GOEL GAS SERVICES vs S R ENTERPRISES

THE present appeal filed by M/s. Goyal Gas Service through its partner, Shri Subhash Chand Goyal is directed against the order dated 28th October, 1994 passed by the District Forum, Rohtas directing opposite party-appellant to pay a sum of Rs. 1,65,709/- as compensation, Rs. 5,000/- for mental agony and Rs. 500/- as litigation cost within a period of three months failing which the opposite party- appellant would have to pay interest at the rate of 15% per annum on the amount of Rs. 1,65,709/-.

THE facts of the case in brief are that M/s. S. & R. Enterprises complainant-respondent No. 1 was appointed as a dealer of Handi Gas Product for Rohtas district by the opposite party- appellant on payment of Rs. 50,000/- as security deposit. A sum of Rs. two lakhs was also paid to the opposite party-appellants on 19.8.1990 for supply of 101 units of Handi Gas. THE goods were not supplied by the opposite party-appellant inspite of reminder by the complainant- respondent No. 1. THE opposite party-appellant however sent two consignments, one in the month of October and the other in the month of November, 1990. THE complainant-respondent No. 1 alleged that the goods supplied were of inferior quality and rates charged were also in excess over the prescribed rate as mentioned in the rate list. It has also been alleged that the opposite party-appellant had supplied such goods which had not been indented for. THE appellant, as alleged, had charged sales tax illegally. THE complainant-respondent No. 1 claimed damages from the opposite party- appellant on the above ground and when his request for compensation was not heeded, the complaint case was filed before the District Forum, Rohtas seeking relief of Rs. 95,684/- which was amended to Rs. 1,65,709.29 on 15.4.1994 with the permission of the District Forum. The opposite party-appellant had filed his show-cause raising preliminary objection on maintainability point enclosing photo copy of relevant Section 2(d)(i) and Sections 11 and 12 of Consumer Protection Act, 1986. The respondent purchased goods for re-sale purpose. The opposite party-appellant, therefore, reiterated that the complainant-respondent is not a consumer with the meaning of Section 2(d)(i) of the Act. He filed the complaint case with the object of harassing him (appellant). He admitted that a sum of Rs. 2,50,000/- was paid to him by the complainant-respondent No. 1 including security deposit. He supplied goods worth Rs. 2,49,520.71 against that. He had also spent Rs. 750/- on behalf of complainant-respondent No. 1 for printing of bill forms. The goods were sent to the complainant-respondent No. 1 as per his orders and prevailing price at that time were charged. The goods supplied were of standard quality. He denied other allegations and averred that the complaint case is false, frivolous and vaxatious. He, therefore, prayed before the District Forum that the complaint petition may be dismissed with cost of Rs. 3,000/- for un- necessarily dragging him into litigation.

The District Forum after discussing the merit of the case awarded a compensation of Rs. 1,65,709/- to the complainant-respondent No. 1. A sum of Rs. 5,000/- was also allowed for mental agony suffered by him besides Rs. 500/- as litigation cost. The above amount is to be paid by the appellant and respondent No. 2 who were opposite party No. 1 and opposite party No. 2 respectively in the complaint case. The opposite party appellant in the instant appeal has once again raised the preliminary objection on maintainability point stating that District Forum has not discussed in the impugned orders if the complaint petition is maintainable according to the provision of Section 2(d)(i) and Section 11 of the Act.

THE learned Lawyer on behalf of the appellant and Sri Dhanushdhari Pandey, respondent No. 1 were heard. Respondent No. 2 neither appeared before the Commission ever nor filed any paper. He, who was opposite party No. 2 in the complaint case, had not appeared before the District Forum also. Before going into the merits of the case I would like to consider the preliminary objection of the opposite party-appellant regarding the maintainability of the case before the Consumer Forum. The case of the complainant-respondent is to the effect that he had started the business in question after retirement for earning his livelihood. From the case and the evidence of the complainant, it is apparent that he had taken the agency of Handi Gas product for re-sale of the gas. Though the complainant-respondent has alleged that he had started this business for self employment but the fact that he had purchased the Handi Gas product for re-sale and in fact he did so is not disputed. Under the circumstances the complainant cannot be said to be a consumer within the meaning of the relevant provision of the Consumer Protection Act. The dispute is not consumer dispute and hence the preliminary objection raised on behalf of the appellant that the complaint petition is not maintainable has got substance and is hereby sustained.

FURTHER as regards merit of the case it is admitted that the complainant-respondent No. 1 had paid Rs. fifty thousand as security deposit to the opposite party-appellant. It is also not disputed that a further sum of Rs. two lakhs was paid to the opposite party-appellant by the complainant-respondent No. 1 for supply of Handi Gas products. It is also not disputed that supply of Handi Gas and other items against the order was made in two consignments. The complainant-respondent No. 1 has alleged that supply was made after four months of receipt of payment. It has also been alleged that opposite party-appellant had charged excess rates for the materials supplied besides supply of inferior quality of materials. The complainant-respondent No. 1 further alleged that supply of such materials was also made which had not been indented for. Strangely enough inspite of the fact that the supply of materials was received in October and November in 1990 by the complainant- respondent No. 1, no letter of protest appears to have ever been sent by him to the opposite party- respondent No. 1 in the year 1990 or 1991 regarding the above allegations. The first letter written in this regard by him to the opposite party-appellant and brought on record is dated 10.1.1992 in which the above infirmities in supply have been pointed out to the opposite party- appellant for the first time with the request for settlement of the account. Allegation of delay of four months in supply of materials is not found to be corroborated by facts on record. Bank Draft of Rs. 2.00 lakhs was given to the opposite party- appellant on 19.8.1990. Material was supplied vide bill dated 3.10.1990. The opposite party- appellant had clearly indicated that supply would be made 15 days after receipt of full payment. Thus there is hardly a gap of a month when supply was despatched. The aforesaid letter was followed by another letter dated 27.6.1992 wherein issue of supply of inferior quality of materials, excess price on supply of materials not indented for was raised, when supply was received by him in the months of October and November, 1990 itself. It is further seen that he filed a petition before the District Forum on 15.4.1994 during pendency of the case stating that he sustained further loss of Rs. 70,025/- which may be added to the claim amount of Rs. 95,684.29 vide the original complaint petition without being supported by any documentary evidence. The District Forum was gracious enough to have allowed amendment of the complaint petition without a copy being served on the opposite party-appellant through registered post. Such abnormally delayed reaction on the part of the complainant-respondent No. 1 to register his protest to the supplier opposite party- appellant regarding unfair trade practice may lead any one to be suspicious of the veracity of the complaint petition. The complainant- respondent No. 1 had been in the service of Rohtas Industries for a pretty long period. He ought to have known to bring to the notice of the opposite party-appellant about excess billing, inferior quality of materials or supply of materials not indented for immediately after the supply was received in October and November, 1990. That was chosen to have been done only in 1992. We are thus not convinced to believe the version of the complainant-respondent No. 1. The learned District Forum missed to address itself to such omission on the part of complainant-respondent No. 1 and proceeded only on his one-sided version without looking into such important aspect of the case.

IN view of the discussions in the previous paragraphs, we are of the view that the order of the District Forum is not sound and cannot be sustainable in law. The impugned order is set- aside and the appeal is allowed. The complaint is dismissed.

UNDER the circumstances of the case there will be no order as to costs. Appeal allowed. _______________