposite party and undertaken to by industrial Oxygen cylinder on hire purchase basis by the 1st opposite party for transferring the cylinder and complainant paid Rs.1,00,000/- and two occasions i.e. 5.8.1999 and 7.8.1999 respectively. The complainant had to pay transport charges door delivery was promised free of cost. The cylinder cost is also increased to Rs.3,100/- go it was negotiated for Rs.2,500/- per cylinder. Thus the complainant had incurred huge financial loss and thereafter negotiated with opposite party reached an agreement by which 100 cylinders were transferred to 3rd opposite party for an amount Rs.1,56,691/- and 3rd opposite party to pay directly to 1st opposite party. The 3rd opposite party had given a cheque for Rs.1,54,233/-.
The 2nd opposite party after encashment of few cheque an amount of Rs.95,500/- was paid to the complainant out of Rs.1,56,691/-. An agreement dated 31.02.03 paying compensation of Rs.3,56,146/- was signed by the complainant with the 2nd opposite party along with the other damages to the 2nd opposite party and also gave three cheques to 2nd opposite party. 1st opposite party came forward for the settlement with however no progress was made on the claim complaint filed seeking award direct the 3rd opposite party to reimburse an amount of Rs.61,191/- along with the commercial rate of interest 18% and direct the opposite parties 1 and 2 to pay compensation Rs.1,00,000/- each for the mental agony and suffered.
4. The opposite parties denied the allegations of the complainant in the written version and stated that the complaint is not maintainable, since he is not a consumer as he sold industrial gases for profit and as per 2(1) D of the Consumer Protection Act, the complaint is not maintainable. For the defect in the cylinders cannot claim relief before this Forum interpretation of the agreement and transaction should not be decided before the Forum and Civil court alone have competent jurisdiction and further the complaint is barred by limitation under 24A of Consumer Protection Act 1986.
The complaint filed on 14.2.04 and the alleged payment of Rs.50,000/- made and another payment of Rs.50,000/- made on December 2004 is barred by limitation. The complainant having taken delivery gas cylinders should have returned if any defects found. But he failed to do so. He has agreed over the price hike of Rs.3,500/- and if he feel that the amount is on the higher side, he could have declare the transaction as void. Deficiency is not pleaded in the complainant regarding service are defective goods. There was no negligence no compensation for payable.
5. On the basis of both sides materials after an enquiry the District Forum dismissed the complaint on the grounds that the complainant failed to establish the deficiency of service on the part of the opposite parties.
6. Aggrieved by the order of the District Forum, the complainant has come forward with this appeal and in the grounds of appeal among other things, the District Forum wrongly dismissed the complaint without going in to the facts of the case and the documents relied upon by the complainant and the cause of action is a continuing action and thereby the complaint was not barred by limitation and thereby appeal to be allowed.
7. Before this Commission Respondents 2 and 3 remained absent.
8. While considering the appellants and 1st opposite partys contentions, arguments, and averments it is not in dispute that the appellant/complainant was having business dealings with the 1st opposite party regarding the supply of gases in industrial cylinder and the complainant alleged he was having agreement with the 1st opposite party for the purchase of supply of gas cylinders on hire purchase basis and by obtaining the cylinders from the 1st opposite party supplied to the small industrialists for using gas supply for the industrial purpose and from that business he was earning. The District Forum considered the nature of business as commercial purpose only and not for his self employment livelihood. On perusal of complaint details and the documents filed by the complainant and opposite parties, it is clearly proved the business transactions are all relates to commercial purpose in nature and the complainant himself has stated that he had supplied the 100 cylinders to the 3rd opposite party through the 2nd opposite party as per the instructions of 1st opposite party for which regarding payment dispute is pending between the parties. This would clearly prove that the transaction was purely in commercial nature and thereby the complainant will not come under the purview of the term consumer as per Sec 2(1)(d) of the Consumer Protection Act and further in this case, the complaint was filed on 14.12.04 which was taken on file in January 2005, on the basis of cause of action which is said to have been arose in the year 1999.
In the complaint in para 17 it is stated that the cause of action arose at Chennai in August 1999 when the complainant made the advance payment of Rs.1,00,000/- for hire purchase of 100 cylinders and subsequently in March 2000 when 100 cylinders were delivered to the complainant and subsequently when the opposite party failed to rectify the defects in the cylinders sold to the complainant and on various dates when the cylinders were transferred to the 3rd opposite party under instructions from 1st and 2nd opposite parties subsequently on 31.10.03, when the 2nd opposite party obtained an agreement with the complainant by using threat and coercion from the complaint and when caused a legal notice dated 2.12.03. As per the above recitals in March 2000 after obtaining 100 cylinders from the 1st opposite party on various dates certain defects arose in the cylinders to rectify the same for which no specific dates are mentioned. However the original cause of action is being only with the 1st opposite party and the alleged agreement obtained by coercion and fraud by 2nd opposite party on 31.10.03, the original cause of action comes in to plea only from August 1999 or in March 2000 and the complaint should have been filed within two years from those dates. But in this case on the basis of legal notice issued on 2.12.03, the complainant filed the complaint only in 2004 end of the year cannot be acceptable under the provision of Sec 24(A) and the contention of the complainant that it is the continuous cause of action which cannot be accepted without any satisfactory proof for the same as the complainant states no deficiency of service in the supply of cylinders except for the claim of money for the 100 cylinders by the 1st opposite party which is opposed by the complainant. Regarding other prayer are concerned the complainant prayed the direction against the opposite party not to deal with the cylinders by the 1st opposite party against the rules of Explosives Act 1884 and directing the opposite parties not to make any demand with respect of payment for other cylinders which were transferred to 3rd opposite party as per the instruction from 1st and 2nd opposite parties and for the reimbursement of Rs.61,191/- with interest from the 3rd opposite party and in view of the cheques already given for payment to the 2nd opposite party were bounced and thereby those prayers are all not to be entertained by the Consumer For a, which are all complicated matters to be decided before the appropriate Forum or Civil Court in which the Consumer Forum has no role to play. Since the documents filed by the complainant and the opposite parties would reveal that the nature of dispute relates to the industrial gas supply and relating to the cylinders for those purposes which were all governed with the rules and regulations under various Acts and provisions under which appropriate licenses are given to first opposite party with reference to his business and in case of violations of the same the appropriate remedy will be to approach the concerned appropriate authorities and those directions cannot be given under the Consumer Protection Act 1986.
Further in this case, there is no defect in the cylinder supplied to the complainant and there is no question of deficiency of service arises. The complainant controverted the memorandum of understanding between the complainant and opposite party as per Exhibit B3 and as per the records of both sides it is evident that the complainant was not in a position to settle the dues to the 1st opposite party then an there and even the complainant entered in to agreement with 2nd opposite party relating to the purchase of 100 cylinders for the price fixed Rs.2,58,146/- which was not paid within the specified time before 2.12.03 and the cheques given were bounced and as per the written version of 2nd opposite party due to sympathy shown on the complainant he has not preceded against the complainant in this regard and the complainant alleged to have transferred cylinders to the 2nd opposite party illegally gaining both ends and illegally depriving the 2nd opposite partys money. Even though he had stated that supplies were made to 3rd opposite partyas per the instructions of opposite parties 1 and 2 for which no proof was filed. In those circumstances when the complainant is having defects and draw locks with him and not in a position to be loyal with the 1st opposite party in the business transactions and thereupon filing complaint with the unsustainable prayers which are all cannot be considered by the Consumer Forum and the complaint also barred by limitation and thereby the District Forum after analyzing both sides materials in a careful manner passed a well considered order, in which we feel that there is no need for any interference in the same and thereby this appeal deserves to be dismissed.
9. In the result, the appeal is dismissed by confirming the order of the District Forum, Chennai (North), in C.C.No.48/2005 dated 24.09.08. There will be no order as to cost in this appeal.
VASUGI RAMANAN A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/Gase