Ld. Agent of the complainant files hazira.

            O.Ps are absent to-day without taking any steps.

            The case is taken up for passing order over the petition filed by the O.Ps relating to the maintainability of the case.

We have already heard both the parties in support of their respective cases.

We have also perused the materials on record and the documents filed by both the parties meticulously.

It has been submitted by the Ld. Agent appearing on behalf of the complainant that there is no doubt that the complainant is a reputed company and its business runs all over the Country and the complainant booked a consignment with O.P No. 1 company, which under took it’s courier business within Hasimara through O.P No. 2 and paid Rs. 7,678/- as charges etc. The complainant booked five items which to be delivered at the destination but unfortunately three items packets were delivered to the consignee’s address. The rest two items were misplaced and not delivered at the Dhule Depot. The complainant made several correspondences with the O.Ps but all are in vain, as a result the two items are untraceable which are valued at Rs. 1,57,193.31/-. Despite of several attempts made by the complainant the O.Ps did not pay any heed to it and the O.Ps are liable to pay compensation etc. to the complainant due to their deficiency in service.

On the other hand, the O.Ps have appeared and filed the instant petition prying for dismissal of the case on the ground that the complainant is not a consumer as the matter is commercial in nature. The complainant also filed written objection against the said petition filed by the O.Ps.

We have heard both side at length.

It is admitted that the complainant is a private limited company used to run a business petroleum products which is completely for commercial purpose. The case is that this complainant company sent some of his articles / equipments from Hasimara to his other office and that said equipments are used for refinery of petroleum of the complainant company and that consignment was sent through the O.Ps party but at the time of deliver it appears some of articles are missing for which he has filed an application before this commission for compensation. The agent of the O.Ps raised the objection stating that the machinery was sent for commercial purpose and not for private purpose the complainant is a Private Limited Company runs its petroleum products and he sent the machinery to his other establishment for use of commercial products. According to him this transaction comes not within the provision of consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act  as it is a commercial purpose  not for private purpose.

In reply the Ld. Agent of the complainant states that the complainant company is a Private Limited Company but the machinery was sent not for commercial purpose. She further stated that the factory of the complainant at Hasimara has been closed in the year 2018 and all its surplus machineries were sent to another location of the complainant for the purpose of operation, storing and supply petroleum products. The complainant took the services of the O.Ps for the transportation from Hasimara to its other Depot. and it was not for commercial purpose and it is completely the private one as the consigner and consignee are both the same.

After considering the hearing of both sides we find that the complainant company runs his business of his petroleum products and he sent some machinery which was surplus at his present establishment to his other establishment to runs his business. It was not use for private purpose or there is no private liability for the own. The complainant company availed of the service of the O.Ps for commercial purpose as the machinery was surplus in present establishment and it will be used for other establishment for production purpose which is completely commercial work. In Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd., and Anr., I (2010) CPJ 4 (SC), a Constitution Bench of the Hon’ble Apex Court, also held that, after the amendment of Section 2(d) of the Act w.e.f. 15/03/2003, if the services of the carriers, had been availed of, for any commercial purpose, then the person availing of the same shall not be a consumer.  In another case law reported in M/s MCs Computer Services (P) Ltd. Vs. M/s Aallena Auto Industries Pvt. Ltd., Revision Petition No. 3517 of 2007, decided on 14/03/2012, it was, in clear-cut terms, held by the National Consumer Disputes Redressal Commission, New Delhi, that the respondent / complainant, being a Private Limited Company and the commercial activity, being carried on by it, could not be said to be for earning its livelihood, by way of self employment. It was further held that the Private Limited Company, had to act through somebody and the question of livelihood and self employment, would not arise.  The principle of law laid down in the aforesaid case is fully applicable to the facts of the instant case. Since, the service of the O.Ps, in the instant case, were availed of, by the complainant company, for commercial purpose for earning profits by way of production by installing the said equipments in his another establishment. The Ld. Agent for the complainant files two case laws of Hon’ble Supreme Court of India. One was reported 1995 AIR 1428, 1995 SCC (3) 583  and another is reported M/S Transport Corporation of … Vs M/S Veljan Hydrair Ltd on 22 February, 2007, Civil Appeal No. 3096 of 2005. After perusal of the two case laws we find that in Laxmi Engineering Works Vs P.S.G Industrial Institute (1995) AIR 1428 that the facts of the case is completely different as because in that case the appellant purpose some goods from the O.Ps and which was defective one and in that case the Hon’ble Supreme Court held that the goods purchase by the appellant only for use his livelihood and which is come within the meaning of Consumer and in another case law M/S Transport Corporation Vs M/S Veljan Hydrair Ltd. on 22 February, 2007, Civil Appeal No. 3096 of 2005 the fact of the case is that the O.Ps sent some machinery through appellant company and which was not delivered and in that case whether it was commercial purpose or not has been decided. In that case only the deficiency in service has been raised and clarified by the court. After carefully security the case laws supplied by the complainant we find both are not applicable in the present case.  In the present case the machinery of the complainant is surplus machinery. The complainant was sent to other established of the company for the purpose of storing operation and supply of the petroleum products and the purpose for machinery is for commercial purpose as the company is the public limited company and he used to run his business by producing petroleum product and the machinery was used for that purpose. It is not the purpose for the livelihood of the owner. So, according to the observation as reported by the case laws supplied by the O.Ps it is very much clear that the purpose for sending the articles is for commercial purpose and it does not fall within the ambit meaning of consumer and as such this petition for compensation u/s.2 (1)(d)(i)(ii) of Consumer Protection Act  is not maintainable.

Under the above facts and circumstances that the instant case is purely commercial in nature and it is not maintainable as per Consumer Protection Act and liable to be dismissed.

Hence, for ends of justice, it is;

                                                                                  Ordered

                that the instant case be and the same is dismissed on contest as the case is commercial in nature. No order as to costs.