MAHENDER KUMAR vs MANI RAM & ORS

At the outset, it may be stated that vide order dated 13.10.2015, this Commission had disposed of four similar Revision Petitions, i.e. Revision Petitions No.2485 to 2488 of 2008, as the parties had settled the matter out of Court amicably. While doing so, it was also observed by this Commission that the settlement of the dispute between the Revision Petitioner and the Complainants would not be an impediment in the Revision Petitioner''s pursuing any other legal remedy, as may be available to him, for recovery of the amount from the second Opposite Party, i.e. Mr. Yograj Kapoor.

Now, only this present Revision Petition is pending, which is taken up for final disposal today.

Heard the Counsel for the Revision Petitioner/Opposite Party No.1.

The Respondents were set ex-parte vide order dated 13.10.2015 by this Commission.

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 14.08.2006 passed by the Himachal Pradesh State Consumer Disputes Redressal Commission at Shimla (in short "the State Commission") in Appeal No.8 of 2005. By the impugned order, the State Commission allowed the Appeal, preferred by the first Respondent/Complainant, and set aside the order of the District Consumer Disputes Redressal Forum, Kullu (in short "the District Forum") and directed the Revision Petitioner herein to pay to the Complainant an amount of Rs.1,43,081/- with interest @ 9% per annum from the date of filing of the Complaint till the date of payment/deposit, whichever is earlier, with compensation of Rs.5000/- and costs of Rs.2000/-.

The brief facts, as stated in the Complaint, are that the Complainant is a fruit grower having his orchard in Village Haripur, Tehsil and District Kullu, and is the sole Proprietor of the orchard, i.e. Rishi Orchard. It is stated that the Complainant was sending the fruits for sale on commission basis in Delhi to the first Opposite Party. The second Opposite Party was the agent of the first Opposite Party. The Complainant averred that during the fruit season 1997 he had sent the fruits of his orchard for sale and the Opposite Parties received the consignments and issued the bills of sale proceeds, the details of which are as follows:

No. 00230 dated 23.08.97 Rs.20,287.38p.

No. 00244 dated 27.08.97 Rs.14,330.65p.

No. 00287 dated 04.09.97 Rs.20,941.00p.

No. 00288 dated 05.09.97 Rs.17,409.00p.

No. 00295 dated 09.09.97 Rs.18,106.00p.

No. 01914 dated Nil Rs.10,083.00

No. 00801 dated 22.09.97 and No. 00802 dated 27.09.97 Rs.34,952.00p.

8.

No. 00812 dated 26.09.97 Rs.6962.00p.

Total Rs.1,43,081.03

It is pleaded that despite repeated requests, the Opposite Parties did not pay the amount towards sale proceeds. Hence, the Complaint before the District Forum, seeking a direction to the Opposite Parties to pay the amount of Rs.1,43,081/- with interest @ 18% per annum with compensation and costs.

The first Opposite Party filed his reply before the District Forum, stating that the Complainant being a seller of goods does not fall within the ambit of definition of the ?Consumer'' under the Act. It is averred that the Complainant and the second Opposite Party were in collusion with each other and also that the transaction was commercial in nature. It is further pleaded in para-2 of the written version that the Complainant had already received the entire amount as per the records available with them.

The District Forum based on the evidence adduced dismissed the Complaint on the ground that the same was not maintainable. However, it gave liberty to the Complainant to approach the Civil Court for seeking redressal of the grievance.

Aggrieved by the said order, the Complainant preferred the afore-noted Appeal before the State Commission. The State Commission, relying on Section-3 of the Act, observed that the Forum had jurisdiction to entertain the Complaint; the Complainant was sending the apple consignments from his orchard to the first Opposite Party through the second Opposite Party; admittedly the bills of sales proceeds were issued in favour of the Complainant, which is not disputed; and even part payment was made to the Complainant after having charged the commission. Consequently, the State Commission allowed the Appeal, holding that the first Opposite Party, who is the Revision Petitioner herein, was liable to make the payment out of the net sale proceeds with interest @ 9% per annum with compensation of Rs.5000/- and costs of Rs.2000/-.

Dissatisfied with the order of the State Commission, the first Opposite Party preferred the present Revision Petition.

The main contention of the Revision Petitioner is that the entire amount has been paid to the Complainant and the relevant receipts have been filed, which are placed at pages 144 to 149 of the paper-book.

I observe from the record that the Complainant is the Proprietor of the orchard and was admittedly sending fruits for sale on commission basis to the first Opposite Party through the second Opposite Party. The Complainant has also given a detailed list of sale proceeds, which clearly establishes that there is no availment of hiring of any service by the Complainant herein and does not fall within the ambit of Section 2(1)(o) of the Act, which reads as follows: "(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

In furtherance to the above, the Revision Petitioner also submitted that the amounts have been paid to the Complainant.

Hence, this Revision Petition is allowed; the order of the State Commission in First Appeal No. 8 of 2005 is set aside; and the Complaint is dismissed. No costs.