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2007 (3) CPR 81 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
S.N. Kapoor, Presiding Member and B.K. Taimni, Member
Rasik Lal Babu Lal Patadia—Appellant
versus
Arya Bhattacharjee & Anr.—Respondents
First Appeal No. 109 of 1997
Decided on 6-7-2007
Counsel for the Parties:
For the Appellant:Mr. Mayur R. Shah, Advocate.
For the Respondents:Mr. Deepak Jena, Advocate.
IMPORTANT POINT
A dealer, whose dealership is unilaterally terminated by the distributor, cannot file complaint under C.P. Act as he is not a consumer under Section 2(1)(d)(ii) for hire of service. He has a remedy before Civil Court, if so advised.
Headnote:Consumer Protection Act, 1986—Sections 2(1)(d)(ii) and 21(a)(ii)—Complainant Arya was appointed by OP as a dealer of its drug supply in West Bengal on commission/discount basis—OP revoking dealership suddenly—Complaint by Arya whether maintainable? (No, because he is not a consumer of any service)—State Commission allowed the complaint—Whether correct? (No)—Appeal allowed with liberty to file action in Civil Court availing
benefit of limitation under law—Order accordingly. (Paras 12 and 13)
Held: In our view, there is no dispute that. the complainant was rendering service but what the law demands is ‘hiring-of-services’ which in this case, as discussed earlier, it was the second respondent who had ‘hired-the-services’ of the complainant. (Para 9)
In the aforementioned circumstances, we are clearly of the view that under no circumstances, the complainant could be said to be a ‘consumer’ as defined in Section 2(1)(d)(ii) of the Consumer Protection Act, in view of which the complainant would not be maintainable before a Consumer Fora.
In view of above, the Appeal is allowed and the complaint is dismissed.
(Paras 10 & 11)
Result: Appeal allowed accordingly.
B.K. Taimni, Member— Appellant Rasik Lal Babu Lal Patadia was the opposite party No. 2 before the State Commission in a complaint filed by the Complainant Arya Bhattacharjee, the sole Proprietor of Raja & Co., a proprietary firm.
2. Very briefly the facts leading to the filing of the complaint were that the second respondent, Sharda Drugs & Industries Ltd., had appointed the Complainant Arya Bhattacharjee, the distributor of the company on certain terms and conditions. It was the case of the complainant that the respondent company suddenly withdrew work orders and intimated the complainant that they were suspending their marketing operation in West Bengal. It was the case of the first complainant that he had created a huge establishment for his distribution work, and unilaterally terminating the agreement was a case of deficiency in service on the part of the second respondent Sharda Drugs and Industries Ltd. It is in these circumstances that a complaint was filed before the State Commission where an ex parte order was passed against the opposite parties, i.e., the Appellant and Second Respondent, directing them to pay, in all, Rs. 7,56,918 alongwith interest @ 18 % w.e.f. 1.3.1996. Aggrieved by this order this appeal has been filed before us.
3. We heard the Ld. Counsel for the parties and perused the material on record.
4. We heard the Ld. Counsel for the parties on the maintainability of the complaint keeping in view the fact that whether the complainant could be said to be a ‘Consumer’ within the definition of the Consumer Protection Act, 1986.
5. There is no disputing the fact that the Complainant was appointed as a dealer by the second respondent, Sharda Drugs and Industries Ltd., on commission/discount benefit basis. Section (2)(1)(d)(ii), reads as under:
“(ii) 3[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 3[hires or avails of] the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 4[but does not include a person who avails of such services for any commercial purposes]” (Emphasis supplied).
6. Having gone through the agreement as also the facts of the case, in our view, it is the second respondent, who had “hired the services” of the complainant for a ‘consideration’, i.e., by paying him commission/discount benefits, for the services being rendered by the complainant. In our view and undisputedly, it is the complainant who was rendering service and it is the second respondent, i.e., Sharda Drugs Industries Ltd. who had hired the services of the complainant. The above facts and circumstances lead us to clearly deduce that the complainant first respondent will not fall within the definition of ‘Consumer’ as it appears in the Consumer Protection Act, 1986.
7. To this effect a specific plea has also been taken in the Grounds of Appeal filed by the Appellant [Ground (iii)], which reads as under:
“That the said impugned order and judgment is illegal and not sustainable in the eyes of law, because the said impugned order has been passed by the State Commission though there was no jurisdiction to the said commission since there was no relationship between respondent No. 1 and the respondent No. 2 Company as consumer and that there was no allegation of deficiency in service by the respondent No. 2 company.”
8. In the counter filed by the first respondent, we do not see any appropriate reply.
9. Thus, in our view, there is no dispute that. the complainant was rendering service but what the law demands is ‘hiring-of-services’ which in this case, as discussed earlier, it was the second respondent who had ‘hired-the-services’ of the complainant.
10. In the aforementioned circumstanc
