RAJ KRISHAN BATTA vs ALLIED INDUSTRIES

IT is an appeal against the order dated 17.2.2003 of the District Consumer Disputes Redressal Forum, Patiala (hereinafter called the District Forum).

BRIEF facts, as stated in the complaint, are that the appellant-complainant-Shri Raj Krishan Batta (hereinafter called the complainant) was running a shop for the repair of the regfrigerators to earn his livelihood as a self-employed person. He took loans of Rs. 46,000/- from the State Bank of Patiala, Dharampura Bazar, Patiala for purchasing Gas M-12 to be filled in refrigerators. The Bank issued cheque/draft on 11.4.2001 in favour of respondent-opposite party-Allied Industries, Shop No. 1, Aneja Market, 3286/1, Model Gram Ext., Ludhiana through its Manager/owner Sanjeev (hereinafter called the opposite party) as price of the gas. The opposite party, however, did not supply the gas when the complainant had taken the cylinders to him for this purpose by spending Rs. 700/- on transportation. The complainant had approached the opposite party time and again to supply the gas as its non-supply was causing loss to him in his work. The complainant had also sent a draft for Rs. 6,100/- alongwith letter dated 9.3.2001 as Sales Tax on the gas demanded by the opposite party. The opposite party, however, refused to receive the letter. The complainant then gave a legal notice along with a draft for Rs. 6,100/- again and the same was accepted by the opposite party. But the opposite party did not supply the gas causing a loss of Rs. 3,000/- per day to the complainant. This action of the opposite party, according to the complainant, had provided a cause of action for filing the complaint before the District Forum for seeking a direction to the opposite party to supply the gas M-12 along with cylinders and also to pay compensation and costs. Opposite party contested the complaint taking preliminary objections that the complainant was not a "consumer" as he was running the business of selling the refrigerators and was a trader and that the complaint was bad for non-joinder and mis-joinder of necessary parties. On merits, the opposite party pleaded that the complainant had in fact raised a loan for the purchase of the repaired compressors vide bills dated 10.4.2001 bearing Nos. 251 and 252. It was denied that the opposite party had received the cheque/draft from the Bank as price of the gas. It was also denied that the complainant had brought the cylinders for gas filling and had spent Rs. 700/- on transportation. The opposite party further denied to have demanded any sales tax from the complainant. However, it was admitted by the opposite party that it had received a draft for Rs. 6,100/- but the same was not encashed by the opposite party as it was in excess and was not demanded. The parties produced their respective evidence.

After having gone through the evidence on the file and after hearing the Counsel for the parties, the District Forum allowed the complaint and directed the opposite party to supply to the complainant 146 kgs. M-12 gas in two cylinders already left with the opposite party and also to pay Rs. 5,000/- as compensation plus Rs. 1,000/- as costs of the complaint within a period of one month from the receipt of the copy of the order. Transportation charges were ordered to be borne by the complainant.

HENCE this appeal for enhancement of the compensation awarded by the District Forum. We have heard the complainant-appellant-Shri Raj Krishan Batta who is present in person and the learned Counsel for the respondent-opposite party and have gone through the record of the case with their help.

THE opposite party has taken a legal objection that the complainant was not a "consumer" as he was a trader dealing in the sale/purchase of refrigerators. Whereas, according to the complainant, he was self-employed and repaired the refrigerators. THE version of the complainant that he was a self-employed and runs the business of repairing of refrigerators has not been controverted. In these circumstances, it has been rightly held by the District Forum that the complainant was covered under the definition of a "consumer". THE legal objection taken by the opposite party was, thus, untenable. To prove that Rs. 46,000/- had been paid to the opposite party through the Bank that advanced the loan was for the purchase of M-12 gas, which is filled in the refrigerators, the complainant relied upon estimate Ex. C2 given by the opposite party quoting the price of Rs 46,005/- for 146 kgs. of M-12 gas to be filled in two cylinders each containing 73 kgs. It is mentioned that the sales tax @ 132% would be extra. Then there is a letter dated 3.8.2002, Ex. C9, written by the Bank to the opposite party asking the latter to supply the bills for supply of gas to the complainant on whose behalf the Bank had paid the amount of Rs 46,000/- through Bank Draft on 10.4.2001. Still further when the opposite party did not supply the gas, the complainant wrote letter, Ex. C4, dated 26.6.2001 mentioning therein that when he had approached with the cylinders for gas the opposite party had demanded Rs. 6,070/- towards sales tax, which he could not give at the spot. It is mentioned in this letter that the complainant would pay the sales tax later on and the opposite party had already enjoyed the use of Rs. 46,000/- and thus, the interest on that amount would be adjusted towards sales tax. He had requested for supply of the gas cylinders. This letter was sent through registered post but was not replied by the opposite party. The complainant had then written another letter Ex. C3 on 25.1.2002 on the same lines but it was returned undelivered. The complainant then wrote another letter dated 9.3.2002 with which he had sent a draft for Rs. 6,100/- towards sales tax requesting for the release of the gas cylinders. This letter was also refused and was returned undelivered. Then the complainant had given a notice dated 27.5.2002, a copy of which is Ex. C-7, to the opposite party mentioning therein the entire background and also about the sending of the draft for Rs. 6,100/-. This letter was duly received along with the draft. However, this letter was never replied to. On 1.6.2002 another reminder dated 1.6.2002 was sent which too was received but not replied to. All these documents leave no manner of doubt that the complainant had taken loan of Rs. 46,000/- for the purchase of gas from the opposite party on the basis of later''s estimate Ex. C2 but the opposite party had failed to supply the gas and even did not respond to the letter and notices given to him. The case set up by the opposite party is that it had not agreed to supply the gas as the complainant had taken the loan on account of purchase of repaired compressors, which were supplied to him on 10.4.2002 the day Bank issued the draft of Rs. 46,000/-. Reliance has been placed on delivery note-cum-debit advice Ex. R2 and Ex. R3. It was pleaded that vide delivery note Ex. R2 the complainant was supplied as many as 7 compressors while vide delivery note Ex. R3 five compressors were supplied, price of each compressor has been mentioned in the delivery note and the total amount, according to the opposite party, came to Rs. 46,000/-. It is pertinent to mention here that these notes did not contain any receipt or siganture of the complainant in token of having received the delivery of the repaired compressors. The story put forward by the opposite party is nothing but an after thought and without any supporting evidence Ex. R2 and Ex. R3 are self-serving documents. It is unbelievable that having received the loan amount of Rs. 46,000/- in advance from the Bank through draft, the opposite party would deliver 12 compressors worth Rs. 46,000/- to the complainant without obtaining his receipt or confirmation. It is also unexplained as to whether the alleged compressors were delivered at the premises of the complainant or were sent through transportation and also as to who took the delivery for the complainant. In the absence of any corroborating evidence the plea taken by the opposite party is unbelievable. It is again pertinent to note that the opposite party even did not reply the letters written by the Bank authorities to him for sending the bills of the gas price for which the Bank had advanced the loan to the complainant and the loan amount paid to the opposite party. Further, the opposite party had received draft of Rs. 6,100/- from the complainant, which was on account of sales tax demanded by the opposite party. The opposite party had accepted the draft. It is, however, claimed that the same was not got encashed whereas nothing about that draft is known as it has not been placed on record. In any case, the opposite party has failed to prove his case whereas the complainant has established his version of having taken a loan of Rs. 46,000/- from the Bank for the purchase of the gas and the opposite party having failed to supply the same amounted to unfair trade practice and was a deficiency in service. In these circumstances, the District Forum has rightly decided the complaint in favour of the complainant and against the opposite party. However, the grouse of the appellant-complainant is that the complainant was not allowed the loss of his business and compensation as claimed in the complaint before the District Forum. Shri Raj Krishan Batta-the complainant, who is present in person, submits that he had arranged for the loan for the purchase of M-12 gas from the opposite party and the opposite party had not supplied the gas to him in spite of various requests and also sending the amount of Rs. 6,100/- through draft to the opposite party. He had, thus, suffered the interest of the Bank loan and had also suffered in his business. We find truth in the argument of the complainant, who is present in person. After taking into consideration the all-round position of the case we enhance the compensation from Rs. 5,000/- as awarded by the District Forum to Rs. 10,000/-. Consequently, the order of the District Forum remains except the modification that instead of Rs. 5,000/- the complainant-appellant shall be awarded Rs. 10,000/- as compensation plus Rs. 1,000/- as costs of this appeal also. We order accordingly. Appeal disposed of.