DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 53/2017
Date of Filing Date of Admission Date of Disposal
07.02.2017 01.03.2017 27.04.2018
Complainant - Vs- Opposite Party
Sri Sujoy Roy, 1. Cargaison Courier Cargo
S/o Sri Kanchan Kumar roy, Pvt. Ltd.
Residing at DD- 27/1, DN-24, Matrix Tower,
Sahapara, Deshbandhu Nagar, 7th Floor, Sec- V,
Baguiati, North 24 Pgs, Salt Lake, Kolkata - 91
Kolkata- 59 West Bengal
2. Pronab Sarkar,
CEO of
Cargaison Courier
& Cargo Pvt. Ltd,
DN- 24, Matrix Tower,
7th Floor, Sector – V,
Salt Lake, Kolkata-91
West Bengal
P R E S E N T :- Bankim Chandra Chattopadhyay………….. President.
:- Sri Siddhartha Ganguli ……………… ………. Member.
Ld. Advocate for the Complainant :- Abhijit Saha
Ld. Advocate for the OPs :- Ex-parte
Final Order & Judgment
An Application has been filed by the Complainant U/S 12 of Consumer Protection Act, 1986 alleging deficiency in service against the Ops and prays for refund of 30,900/- along with compensation of Rs. 20,000/- and litigation cost of Rs. 5,000/-.
The brief fact of the complainant is that he is a businessman by profession and carrying on business under the name and style as m/S Roy Communication at DC 114 Narayantala West, P.O: Deshbandhu nagar, Kolkata-59 and is paying commercial tax to the Govt. of W.B. The complainant has obtained certificate and license from Rajarhat Gopalpur Municipality.
Dictated and corrected by me.
Member Cont……P/2
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C. C. CASE NO. 53/2017
It is alleged by the complainant that the O.P No:2, being the CEO of M/S Cargaison Courier & Cargo Pvt. Ltd(O.P No:1) sometime before filing the complainant had approached to the shop of the complainant and told the complainant that his company was willing to install courier agency(Franchisee) in the shop of the complainant. The complainant at first refused the proposal of the O.Ps but subsequently accepted it.
It is alleged by the complainant that as per demand of the O.Ps the complainant has made a payment of Rs.22,900/ by a cheque being No: 910578 dated 20.02.2016 of the Corporation Bank, Baguiati Branch against the franchisee fee and also paid Rs.8000/ by another cheque being No: 0910579 dated 02.05.2016 of the same bank, totaling Rs.30,900/ to the O.Ps and the O.Ps in lieu of such payment assured the complainant to install the franchisee within one month in the shop of the complainant. But the O.Ps did not keep their words even after elapsing several months. The Complainant visited the office of the O.Ps and requested to refund the amount as afore said but they did not pay any heed to and lodged a complainant in the local P.s on 19.01.2017 .The complainant alleged deficiency in service on the part of the O.Ps and prayed for refund of the amount of Rs.30,900/ along with compensation of Rs.20,000/ and litigation charges of Rs.5000/.
The complainant filed the following documents( in xerox ) in order to prove his case:
1.Visiting card of O.P No:`1
2. Copy of money receipt dated 20.02.2016
3.Copy of statement of account of Corporation Bank- 2 pages
4.Copy of tax challan.
5. Copy of certificate of enlistment of Rajarhat Gopalpur Municipality.
6. Copy of Municipal License- 2 Pages
7. Copy of e mail correspondences.
8. Copy of V.I Card of the complainant.
The notices were sent to the O.Ps but the O.Ps did not turn up within the specified time and therefore an ex-parte order was passed against the O.Ps and the case has been fixed for ex-parte proceeding as per order No: 04 dated 02.06.2017. Subsequently, the O.Ps appeared and prayed for time for filing E- Chief but it was rejected as the case was being proceeded ex-parte against the O.Ps. The O.Ps thereafter filed one application praying for acceptance of W/V as per grounds mentioned therein and the same petition has been registered as M.A being No: 275 of 2017.
Dictated and corrected by me.
Member Cont……P/3
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C. C. CASE NO. 53/2017
After hearing of the said petition the Forum rejected the said application and liberty was given to the O.Ps to file written argument. But the O.Ps did not appear in the hearing of argument and no written argument was filed by the O.Ps.
It is seen from the case record that the complainant filed written examination- in- chief and B.N.A.
From the complaint petition, evidence of the complainant and other materials on record the following points have been framed:
- Is the complainant a consumer?
- Is/Was there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief as prayed for?
-
:Decision with Reasons:
All the points have been taken together for the sake of brevity and avoidance of repetition of facts.
It is seen from the case record and the evidence adduced by the complainant that he runs a business under the name & style of M/S Roy Communication at above noted address and has been paying commercial tax to the Government of West Bengal. It is also seen from the case record and documents annexed by the complainant that the Rajarhat Gopalpur Municipality has issued a certificate of enlishment in the name of the complainant and his firm and also issued a license to him.
Nowhere in the complaint petition, the complainant has stated that he runs the said business exclusively for the purposes of earning his livelihood by means of self-employment. Therefore we can hold the view that the complainant runs the business for commercial purpose and he is not a consumer as per the definition of Consumer as provided in the C.P. Act, 1986.
As per the definition given U/S 2(1)(d) of the Consumer Protection Act, 1986 consumer means any person who
- 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
Dictated and corrected by me.
Member Cont……P/4
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C. C. CASE NO. 53/2017
- 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 or avails of the services other than the person who hires or avails of the services for consideration paid or promised, or 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 but does not include a person who avails of such services for any commercial purpose;
Explanation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment;
It is the settled principle of Law that commercial users are not consumers and any person doing the commercial activity cannot maintain any consumer complaint before the Forum.
On this score alone this case is not maintainable and liable to be dismissed.
Hence
It is ordered that the consumer complaint being No. 53/2017 is dismissed ex-parte.
Liberty is given to the complainant to file the case against the Ops before the appropriate Forum of Law, if not otherwise barred.
Let free copies of the order be given to the parties concerned as per the Provision of C.P. Rules and Regulations.
Member President
Dictated and Corrected by me.
Member
