Chandigarh

DF-II

CC/515/2022

M/s Hetram Chauhan & Sons - Complainant(s)

Versus

Delhi Himachal Goods Carrier - Opp.Party(s)

In Person

24 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	515 of 2022
Date  of  Institution	:	17.06.2022
Date   of   Decision	:	24.08.2023

 

 

 

 

 

M/s Hetram Chauhan & Sons, Shop No.3, New Apple Market, Sector 20, Panchkula through its Proprietor Het Ram Chauhan

            …..Complainant

 

Versus

 

1]  Delhi Himachal Goods Carrier, Plot No.24, Sector 26, Transport Area, Chandigarh through its Proprietor.

2]  Rajeev Arora, Proprietor, Delhi Himachal Goods Carrier, Plot No.24, Sector 26, Transport Area, Chandigarh

 

    ….. Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

         MR.B.M.SHARMA,                MEMBER

                               

Present      : Sh.Hetram Chauhan, Complainant in person

                OPs exparte.

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

        The complainant has filed the present complaint pleading that he is running business of selling apples at New Apple Market, Sector 20, Panchkula under the name & style of M/s Hetram Chauhan & Sons.  It is stated that the complainant approached the OPs for transportation of 1250 boxes of apple from Panchkula, Haryana to Vashi Fruit Market, Mumbai to which the OPs agreed. Accordingly on 10.8.2019, 347 apple boxes vide GR No.11952, dated 10.8.2019  vide Bill No.1079, 1080 & 1081 were sent from Panchkula in Truck bearing Regd.No.HR-56A-2401 at transportation charges of Rs.52,600/- out for which Rs.15,000/- was paid in advance and balance amount was to be paid after the delivery of goods to Babu Shankar Ram Dhani Pal, Open Shed, Vashi Fruit Market, Mumbai. It is also stated that on 10.8.2019, another 322 apple boxes vide GR No.11953, dated 10.8.2019  vide Bill No.206 were sent from Panchkula in Truck bearing Regd.No.MH-04F-5414 at transportation charges of Rs.51,000/- out for which Rs.10000/- was paid in advance and balance amount was to be paid after the delivery of goods to Babu Shankar Ram Dhani Pal, Open Shed, Vashi Fruit Market, Mumbai. Similarly, on 11.8.2019, 581 apple boxes vide GR No.11957, dated 11.8.2019 vide Bill No.1092, 1093, 1094 & 1095 were sent from Panchkula in Truck bearing Regd.No.RJ-23GA-5138 at transportation charges of Rs.65,000/- out for which Rs.15000/- was paid in advance and balance amount was to be paid after the delivery of goods to Babu Shankar Ram Dhani Pal, Open Shed, Vashi Fruit Market, Mumbai.

         It is submitted that the total value of the above stated 1250 apple boxes was Rs.15,72,364/-, which were sent through OP Transport, detailed above, and it was to be delivered within 4/5 days to Babu Shankar Ram Dhani Pal, Open Shed, Vashi Fruit Market, Mumbai.  However, the OPs failed to deliver the apple boxes transported through them to Babu Shankar Ram Dhani Pal, Open Shed, Vashi Fruit Market, Mumbai and when it was enquired from them, the OPs kept on lingering the matter on one pretext or the other, whereas on contacting Babu Shankar Ram Dhani Pal, Open Shed, Vashi Fruit Market, Mumbai, he told that he did not receive any delivery.  It is also submitted that the OPs failed to supply the delivery receipt of the said consignment and when the complainant told the OPs to either return the consignment of apple boxes or to pay its value of Rs.15,72,364/-, the OPs refused to accede to the request of complainant. It is pleaded that the complainant availed the service of OP as per their assurance about transporting the apple boxes without any difficulty or trouble.  Hence, this complaint has been preferred seeking return of the 1250 apple boxes or is value of Rs.15,72,364/- along with compensation and litigation expenses.

 

2]       Notice of the complaint was sent to the OPs. The OPs did not appear before this Commission despite service of notices and therefore, they was proceeded exparte vide order dated 11.01.2023. 

 

3]       Complainant led evidence in support of his contentions.

 

4]       We have heard the complainant in person and have gone through the entire record.

 

5]       Firstly we have to consider the preliminary issue of whether the complainant is a ‘consumer’ under The Consumer Protection Act, 2019 or not?

 

6]       The complainant has pleaded that he is running his business of selling apples at New Apple Market, Sector 20, Panchkula (Haryana) under the name and style of M/s Hetram Chauhan & Sons, Shop No.3, New Apple Market, Sector 20, Panchkula to earn his livelihood. The complainant is the Proprietor of M/s Hetram Chauhan & Sons and fully competent to file the present complaint.  Further pleaded that the complainant is a consumer of the OPs and availed their Services as per their assurances to the complainant to transport the apple boxes but failed to do so and thus it amounts to deficiency in service and unfair trade practice on the part of the OPs.  Further pleaded that as the complainant has availed the services of the OPs, so the complainant is a ‘consumer’ and OPs are service provider. 

 

7]      However, Section 2(7) of The Consumer Protection Act, 2019 stipulates as under:-

 

        Section 2 (7) "consumer" means any person who—

1. 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

 

2. hires or avails of any service 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 service 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 service for any commercial purpose.

 

Explanation.—For the purposes of this clause,—

(a)     the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

(b)     the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

8]       The “Explanation” (a) to definition under Section 2(7) of The Consumer Protection Act, 2019 gives benefit of being ‘consumer’ only to the complainant, who “buy goods” but not to the complainant who “avail services” in connection with “commercial purpose”. So under The Consumer Protection Act, 2019, with regard to “commercial purpose” a complainant who ‘buys goods’ exclusively for the purposes of earning his livelihood by means of self-employment is a ‘consumer’; but a complainant who ‘availed services’ exclusively for the purpose of earning his livelihood by means of self-employment is not a ‘consumer’.  Therefore, it is clear that in the present complaint, the complainant is not a ‘consumer’ being ousted by the “Explanation” (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019.

 

9]       In the latest decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No.886 of 2020 titled as M/s. Freight System (India) Private Limited Vs. Omkar Realtors & Develop Private Limited & Anr., decided on 25.01.2021, it has been held as under:-

8.       Explanation (a) to Section 2 (7), that “the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.”, provides an exception for ‘goods’, not for ‘service’. Even if a simile with ‘goods’ is conjectured, “exclusively for the purpose of earning his livelihood” has to be adjudged rationally and logically with the due understanding and significance of “exclusively” and“livelihood” and “self-employment”. Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothesized towards anyhow allowing anyone in.

 

9.       A plain reading of Section 2(7)(ii) and Section 2(42) of the Act 2019 makes it clear that the Complainant Co., which has purchased commercial space for its office in a commercial complex, is not a ‘consumer’ under the Act 2019.

 

10.     Denial to avail additional remedy in consumer protection fora to a ‘person’ who is not a ‘consumer’ does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a ‘consumer’ to agitate his case in any other appropriate forum / court. As such, if, for a particular purpose, a company does not meet the ingredients of ‘consumer’ under the Act 2019, it will not be left remediless, it can avail of remedies available under other existing laws.

Xxxxxxx

16.     The Complainant Co.’s case, that it is a ‘consumer’, fails on its facts and on the law. It may however also be observed here that anyhow allowing anyone into consumer protection fora has adverse ramifications, including inter alia: [a] evasion of court fee in civil courts; and [b] eroding into the time and resources of consumer protection fora, which could otherwise be better devoted to the ordinary general consumers, who straightaway fall, ex facie, in the definition of ‘consumer’ (without having to write a treatise to enable their anyhow entry into the fora).

 

 

         We are also of the opinion that in case of “commercial purpose” the “services” are not included in the Explanation (a) to the definition of “consumer” under The Consumer Protection Act, 2019 and it has been excluded, therefore, the present compliant is not maintainable. It is also opined that if the complaint involving ‘commercial activity” of “services” as in the present complaint, is entertained, then it would amounts to evasion of court fee to be paid before the Civil Court and this will also amount to consume the time and energy of Consumer Commission by non-consumers instead of using that time & energy for the benefit of consumers.

 

10]      Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby returned to the complainant being disposed off. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court in the matter and the time spent herein may stand commuted/condoned for the purpose of limitation.

11]      The pending application(s) if any, stands disposed off accordingly.

12]      Office is directed to return the complaint to the complainant against proper receipt and after retaining its copy.

         Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced

24.08.2023                                                                         

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER