EXECUTIVE ENGINEER vs MANAGER, A.C.C. LTD.

IN all these 5 complaints, the parties, i.e., the complainant and the opposite parties are one and the same.

THE point involved in all these complaints is one and the same. The learned Counsel for the parties were heard in all the complaints.

All these complaints are herein disposed of by this common order.

THE complainant, the Executive Engineer, No. 5, Canal Division, Davanagere, has sought the following relief from the opposite parties, that is, M/s. Associated Cement Companies Ltd., Bangalore: (1) Supply of 297 M. Tonnes of Cement in complaint No. 105/92; supply of 390 M.Ts of cement in complaint No. 106/92; supply of 190 M.Ts of cement in complaint No. 107/92; supply of 390 M.Ts of cement in complaint No. 108/92 and supply of 390 M.Ts of cement in complaint No. 109/92 at the agreed rate of Rs. 62.50 per bag; (2) Damages of Rs. 2,00,000/-, Rs. 2,15,000/-, Rs. 2,15,000/-, Rs. 2,15,000/- and Rs. 2,15,000/-, respectively in all the complaints. 5. THE complainant has averred that he had placed supply of cement orders with the opposite party for different quantities of cement i.e., 362 M.Ts under 5 different orders in C-105/92; 390 M.Ts under 5 different order in C-106/92, 390 M.Ts under 5 different orders in C-107/9; 390 M.Ts under different orders in C-108/92 and 390 M.Ts under different orders in C-109/92 at the rate of Rs. 62.50 per bag. The complainant further averred that the opposite party failed to supply the cement as per the orders placed even on repeated demands made by the complainant for the supply.

THE complainant nextly averred that the work taken up by the complainant has considerably suffered due to the non-supply of cement by the opposite party which has resulted in a considerable loss and injury. The complainant on the basis of these averments sought the relief as narrated above. The opposite party filed its objection statements and contended that this Commission gets no jurisdiction to try these complaints as the complainant is neither a consumer or the complaints could be regarded as valid complaints under the Act.

THE opposite party further averred that the complainant, the Executive Engineer, has no right to file the complaint as the agreement for the supply of cement was between the Director of the Stores Purchase Department, Government of Karnataka, and the opposite party.

THE opposite party on the basis of these averments sought the complaints to be dismissed. At the stage of enquiry the opposite party urged to decide the preliminary question whether the complainant is a "consumer" and whether the complaint, as per the averments contained therein, could be regarded as a valid "complaint" under the provisions of the Act?

We have heard on this preliminary issue the learned Counsel for both the parties.

THE question which falls for determination in these complaints is whether the complainant is a "consumer" within the meaning of the provisions of Sec. 2(1)(d) of the Act and whether having regard to the averments contained in the complaint, it could be regarded as a valid complaint under the provisions of Sec. 2(1)(c) of the Act? Sec. 2(1)(d) of the Act. defines the expression "consumer" thus: "2.(1)(d): "consumer" means any person who,- (i) buys any goods for a consideration which has been 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 and 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 obtains such goods for resale or for any commercial purpose; or (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;"

SEC. 2(l)(c) of the Act defines the expression "Complaint" thus: "2. (l)(c): ''complaint'' means any allegation in writing made by a complainant that - (i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, with a view to obtaining any relief provided by or under this Act;"

The complainant, in these complaints, has not sought any relief on the basis that he has or had hired the services of the opposite party nor he has claimed any relief on the basis of any alleged deficiency in service. Hence, the second part of the definition of the "consumer" contained in Sec. 2(1)(d)(ii) is not relevant in these complaints. In order to satisfy the requirements of-(i) there must have been a completed transaction of sale and purchase of goods for consideration; A valid complaint could be made only in respect of the existence of one or more defects in the goods supplied or the charging by the trader of a price for the goods in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods.

THE grievance made by the complainant in these complaints is only in respect of non-supply of the goods by the opposite party for which the complainant had placed orders with it. This is essentially a matter pertaining only to the agreement for sale. If the non-supply of the goods by the opposite party were to amount to a breach of any terms of agreement, between the parties, the complainant has to seek his remedy in respect of such breach only by approaching the Civil Court.

THE provisions contained under Sec. 2(l)(c) i.e., the definition of the "complaint" would also show that it could be a valid complaint only in case, the transaction of sale and purchase of goods had already taken place and the grievance was (i) as a result of unfair trade practice adopted by the trader, the complainant has suffered loss or damage; or (ii) the goods supplied to the complainant did suffer from one or more defects; or (iii) the trader has charged excessive price for the goods supplied. THE grievance of the complainant in these complaints fall under none of these heads and so these complaints cannot be regarded as valid complaints under the Act. The National Commission, had an occasion to consider this aspect of the matter in M N. Narasimha Reddy v. Managing Director, Maruti Udyog Ltd., reported in 1991 (1) CPR page 168 wherein it is held as under: "In order to satisfy the requirement of Clause (i), there must have been a transaction of buying of goods for consideration. The definition contemplates the pre-existence of a completed transaction of sale and purchase and the person who has merely entered into an agreement for purchase of goods will not fall within the scope of the said definition. On a combined reading of Clauses (c) and (d) of Section 2(1) of the Act wherein we get the definitions of "complaint" and "consumer" it is abundantly clear that in relation to transactions of purchase of goods, a valid complaint can be made only in respect of the existence of one or more defects in the goods supplied or the charging by the trader of a price for the goods in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods. It is thus seen that the scheme of the Act is that a transaction of sale and purchase of goods should have already taken place and the complaint must relate either to any defect from which the goods supplied to the complainant suffer or the charging of excessive price by the trader for the goods supplied."

The National Commission, under the similar facts and circumstances, in Suraj Steel, Hazaribagh v. R.P. Sharma, reported in Vol II 1991 CPJ page 427 (NC), held as under: "The complaint in that case was in respect of the alleged failure on the part of the appellant firm to carry out its obligations under a contract for supply of certain quantity of iron rods at a stipulated rate to the complainant in pursuance of an agreement said to have been entered into between the two parties. The matter was purely in the realm of "breach of Contract" and it did not constitutes ''consumer dispute'' as envisaged by the provisions of the Consumer Protection Act. The complainant should have been referred by the State Commission to pursue his ordinary remedy by way of instituting a civil suit and no relief should have been granted to him under the Act."

THEREFORE, it is clear that having regard to the facts and in the circumstances of the case the complainant cannot be classified as "consumer" under the Act and having regard to the averments contained in the complaint, the complaints cannot be regarded as valid complaints under the Act and so complaints filed by the complainant are not maintainable in law. ORDER In the Result, therefore, all the five complaints, i.e., C-105, C-106, C-107, C-108, and C-109 of 1992 fail and they are dismissed as not maintainable. The parties are directed to bear and pay their own costs. Complaints dismissed.