This Complaint coming up before us for hearing on 29-11-11 in the presence of Sri R. Anjaneyulu, advocate for complainant and of              Sri J. Narasimha Rao, advocate for opposite parties 1 and 3, 2^nd opposite party remained absent and set exparte, upon perusing the material on record after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint under section 12 of the Consumer Protection Act seeking compensation of Rs.2,00,000/- for non delivery of goods and for costs.

2.  In nutshell the averments of the complaint are these:

        The complainant has been doing business in rubber products under the name and style of M/s Akshaya Rubber products.   The complaint used to sent rubber products to various places in Andhra Pradesh.  During the course of regular business the complainant as usual on 08-07-10 as a consignor sent rebutton rubber material worth of Rs.19,283/- and on 16-07-10 worth of Rs.23,491/-  to the 2^nd opposite party through the 1^st opposite party.     The 1^st opposite party issued LR.No. (1). 05882795x4 and 05885106x6.   The consignment was addressed to ‘self’.   The 2^nd opposite party did not hand over the said goods to the complainant till today.   The 2^nd opposite party did not answer the complainant when approached.    The complainant on 21-09-10 addressed a letter to the 1^st opposite party marking a copy to the 3^rd opposite party by enclosing copies of LRs.   There was no response from the opposite parties 1 and 3.   The complainant issued a notice on 16-03-11 to the opposite parties.   The 3^rd opposite party gave a reply stating that the matter will be examined.   On account of that the complainant sustained loss of profit of Rs.2,00,000/-.   The complainant is eking livelihood depending upon the profits derived from the said business.    The complaint therefore be allowed.

3.   The 2^nd opposite party remained exparte.

4.   The contention of the opposite parties 1 and 3 in brief is hereunder:

          The complainant booked consignments on 08-07-10 and                  16-07-10 (mistakenly typed as 06-07-10) vide GC.Notes.05882795 and 05885106 respectively to be delivered to M/s Devaki Traders on proof of submitting payment to the complainant.   The said Devaki Traders did not submit proof of payment of cost of goods to the 2^nd opposite party for taking delivery of the said consignments.   The complainant on 06-11-10 addressed a letter to the 1^st opposite party stating that the customer at Manuguru has not been co-operating to take delivery of two consignments by making payments through bank DD and required the opposite parties to return the two consignments to Guntur.    Meanwhile the said Devaki Traders paid Rs.19,000/- by way of DD drawn on Andhra Bank and took the consignment dated  08-07-10 only and the complainant received that amount. The consignment dated 16-07-10 was returned to Guntur.  The complainant failed to take the said consignment inspite of oral instructions and as such is lying with the 1^st opposite party.   The complainant filed this complaint due to disputes with the said Devaki traders.   The complainant did not disclose value of consignment.  As per terms and conditions of GC note the jurisdiction will be at Hyderabad.   This Forum has no territorial jurisdiction to entertain the complaint.   As per terms and conditions of GC note the claim in respect of non delivery and shortage of goods should be informed within seven days from the date of incident.   The complainant has been doing rubber business and is involved in commercial activity and hence the complainant is not a consumer.   The compensation claimed by the complainant is without any basis.   The complaint therefore be dismissed.

5.    Exs.A-1 to A-11 were marked on behalf of the complainant.   No documents were marked on behalf of the opposite parties.

6.   Now the points that arose for consideration in this complaint are:

        1. Whether the complainant is a consumer within the meaning                   of Consumer Protection Act?

        2. Whether this Forum has territorial jurisdiction to entertain                      the complaint?   

          3. Whether the opposite parties committed deficiency of service?

4. Whether the complainant is entitled to compensation?

5.   To what relief?

7.   POINT No.2:-    The goods consignment notes (GC note) are marked as  Exs.A-1 (=A-2) and A-3 (=A-4).    In Exs.A-1 to A-4 it was mentioned that enquiries and complaints are to be addressed to ANL Parcel Service, 5-9-30/1/5/B, Road No.4, Basheerbagh palace colony, Hyderabad -63.   Nowhere in Exs,A-1 to A-4 the jurisdiction aspect was mentioned as contended by the contesting opposite parties.   Since the goods covered by Exs.A-1 and A-3 were booked at Guntur this Forum has territorial jurisdiction to entertain this complaint.   We therefore answer this point in favour of the complainant.                  

8.    POINT No.1:-     The complainant in para 3 of his complaint mentioned that he was doing business.   At the same time the complainant in para 4 of his complaint mention that the complaint is eking livelihood depending upon the profits derived from consignee that is rubber material only.   The contesting opposite parties denied the same.   The persons obtaining goods for resale or for any commercial purpose are excluded from the purview of consumer.   But the explanation to the definition consumer included the persons who earns livelihood by means of self employment.   The complainant in his affidavit also mentioned that he is eking out livelihood by sending rubber material to other places.   The complainant did not specifically mention the word ‘self employment’ both in the complaint as well as in the affidavit.  Any person carries commercial activity as a business or self employment for eking livelihood.  In the absence of specific words as ‘self employment’ the opposite parties have no occasion to deny the same. In Economic Transport Organisation vs. Charan Spinning Mills Limited 2010 (3) ALD 58 (SC) the Supreme Court observed

      “We may also notice that Section 2(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15-03-03, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’.  After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not b a ‘consumer’ and consequently, complaints will not be maintainable in such cases.   But the said amendment will not apply to complaints filed before the amendment”. 

        The averments of the complaint and affidavit leads us to draw an inference that the complainant is carrying on commercial activity for business. Taking a clue from the above decision we opine that the complainant is not a consumer under the purview of Consumer Protection Act.  Hence this point is answered in favour of the opposite party.

9.    POINTS 3 & 4:-    The letter addressed dated 30-07-10 to the agent ANL Parcel Service, Manuguru and the letter dated 21-09-10 addressed to the agent ANL Parcel Service, Guntur were marked as Exs.A-5 and A-6 respectively.   Under Exs.A-5 & A-6 the complainant sought the agent, ANL Parcel Service at Manuguru to rebook the consignment to Guntur.  The contents of Exs.A-5 and A-6 corroborated the contention of the contesting opposite parties about the non co-operation of the consignee at Manuguru.   In clause 8 of Exs.A-1 to A-4 it was mentioned that no intimation will be given to consignee about the arrival of goods at the destination station and it will be the consignee’s duty to ascertain arrivals.    The contention of the opposite parties is that  the consignee i.e., M/s Devaki Traders released one consignment by paying Rs.19,000/- by way of DD drawn on Andhra Bank and took the consignment dated 08-07-10 and the complaint received the said amount, the complainant failed to obtain return of the 2^nd consignment from the opposite party.   The complainant by addressing Exs.A-5and A-6 letter simply kept quite.  The complainant did not seek the value of the goods undelivered.   Giving no reply in no way amount to admitting the claim of the complainant in view of clause 8 in Exs.A-1 to A-4.   Under those circumstances we opine that the opposite party did not commit any deficiency of service and as such the complainant is not entitled to claim damages.  We therefore answer these points against the complainant.

10.  POINT No.5:-   In view of above findings, in the result the complaint is dismissed without costs.

        Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 2^nd day of              December, 2011.

            MEMBER                                                                                             PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties :   Nil

     PRESIDENT