BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
OF 2008 AGAINST C.C.NO.5 OF 2008 DISTRICT CONSUMER FORUM-I MACHILIPATNAM AT KRISHNA DIST.
Between
1. The Deputy General Manager
ANL Courier Service
(Joint Venture APSRTC)
D.No.3-874/6-3, Hyderguda
Hyderabad
2. Sri Kalapatapu Appa Rao
Manager, Machilipatnam Unit
ANL Courier Service
APSRTC Bus Station
Machilipatnam-521 001
Appellants/opposite parties
A N D
Ponnure Kishore Kumar
S/o Suryanarayana
Hakur Business in Gold Covering
Ornaments, D.No.3-37, Nuziveedu Rd.,
Hanuman Junction, Krishna Dist.
Respondent/complainant
Counsel for the Appellants Sri P.Rajasripathy Rao
Counsel for the Respondent Served
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
MONDAY THE TWENTIETH DAY OF DECEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The opposite parties are the appellants.
2. The factual matrix leading to filing of the appeal is that on 7.11.2006 the complainant purchased vide bill no.36 the following raw material from Satya Enterprises, Chilakalapudi, Machilipatnam of value `32,800/-.
1. Special Betthalu
2. Kattu Postulu
3. Kattu Kokkilu
4. Kattu Pakala Sarulu
5. Kattu Teega no.26
3. The complainant after purchasing the said items entrusted to one Syed Eesa for finishing and gold plating etc., and the said Syed Eesa after completing the finishing works and gold plating on 8.11.2006 entrusted them to the opposite parties courier service vide consignment voucher bearing No.10116344 by paying courier charges of `60 to transport the items to Hanuman Junction where the complainant would collect the same. Mr.Syed Eesa charged `16,400/- towards his charges for finishing and gold plating of the items and he informed the complainant about the parcel and asked to collect the items. The complainant having received the information went to the bus station waited till 10 p.m. but did not receive the consignment. The complainant on 9.11.2006 along with Syed Eesa approached the opposite party no.2 office and enquired about the parcel to which the opposite party no.2 informed them that they sent the parcel through Bus No.3450 of Eluru Depot and assured the complainant that they will trace the parcel and handed over to the complainant. The opposite party no.2 even after several visits by the complainant did not trace the parcel. The complainant got issued registered notice to the opposite parties but the opposite parties having received the same denied the entrustment of articles to them. The complainant also gave complaint to the police, Chilkalapudi for necessary action about non-delivery of the parcel by the opposite parties. Hence, the complainant filed the complaint before the District Forum seeking direction to the opposite parties to pay `50,572/- towards missing parcel along with compensation and costs.
4. Opposite parties resisted the case and contended that the consignment was booked on 8.11.2006 through opposite party no.2 for a sum of `60/- addressed to the complainant at Hanuman Junction. As per the terms and conditions of the consignment slip the liability of the opposite parties are limited to a maximum of `100/- for failure to deliver the consignment or for any loss of consignment. The opposite party no.2 after receipt of the consignment from the consignor sent to the same to the destination through Eluru Depot of APSRTC bus No.3450 on 8.11.2006 at about 4.30 p.m. by entrusting to its conductor K.V.Ravikumar, Staff No.94753 of Eluru Depot who failed to deliver the consignment at the ANL Parcel Service, Hanumanjunction. The opposite party no.2 has bourght to the notice of the Regional manager, APSRTC Bus Depot Eluru, the Depot Manager, Eluru, the Depot Manager, Machilipatnam and the ANL Parcel and courier service, Claims Department Hyderabad by issuing notices about the dereliction and negligence of the said conductor in not handing over the consignment ot he agent ANL Parcel Service, Hanumanjunction and seeking to take action against the said conductor. The opposite party no.2 has properly discharged his duty without any defect or deficiency of service on his part by entrusting to the said conductor who is alone responsible for non-delivery of the consignment. The complaint is not maintainable for non-joinder of the proper part i.e., conductor. There is no documentary proof showing that the complainant has entrusted the articles alleged to have been purchased from Satya Enterprises, to one Syed Eesa who in turn charged `16,400/- from the complainant. The complainant is not a consumer under section 2(1)(d) of the C.P.Act because the consignor booked the consignment for commercial purpose. The complaint is not filed by the consignor and it was not booked by the consignee. There is no privity of contract between the opposite parties and the complainant. Hence, the opposite parties prayed for dismissal of the complaint.
5. The complainant and Syed Eesa filed their affidavits and documents Exs.A1 to A8. Mr.K.Appa Rao, Service agent filed his affidavit and marked Exs.B1 and B2. PWs 1 and 2 and RW1 were cross examined.
6. The District Forum allowed the complaint directing the opposite parties to pay `32,500/- towards the value of the consignment together with `60/- towards courier chares and `3000/- towards compensation and costs.
7. Feeling aggrieved by the order of the district Forum, the opposite parties filed the appeal contending that there was no support of any documentary evidence for the award of `32,800/- and that there was no declaration by the complainant in the consignment note about the value of the consignment.
8. The point for consideration is whether the complainant is entitled to the amount of `32,800/- as awarded by the District Forum?
9. Mr.Syed Eesa has booked the consignment on 8.11.2006 to the opposite party no.2 to be sent to the complainant at Hanuman Junction. In this regard Mr.Syed Eesa has paid `60/- to the opposite party no.2 towards consignment charges. The consignor has not declared or disclosed the value of the consignment. The second opposite party has sent the consignment to the destination which according to them was sent through APSRTC Bus No.3450 on 8.11.2006 by entrusting it to the conductor K.V.Ravi Kumar who stated to have failed to deliver the consignment to the opposite party no.2.
10. The complainant has lodged complaint with the Deputy Superintendent of Police, Eluru that the consignment sent through the APSRTC Bus by the second opposite party could not to be delivered. Basing on the admission of the complainant that the consignment was entrusted to the conductor of the bus, the opposite party no.2 attempts to state that there was no negligence or deficiency in service on its part and that the conductor of the bus alone is responsible for delivery of the consignment. It is the contention of the opposite parties that the conductor of the bus is necessary party and that the complainant ought to have impleaded him as a part to the proceedings. We do not agree with the concept of impleading the conductor of the bus who has no privity of contract with the complainant. If at all any privity of contract exists, it is between the opposite parties and the APSRTC. The complainant has no concern with the transaction between the opposite parties no.1 and 2 and the APSRTC.
11. The complainant has filed a document marked as Ex.A5 cash bill to show that he has purchased the raw material worth `32,800/- from Satya Enterprises on 7.11.2006 and entrusted the same to Syed Eesa who charged `16,800/- from the complainant towards majuri of gold plating and coating of the material. The complainant in his evidence has deposed that the articles booked under consignment were for business purpose.
12. In the complaint it is averred that the complainant has been doing business of Rold gold ornaments by selling them in the rural area and he used to purchase the finished ornaments from the producers at Chilakalapudi, Machilipatnam. Therefore, without going into the question of deficiency in service stated to have been committed by the opposite parties, we would like to hold the complainant not a consumer within the meaning of Sec.2(1)(d) of C.P.Act which 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;
13. In view of the commercial purpose reflected by the averments of the complaint, we are of the opinion that the complainant can approach an appropriate fora for redressal of his grievance and in such event the time spent for prosecution of the complaint before the District Forum and this Commission for the limitation purpose could be excluded on filing of application thereof.
In the result, the appeal is allowed. The order of the District Forum is set aside. Consequently, the complaint is dismissed. No costs.
Sd/-
PRESIDENT
Sd/-
MEMBER
Dt.20.12.2010
KMK*
