BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.388 of 2014

Date of Instt. 05.11.2014

Date of Decision :18.05.2015

Amit Kumar aged about 35 years son of Pishori Lal R/o W.Q-46, Basti Sheikh, Jalandhar.

..........Complainant

Versus

1. M/s Blaze Flash Courier, A-143, Nariana, Industrial Area, New Delhi, through S.D.Aggarwal

2. M/s Blaze Flash Courtier, Kiran Chamber, Garha Road, Jalandhar through Mr.Duggal.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Joginder Singh Bhatia Adv., counsel for complainant.

Sh.Paramjit Singh Adv., counsel for the opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant/first party sent two parcels to Surat from Jalandhar through the opposite parties/second party vide receipt Nos.192121207 and 192121208 dated 12.4.2014 from the office of second party in Jalandhar and at the time of the booking of the parcels, the opposite party No.2 made it clear that the parcels would be delivered at its destination in Surat within next two days or at the most within that week. To dismay of the first party the parcels have not been delivered at its destination so far and even till this day when the present complaint is being filed. The first party approached the second party at its Jalandhar office and made the complaint of deficiency of service as the parcels had not been delivered as promised and also delivered a letter dated 7.5.2014 in this connection. On the asking the demand of the clerk of the second party at its Jalandhar office, the first party deposited another amount of rupees three hundred, which amount is an addition to the amount already charged by the second party for booking the parcels for transportation to Surat. Even then the parcels had not been delivered so far and the second party does not reveal the reason why the same are not delivered. Their conduct in dealing with the first party clearly shows the deficiency of service on part of the second party. The parcels contained goods amounting to rupees thirty thousand, thus the first party has incurred the loss of rupees thirty thousand, the costs of the articles plus the mental tension, which could not be put in terms of money, however, it is put at rupees ten thousand. Thus the second party has put the first party to loss and injury to the tune of rupees forty thousand by its deficiency of service. On such like averments, the complainant has prayed for directing the opposite parties to pay him Rs.40,000/- alongwith costs.

2. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding not approaching the Forum with clean hands, maintainability etc. It further pleaded that Amit Kumar, who signed and filed the present complaint has no authority to file the present complaint as the consignment note dated 12.4.2014 bearing Nos. 192121207 and 192121208 (hereinafter to be referred as consignment notes) placed on record by the complainant itself shows that the consignment/ courier was booked by some M/s Chawla Cloth and not by Amit Kumar, the complainant herein. It is pertinent to mention that M/s Chawla Cloth has not authorized Amit Kumar to file the present complaint as per provisions of laws. Hence the present complaint is liable to be rejected as the same has not been filed by the duly authorized representative. Therefore, there is no consumer and service provider relationship between the present complainant and opposite party. The complaint is not maintainable in law as the complainant/ consignor, namely M/s Chawla Cloth, who booked the said consignment in question, has no locus-standi to file the present complaint as the complainant/consignor is the firm engaged in the business of clothes and is covered under the commercial activities, hence, not covered under the definition of consumer. The consignment receipts placed on record by the complainant itself shows that at the time of booking of both the consignments the consignor had not disclosed the contents or declared the value of the same and had not insured the same. It is further submitted that if the consignments were of great value as alleged by the present complainant then the consignor ought to have insured them or ought to have declared the value or contents of the same but no such step was taken nor was their value even disclosed in the consignment notes. The consignor had not disclosed the nature of the consignments and had not indicated the value of contents nor does it indicated the contents nor does it indicate the urgency of their reaching the destination of the consignments before sending the same and now raising a false and frivolous claim. Consignment receipts placed on record by the complainant itself contains in writing the terms and conditions which were accepted by the consignor at the time of booking that the liability of the opposite party for any loss or damage to the consignments in transit or for any delay in delivery of the consignment shall be strictly restricted/limited to Rs.100/- for each domestic consignment and Rs.1000/- for each international consignment in case the value is not declared and/or the insurance charges are not paid by cash in advance at the time of booking and the opposite party shall also not be liable for any consequential losses, damages or compensation and no claim or complaint shall be entertained after one month from the date of consignment note as the opposite party does not keep records pertaining to proof of delivery after expiry of the said period. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C6 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OP1/A alongwith copies of documents Ex.OP1/1 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of opposite parties.

6. The present complaint is liable to be dismissed on the short ground that complainant has no locus-standi to file the present complaint. The complainant has himself placed on record receipts issued by opposite parties as Ex.C1 and Ex.C2 and from the perusal of the same, it is evident that consignor was M/s Chawla Cloth House. The complainant has also placed on record debit notes dated 12.4.2014 Ex.C5 and Ex.C6 and same are shown to have been issued by Chalwa Cloth House to M/s Kaia, Surat and M/s Stree, Surat. In the present complaint, the complainant has not anywhere mentioned that he is partner or proprietor of M/s Chawla Cloth House or M/s Chawla Cloth House has authorized him to file the present complaint. So in the above circumstances, we are of the opinion that complainant has no locus-standi to file the present complaint as the consignor was M/s Chawla Cloth House and not the complainant. Further from the above documents, it is evident that the services of the opposite parties were availed for the commercial purpose. The consignee was M/s Kaia, Ring Road, Surat and M/s Stree, Surat. The debit notes issued by M/s Chawla Cloth House Ex.C5 and Ex.C6 are also in the name of the above said firms. Since M/s Chalwa Cloth House availed the service of the opposite parties in connection with its business i.e for commercial purpose as such even M/s Cloth House can not be termed as consumer. So, in these circumstances, even if, it is assumed that the present complainant sent consignment through opposite party courier company on behalf of M/s Chawla Cloth House even then it can not be termed as consumer as services were availed for commercial purpose. In PANVIJ BIOTEC NIGERIA LTD VERSUS NATIONAL CONTAINER LINE AND OTHERS IV (2004) CPJ 80, it has been held by Hon'ble State Consumer Disputes Redressal Commission of New Delhi as under:-

           "The learned District Forum dismissed the complaint, filed by the appellant/complainant in limine on the ground that the complainant was not a consumer in terms of provisions of Section 2(1)(d)(ii) of the Act, as the services in question had been availed of by the complainant for commercial purposes. Aggrieved by the impugned order, the appellant/complainant has preferred the present. appeal before this Commission. We have heard the learned Counsel for the appellant on the question of admission of the present appeal and have also carefully gone through the documents/material on record. In terms of provisions of Section 2(1)(d)(ii) of the Act, a person, who avails of services for  commercial purposes is not a consumer. It is an admitted fact on the part of the appellant that both the  complainant as well as the respondent No.4 who is the consignor of the goods are public limited company manufacturing and dealing  in Pharmaceutical.  Further more, the consignment of Pharmaceutical goods was consigned  for delivery at Lagos through the respondents Nos. 1 to 3. Thus the services availed of and rendered were for commercial purposes and as such, we do not find any infirmity in the impugned order of the learned District Forum so as to call for any interference in the same in the exercising of our appellate jurisdiction."

            	In Economic Transport Organization Versus Charan Spinning Mills (P)  Ltd. & Anr. 2010 (2) CLT 302, it has been held by the Hon'ble Supreme Court as under:-

"We may also notice that Section 2 (d) of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003 by adding the words "but does not include a person who avails of such services for any commercial purpose" in the definition of 'consumer'. After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a 'consumer' and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment"

7. The ratio of both the above authorities is applicable on the facts of the present case. In view of above discussion, we hold that the present complaint is not maintainable for the reasons discussed above and consequently it is dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

18.05.2015 Member Member President