This complaint U/S 35 of C.P. Act, 2019 was initially filed against the Opposite Party 1. D.T.D.C., M/S Raju Saha, Siliguri Office, Tinbatti More, Burdwan Road,Siliguri, P.O.- Siliguri Bazar, P.S.- Siliguri, Dist.- Jalpaiguri, Pin Code- 734005, West Bengal, Mobile No.- 9832014049, 2. D.T.D.C., D.T.D.C. House, No. 3, Victoria Road, P.O.- Austin Town, P.S.- Vivek Nagar, Bangalore, Karnataka- 560047, 3. D.T.D.C., Bhopal Head Office Zone- I, M.P. Nagar, Near- Satpurawani Fresh, P.O.- Arera Hills, P.S.- M.P. Nagar, Madhya Pradesh, Pin Code- 462011, Mobile No.- 9993214396, 4. Sri Mohit Mehra, D.T.D.C., Itarsi Office, Shop No. 08, 10th Line, Itarsi, P.O.- Bagda tawa Hoshangabad, Madhya Pradesh, Pin Code- 461111, Mobile No.- 9753765906 and the case runs ex- parte against O.P. No. 1, 2,3 and 4.
The case of the compliment as per her complaint is as follows-
The complainant stated in his plaint that he is the sole proprietor of Pioneer Construction and he is a contractor of electrical works and have various offices including one at Itarsi, Hoshangabad. The complainant also added that in the month of March, 2020 he sent one Digital TFR (Tower Footing Resistance Meter) to his office at Itarsi, Hoshangabad which he purchased on 10/03/2020 vide Invoice No.- NIR1920/ 023 from Nirav Electricals India Pvt. Ltd., Chennai, Tamil Nadu by paying a sum of Rs. 3,54,000/- (Rupees Three Lac and Fifty Four Thousand) only and the same was received by him on 14/03/2020 at his Siliguri office. The complainant also stated in his plaint that to send the said Digital TFR (Tower Footing Resistance Meter) to his office at Itarsi, Hoshangabad on 14/03/2020 he visited the office of O.P. No.1 and handed over the said TFR to O.P. No.1 and the O.P. No.1 booked the parcel vide Consignment No. D57475074 and the O.P. No. 1 verbally promised that the said consignment would be delivered to the addressee within maximum 05 (Five) working days but on 20/03/2020 when the complainant enquired about his consignment the O.P. No.1 did not make any response and on 22/03/2020 a Janta Curfew (Lockdown) was declared by the Govt. of India followed by a country wide lockdown to the threat of spreading of pandemic Covid-19. The complainant also added that on and from 20/04/2020 he again started to follow up the matter and from the tracking report of the official website of the O.P.s the complainant came to know that the same had been successfully delivered on 15/06/2020 at 12:49 hrs at the complainant’s/ receiver’s address and after seeing this track report the complainant called up his office at Itarsi, Hoshangabad who confirmed him that no such consignment had been delivered. The complainant added in his plaint that after getting this information from his office at Itarsi, Hoshangabad he also made contact with the O.P. office at Bhopal.
The complainant also stated in his plaint that an update was shown in the official web portal of the O.P.s with a false delivery note in the name of Mr. Chabra (no authorized person of complainant/ unknown person) with a mobile no. 9424469800 but when the complainant/ complainant’s representative called him, the unknown person person informed that he was from TVS Showroom, Itarsi, Hoshangabad and not received any such type of consignment and this false tracking report matter was brought before the O.P.s knowledge by the complainant via complaints registered in the toll- free number of the O.P.s company as well as in the web portal and the complainant lodged several complaints regarding this grievance with the O.P.s he did not get any positive response from the O.P.’s end and after getting no result from the O.P.s and finding no other alternatives on 23/09/2020 the complainant sent a legal notice to the O.P.s and then on 28/09/2020 without showing any reason the O.P.s informed the complainant that the Consignment No. D57475074 is “declared to be lost in transit”.
The prayers of the complainant are as follows-
To pass an order directing the O.P.s to pay a sum of Rs. 3, 54, 000/- (Rupees Three Lac and Fifty Four Thousand) only, i.e., the cost of one set digital tower footing impedance meter to the complainant along with interest @24% per annum from 14/03/2020 till the date of realization.
To pass an order directing the O.P.s to pay a sum of Rs. 10, 00, 000/- (Rupees Ten Lac) only for the immense mental harassment and agony caused to the complainant for a long tenure.
To pass an order directing the O.P.s to pay a sum of Rs. 10, 00, 000/- (Rupees Ten Lac) only as compensation for negligence and deficiency in service.
To pass an order directing the O.P.s to pay a sum of Rs. 50, 000/- (Rupees Fifty Thousand) only as litigation cost to the complainant.
Any other relief/ reliefs as your honour may deem fit and proper.
To pass an order directing the O.P.s to pay the value of the aforementioned complaint in total Rs. 24, 04, 000/- (Rupees Twenty Four Lac and Four Thousand) only.
List of documents filed by the complainant:
Photocopy of Tax Invoice along with Delivery Note issued by Nirav Electricals India Pvt. Ltd. (Page No. 1 to 2).
Photocopy of Courier Booking Receipt issued by the O.P.s (Page No. 3).
Photocopy of e- mail dated 13/06/2020 (Page No. 4).
Photocopy of e- mail dated 22/06/2020 and 23/06/2020 (Page No. 5 to 6).
Photocopy of e- mail dated 26/06/2020, 29/06/2020 and 02/07/2020 (Page No. 7 to 8)
Photocopy of tracking report against the Consignment No. D57475074 issued by the O.P.s (Page No. 9)
Photocopy of e-mail dated 28/10/2020 issued by the O.P.s declaring the Consignment D57475074 “to be lost in transit”. (Page No. 10).
Photocopy of the legal notice dated 23/09/2020 issued by the complainant along with the postal receipts and tracking report (Page No. 11 to 12).
Regarding this instant case, the Opposite Party 1. D.T.D.C., M/S Raju Saha, Siliguri Office, Tinbatti More, Burdwan Road,Siliguri, P.O.- Siliguri Bazar, P.S.- Siliguri, Dist.- Jalpaiguri, Pin Code- 734005, West Bengal, Mobile No.- 9832014049, 2. D.T.D.C., D.T.D.C. House, No. 3, Victoria Road, P.O.- Austin Town, P.S.- Vivek Nagar, Bangalore, Karnataka- 560047, 3. D.T.D.C., Bhopal Head Office Zone- I, M.P. Nagar, Near- Satpurawani Fresh, P.O.- Arera Hills, P.S.- M.P. Nagar, Madhya Pradesh, Pin Code- 462011, Mobile No.- 9993214396, 4. Sri Mohit Mehra, D.T.D.C., Itarsi Office, Shop No. 08, 10th Line, Itarsi, P.O.- Bagda tawa Hoshangabad, Madhya Pradesh, Pin Code- 461111, Mobile No.- 9753765906 did not turn up before this Commission and the case runs ex- parte against O.P. No. 1, 2,3 and 4.
It revels from the record that as per Order No. 26, dated 13.09.2022 the case runs ex- parte against O.P. No. 1, 2, 3 and 4.
Having heard, the Ld. Advocate of the complainant and on perusal of the Complaint and documents filed by the complainant the following points are taken to be decided by this Commission.
Points for consideration
1) Whether the complainant is a consumer?
2) Whether the case is maintainable under the CP act 2019?
3) Whether this Commission has its jurisdiction to decide this case?
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4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?
5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?
Decision with reason:-
All the points are taken up together for consideration and decision.
Seen and perused the complaint petition filed by the complainant which is supported by the affidavit, documents filed by the complainant. We are also heard argument of complainant in full length.
The complainant is carrying his business in the jurisdiction of Jalpaiguri and the O.P. No.1 is also carrying his business in Jalpaiguri having its Head Office at Bhopal Head Office Zone- I, M.P. Nagar, Near- Satpurawani Fresh, P.O.- Arera Hills, P.S.- M.P. Nagar, Madhya Pradesh, Pin Code- 462011. Thus, there is no doubt that this Commission has its territorial jurisdiction to decide this case.
In this instant case, the complainant is not able to prove that he is not doing his business for his daily livelihood purpose. The complainant also added in his complaint that in the month of March, 2020 he sent one Digital TFR (Tower Footing Resistance Meter) to his office at Itarsi, Hoshangabad which he purchased on 10/03/2020 vide Invoice No.- NIR1920/ 023 from Nirav Electricals India Pvt. Ltd., Chennai, Tamil Nadu by paying a sum of Rs. 3,54,000/- (Rupees Three Lac and Fifty Four Thousand) only and the same was received by him on 14/03/2020 at his Siliguri office. In the paragraph no. 03 of his complaint the complainant clearly stated that he has various offices including one at Itarsi, Hoshangabad and also clearly mentioned in the paragraph no. 16 of his complaint that the said parcel/ courier was sent by him at his construction site/ project. So, it is very much clear from the complaint that the complainant does not run a small scale business or not doing his business only for his daily livelihood purpose
More over, according to the consumer protection act 2019 “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) 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 hires or avails of the ser vices 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 and services availed by him exclusively for the purposes of earning his livelihood by means of self employment;”
In the case of Shrikant G. Mantri vs Punjab National Bank on 22 February 2022, the Honorable Supreme Court stated that to come within the ambit of the consumer, a person will have to establish that the services were availed exclusively for earning his livelihood by means of self-employment. A bench of Justices L Nageswara Rao and BR Gavai said there cannot be any straitjacket formula and such a question will have to be decided in the facts of each case, depending upon the evidence placed on record. The bench said."When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment," The Consumer Protection Act clearly shows that the legislative intent is to keep the commercial transactions out of the purview of the said Act.
It said that at the same time, the intent of the Act is also to give benefit to a person who enters into such commercial transactions, when he uses such goods or avails such services exclusively for the purposes of earning his livelihood by means of self-employment.
The honorable court observes that “Self-employment” necessarily includes earning for self. Without earning generally there cannot be “selfemployment”. Thus, if a person buys and uses the machine exclusively for the purposes of earning his liveli hood by means of “selfemployment”, he definitely comes within the definition of “consumer”. In the matter on hand, the quality of ultimate production by the user of the machine would depend upon the skill of the person who uses the machine. In case of exigencies, if a person trains another person to operate the machine so as to produce the final product based on skill and effort in the matter of photography and development, the same cannot take such person out of the definition of “consumer”.”
Prior to going to the systematic fact of the case we scrutinize the entire documents placed by the complainant along with the complaint petition. On going through the record we find that complainant never mention the word “self- employment” or “earning his self livelihood” in his complaint petition. In the present case, we come to a finding that the relation between the O.P and the complainant is for his business and increases his profits. The relation between the complainant 43complainant and the O.P is purely “BUSINESS TO BUSINESS” relationship. As such, the transactions would clearly come within the ambit of ‘COMMERCIAL PURPOSE’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self employment”. It clearly proves that the transaction was for commercial purpose. In the present case, admittedly, the complainant company is running the business in order to generate profits and therefore, they have availed the services of the opposite party for commercial purpose.
Accordingly,
It is therefore,
O R D E R E D
That , the case number 01/2021 is dismissed being not maintainable before this Commission as the complainant is not a consumer of the O.P within the meaning of C.P of the Act 2019.
Let the petition of complaint be returned to the complainant along with Annexures and other documents filed by the complainant. — Liberty is granted to complainant to approach Civil Court having jurisdiction for redressal of his grievances.
There shall be no order as to costs. All pending applications, if any, shall stand disposed of.
Let a copy of the order be sent / supplied at free of cost to the parties concerned.
