DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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M/s Proton Pharma, SCO No.228, Top Floor, Sector 40-D, Chandigarh, through its Manager Mr.Raj Narayan Yadav.

…..Complainant

                                      V E R S U S

1.       M/s Delhi U.P., Madhya Pradesh Co. (West) Plot No.24, Sector 26, Transport Area, Chandigarh, through its Proprietor/Partner (Mr.Ravinder Khurana and Mr.Gurvinder Singh).

2.       M/s Delhi U.P., Madhya Pradesh Transport Co. (West) C-91/10, Wazirpur Ind. Area, Ring Road, Wazirpur, New Delhi (West) through its Proprietor/Partner (Mr.Ravinder Khurana and Mr.Gurvinder Singh).

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

ARGUED BY:         Sh.R.N.Yadav, Manager and authorized                                        representative of the complainant.

PER P.L.AHUJA, PRESIDENT

1.                M/s Proton Pharma, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s Delhi U.P., Madhya Pradesh Transport Co. (West) & Anr. - Opposite Parties (hereinafter called the OPs), alleging that the complainant firm sold certain medicines vide retail invoices – Annexure C-1 in favour of M/s Shri Arya Medical Agency, Ram Govind Place, 2^nd floor, Shop No.5-9, Sirmour Choek, Rewa (MP). Two consignments were booked by the complainant with OPs on self basis, which were meant to be delivered to the destination party only on receipt of original L.R. (Lorry Receipt) copy. The complainant was waiting for payment against both the consignments and after waiting for a long period, decided to take the return of both consignments and requested the OPs to rebook the consignments vide letter – Annexure C-5. Thereafter, reminders Annexure C-6 to C-9 were also sent. However, the OPs did not give any reply, therefore, the complainant has made the following prayer :-

 “1.             The amount of Rs.63495/- against the            both consignments along with interest               @18% from the date of booking of                            consignment be paid.

2.                Compensation on account of mental            agony suffered by the complainant                            Rs.24,000/-.

3.                Cost of litigation of Rs.12,000/-. “

2.                We have gone through the material on record and heard the authorized agent of the complainant on the question of admissibility of the complaint.

3.                It has been urged by the authorized agent of the complainant that the complainant hired the services of the OPs and booked the two consignments i.e. invoice No.0488 dated 4.5.2010 for Rs.49703/- Annexure C-1 and the second consignment vide invoice No.3634 dated 30.10.2010 for Rs.13,792/- - Annexure C-3 on self basis, which were meant to be delivered to the destination party only on receipt of original L.R (Lorry Receipts) only. The complainant had kept original LR copy with him and was waiting for payment against both the consignments. After waiting for a long period, the complainant decided to take the return of both consignments and requested the OPs to rebook the same vide letter dated 1.9.2011 – Annexure C-5. But the complainant did not receive any reply from the OPs nor did they pay any compensation in lieu of the loss incurred. The Manager of the complainant has cited Shree Vaidyanath Ayurved Bhawan Ltd. Jhansi Vs. Vishal Goods Transport Company, Haldwani, District Nainital & Anr., Revision Petition No.2417 of 2005, decided on 5.5.2008 by the Hon’ble National Consumer Disputes Redressal Commission, Ms Tata Chemicals Ltd. Vs. Skypak Courier Pvt. Ltd., Original Petition No.66 of 1992, decided by the Hon’ble National Consumer Disputes Redressal Commission, Viewtech Imaging Equipment Pvt. Ltd. & Anr. Vs. CMC Ltd. & Anr., First Appeal No.855 of 2003, decided on 21.4.2008 by the Hon’ble National Consumer Disputes Redressal Commission, Bhushan Steels & Strip Ltd. Vs. New India Assurance Co. Ltd., Consumer Complaint No.233 of 2000 decided on 5.8.2008 by the Hon’ble National Consumer Disputes Redressal Commission, Associated Road Carriers Ltd. Vs. Tridoss Laboratories Ltd. & Anr., First Appeal No.125 of 1998, decided on 2.11.2011 by the Hon’ble National Consumer Disputes Redressal Commission, M/s U.P.Cooperative Federation Ltd. Vs. National Insurance Company Limited & Anr., Original Petition No.128 of 2000, decided on 4.1.2012 by the Hon’ble National Consumer Disputes Redressal Commission and has contended that the complainant hired the services of the OPs and is a consumer as defined under the Consumer Protection Act, 1986, therefore, this complaint is maintainable.

4.                We have carefully considered the above arguments but we regret our inability to accept the same. According to Section 2(1)(d) (ii) of Consumer Protection Act, 1986 “consumer” means any person who, --

(i)      x x x x x xx

(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 person who avails of such services for any commercial purposes].

[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, the complainant has nowhere alleged in the complaint that it is a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986. The complainant sold certain medicines vide retail invoices – Annexure C-1 in favour of M/s Shri Arya Medical Agency, Ram Govind Place, 2^nd floor, Shop No.5-9, Sirmour Choek, Rewa (MP) and the same were booked with OPs on self basis which were meant to be delivered to the destination party only on receipt of original L.R (Lorry Receipt) copy. The circumstances clearly show that the complainant availed the services of OPs for commercial purposes. The complainant has nowhere pleaded that the services were hired by it exclusively for the purpose of earning its livelihood by means of self employment. Thus, the complainant is not covered under the definition of “consumer” as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

5.                As far as the rulings cited by the learned Counsel for the complainant are concerned, Shree Vaidyanath Ayurved Bhawan Ltd. Jhansi Vs. Vishal Goods Transport Company, Haldwani, District Nainital & Anr., M/s Tata Chemicals Ltd. Vs. Skypak Courier Pvt. Ltd., Viewtech Imaging Equipment Pvt. Ltd. & Anr. Vs. CMC Ltd. & Anr. (supra), pertain to the purchase of goods or hiring of services prior to Consumer Protection Amendment Act, 2002. A perusal of the definition of “consumer” itself shows that it does not include a person who avails of such service for any commercial purpose. It was observed in Shree Vaidyanath Ayurved Bhawan Ltd. Jhansi Vs. Vishal Goods Transport Company, Haldwani, District Nainital & Anr. (supra) that a consumer of service (including the service of transport) was not excluded upto the amendments to the Act by Act 62 of 2002 from the definition of “consumer” merely because the consumer availed of the service in question for any commercial purpose. In the instant case, since the complainant availed the services of the OPs after the amending Act of 2002, which came into effect from 15.3.2003, therefore, it is not covered under the definition of consumer as defined in Section 2(d)(ii) of the Consumer Protection Act, 1986.

6.                So far as the rulings i.e. Bhushan Steels & Strip Ltd. Vs. New India Assurance Co. Ltd., Associated Road Carriers Ltd. Vs. Tridoss Laboratories Ltd. & Anr, M/s U.P.Cooperative Federation Ltd. Vs. National Insurance Company Limited & Anr. (Supra) are concerned, the same pertain to the claims against insurance companies. The insurance policies are taken for reimbursement or indemnification of loss which may be suffered due to various perils. The policies are not intended to generate the profit but are taken only for indemnification of the actual loss.  So, the above rulings have no application to the facts of the present case.

7.                For the reasons recorded above, we are of the considered opinion that since the complainant is not proved to be a consumer under Consumer Protection Act, 1986, therefore, this complaint is not maintainable before this Forum and this Forum has no jurisdiction to try it. The complaint is ordered to be dismissed, without any order as to costs.

8.                The certified copy of this order be sent to the complainant free of charge. The file be consigned.