IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY SECOND DAY OF APRIL TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE V.ESWARAIAH and THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO : 4741 of 2003 Between: Budha Murali Tata Rao S/o B.Appa Rao Murali & Jaggery Exporters, Balijiraopet, Anakapalli, Visakhpatnam. ..... PETITIONER AND 1 Dharam Anand Kumar S/o Veeresalingam Garakurth Village, Kondapur Mandal, Medak Dist. 2 P.Subba rao @ Devathakudu S/o not known R.K.Traders, Jaggeery Merchant, Opp market yard, Tanuku, Presently residingat Murali & Co Jaggery Exports, Anakapali, Visakhaptnam. .....RESPONDENT(S) Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue writ of certiorari or any other appropriate writ or direction calling for the records relating to the orders of the AP State Consumer Dispute Redressal Commission, Hyd passed in F.A.No.567/2001 dt 2-12- 02 confirming the order of the Dist consumer disputes Redressal Forum, Medak passed in C.D.No.43/2000 dt 12-6-2001 & quash the same Counsel for the Petitioner: MR.O.MANOHER REDDY Counsel for the Respondent No.: MR.Y.VASANTH KUMAR The Court made the following: ORDER: (Per Sri Justice V.Eswaraiah) Petitioner questions the order of the District Forum (Under Consumer Protection Act, 1986), Sanga Reddy, Medak District in C.D.No.43 of 2000 dated 12.6.2001 confirmed by the A.P.State Consumer Disputes Redressal Commission, Hyderabad (for short, ‘State Commission’) by order dated 2.12.2002 in F.A.No.567 of 2001, as illegal and to quash the same by issuing a writ of certiorari. The parties are hereinafter referred to as arrayed before the District Forum. The first respondent herein is the complainant who filed C.D.No.43 of 2000 and is having agricultural lands at Garakurthy Village, Kondapur Mandal, Medak District. He used to raise sugarcane and prepared jaggery. The petitioner herein, opposite party No.1, is a jaggery merchant running business on commission basis in the name and style as ‘Pooja Enterprises’ at Nidadavolu, R.K.Traders etc. The 2nd respondent, opposite party No.2, is working with the petitioner. Both the opposite parties used to approach farmers and take the jaggery with a promise that the price of the jaggery will be given after selling it in the market within three months. It is stated that the opposite party No.1 approached the complainant and offered to take the jaggery from him and advanced a sum of Rs.25,000/- to the complainant on 2.9.1997. Thereafter, on 19.3.1998 opposite party No.2 approached the complainant and as per the agreement, the complainant handed over 9980 K.Gs. of jaggery at Rs.925/- per quintal vide waybill No.6906848 through lorry bearing No.AP 12 7886 and a receipt was also issued by the opposite party No.2 which was marked as Ex.A-1 dated 19.3.1998. Likewise, the complainant supplied jaggery on 27.3.1998 to the tune of 7780 K.Gs. vide waybill No.6982614 through lorry bearing No.AP 9T 1785 which was marked as Ex.A-2 and was issued bills of sales (ammakapu ara) which were marked as Exs.A-3 and A-4. Again on 11.4.1998 about 9960 K.Gs. of jaggery were supplied vide waybill No.6982621. It is stated that the complainant, in all, supplied 27720 K.Gs. at Rs.925/- per quintal which comes to Rs.2,56,410/-. It is stated that after deducting the advance amount of Rs.25,000/-, the amount payable by the opposite parties is Rs.2,31,410/-. As the said amount was not paid despite service of notice, the complainant filed a complaint before the District Forum. After receipt of the complaint the case was taken on file and numbered and notices were also served on both the opposite parties. Both the opposite parties did not appear before the District Forum. The complainant was examined and Exs.A-1 to A-5 were marked on behalf of the complainant. On considering the oral and documentary evidence, the District Forum allowed the complaint and directed the opposite parties to refund the amount of Rs.2,31,410/- with interest at the rate of 18% per annum from 11.4.1998 till the date of payment and costs of Rs.1000/- were also awarded. Aggrieved by the said order, opposite party No.1 filed an appeal in F.A.No.567 of 2001 before the State Commission contending that the order passed by the District Forum is an ex parte order, no notice was served on him and as the opposite party No.1 is having his Head Office at Nidadavolu of West Godavari District and used to travel between branch offices located at Bobbili and Anakapalle, the notices must have been returned without service on him. It is stated that there is no consumer dispute between the opposite party No.1 and the complainant as defined under the Consumer Protection Act, 1986 (for short, ‘the Act’) and the District Forum failed to take note of the fact that the relief sought in the complaint was recovery of money which cannot be granted under the Act. Therefore, granting of such a relief is without jurisdiction. It is further stated that there is no deficiency of service as defined under Section 2(g) of the Act as the entire complaint does not show any nature of service and therefore the question of deficiency of service does not arise. As such, the order passed by the District Forum is illegal and unsustainable and liable to be quashed. After hearing the parties, the State Commission by order dated 2.12.2002 held that the opposite party No.1 did not contest the matter before the District Forum by filing his written version, denying the claim of the complainant. The State Commission further observed that the complainant adduced evidence with regard to the supply of jaggery and filed his affidavit explaining the details in respect of allegations in the complaint and also filed Ex.A-1 original receipt dated 19.3.1998, Ex.A-2 way bill dated 27.3.1998, Exs.A-3 and A-4 bills of sales (ammakapu ara) and Ex.A-5 legal notice dated 26.4.2000. On considering the documentary evidence, the State Commission confirmed the order of the District Forum. Aggrieved by the same, opposite party No.1 filed the present writ petition. Heard the learned counsel appearing for the petitioner. The contention of the learned counsel for the petitioner is that the complainant is not a consumer within the meaning of Section 2(1)(d)(i) or (ii) and it is not a consumer dispute and there is no deficiency of service and therefore the complaint filed by the first respondent is not maintainable. It is also contended that disputed questions of fact ought not to have been decided by the District Forum and therefore the complainant ought to have approached the Civil Court for recovery of the money. Under Section 2(1)(d)(ii) ‘consumer’ means and includes any person who avails services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment. As per the Explanation to Section 2(1)(d)(ii) ‘commercial purpose’ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment. Section 2(1)(d)(i) pertaining to a ‘consumer’ who buys goods for consideration is of no relevance to the present case as the complainant did not buy any goods from the opposite parties. It is only if he availed their services that he satisfies the requirements of being a consumer as per Section 2(1)(d)(ii). The learned counsel for the petitioner submits that the services rendered by the opposite parties in taking jaggery for the purpose of sale is not a service and even if it is treated as service it is for a commercial purpose. We are unable to accept the said contention. As per the averments made in the complaint, the opposite parties agreed to sell the goods of the complainant i.e., jaggery and a sum of Rs.25,000/- was paid towards advance to the complainant for shifting the jaggery and the remaining amount was to be paid after the same was sold. Therefore, we are of the opinion that the writ petitioner has undertaken to render the service of selling the jaggery under the system of deferred payment. It is clear that the opposite parties, after selling the jaggery would retain the margin sale consideration over and above that promised to the complainant and the same would be the ‘consideration’ for the service, in the form of a deferred payment. Further, as the service is availed of by the complainant for his livelihood, it is not a commercial purpose as per the Explanation to Section 2(1)(d)(ii). Therefore, we are of the opinion that the complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Act. There is a dispute with regard to the payment and value of the jaggery and the said amount has not been paid in spite of issuing notice. Hence, a consumer dispute is maintainable. With regard to the contention of the petitioner that there is no deficiency of service, the petitioner, opposite party No.1 defaulted in payment of the amount to the first respondent complainant. Therefore, there is deficiency of service on the part of the opposite party No.1 within the meaning of Section 2(1)(g) of the Act. In so far as the issuing of notices is concerned, the District Forum specifically observed that notices were served on the opposite parties. The address mentioned in the complaint before the District Forum is the same address as that reflected in the grounds of appeal and also the cause title in the writ petition. Therefore, it cannot be said that the address is not properly furnished or that there is a different address. Further, the petitioner has not filed any material either before the State Commission or before this Court with regard to the non-receipt of the summons issued by the District Forum and more so, having filed writ of Certiorari, the petitioner has not impleaded the District Forum or the State Commission. Therefore, it cannot be said that no notice was served upon the petitioner. Admittedly, the petitioner is in receipt of the notice under Section 27 of the Act. If this notice was received at the same address, it is difficult to accept that the earlier notice was not received by him. Admittedly, the petitioner failed to file any written statement or material even before the State Commission with regard to the quantity and the price of jaggery or the issue of his address. Therefore it cannot be said that there exists any dispute between the parties with regard to facts. We are of the opinion that the District Forum has rightly accepted the contentions of the complainant duly considering the oral and documentary evidence and allowed the complaint which was confirmed by the State Commission. Therefore, we do not see any merit in the writ petition. The writ petition is accordingly dismissed. No order as to costs. ________________ V.ESWARAIAH, J. ________________ SANJAY KUMAR, J. 22.4.2009 kpr