IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Monday  the 25^th  day of  January, 2016

Filed on 05.07.2013

Present

1. Smt. Elizabeth George (President)
2. Smt.Jasmine.D. (Member)

in

C.C.No.209/2013

 between

  Complainant:-                                                                                 Opposite Party:-

Sri. Jayakrishnan                                                                                 The Manager

Proprietor, Relish Customs Food                                                        State Bank of India

Sankaramangalam                                                                               Beach Branch, Alappuzha

Komana, Amblappuzha                                                                      (By Adv. C. Parameswaran)

(By Adv. S. Ramakrishnan)

                                                                        O R D E R

SMT. ELIZABETH GEORGE (PRESIDENT)

            The case of the complainant is as follows:- 

 The complainant is a proprietor of Relish Customs Food which is engaged in the business of export of marine and coir products.  Complainant’s firm was having OD account with opposite party bank through which the complainant operated its export business.   In the year 2002 complainant made a shipment worth Rs.38 lakhs and entrusted the bill notes and all the connected documents with the opposite party.  It is the fundamental obligation from the part of the opposite party, copy of the bill to be sent to the terminal bank in abroad for clearance.  Only after getting clearance, the goods will be delivered to the party, but the opposite party did not send it to the terminal bank and then it was cleared after 90 days.  The party had not paid the amount and he cleared the goods without making payment.  The said agony was because of the dereliction of duty and deficiency of service from the part of opposite party and the complainant sustained a loss of rupees amount 48 lakhs, governed under the bills.  The complainant made all his efforts to take legal action against the customer, but the opposite party did not give documents to the complainant by raising lame excuses.  The deficiency in service and dereliction of duty by the opposite party resulted great loss to the complainant.   Hence the complaint is filed. 

            2.  Opposite parties filed version stating that the complaint is not maintainable.  According to the opposite party the complainant is not a consumer.  The further contentions of the opposite party is as follows:-  Admittedly the complainant is doing the business in coir, marine and its allied produces and has been sending consignments of coir products to various parties in different places in India and Foreign countries.  The alleged transaction is one for commercial purpose in connection with the business of the complainant with intention to make profit.  The complainant is running a business establishment and is engaged in commercial activities and had availed the services of the opposite party for its commercial activity and being so the complainant has no manner of right as defined under section 2 (d) of the Consumer Protection Act.  The present demand of the complainant is barred by law of limitation and only an afterthought to cause annoyance to the opposite party.  From the allegation in the complaint it seems that the cause of action in the instant case has originated based on the business transaction of the complainant with the opposite party in the year 2002, whereas the complaint is filed in the year 2013.  The complaint is not filed within the statutory period of two years and hence the complaint be dismissed inlimine.   The allegation that in the year 2002, the complainant made a shipment worth Rs.38 lakhs and entrusted the bill notes, bill of lading and all the connected documents etc. are fallacious and hence denied.  The complaint is filed suppressing the material facts.   

3. Arguments on maintainability of consumer complaint were heard.  “ In order to appreciate the contention of learned counsel for the complainant, it would be useful to have a look on the definition of “consumer” as provided under section 2(1)(d) of the Act as amended up to date.  The definition reads as under: 

(d) “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 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 purposes;

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.”          

8.  On reading of the above, it is clear that consumer is a person who buys any good and hires or avails of any service for consideration either paid or deferred.  The Section, however has an inbuilt exception that the person who buys goods or hires of avail of service for commercial purpose is not a consumer.”

4.  Complainant himself admitted in the complaint that he is the Proprietor of Relish Custom Food which is engaged in the business of export of marine and coir products and he was having OD account with the opposite party through which he operated its export business.  So it is clear that the complainant had availed service of the opposite party for its commercial purpose that is in respect of his business as envisaged under section 2(1) (d) of the Act.  That being the case, the complainant is not a consumer.  In a decision report in 2013(2) CPR 1 (NC) Subash Motilal Shah LRs & Ors Vs. Malegaon Merchants Co-operative Bank, Hobn’ble National Commission laid down that since account itself is connected and related to business transaction and such banking activity is required for functioning of business entries of complainant, service hired for that purpose would fall within category of hiring services for commercial purpose and business banking account does not come under the purview of Consumer Protection Act.  

            In view of the above decision, we are of opinion that since the complainant in this case alleging deficiency on the part of the opposite party with respect to the service he availed from opposite party for the promotion of his business, he is not coming under the definition of consumer.  Hence the complaint is not maintainable and it is dismissed.

Dictated to the Confidential Assistant   transcribed   by   her corrected by me and pronounced in open Forum on this the 25^th day of January 2017.                                                                                                                                                              Sd/- Smt.Elizabeth George (President) :

                                                                         Sd/- Smt.Jasmine.D. (Member)            :

Appendix:-  Nil

//  True Copy //                               

By Order                                                                                                                                       

Senior Superintendent

To

         Complainant/Opposite party/S.F.

Typed by:- pr/- 

Compared by:-