S.P. PADMANABHAN-/Opp. Party vs S.GURUBTHLAM

THE appeal arises out of the order of the District Consumer Disputes Redressal Forum, Madras dated 31.3.92 in O.P. 499/91. THE second opposite party is the appellant.

THE first opposite party, Proprietor of M/s. Seewell Packets, Bombay and the second opposite party is the Power of Attorney agent of the first opposite party. THE complainant entered into an agreement on 10.6.89 with the first opposite party, M/s. Seewell Packets represented by the second opposite party and paid a consideration of Rs. 1 lakh as deposit. THE opposite party, Company filed to perform the services undertaken to be performed in pursuance of the agreement. Consequently the complainant claimed refund of the amount. A sum of Rs. 44,000/- alone was repaid leaving a balance of Rs. 56,000/-. To the notice sent by the complainant the first opposite party did not sent any reply while the second opposite party contended that he has taken over the entire company and there was no deficiency of service. Aggrieved thereby the complainant has come forward with this claim for a sum of Rs. 75,960/- and costs. The first opposite party remained absent and the second opposite party inter alia contended that the complainant is not a consumer and the complainant is not maintainable.

The District Forum held that the complainant was a consumer and directed the opposite parties to pay to the complainant a sum of Rs. 75,960/-. Aggrieved thereby the second opposite party has preferred this appeal.

THE point for consideration is whether the complainant is a consumer and is entitled to maintain this complaint? Exhibit Al is the agreement entered into between M/s. Seewell Packets represented by the second opposite party S.A. Padmanabhan and the complainant on 10.6.89. The salient features of the agreement are as follows: "1. The complainant is called as Agent and M/s. Seewell Packers as the Company. 2. The company has agreed to appoint the complainant as Agent as their case-in-need distributor for the States of Tamil Nadu and Pondicherry for a period of 2 years from 1.6.89 and has agreed to route all their sales in the aforesaid areas only through the complainant on and from 1.6.89. 3. The complainant - Agent shall be paid by the opposite party - Company every month as distribution commission, 1 % of the value of the monthly turn over or Rs. 5,000/- p.m. whichever is higher. 4. In order to familiarise the Agent (complainant) with the developments and activities of the company (opposite party), a representative of the company shall be posted in the Agent''s Office at Madras who shall raise all the invoices, maintain stock accounts and other records of trading transactions in the States of Tamil Nadu and Pondicherry and the Agent (complainant) is expected to closely follow the details and other statistics obtained from various stockists/distributors from the States of Tamil Nadu and Pondicherry. 5. At the end of 2 years the sole selling agency for the Mona Products throughout the States of Tamil Nadu and Pondicherry shall vest with the agent and the terms and conditions for the contract shall be directly negotiated and finalised by the agent with the company."

A consumer as defined in Section 2(1)(d) of the Consumer Protection Act is a person (i) who busy any goods for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment or (ii) hires any service for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment". This is not a case where the complainant has purchased the goods from the opposite party for any consideration and hence he is not a consumer within the meaning of Section 2(1)(d)(i) of the Act. We have to see whether he is a consumer within the meaning of Section 2(1)(d)(ii) of the Act. A reading of Exhibit Al would clearly show that this is a simple contract of Agency and the complainant is the agent and M/s. Seewell Packers is the Principal as defined in Section 182 of the Indian Contract Act. Under the terms of this contract of agency, the opposite party-company shall supply to the complainant-agent, goods manufactured by Modern Chemical Groups of Companies and the complainant shall sell the same in the States of Tamil Nadu and Pondicherry for which he is given a distribution commission of 1% of the value of the monthly turn over or Rs. 5,000/- p.m. whichever is higher. It is clear that the complainant has not hired the services of the opposite party-company; the case is the other way about; it is the opposite party-company who has hired the services of the complainant for the sale of the goods supplied by it in the States of Tamil Nadu and Pondicherry for which the company pays a commission of 1% of the value of the monthly turn over or Rs. 5,000/- p.m. whichever is higher. It is obvious therefore that the opposite party-company is the consumer and not the complainant within the meaning of Section 2(1)(d)(ii) of the Act. It is strenuously argued by Mr. Mahaboob Sherif, the learned Counsel for the respondent/ complainant that the complainant has paid a sum of Rs. 1 lakh as deposit and therefore he is a consumer. The said sum of Rs. 1 lakh has been paid as deposit presumably as security for the goods supplied to the complainant for sale. The payment of this deposit does not render the agreement under Exhibit Al, any the less a contract of agency and it does not convert this contract of agency into any other relationship known to law. No doubt the company has offered to pay interest on this deposit at 12% p.a., but the company is not a financial institution and the deposit is not received as part of the financial service rendered by the company. It is only a deposit received as security for the goods supplied.

IT is then contended that under Exhibit A1, agreement the opposite party-company has to appoint a representative in the office of the complainant and it is he who has to raise all the invoices, maintain stock accounts and other records of trading transaction in the States of Tamil nadu and Pondicherry and the agent is expected to closely follow the details and other statistics obtained from various stockists/distributors from the States of Tamil nadu and Pondicherry in order to familiarise the agent with the developments and activities of the company. This is only an arrangement intended to promote the sale of the goods supplied by the company and to safeguard the interests of principal i.e. the company. This is not therefore a service which is hired by the complainant and hence the failure on the part of the company to appoint such representative is no ground to hold that the company has failed to discharge its services hired by the complainant.

THE District Forum has net properly considered the crux of the matter, i.e., the exact relationship between the complainant and the opposite party-company and has erred in holding that the complainant is a consumer within the meaning Section 2(1)(d)(ii) of the Act. Finally it is contended by Mr. Mahaboob Sherif, the learned Counsel for the complainant that in his reply statement he has alleged that the opposite party-company had resorted to false and misleading representation by publishing in the daily newspaper like ''The Hindu'' dated 29.3.89, the advertisement with the insigna of ''Mona Brand'' without the accreditation of the manufacturer namely Modern Chemical Industries, Bombay, come out flaging the truth and falsely claiming the written agreement dated 10.6.89 that the opposite party-company is the sole distributor of Mona Products and this constituted unfair trade practice. There is absolutely no evidence to substantiate this contention and in fact this point does not seem to have been raised before the District Forum. Assuming without admitting that the opposite party-company has been guilty of unfair trade practice, a complaint in respect thereof is maintainable only if it is filed by the complainant as defined in Section 2(1)(b) of the Act. Under Section 2(1)(b) of the Act a complainant means, "(i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or (iii) the Central Government or any State Government who or which makes a complaint;" We have already held that the complainant is not a consumer and he is not therefore entitled to maintain this complaint. It is needless to point out that the complaint is not filed by any Voluntary consumer association or by Central or State Government. Looked at any point of view, the complaint is misconceived and must fail.

In the result the appeal is allowed, the order of the District Forum is set aside and the complaint is Dismissed but without costs throughout. Appeal allowed.