District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No.560.2023.

 Date of Institution:24.08.2023.

Date of Order: 26.02.2024.

M/s.Pawan Traders, Shop No. 1026, HUDA Market, Sector-21B, Opp. Ryan International School, Faridabad through its proprietor Shri Pawan Sharma.

                                                                   …….Complainant……..

                                                Versus

1.                M/s. Delivery Pvt. Ltd., Office: Plot No.5, Sector-4, Gurugram, Haryana – 122002.

2.                M/s. Delhivery Pvt. Ltd. Office: Gate No. 6, Cargo Terminal, Indira Gandhi International Airport, New Delhi.

                                                                   …Opposite parties……

Complaint under section-12 of Consumer Protection Act, 1986

Now  amended  Section 34 of Consumer protection Act 2019.

BEFORE:            Amit Arora……………..President

Mukesh Sharma…………Member.

Indira Bhadana………….Member.

PRESENT:                   Sh.  Yogesh Sharma ,  counsel for the complainant.

                             Sh.  K.S. Rathor , counsel for opposite parties Nos.1 & 2.

ORDER:  

                             The facts in brief of the complaint are that  Pardeep Kumar R/o House No. 37, Guru Nanak Avenu8e, Sher Shah Suri Road, Chheharta, Amritsar (Punjab) placed an order for supply of LG LED Model No. 55UH650T.  Accordingly complainant booked the said LG LED with the opposite parties for deliveryof same to the customer Shri Pradeep Kumar at the address House No. 37, Guru Nanak Avenue, Sher Shah Suri Road, Chheharta, Amritsar (Punjab) and also handed over the invoice or said TV for the customer, bearing invoice No. 113/22-23 dated 31.08.2022 for Rs.49,000/-. The opposite parties prior booking for transport of said LED duly checked the said LED and it was in new brand and good condition and then the opposite parties had booked the consigned vide challan No. LR225080901 on 31.08.2022.  When the opposite parties delivered the said LED of the customer of complainant  namely Shri Pradeep Kumar, it was found broken.  IKt was pertinent to mention here that when their delivery body reached at the address of the consignee for delivery of said LED, the consignee customer asked him to get it checked but said delivery body did not do so with malafide intention.  On taking delivery, the customer opened the packing and found that the screen of the LED was totally broken and he clipped the photos and video of the said LED.  The said customer informed complainant through email and accordingly, complainant informed him the opposite parties in this regard and requested opposite parties to make the damages i.e. cost of said LED and fare charges, so the complainant might deliver another TC/LED to their client, but opposite parties neither replied any of emails nor responded the calls made by his client.The complainant sent legal notice  dated 01.08.2023 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite parties to pay the charges as mentioned in para No.8 of the complaint.

a)                pay the  cost of LED which he had got damaged alongwith interest @ 24% p.a. from the date of invoice till its realization.

b)                pay Rs.15,000/- per day for the loss suffered by his above said client on account of damage of goods,

 c)                pay Rs.1,00,000/- as compensation for causing mental agony and harassment .

d)                pay Rs.15,000/- as  litigation expenses.

2.                Opposite parties Nos.1 & 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1 & 2 refuted claim of the complainant and submitted that at the very outset, no allegations, statements, averments and/or contentions contained in the complainant should be deemed to be accepted or admitted save and except those which were specifically admitted by the answering opposite party to be true and correct to the present reply.  It was submitted that the complainant did not fall under the ambit of Consumer as defined under section 2(7) of the Consumer Protection Act,2019.  The complainant had admittedly engaged the services of the answering opposite party which was not for the sole purpose of earning a livelihood for the complainant by self-employment, but for a profit generating activity of the complainant, the complainant had to sell the products to its own client.  The purpose for transaction was commercial and complainant had wrongly invoked the jurisdiction of this Honble Commission.  In the present , admittedly the consignment was booked on 31.08.2022 (para 5 of the complaint) and the alleged legal notice was issued on 02.05.2023 (para 10of the complaint), .e. after 245 days of booking of the consignment, the present complaint had been filed without any prior written notice., allowing the same would be directly in teeth of catena of judgment.  As per section 16 of the Carriage by road Act, 2007, no legal proceedings could be initiated against the answering opposite party unless a written notice was issued prior to initiation of such legal proceedings and such notice should be issued within 180 days of booking of the consignment.  If the present complaint against the answering opposite party was allowed it would be in complete derogation of Section 16  of the Carriage by road Act, 2007 and in complete contravention of Section 100 of the consumer Protection Act, 2019 and the law laid down by the Hon’ble Court of India.   The present complaint against the answering opposite party was  liable to be dismissed for the most important reason that the complainant was not a consumer as admitted in para 2 of the complaint.  As such, the complainant did not have the locus standi to file the present complaint.  Furthermore, the Act of 2019 provides for business –to-consumer disputes and not for “business to business, disputes in the present case transaction was a business to business.   All the parties in the present complaint were companies and the present transaction was a purely commercial transaction which had a direct nexus to profit generating activity.Opposite parties Nos.1 & 2 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                The parties led evidence in support of their respective versions.

4.                We have heard learned counsel for the parties and have gone through the record on the file.

5.                In this case the complaint was filed by the complainant against opposite parties–Delivery with the prayer to: a)  pay the  cost of LED which he had got damaged alongwith interest @ 24% p.a. from the date of invoice till its realization. b)pay Rs.15,000/- per day for the loss suffered by his above said client on account of damage of goods,  c) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . d) pay Rs.15,000/- as  litigation expenses.

                   To establish his case the complainant  has led in his evidence,  Ex.CW-1/A – affidavit of Pawan Sharma, Ex.C-1 -  - legal notice,, Ex.C-2 – postal receipt,, Ex.C-3 – legal notice,, Ex.C-4 – postal receipt, Ex.C-5 – legal notice,, Ex.C-6 – postal receipt,, Ex.C-7 – legal notice, Ex.C-8 – postal receipt, Ex.C-9 –  receipt dated 31.08.2022,, Ex.C-10 – Proforma invoice,, Ex.C-11 – emails.

                   C-2 – Final bill, Ex.C-3 – discharge on request, Ex.C-4 – email.

                   On the other hand counsel for the opposite parties strongly agitated and opposed.  As per the evidence of the opposite parties Ex.RW1/A – affidavit of Shri Surinder Sharma (Emp. ID:N90978), aged about 50 years, S/o Shri Nathu Ram Sharma, being Authorized Signatory of Delhivery Limited.

6.                In this case, the complaint was filed by the complainant with the prayer to : a)  pay the  cost of LED which he had got damaged alongwith interest @ 24% p.a. from the date of invoice till its realization. b)      pay Rs.15,000/- per day for the loss suffered by his above said client on account of damage of goods,  c) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . d) pay Rs.15,000/- as  litigation expenses.

7.                There is no privity of contract between the complainant and the opposite parties.  Hence, the complainant is not a consumer of opposite parties.   Opposite parties also stated in their written statement that it is commercial transaction and as such, the complainant does not fall within the ambit of consumer as defined under section 2(7) of the Consumer Protection Act, 2019.   Hence, the complaint is dismissed. Copy of this order be given to the parties  concerned free of costs and file be consigned to record room.

Announced on:  26.02.2024.                                (Amit Arora)

                                                                                  President

                     District Consumer Disputes

           Redressal  Commission, Faridabad.

                                                          (Mukesh Sharma)

                Member

          District Consumer Disputes

                                                                                  Redressal Commission, Faridabad.

                                                               (Indira Bhadana)

                Member

          District Consumer Disputes

                                                                                     Redressal Commission, Faridabad.