BANIJYA BHANDAR vs UMESH CHARAN PADHI

THIS is an appeal under Section 17(a)(ii) of the Consumer Protection Act, 1986 (hereinafter referred to as ''The Act'') by the opposite party.

OPPOSITE party is a supplier of cement. Complainant purchased 40 bags of cement of "Rasi" brand on 31.12.1983 from opposite party at the rate of Rs. 83/- per bag. Added to it, complainant has paid Rs. 80/- towards transportation charges for hire of four flat rickshaws from the godown of opposite party to the place of worksite of complainant. Complainant found the cement bags to be in bad and torn condition. He immediately made a grievance to opposite party at his shop and opposite party agreed to replace the same. Case of opposite party is that complainant is not a consumer as he had not purchased the cement. According to opposite party, Biswanath Sahu had purchased the cement. As regards quality, opposite party claims that it was of high quality and the bags were air-tight. It is denied that complainant had paid transportation charges of Rs. 80/-. The only material produced by the complainant in support of his case is the receipt granted by the opposite party. Added to it, complainant examined himself as P.W. 1 and a labourer as P.W. 2. He also examined the mason of the building as P.W. 3. Opposite party examined himself as the proprietor of M/s. Banijya Bhandar.

District Forum relied upon evidence of P.W. 1, the complainant that he is an Engineer of high repute. From the evidence of witnesses, it accepted that he purchased 40 bags of cement from opposite party. The 40 bags of cement supplied were of bad quality. Since P.W. 1 stated that 3 8 bags were utilised which had half the strength, District Forum directed opposite party to pay a sum of Rs. 1,577/- towards 50 percent cost of 38 bags of cement and to pay the cost of two bags of Rasi cement which were returned by the complainant to the opposite party at the purchased price of Rs. 83/- per bag. This is grievance of the appellant.

FIRST, it is to be examined whether complainant is a consumer in respect of the 40 bags of cement purchased. Case of complainant is that the cement was required for construction of house of his son-in-law which he was looking after. Thus, the cement was purchased for the son-in-law. Complainant was an agent to purchase the same. Consumer of goods is a person who purchases goods and includes any user of such goods other than the person who buys such goods for consideration when such use is made with approval of the person who purchased the same. Evidence in this case in not clear if complainant purchased the cement and permitted his son-in-law to use the same for construction of the house. Therefore, further evidence would be necessary to come to a conclusion that complainant is a purchaser. In this connection, the District Forum is to examine whether payment of consideration by one on behalf of another and receipt of the goods on behalf of that person would make a person consumer. Since opposite party has categorically raised the question that complainant is not a consumer, District Forum ought to have examined this question. The order is thus vulnerable.

IN absence of clear evidence to come to conclusion that complainant is a consumer, we would have dismissed the complaint on the ground that a person authorised under law has not filed the complaint. We, however, feel that ends of justice would be served in case the impugned order is set aside and District Forum is directed to give opportunity to both the parties to bring further materials onto record in order to consider whether complainant is a consumer. Since we are setting aside the order, we also set aside the other findings so that parties would be in a position to adduce further evidence relating to quality of the cement. We however, confirm the finding that the 40 bags of cement were purchased for construction of house of the son-in-law of complainant and two bags of cement were returned back to opposite party. In result, the appeal is allowed to the extent indicated above. Appeal allowed.