DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.12/2008. Date of filing of the Case: 06.02.2008 Complainant | Opposite Parties | Narayan Kumar Saha, 35 yrs S.O. Late Kartik Chandra Saha Vill. Uttar Baluchar, P.S. English Bazar, Dist. Malda. | | Manager Narayan Bajran Bali Road Ways Lorry Contractor & Commission Agent N.H. 34, Mangalbari, P.S. & Dist. Malda. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member | | |
For the Petitioner : Jiban Kumar Ojha, advocate. For the O.P.s None Order No. 08 Dt. 15.05.2008 In a nutshell the petitioners case is that he is a transport business man having two trucks and he maintains his livelihood from the earning of hiring the trucks. The petitioner on 03.09.2007 loaded poultry food stuff from Sugna Poultry Firm, Narayanpur, Dist. Malda for transporting to Sugna Poultry Firm, Siliguri, Dist. Darjeeling upon an understating with the O.P. for a payment of Rs.14,000/- as hiring charges of the two trucks. The O.P. paid Rs.7000/- to the drivers as road expenses and did not pay due amount on receipt of consignment. The drivers of the petitioner deliver the goods on 05.09.2007 but they did not receive the due amount from the O.P. The petitioner repeatedly approach the O.P. for payment but in vain this gives rise to the instant case for reliefs as prayed for in the petition of complaint. The O.P. did not turn up in the Forum inspite of receipt of notice duly served upon him. Accordingly, the case of the O.P. is heard exparte. The petitioner has examined himself as P.W. – 1 and has corroborated the contents of the petition of complaint. On going through the merits of the petition of complaint and the documents filed, the following points need to be discussed for disposal of the case as the case against the O.P. is heard exparte. 1. Whether the petitioner be termed as consumer according to Sec.2(1)(d)(ii) of Consumer Protection Act 1986? 2. Whether the petitioner is entitled to get reliefs as prayed for? Both the points are taken together for effective disposal. According to Sec.2(1)(d)(ii) of the C.P. Act ‘Consumer’ means any persons who (i) buys any goods……. with which we are not concerned. Sub Clause (ii) deals with hiring or availing of services. The case in hand is also hiring service for transportation of goods. This sub clause thus reads;- (d) ‘Consumer’ means any person who …………….. (i) ………………. (ii) Hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised or under any system of defer payment and includes any beneficiary of such services other that the person who hires or avails of the services for consideration paid or promised, or partly paid or partly promised, or under any system of defer payment, when such services are availed of with the approval of the first mention person but does not include a person who avails such services for any commercial purpose. In the above perspective when we find from the record that the petitioner admitted himself as a transport businessman and his two trucks bearing No.65/8582 and 65/8819 are engaged in carrying goods on contract basis. He also admitted that both the vehicle are driven by his drivers who carried poultry food stuff of the O.P. upon a contract of Rs.14,000/- as hiring charges. By no stretch of imagination it can be believed that the complainant purchased the trucks for earning of his livelihood specially when the vehicles are run by drivers. Having our anxious thought over the matter we have come to the conclusion that the complainant, a prominent businessman, had two trucks engaged in business in transportation, cannot purchase the vehicle for earning his livelihood only rather it can safely be said that he purchased the trucks in question for earning profits on a large scale and therefore he will be deemed to be carrying on commercial activities and cannot be termed as ‘consumer’. Accordingly, the complainant is not entitled to file the present complaint and deserve dismissal on this short of ground alone. Both the points are thus disposed in the negative. Proper fees have been paid. Hence, ordered, that Malda D. F. Case No.12/2008 is dismissed for having no merit. No order passed as to the cost. Complainant is at liberty to file his case before the appropriate court having jurisdiction over the matter. Let the copy of this order be given both the parties at free of cost at once. Sd/- Sd/- Sumana Das A.K. Sinha Member Member D.C.D.R.F., Malda. D.C.D.R.F., Malda. | 
