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M/s. Indiagen Ltd. vs. Sri B.S. Arun Kumar dated 2014-09-09

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

                                               NEW DELHI       

 

REVISION PETITION NO. 4050 OF 2008

 (From the order dated 30.06.2008 in Appeal No.2372/2007 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 

 

 

M/s. Indiagen Ltd.

Road No. 44, Jubilee Hills,

Hyderabad,

Andhra Pradesh – 500 033

Rep. by its Managing Director                        …Petitioner/Opp. Party (OP)

 Versus

1.       Sri B.S. Arun Kumar

          Proprietor M/s. Thirumala Associates

          No. 119, Siddanna Lane,

          Bangalore – 560 0002

 

2.       The Branch Manager, XPS Cargo

          No. 10, Rambaug,

          Old Rothak Road,

          Delhi – 110 007.                        …Respondents/Complainants (OP)

 

BEFORE

HON’BLE MR.JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

For the Petitioner            :    Mr. Tuhin, Advocate

For the Res. No.1            :    Mr. C.B. Gururaj, Advocate

For the Res. No. 2           :    Mr. Praveen Aggarwal, Advocate

                               

PRONOUNCED ON  9th September,  2014

O R D E R

 PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 

          This revision petition has been filed by the petitioner against the order dated 30.06.2008 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No. 2372 of 2007 – M/s. Indiagen Ltd Vs. Sri B.S. Arun Kumar & Anr. by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

 

 

2.      Brief facts of the case are that complainants/respondents booked FROZEN SEMEN DOSES with OP No. 1/petitioner on 22.11.2006 and paid amount of Rs.2,00,000/-.  Complainant received one cargo on 6.12.2006 which was sent by OP No. 1 through OP No. 2/Respondent No.2, but on opening the container it was found that Liquid Nitrogen was not present and FROXEN SEMEN DOSES were spoiled. Complainant returned back consignment to OP No. 1 through OP No. 2 and requested for replacement of stock.  OP No. 1 did not respond inspite of notice.  Alleging deficiency on the part of OP, complainant filed complaint before District Forum.  OP No.1 resisted complaint and submitted that complainant is estopped from contending that there was no Liquid Nitrogen in the container and FROZEN SEMEN DOSES were spoiled as he made endorsement about receipt of cargo in good condition.  It was further submitted that when goods were entrusted to OP No. 2 it was weighing 65 kgs whereas complainant told that weight was 25 kgs which is baseless.  It was further submitted that cost of the products was only Rs.1,60,963/-.  It was further submitted that complainant is ‘Super Distributor’ of OP no. 1 and he obtained goods for re-sale and does not fall within the purview  of consumer and prayed for dismissal of complaint.  OP No. 2 did not appear and was proceeded ex-parte. Learned District Forum after hearing both the parties allowed complaint and directed OP No. 1 to refund Rs.2,00,000/- with 9% p.a. interest and complaint was dismissed against OP No. 2.  Appeal filed by OP No. 1 was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

 

3.      Heard learned Counsel for the parties and perused record.

 

4.      Learned Counsel for the petitioner submitted that neither  learned District Forum nor learned State Commission has decided objection of petitioner regarding maintainability of complaint and has committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and matter may be remanded back.  On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

 

5.      Petitioner in paragraph 2 of its written statement specifically taken the objection that complainant is a ‘Super Distributor’ of OP and obtained goods for the purposes of re-sale and does not fall within the purview of consumer.  Neither learned District Forum nor learned State Commission has dealt with this objection which goes to the root of the maintainability of the complaint. In such circumstances, impugned order cannot be sustained and matter has to be remanded back to learned District Forum for deciding this objection.  Learned Counsel for respondent also agreed that this objection has not been dealt by Fora below.  In such circumstances, impugned order is liable to set aside.

 

6.      Consequently, revision petition filed by the petitioner is allowed and impugned order dated 30.06.2008 passed by the State Commission, in Appeal No. 2372 of 2007 – M/s. Indiagen Ltd Vs. Sri B.S. Arun Kumar & Anr. and order of District Forum dated 19.10.2007 in Complaint No. 1598/2007 – Sri B.S. Arun Kumar Vs. M/s. Indiagen Ltd. & Anr. are set aside and the matter is remanded back to learned District Forum to deal with the objection of  OP as discussed above and decide the complaint afresh after giving an opportunity of being heard to both the parties.

7.      Parties are directed to appear before District Forum on 29.10.2014.

……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER

 

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