M/s. D.S. Enterprise,

a  proprietorship business owned by

Daya Sankar Ray,

son of Sri Hari Sardar Ray,

having its office at

Premises no. 4, Kali Kumar Mukherjee Lane, P.S. Shibpur,

District – Howrah.--------------------------------------------------------------  COMPLAINANT.

-          Versus   -

Abhinash Panday,

son of Sree Niwas Panday,

having its office at Premises no. 1/1, Duke Road,

Shibpore, Howrah, and residing at

Premises no. 17, Beni Mitra Lane, P.S. and P.O. Shibpure,

District – Howrah,

PIN – 711102.----------------------------------------------------------------OPPOSITE PARTY..

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  Complainant M/S. D.S. Enterprise, represented by its proprietor, Daya Shankar

Roy,  by filing a petition U/S 12 of the C .P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.p. Abinash Panday, to  return the excess amount taken as the service charges from the complainant towards transportation cost of the goods carried through his lorry along with cost, compensation and other reliefs.  

2.                  Brief facts of the case is that complainant hired the service of the O.P. to

deliver his goods from one place to another by way of engaging one lorry which is owned by the O.P. It is further stated that O.P. was working  as Manager cum Accountant in the complainant’s firm. As per the statement of the complainant the lorry having no. WB 11A/1568 was engaged for such job which was owned by the O.P. But O.P. took an excess amount of Rs. 94,917/- from the complainant as detailed in para 3 of the complaint /petition during the period of 02-05-2012 to 03-09-2012.  And according to the complainant, it is nothing but unfair trade practice which was adopted by O.P. in providing such transport service to the complainant. And when on 03-05-2013, complainant asked O.P. to check all bills which were already paid by the complainant, O.P. refused to do that. So. alleging deficiency in service and unfair trade practice, complainant filed this instant petition praying for the aforesaid prayers.  

3.                  Notice was served. O.p. appeared and filed written version. Accordingly, case heard on contest.

4.                  Upon pleadings of both parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.P.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.                  Both the points are  taken up together for consideration.            O.p. in his  written

version specifically mentioned that the lorry which he owns that has registration no. as WB-11A/5681 and it was engaged to deliver goods of the complainant. He does not have any lorry having no. WB-11A/1568. He also denied the fact that he had at all taken any excess amount. And from the annexure i.e., copies of bills, it is revealed that the lorry, engaged for the said purpose, was having registration no. as WB-11A-5681. So, the complainant mentioned a wrong lorry number in its petition. And all the bills were stamped as “ passed for payment”  duly certified by some other persons other than O.P. , Abinash Panday. Again, it is to kept in mind that in absence of any price chart or comparative price list, and /or any mutual agreement, it cannot be determined whether O.P took any extra charge and how much excess amount he took from the complainant.  Moreover, complainant is running a transport contractor business as stated in its petition. And the complainant availed itself of the service of O.P. relating to such transport of different consignment to different places. And complainant has been earning profit out of such business. As per the definition of ‘Consumer’ in  C.P. Act, 1986,   ( as amended upto date ),  any service which is availed of by a complainant for earning profit or for commercial purpose, such complainant cannot be treated as a consumer. Here in this case, complainant availed itself of the service of the o.p. to earn profit.

      Accordingly, the instant case is not maintainable under the  C.P. Act, 1986.  

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  176 of 2013 ( HDF 176 of 2013 )  be  dismissed  on contest without   costs  against  the O.P. 

      Supply the copies of the order to the parties, as per rule.            

DICTATED  &    CORRECTED

BY   ME.  

      (  Jhumki Saha  )                                                                  

  Member, C.D.R.F.,Howrah.

 ( Jhumki Saha )                         ( P. K. Chatterjee )                (T.K. Bhattacharya  )

 Member,                                     Member,                                President,

 C.D.R.F.,Howrah.                     C.D.R.F.,Howrah.                 C.D.R.F.,Howrah