K.P. ENTERPRISES vs GEETA DEVI KHANDELWAL

THIS appeal has been preferred against the order dated 18.3.1998 passed by the District Consumer Disputes Redressal Forum, Durg (hereinafter referred to ''District Forum'' for short) in Complaint Case No. 131/1994 whereby the complaint was dismissed.

THE facts not presently in dispute are that the appellant is the sub-dealer of the respondent No. 2 and it was through the appellant that the respondent No. 1 had placed the order for purchase of 250 Embosed Aluminium Sheets of Indal make. It is also undisputed that the complainant had, through the appellant, sent a draft of Rs. 40,000/- in favour of the opposite party No. 1. It is also not in dispute that the embossed sheets as required by the complainant were not available at the relevant point of time and the complainant had agreed for supply of plain sheets. Brief facts of the case as narrated in the complaint are that the complainant contacted the appellant and through them placed an order for purchase of 250 Embosed Aluminium Sheets of Indal make with the respondent No. 2. It was told that the price of the aforesaid sheets was Rs. 383/- per sheet. As required by the appellant the complainant had handed over a draft issued by Central Bank of India, Dhamtari for a sum of Rs. 40,000/- dated 19.3.1993 in favour of the respondent No. 2 and the appellant had sent the said draft to the respondent No. 2 together with a forwarding letter. It was orally agreed that the sheets would be delivered within a period of 15 days. However, it was nearly after a month that the appellant informed the complainant that the Embossed Aluminium Sheets were not available and the complainant may purchase plain sheets. As the complainant was in urgent need of the sheets she agreed to accept plain sheets. However, the same were not received up to 26.2.1993 when the complainant orally informed the appellant that now she does not want to purchase the sheets from them and demanded her money back. Thereafter on 1.3.1993 the respondent No. 2 had sent only 80 aluminium sheets through M/s. Bagai Transport, instead of 250 sheets required by the complainant and the complainant received the same at Dhamtari on 11.4.1993. Out of the aforesaid 80 sheets three sheets were damaged and Raichura Transport Company, the representative of M/s. Bagai Transport at Dhamtari, issued a certificate to that effect. It was further contended in the complaint that at the relevant time the price of the Embossed Aluminium Sheets was Rs. 340/- per sheet but the opposite parties had charged Rs. 383/- per sheet whereas the rate for the sheets was Rs. 335/- per sheet only. It was further contended that the opposite parties were entitled to receive the price for 77 sheets only at the rate of Rs. 335/- per sheet and were liable to return the remaining amount to the complainant but they had failed to do so despite requests and legal notice. Consequently complaint was filed before the District Forum, Durg with allegations of deficiency in service on part of the opposite parties for refund of a sum of Rs. 14,305/- together with interest @ 18% per annum from 19.3.1993 till actual realisation. Oral evidence of Sri Suresh Khandelwal was recorded before the District Forum in favour of the complaint.

The opposite party No. 1 (respondent No. 2 in this appeal) had not filed regular para-wise reply to the complaint but had sent a letter addressed to the District Forum and had thereby alleged that they had not dealing with complainant and it was the opposite party/appellant who had sent a draft for Rs. 40,000/- and had demanded the sheets to be sent to them at Dhamtari. It was further contended that the O.P. No. 2 (appellant in this appeal) used to purchase sheets from them and after receipt of payment, sheets were delivered at the given address. The said amount was credited to the account of the appellant. It was also contended that they had informed the opposite party No. 2 vide letter dated 11.2.1993 itself that it was not possible to send embossed sheets and plain sheets may be sent, if required, after payment of remaining amount. After telephonic conversion 80 sheets were sent in the name of the opposite party No. 2 to Dhamtari according to the available amount in their account on 1.3.1993 through M/s. Bagai Transport. It was further contended that had unnecessarily been impleaded in the complaint and the real dispute is between the complainant and the opposite party No. 2 and opposite party No. 1 has nothing to do with the same. In support of their contentions the opposite party No. 1 had also placed certain documents on record. However, no affidavit was filed.

THE opposite party No. 2/appellant had in reply contended that the firm was only the sub-dealer of the opposite party No. 1 at Durg and was authorised to deal only within Durg District. It was at the specific telephonic instructions of the opposite party No. 1 that the firm had taken order from the complainant who was a resident of Dhamtari. It was further contended that the said opposite party has not committed any deficiency in service. THE opposite party No. 2 had communicated the fact that the embossed sheets were not available and the complainant at of her own sweet Will agreed to purchase plain sheets. It was also contended that the rate of plain sheets at the relevant point of time was Rs. 364/- and not Rs. 335/- as alleged and the opposite party No. 2 was entitled to receive 5% excess of the said rate. It was further contended that they had sent the draft received from the complainant and also used to communicate the information received from the complainant to the opposite party No. 1. Further that they were entitled to receive only a rebate of 5% and the opposite party No. 1 has even failed to give the same. Oral evidence of the proprietor Shri Atul Tiwari was recorded in favour of the contention made in the reply of the opposite party No. 2. The learned District Forum came to the conclusion that the complainant is entitled to receive a sum of Rs. 13,436/- charged in excess by the opposite parties together with interest @ 12% per annum from 19.3.1993 together with costs of proceedings and Advocate''s fee and had held the opposite parties jointly and severally for making the payment as above.

THE learned Counsel for the appellant assailed the impugned order and urged that the learned District Forum has erred in holding the opposite party Nos. 1 and 2 jointly and severally liable. THE learned Counsel for the appellant vehemently tried to demonstrate that the firm is not at all liable as it was only a sub-dealer of the opposite party No. 1 and only forwarded the draft and it was the opposite party No. 1 who had received the entire money. THE learned Counsel further contended that the appellant/firm never acted as mediator between the complainant and opposite party No. 1. THE firm was entitled to receive 5% amount but the opposite party No. 1 has failed to pay even that sum. Further that the opposite party No. 1 had directly sent the sheets to the party at Dhamtari and it was the opposite party No. 1 only who was liable for sending three damaged sheets to the complainant. It was also argued that firm was entitled to recover 5% over and above the price and had done the same. THE learned Counsel also drew our attention to the fact that legal notice was served only to the opposite party No. 1 and contended that the complainant is aware that it is only the opposite party No. 1 that is liable to make good the loss suffered by her and that is the reason why notice was served only on the opposite party No. 1. The learned Counsel for the complainant/respondent No. 1 contended that the order was placed with the opposite party No. 2, the draft was issued in favour of the opposite party No. 1 at the instance of the opposite party No. 2/appellant and the same was sent to the opposite party No. 1 together with the forwarding letter. It was the opposite party No. 2 who informed the complainant that embosed aluminium sheets were not available. It was the appellant who had issued the cash memo dated 10.4.1993. The learned Counsel for the complainant contended that the order of District Forum is just and proper and no inference is called for. The learned Counsel for the opposite party No. 1/respondent No. 2 also emphatically argued that it was only the appellant who was liable to the complainant as the appellant used to purchase sheets from the opposite party No. 1 and on 19.3.1993 also had placed the order and had sent the draft for Rs. 40,000/-. The sheets were sent to the appellant at their Dhamtari address as required by the said party. Only 80 sheets were sent to the opposite party No. 2 as per the available amount in their account. In case, the complainant received damaged sheets, the opposite party No. 2 only is liable as it was the said party who had finally sent the sheets to the complainant. The opposite party No. 2 had also issued the cash memo.

AFTER hearing the learned Counsel at length and perusing the record, was are of the considered opinion that the learned District Forum has passed a detailed and reasoned order referring to the oral evidence and various documents marked as exhibits during such evidence.

THE only question to be decided by us is as to whether the learned District Forum has erred in holding the appellant jointly and severally liable with the respondent No. 2 ? Whether a dealer or agent will be liable together with the principal is a question of fact to be decided on the basis of material on record. We are of the opinion that there is sufficient material on record to show that the appellant actively participated in the dealings between the complainant and opposite party No. 1. It was the appellant who had taken the order for supply of sheets, received the draft from the complainant and had sent the same to the opposite party No. 1 together with the forwarding letter. It is evident from the forwarding letter, Exhibit P-6, that the appellant had requested the opposite party No. 1 to deliver the sheets at Dhamtari in the name of K.P. Enterprises. Further the bill. Exhibit P-7, was issued by the opposite party No. 1 in the name of opposite party No. 2/appellant and as per the bill rate of the plain sheet was of Rs. 364/- per sheet and on total amount a discount of 5% was also given. However, the opposite party No. 2/appellant in cash memo dated 10.4.1993 Exhibit P-2A has mentioned the rate of sheets as Rs. 383/- per sheet. The plea taken by the appellant that the firm was entitled to recover 5% in addition to the price cannot be accepted. The conduct of the appellant in requesting the opposite party No. 1 to send the sheets to K.P. Enterprises, Dhamtari and then issuing Cash Memo Exhibit P-2A and charging amount in excess of the actual price makes it abundantly clear that the opposite party No. 2/appellant actively participated in the dealing between the complainant and the respondent No. 2. Under the circumstances both the appellant and the respondent No. 2 will be liable for supplying defective goods, delay in supplying the article and for supplying lesser quantity. All this amounts to deficiency in service and the appellant shall also be liable for such deficiency jointly and severally with the respondent No. 2.

The plea that the complainant had written a letter and given notice only to the opposite party No. 1 and not to the opposite party No. 2 cannot exonerate the opposite party No. 2/appellant from liability towards the complainant.

UNDER the circumstances, we are of the opinion that the appellant cannot be permitted to shirk from liability towards the complainant. There is no need to interfere with the impugned order. The appeal is dismissed. Order of the District Forum is affirmed. The appellant, besides bearing own costs of appeal shall pay that of the complainant/respondent No. 1 which is quantified at Rs. 1,000/-. Appeal dismissed.