This first appeal has been filed by the appellant, M/s. Metco Export International against the order dated  10.12.2013 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Pune (for short, ‘State Commission’) in  C.C. No.11/42 filed by the appellant/complainant wherein the complaint has been dismissed on the ground that the complainant is not a ‘consumer’.

2.       The brief facts of the case are that appellant/complainant is an export company which exported to Italy 5 containers of sesame seeds vide Invoice dated 13.11.2008  for US $ 1,41,375/-. The material was exported  vide Airway Bill  dated 26.11.2008.  All documents were deposited with respondent no.1 and respondent no.1 had forwarded the same to the respondent no.2 to be forwarded to the said buyer’s banker in Italy through the respondent  No.3 Courier Company.   However,  the buyer did not receive the documents and the documents were lost somewhere in transit. The appellant came to know of this fact when he contacted the buyer and he denied receiving all documents. Due to this the buyer could not take the material and the demurrage charges  was levied on the appellant. Later on, the complainant got duplicate papers prepared and got another buyer in Poland but by that time,  the international price of sesame seeds had declined and therefore, he suffered a loss on that account as well  and he sold the items for US $ 1,35,525 only. Moreover, the complainant had to spend Euro 6220 for transporting the material from Italy to Poland. He has also paid demurrage charges of Rs.53,842/-. The complainant issued a legal notice dated  5.6.2010 to the OP No.1/respondent no.1 and he received a reply dated 29.7.2010 from  respondent no.1. The complainant also came to know that respondent no.1 has debited his account for Rs.5,59,621/- as charges for commission. Then the complainant filed a consumer complaint no.CC/11/42 before the State Commission. It seems that the State Commission issued notice, however, it is not clear whether the complaint was admitted before that date or not. It seems from the order dated 20.11.2013 wherein the OP-1   had filed their reply opposing the admission of the complaint that the complaint was not admitted by then. The impugned order dated 10.12.2013 also states that the complaint is not admitted and rejected in limini.

3.       Hence, the present appeal.

4.       Heard the learned counsel for the parties and perused the record.

5.       Learned counsel for the appellant states that the complaint has been dismissed at admission stage in limini observing that the complainant is not a consumer as the service of the OPs was availed for commercial purpose. It was emphasized by the learned counsel that banking service is included in the definition of Service under Section 2(1)(o) of the Consumer Protection Act, 1986 and anybody who avails the services of the Bank  is a consumer. Learned counsel further stated that the complainant has availed the service of the Bank after paying the due charges to the Bank and therefore, complainant is a consumer. In support of his arguments, learned counsel referred to the judgment of this Commission in   Canara Bank  Vs. M/s. Jain Motor Trading Company, 2013 SCC OnLine NCDRC 656 (2013) 646  wherein it has been observed:

       “We also do not accept the contention of Counsel for Appellant /bank that Respondent being a commercial firm is not a ‘consumer’ as per the provisions of the Consumer Protection Act, 1986. Commercial concerns per se are not excluded from filing a complaint under the Consumer Protection Act, 1986 if it does not involve direct  generation of profits or resale. Also as stated in the instant case, the OCC facility was sought from Appellant/bank to help resolve the financial difficulties being faced by Respondent which was not per se a commercial activity generating profits. As pointed out by Counsel for Respondent, these aspects are well settled in a number of judgments, including of this Commission as also of the Hon’ble Supreme Court e.g. Harsolia Motors v. National Insurance Company Ltd. [I (2005) CPJ 27 (NC) and Madan Kumar Singh v. Distt. Magistrate, Sultanpur [(2009) 9 SCC 79].”

6.       Further , learned counsel referred to the judgement of this Commission in the matter M/s. Harsolia Motors Vs. M/s. National Insurance Company Ltd. [F.A. No.159 of 2004 and others, decided on 3.12.2004]  to support his assertion that the appellant/complainant is a consumer. This Commission observed as under:

“23.    Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words ‘for any commercial purpose’ it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or service hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.”

7.       On the other hand, the learned counsel for respondent no.1 stated that respondent no.1 had sent the  documents to respondent no.2 and it was the duty of the respondent no.2 to send it to the concerned buyer. Thus, so far as the services of respondent no.1 are concerned, they have duly discharged their duties successfully.  Thus, there is no deficiency  on the part of respondent no.1. However,  it is necessary to point out that the complainant is not a consumer as rightly held by the State Commission. The learned counsel argued that the services of respondent no.1 have definitely been availed for the commercial purpose. In support of his arguments, learned counsel for respondent no.1 referred to the judgment in   The Branch Manager,  Punjab National Bank  Vs. M/s. Bhaskar Textiles, R.P. No.2533 of 2013 and another,  decided on 29.10.2014 by this Commission, wherein it is held that:

          “Admittedly both the respondents firms are in the business of textile product and they sent the goods sold by them to M/s. Sharda Traders by transport and the papers were allegedly sent through the petitioner Bank who was required to collect the payment before releasing bilties to M/s. Sharda Trader. From this it is evident that the services of the petitioner was availed by both the respondents complainants in relation to commercial purpose i.e. their business transaction. Therefore, in our considered view, the respondents are not covered within the definition of consumer. As such, they could not have maintained the consumer complaint. In our aforesaid view, we are supported by the judgment of Supreme Court in the matter of Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583. The State Commission while deciding the appeal has ignored this fact. Therefore, the impugned order cannot be sustained.”

8.  Learned counsel for respondent no.2 stated that the role of respondent no.2 was very limited and it only forwarded the documents to respondent no.3 to deliver to the buyer.

9.   Learned counsel for respondent no.3/Courier Company  stated that it delivered the documents at the assigned address and there was no deficiency in service on behalf of respondent no.3 as the documents were rightly couriered. It was further argued by learned counsel for respondent no.3 that the liability of respondent no.3 would be limited to the maximum amount agreed between the respondent no.2 and respondent no.3 as per the terms of courier service and it has no relationship with the value of documents or any loss suffered. To support his contention, the learned counsel relied upon the judgment in the matter   Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.,  AIR 1996 SC 2508 wherein the Apex Court opined as under:

     “In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered to by the parties  and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent.”

10.     I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.

11.     The State Commission has dismissed the complaint filed by the appellant herein on the ground that the complainant was not a ‘consumer’ as he had availed the services of the OPs for commercial purpose. Hence, the basic question to be decided in the present appeal is whether the appellant is a ‘consumer’ or not as per the definition given in the Consumer Protection Act, 1986. Clearly as per Section 2(1)(o) of the Consumer Protection Act, 1986 the banking services are covered under the Consumer Protection Act. The landmark judgment of the Hon’ble Supreme Court in Laxmi Engineering Works Vs. PSG industrial Institute, (1995) 3 SCC 583  states that the commercial purpose shall depend on the facts and circumstances of each case. Here the services of the bank related to forwarding of certain documents to a particular destination i.e. the buyer. It is  clear that availing of this service is not an activity directly leading to profit.  

11.     In Harsolia Motors Vs. National Insurance Co. Ltd. [I (2005) CPJ 27 (NC)],    this Commission has observed as follows:-

“16. Further, what is commercial purpose is discussed by the Apex Court in various decisions.

          We would refer to few relevant judgments:

        In Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2(1)(d) and 2(1)(o) as well as earlier decisions and held that The combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words consumer and service as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act.

17. The aforesaid ratio makes it abundantly  clear that services may be for any connected commercial activity, yet it would be within the purview of the Act.

 12.   From the above judgments of this Commission, it is clear that for commercial purpose, generation of profit from the goods purchased or services availed would be the main criterion  and it should be seen whether the complainant is engaged in regular trading of the goods so purchased or of the services availed.  It is clear that dispatch of papers by the Bank per se is not going to  generate any profit to the complainant as the actual profit will come from the dispatch and sale of the exported goods.  Therefore,  by taking a wider view of the matter, it is held that the complainant/appellant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. 

13.    On the basis of the above discussion, First Appeal No.42 of 2014  is allowed and the order of the State Commission is set aside. The matter is  remanded to the State Commission for deciding the complaint on merits treating the complainant a consumer.  Accordingly, the complaint may be restored to  its original number and proceeded with as per law by the State Commission.

14.    Parties to appear before the State Commission on  22.3.2018.