O R D E R
Per Smt T. Suneetha, Member:-
The complainant filed this complaint u/s 12 of Consumer Protection Act seeking directions on the opposite party to pay a sum of Rs.25,000/- towards the value of the goods non-delivered by the opposite parties, Rs.25,000/- as compensation, for mental agony and Rs.5,000/-towards costs of the complaint.
2. In brief the averments of the complaint are hereunder:
The complainant purchased machinery’s spares worth Rs.25,000/- at Ongole and sent the said consignment in a sealed box from the 2nd opposite party to the 3rd opposite party Vide L.R. No. 13861883 on 21-09-2011 by paying fee of Rs.131/- and 2nd opposite party issued a receipt to that effect. When the complainant approached the 3rd opposite party on 22-09-2011 to receive the consignment, complainant found that the sealed box sent by him is broken and the articles/spares therein are in a gunny bag. As the box sent by the complainant is in broken condition, the complainant instead of taking delivery of the consignment, got the items inspected/checked by the 3rd opposite party as per the Bills sent by him and found that 9 items worth Rs.5,000/- are missing. When the complainant asked the 3rd opposite party about it, they recklessly stated that they are not responsible for it, that they are sending back the consignment to the 2nd opposite party and directed the complainant to ask the 2nd opposite party. The complainant approached the 2nd opposite party and as there is no response from it, the complainant sent notice to the opposite party by courier on 23-09-2011 demanding payment of Rs.20,000/- to him. Opposite parties neither replied nor paid the amount to the complainant. The complainant is forced to purchase the said spares again on 29-09-2011, 13-10-2011 and 17-10-2011 to meet his requirements.
3. The opposite parties failed to deliver consignment in good condition to the complainant which amounts to deficiency of service on the part of opposite parties. Therefore the opposite parties are liable to make good the loss sustained by the complainant apart from damages and compensation. Hence the complaint.
4. The following is the version of 1st opposite party in brief:
The complainant has not disclosed the correct value of the consignment and no proof is submitted in respect of vide LR No.13861883 dated 21.09.11.
5. As per the terms and conditions of the LR note arise shall be “Subject to Hyderabad Jurisdiction”, hence this Hon’ble Court does not have the territorial jurisdiction to entertain the case.
6. As per the terms and conditions of the claim in respect of non-delivery and shortage of goods should be informed within seven days from the date of incident and also all claims should be preferred to Head office in writing within the 60 days of booking date or 30 days from the date of delivery which is earlier. In the present case the complainant first time informed the opposite parties very belatedly. The L.R. on no account the value of consignments booked under one L.R. should exceed 50 kg weight and as per that condition the opposite parties can not be made liable not exceeding Rs.5,000/- and due to that the claim of the complainant is not sustainable as per law. 3rd opposite party office informed to the complainant to take the delivery of the same but the complainant refused to take delivery of the same at Narasaraopet. Inspite of repeated requests as well as representation of the opposite party head office of the company vide Letter dt.27-01-2012 the complainant did not turn up. The complainant is doing a commercial business due to that the transaction of the complainant with opposite parties would not come under the purview of the Consumer Protection Act. Hence, this opposite party prays the Hon’ble Court may be pleased to dismiss the complainant with costs.
7. Both parties filed their affidavits. Documents A1 to A8 were marked on behalf of complainant. No documents were marked on behalf of the opposite party. 2nd and 3rd opposite parties remained exparte.
8. NOW THE POINTS FOR CONSIDERATION ARE :
1. Whether the complaint is within the purview of Consumer
Protection Act?
2. Whether the opposite parties committed any deficiency of
service?
3. To what relief the complainant is entitled to?
9. POINT NO. 1: The Complainant hired the services of 1st opposite party to sent machinery spare parts. But to which machinery spare parts are related to was not discussed any where in the complaint.
The complainant was described in complaint and in affidavit as hereunder:
“T. Subba Rao S/o Rama Rao (Ranga Rao in affidavit) Hindu, aged about 44 years, business C/o Lepakshi Stone Crushers and Earth Movers, Kotappakonda village, Narasaraopet Mandal, Guntur district”.
10. The occupation of the complainant was written as “business” in the description part. The opposite party took objection that the complainant is doing the transaction business so the transaction between the complainant and opposite party would not fall under the purview of Consumer Protection Act. Contending the said objection the complainant gave the following answers in written arguments:
“Here the issue is about non delivery of goods entrusted to a carrier for a sale delivery. It is not the case where the complainant is contending deficiency of service regarding manufacturing etc., of the goods which are transported. Further the complainant has not purchased the said spares etc., for resale and he purchased them for his own purposes, livelihood and self employment.”
11. In the above passage the complainant failed to explain the purpose of spare parts purchased by him. He simply chose to mention as ‘for his own purpose, livelihood and self employment’. The plea of self employment coined in written arguments cannot be accepted for want of pleadings either in the complaint or in affidavit.
12. In Economic Transport Organizations vs. Charan Spinning Mills (P) Limited and another (2010 CTJ 361 (SC) (CP) the Supreme Court observed:
Section 2(1)(d) of Act was amended by amendment Act 62 of 2002 with effect from 1503-03, 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 be a “consumer” and consequently, complaints will not be maintainable in such cases.
13. Even if you assume that the said spare parts were purchased for the purpose of ‘stone crushing and earth movers business, it comes under commercial activity’.
14. Consumer means any person who
(i). buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii). 1[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid an partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person 2[but does not include a person who avails of such services for any commercial purpose];
3Explanation:- For the purpose of this clause, “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;
15. In Cheema Engineering Services V.Rajan Singh 1997 (1) SCC 131, the Supreme Court explained the term further by holding. “Self employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture…by employing himself in working out or producing the goods for earning his livelihood. He includes the members of his family.”
16. In this case the complainant could in no stretch of imagination run such business alone or/and with family members without engaging any workmen.
17. Under such circumstances, the Forum can infer that since the machine spare parts purchased by the complainant are pertaining to stone crushers and earth movers business, it comes under commercial purpose.
18. The complainant he himself stated his occupation as business in the documents produced for perusal in the Forum and failed to explain the purpose for which the spare parts were bought. Under those circumstances, the Forum can draw inference that the spare parts are purchased for his business which is nothing but commercial activity. Therefore, the Forum comes to a considered opinion that the dispute between the complainant and the opposite party does not fall under the purview of Consumer Protection Act 1986. Therefore this point is answered against the complainant.
19. POINT NO. 2
In view of discussion in Point No.1 Forum opines that this point need not be answered.
20. POINT NO. 3
Since the complainant’s case is of commercial nature the complainant is not a Consumer and this case does not fall under the purview of Consumer Protection Act 1986. Therefore complainant is not entitled to any relief or compensation from opposite parties.
21. 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, 15th day of May, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.Nos |
DATE |
DESCRIPTION OF DOCUMENTS |
A1 |
21-09-11 |
Delivery challan/warrenty issued by Professionals, Ongole to the complainant |
A2 |
21-09-11 |
Cash bill for Rs.4700/- issued by Lathe works, Ongole in favour of complainant |
A3 |
21-09-12 |
Courier receipt |
A4 |
23-09-11 |
Office copy of letter sent by complainant to opposite parties |
A5 |
23-09-11 |
Courier receipts |
A6 |
29-09-11 |
G.I./Tax invoice issued by Professionals, Vijayawada in favour of Mr. G. Leela Krishna Murthy |
A6A |
29-09-11 |
G.I./Tax invoice issued by Professionals, Vijayawada in favour of Mr. G. Leela Krishna Murthy |
A7 |
13-10-11 |
G.I./Tax invoice issued by Professionals, Ongole in favour of complainant |
A8 |
17-10-11 |
G.I./Tax invoice issued by Professionals, Ongole in favour of complainant |
For opposite parties: NIL
PRESIDENT
