Haryana

Yamunanagar

CC/201/2012

Vipan Kumar - Complainant(s)

Versus

Green Carrier & Contractor Pvt.Ltd. - Opp.Party(s)

Adesh Gupta

25 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 201 of 2012.

                                                                                          Date of institution: 27.02.2012   

                                                                                          Date of decision: 25.04.2017

 

Vipan Kumar aged about 48 years Proprietor of M/s Vipan Brothers, 1029, Behal Gharan Street, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

  …Complainant.

                                    Versus

1. Green Carrier & Contractor ( Delhi) Private Limited, 4141, 1^st Floor, Naya Bazaar, Delhi 110006, through its Manager Sh. Anil Goswami.
2. Green Carrier & Contractor (Delhi) Private Limited, Shop No. 9, ESS ELL Market, Court Road, Jagadhri, District Yamuna Nagar through its Branch Manager.

                                                                                               ...Respondents

 

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND………. MEMBER

 

Present:           Sh. Adesh Gupta, Advocate for complainant.

                         Sh. M.C.Gupta, Advocate, for respondents.  

 

ORDER  (Ashok Kumar Garg, President)

 

1                      The present complaint has been filed by complainant Vipan Kumar under section 12 of the Consumer Protection Act 1986. 

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant is doing the business of aluminum and stainless steels, utensils and accordingly on 03.08.2009, he sold some products weighing 1350 Kg. to M/s Sita Ram Raja Ram situated at Jaunpur (U.P) under proper bill amounting to Rs. 1,53,089/- and with manual agreement. The said material was booked for transportation with the OP No.2 who issued a consignment receipt No. 106978 dated 30.08.2009 and assured that goods shall reach the destination at Jaunpur (U.P) at the earliest and charged the transportation charges from the complainant. After some time, the complainant received a message from the consignee i.e. M/s Sita Ram Raja Ram that the products (utensils) purchased by them have not been received through transport which were sent from Jagadhri. On this, the complainant contacted the Op No.2 from where it has been told that the goods, as sent by him, have been misplaced and sometime told that the truck in which the consignment of the complainant was loaded has been hijacked and a copy of FIR has been sent to the complainant from the company functionaries. Thereafter, the complainant wrote a letter to the functionaries of the transport company i.e. Op No.1 and requested that the value of the goods (utensils) booked for sending to Jaunpur (U.P) be paid to him and after a great deal, the functionaries of the company sent Rs. 75,000/- only through cheque i.e. less than half value of the goods which is wrong and illegal as the complainant is entitled for whole amount of the goods. Complainant sent a registered AD legal notice dated 21.09.2011 but they did not comply with the same. Lastly, prayed for directing the OPs to pay the balance amount of Rs. 78089/- alongwith interest and also to pay compensation for mental agony harassment as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complainant does not fall under the category of Consumer and the said transaction between the complainant and Ops is purely commercial one and as per section 2(1)(d), a person who obtains such goods for re-sale or for commercial purpose does not fall under the definition of consumer; complaint of the complainant is hopelessly time barred because the goods were booked in the year 2009 and the present complaint has been filed in the year 2012; complainant has concealed the true and material facts. The true facts are that complainant had booked his goods to be delivered at Jaunpur (U.P.) which was duly sent to the destination immediately after booking but on the way the truck of the OPs Company which was carrying goods was hijacked and after coming to know, the OPs lodged an FIR bearing No. 340/09 under section 379, 328 IPC dated 04.09.2009 in police station Sikandrabad, District Buland Shahar (U.P)  and the complainant was requested to cooperate the OPs Company because the circumstances under which the goods could not be delivered are beyond the control of the OPs Company but when the truck in question could not be searched out then the OPs sent a sum of Rs. 75,000/- as full and final settlement in favour of the complainant through cheque No. 343374 dated 22.10.2010 but even then complainant with ulterior motive has filed the present complaint and on merit all the contents mentioned in the complaint were controverted and reiterated the stand taken in the preliminary objections.

4.                     In support of his case, complainant tendered into evidence his affidavit as Annexure CW/A and documents such as Photo copy of invoice/bill amounting to Rs. 1,53,089.81 dated 25.08.2009 as Annexure C-1, Photo copy of letter dated 20.10.2009 from complainant to OP No.1 as Annexure C-2, Photo copy of letter issued by Op No.2 to OP No.1 as Annexure C-3, Photo copy of FIR as Annexure C-4, Photo copy of intimation letter dated 20.01.2011 for settlement of claim as Annexure C-5,  Photo copy of cheque amounting to Rs. 75000/- dated 22.10.2010 as Annexure C-6, Letter dated 06.12.2010 issued by the complainant to the OPs as Annexure C-7, Photo copy of legal notice as Annexure C-8, Acknowledgement as Annexure C-9, Photo copy of reply of legal notice dated 21.10.2011 as Annexure C-10, Photo copy of GR as Annexure C-11 and C-12 and closed his evidence.  

5.                     On the other hand, counsel for the OPs tendered into evidence affidavit of Sh. Shanti Sawroop, Branch Manager as Annexure R1/A and documents such as Photo copy of FIR as Annexure R1/1, Photo copy of untrace report issued by P.S. Sikandrabad District Buland Shahar (U.P) as Annexure R1/3 and closed the evidence on behalf of OPs.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is not disputed that the complainant firm booked the goods (utensils) valuing Rs. 1,53,089/- vide GR/Consignment receipt No. 106978 dated 30.08.2009 for sending the same to M/s Sita Ram Raja Ram Jaunpur (U.P.) through the transport of the OPs which is duly evident from the copy of bill Annexure C-1 and photo copy of GR Annexure C-11. It is also not disputed that the truck which was loaded with the consignment of the complainant was hijacked which is also duly evident from the copy of FIR bearing No. 340/09 under section 379/328 IPC dated 04.09.2009 Annexure C-4/R1/1 and R1/2. It is also not disputed that the Ops Company settled the claim amounting to Rs. 75000/- and the same was paid to the complainant firm which is also duly evident from the copy of cheque dated 22.10.2010 Annexure C-6. Even this fact has also been admitted by the complainant himself in his complaint as well as letter dated 06.12.2010 Annexure C-7.

8.                     The only grievances of the complainant is that the OPs transport Company illegally and wrongly refunded the amount of Rs. 75,000/- instead of full cost of the material amounting to Rs. 1,53,089/- which constitute the deficiency in service and unfair trade practice on their part. Learned counsel for the complainant referred the case law titled as M/s Nagpur Golden Transport Company Versus M/s Nath Traders, 2012(1) RCR (Civil) page 382 wherein it has been held that “ Consumer Protection Act, 1986, Section 2(1)(g)- Goods sent from Coimbatore to Gwalior through Transport company- Damage of goods during transit be- It is deficiency of service- Transport Company liable to pay damages- Damaged goods to be given to Transport copany- If damaged goods are not available, then value of damaged goods be paid to Transport Company”. Lastly, prayed for acceptance of complaint.

9.                     On the other hand, counsel for the OPs Transport Company argued at length that the complaint of the complainant is liable to be dismissed on the ground that the complainant firm does not fall under the definition of consumer as defined under section 2(1)(d) (1) wherein it has been mentioned that a person who obtains such goods for resale or for any commercial purpose does not fall in the definition of consumer and in the instant case complainant himself has stated that he had supplied the goods to Jaunpur for sale. Learned counsel for the OPs further argued that the complaint of the complainant is also hopelessly time barred as the goods were booked in the year 2009 whereas the present complaint has been filed in the year 2012. Even, on merit, learned counsel for the OPs argued that there was no fault on the part of the OPs Transport Company as the truck in question which was loaded with the consignment was hijacked by the culprits for which the OPs Transport Company lodged the FIR bearing No. 340/2009, so, they could not deliver the goods as the circumstances were beyond their control. However, even then, the OPs Transport Company settled the claim of the complainant and paid a sum of Rs. 75,000/- as full and final settlement vide cheque No. 343374 dated 22.10.2010 and now the complainant has filed the present complaint with ulterior motive after a near about 1 ½ years. Lastly, prayed for dismissal of complaint.

10.                   After hearing both the parties, we are of the considered view that  before get to the conclusion it is necessary to go through the definition of consumer which has been defined under section 2(1)(d) of the Consumer Protection Act which is reproduced here as under:

(i)         …….

(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 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 purpose 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 instant case, from the contents of the complaint and copy of GR Annexure C-11 it is duly evident that the material/ goods were dispatched by the M/s Vipan Brothers on 30.08.2009 i.e. by the firm to the another firm named M/s Sita Ram Raja Ram and both the firms are dealing with each other for sale and purchase of goods i.e. metal, utensil i.e. stainless steel, aluminum and others. Meaning thereby, that the transaction between both the firms with each other were for commercial purpose to earn the profit. We have gone through the contents of the complaint not a single iota of word has been mentioned by the complainant that he was running the business for his livelihood.

            In view of the above section 2(1)(d) of the Consumer Protection Act it is clear that the complainant firm hired the services of the OPs for commercial purpose which is out of purview of the definition of the consumer. The citation M/s Nagpur Golden Transport Company Versus M/s Nath Traders (supra) referred by the counsel for the complainant is not disputed but not applicable to the facts of the present case as the matter involved in that case was relating to the period of 1997 whereas after amendment in the Consumer Protection Act in the year 2003 the services hired for commercial purpose had been excluded from the definition of the consumer.

11                    On the other angle also, the complainant firm is a juristic person so no question arise that firm was doing the business for its livelihood. Further, the complainant firm booked the material on 03.08.2009 whereas the present complaint has been filed on 27.02.2012 i.e. after a period of 2 years which is also time barred as per section 24(A) of the Consumer Protection Act. Further, the version of the OPs firm that matter was settled between the parties and according to that settlement an amount of Rs. 75000/- was paid to the complainant firm vide cheque No. 343374 dated 22.10.2010 have also weightage as the present complaint has been filed after a gap of period of 1 year and 4 months and no explanation has been submitted by the complainant that why he kept mum for a such long time.

12                    Resultantly, in the circumstances noted above, we are of the considered view that the present complaint is not maintainable and the same is hereby dismissed with no order as to costs. However, the complainant is at liberty to file his complaint before the competent court of law/authority, if so advised. Exemption of time spent before this Forum is granted in terms of judgment of the Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works vs. P.S.G. Industrial Institute (1995)III SCC page 583.The Assistant is directed to return the original documents, if any, to the complainant after retaining the photo copies of the same on the file. Copy of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.  

Announced in open court.25.04.2017.

                                                                                            (ASHOK KUMAR GARG)

                                                                                       PRESIDENT

                                                                                       DCDRF,YAMUNANAGAR

 

 

(VEENA RANI SHEOKAND)                (S.C.SHARMA)

       MEMBER                                                  MEMBER