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M/s.Pondicherry Agro Service and Industries Corporation Limited v/s M/s.Modern Food Industries (India) Ltd.,

    F.A.No.450/2007 [Against order in OPSR.261/2007 on the file of the DCDRF, Chennai (South)]

    Decided On, 31 January 2011

    At, Tamil Nadu State Consumer Disputes Redressal Commission Chennai

    By, HONOURABLE THIRU JUSTICE M. THANIKACHALAM PRESIDENT & THIRU J. JAYARAM
    By, M.A.
    By, M.L.
    By, JUDICIAL MEMBER

    For the Appellant : G.Mohan Keerthikumar, Advocate. For the Respondent : M/s.Sarvabhauman Associates, K.Ravikumar, Advocates.



Judgment Text

The Appellant as complainant filed a complaint before the District Forum, Chennai(South) against the opposite parties/respondents praying for the direction to take this complaint on file, issue summons to opposite parties and to direct the opposite parties to remove the defects and deficiency of service and to pay Rs.4,50,000/- towards compensation for mental agony, to award punitive damages of Rs.15,00,000/-, to cease the manufacture hazardous goods and to order cost of Rs.25,000/- to the complainant. The District Forum rejected the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum, Chennai(South) dt. 16.5.07 in OPSR.261/2007.


This appeal coming before us for hearing finally on 14.1.2011, upon hearing the arguments of the counsels for bothsides, and perused the documents, written submissions as well as the order of the District Forum, this commission made the following order:


M. THANIKACHALAM J, PRESIDENT


1. The complainant is the appellant.


2. The complainant/appellant, had purchased bread, from the opposite parties, in order to supply the same, as per the directions of the Government to the students of primary schools, in the State of Pondicherry. Some of the students, who had consumed the bread, vomited, resulting admission in the hospital, followed by treatment, thereby creating health problems to the school students. Thereafter, the bread supplied by the opposite parties, was subject to test, which revealed, they were contaminated, unfit for human consumption. Thus alleging and accusing, as if, they have sold contaminated bread, causing loss of reputation to the complainant, resulting sufferings also, complaint was filed for a total claim of Rs.19,50,000/-, in addition to directing the opposite parties not to manufacture hazardous goods and desist from offering service hazarduous in nature, in addition to cost.


3. The office of the District Forum, Chennai(South), where the complaint was filed felt that the complainant is not a consumer and therefore the case is not maintainable and to decide the maintainability, the case was posted before the District Forum. The President of the District Forum, by going through the averments, and hearing (which is denied), passed an order, that the case in respect of which the claim was made, is purely commercial purpose, not coming within the definition of the consumer, and in this view it returned the complaint with direction to approach the Civil court, and the order reads,


? Returned : Heard the counsel in the open court. Perusal of records reveals. The service rendered by OP1 and OP2 do not come within the purview of Consumer Protection Act. Bread supplied by Opposite parties 1 and 2 is purely a commercial purpose as defined under Sec. 2(1)(d)(ii) of the Consumer Protection Act. The complainant has to seek remedy before competent Civil Court.?


which is challenged by the complainant before this Commission.


4. As seen from the records, the President alone has signed the order, thereby showing, that the order was not passed by the District Consumer Disputes Redressal Forum, as such, which should be. Under the rules, the President alone cannot sit and decide the case, pass an order and the District Forum, as a whole as per the constitution or at least alongwith one member, should hear and pass orders, and signwhich was not the case, as seen from the records. In the absence of other members signing in the order, which is the mandate of the Act, the order is not sustainable in law and on this ground it is to be set aside.


5. Before the District Forum, no notice has been issued to the opposite parties, and without ordering notice to the opposite parties, complaint was returned or rejected, with direction, which is challenged, therefore, generally before this Commission also no notice need be ordered, but however ordered on that basis, now the appeal is opposed by the opposite parties also. At present, we do not have the written version of the opposite parties, and therefore, we cannot decide the case on merit, and we are concerned only about the maintainability, which should be decided, only on the basis of the pleadings in the complaint.


6. The learned counsel for the complainant/appellant argued before us, that the complainant, being an organ of the Government though running profitably doing business, as far as the purchase of the bread is concerned, it is not for commercial purpose, whereas, bread was purchased, for the supply to the school, under Sree Rajiv Gandhi Breakfast Scheme, freely. Nowhere, in the complaint, it is stated that they have sold the same to the Government, or the school as the case may be. In order to decide, whether this transaction is a commercial transaction or not, we have to see the main purpose of this transaction alone, whether it was commercial or not, then only the purchaser of the goods or the transaction as the case may be, will not come within the meaning of consumer, if commercial.


7. Law does not prohibit a business firm from purchasing goods supplying or giving the same to others freely, not aiming profit. In that case, even a commercial concern, may come as consumer, if the transaction in question is detached from profit motive. The pleadings in this case as it is would reveal, which we are concerned, at present, it is not the case of the complainant, that they have resold the bread or by purchase and supply, they have earned profit, though in paragraph 2 of the complaint, it is said, the complainant Corporation is running profitably, in so many field, which does not cover the purchase of the bread. Therefore, though the complainant is a Commercial Institution or Corporation, since the transaction in question is not a commercial one, in the sense not for profit, whereas for the supply of free bread to the school students, as submitted before us, we feel this may not come within the meaning of ?commercial? purpose, as in correctly recorded by the District Forum. In this context we have to see the definition for ?Consumer?, ?person?, ?complaint? in addition to the purpose of purchase of the bread once again.


8. Section 2(1)(d)(i) defines ?Consumer?, which says, ?any person who buys any goods for consideration?, then giving exemption, ?but does not include, a person, who obtains such goods for resale or for any commercial purpose?. Filing of a case by this kind of Corporation is not totally prohibited, as seen from the definition for complainant, since a consumer can be a complainant provided it comes under Section 2(1)(d)(i).


9. Nowhere in the complaint, it is said, that the goods were purchased for resale, or for any commercial purpose, and the bread was supplied freely to the students, under Sree Rajiv Gandhi Breakfast Scheme, freely. The main object of the complainant, Corporation may be, for commercial purpose, in other field and not, as far as the transaction in question is concerned, as adverted to above. A Corporation doing business, is not barred from filing a consumer complaint, if the transaction or the purchase of the goods was not related to commercial purpose motivated for profit. We have to see this case, from this point of view and the purchase of the bread, though for consideration, not for resale or for any commercial purpose, whereas, it is only for social purpose, feeding the poor children, which will not come within the meaning of ?commercial? purpose.


10. The learned counsel for the opposite parties, mostly relying upon paragraph 2 of the complaint, as well as the purpose of the establishment of the Corporation, where we find commerciality, urged, as if all the transactions by them should be a commercial one. Considering facts and circumstances of the case, we are unable to accept the same, in view of the pleadings in the complaint, that the bread was not purchased for resale or for commercial purpose. Even assuming that the complainant had received the amount from the Government, for the purpose of paying to the opposite parties, since it is not aimed for profit, and if that should have been aimed, to compensate the complainant Corporation, in order to supply free bread, to the student, that cannot be taken as commercial purpose, since the element of profit is absent. Therefore we feel, for the above said reasons, the District Forum committed an error in rejecting or returning the complaint, which order is liable to be set aside. Generally, it is not desirable to reject the consumer complaint, without ordering notice to otherside, at the threshold itself, as ruled by the Apex Court, in Punj Lloyd Limited Vs. Corporate Risks India Pvt. Ltd., reported in 2009 CTJ-1 (S.C.)(C.P)

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, wherein it is held that ?A Consumer Forum is not justified in rejecting a consumer complaint in limine, without issuing notice to the other party and before allowing him to place his view (s) before it?. On this ground also, the order of the District Fora is liable to be set aside. The opposite parties are entitled to raise this plea, while filing written version, which will be considered by the District Fora, at the time of hearing the main case, on merit, and there is no bar for this defence. 11. In the result, the appeal is allowed, setting aside the order of the District Forum, Chennai (South) in OPSR No.261/2007, dated 16.5.2007 and the complainant is directed to represent the complaint, before the District Forum concerned, on or before 3.3.2011 and on such representation, the District Forum is directed to take the case on file, if it is otherwise in order and proceed to dispose the case on merit, according to law, issuing notice to the opposite parties.
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