Punjab

Ludhiana

CC/15/388

M/s B.R.Knit Fabs - Complainant(s)

Versus

M/s Ghatge Patel Tpt.Ltd - Opp.Party(s)

R.K.Bhandari Adv.

23 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 388 of 17.06.2015

Date of Decision            :   23.05.2016

M/s B.R.Knit Fabs, Main Road, Kashmir Nagar, Ludhiana, through its Partner Sh.Pardeep Mahajan.

….. Complainant

                                                         Versus

1.M/s Ghatge Patil Transports Ltd., H.O.517-E, Pune-Bangalore Road, Kolhapur-416001, through its Managing Director.

2.M/s Ghatge Patil Transports Ltd., Plot No.97, Transport Nagar, Ludhiana-141006, its Branch Manager.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.R.K.Bhandari, Advocate   

For OPs                         :        Ex-parte

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant, a partnership firm carrying on business at the address given in the complaint,filed complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) against Ops by claiming that Sh.Pardeep Mahajan is one of its active working partners, who is actively engaged in day to day business of the firm and as such, he is well conversant with all the facts of the case. Complainant is carrying the business of blankets and shawls etc., for the last more than 60 years. Ops carrying the business of transport company. Complainant had been regularly sending the goods to its customers through transport of OPs. Complainant has good relations with OPs. Complainant got booked various consignments of the goods with OP2 at Ludhiana vide different Way Bills issued by OP2. Details of those consignments are given in para no.5 of the complaint. Retail invoices in the name of different consignees from whom the orders were received by the complainant were issued and thereafter, ordered goods were consigned for delivery through OPs. Detail of consignments with bill numbers are mentioned in para no.5 of the complaint itself. After handing over the consigned goods of the complainant to OP2 on behalf of OP1, OPs placed these goods in the godown situate at Plot No.96, Transport Nagar, Ludhiana. Complainant was under impression that process for delivery of the goods to the customers was going on, but when the customers of the complainant informed that goods ordered by them have not  reached  them, then the complainant enquired       into the matter from OP2 by visiting its office. However, OP2 and its officials failed to furnish due reply and as such, complainant stood harassed because his business relation with customers stood spoiled. Complainant claims to        suffered huge loss in the business due to non fulfillment of the promise of timely delivery of the consigned goods to the customers. By pleading deficiency in service on the part of Ops and by claiming that OPs have retained unto themselves the consigned blankets, complainant prays for issuing directions to Ops  to pay him Rs.2,46,345/-, the value of the consigned goods. Compensation of Rs.2,50,000/- for loss of reputation, humiliation, harassment and mental agony sought.

2.                OP1 was proceeded against ex-parte vide order dated 10.11.2015, but OP2 was proceeded against ex-parte vide order dated 22.01.2016. Despite this, written statement submitted along with application for setting aside the ex-parte order were sent by OP1 through post and the same were received on 28.3.2016. Ex-parte proceedings cannot be set-aside because Consumer Fora has no jurisdiction to revive its own order. Besides, despite sending written application, none appeared for OP1 on any of dates and as such, OPs were proceeded against ex-parte in this case.

3.                Complainant to prove the case tendered in evidence affidavit of Sh.Pardeep Mahajan as Ex.CA along with documents Ex.C1 to Ex.C13 and thereafter, his counsel closed the ex-parte evidence.

4.                Written arguments not submitted. But oral arguments alone addressed by the counsel for complainant and those were heard. Records gone through carefully.

5.                Even though the produced documents Ex.C1 to Ex.C13 along with contents of affidavit Ex.CA establishes that complainant firm consigned the goods to its customers on various dates, despite that the allegations levelled in the complaint and in the supporting affidavit makes out clear that goods were dispatched by the complainant through OPs for carrying out the business activities of sale of goods to its customers.       

6.                As per law laid down in case titled as The Branch Manager, Punjab National Bank vs. M/s Bhaskar Textile-2015(1)CLT-89(N.C.), if complainant sends the goods sold by them to another firm through transporter and papers sent through OP bank, in the circumstances that bank was required to collect the payment before releasing the bilti to the firm, then the services of OPs virtually availed in relation to commercial purposes or in connection with business transaction, due to which, consumer complaint is not maintainable. Ratio of this case is fully applicable to the facts of the present case, particularly, when as per pleaded case of the complainant, he availed/hired the services of OPs for dispatch of sold products to its buyers. Consignments in question were dispatched by the complainant through OPs for carrying out business transactions of the firm and as such, certainly the complainant firm is not a consumer within the meaning of Section 2(1)(d) of the Act.

7.                Even as per law laid down in case titled as Birla Technologies Limited vs. Neutral Glass and Allied Industries Limited-(2011)1-Supreme Court Cases-525, in case, deficiency in service in respect of the goods purchased for commercial purposes alleged, then complaint under the Act is not maintainable because the services availed for commercial purposes, due to which, the concerned will not be a consumer within the meaning of the Act.

8.                In case, the lift was got installed for commercial purpose, then Consumer Fora has no jurisdiction to entertain and try the complaint is the proposition of law laid down in case of Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.). Likewise in case of Pharos Solution Pvt. Ltd. and others vs.  – Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.), it has been held that when the car was not purchased exclusively for the purpose of earning livelihood by means of self employment, but for the Director of Company, then same purchased for commercial purposes, due to which, Consumer Fora has no jurisdiction to entertain the consumer complaint. Even in case of Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.), it has been held that when a software is purchased by a private limited company and complaint filed without pleading that Managing Director running business for earning livelihood, then complainant will not be a consumer within the meaning of Section 2(1)(d) of the Act.

9.                In case before us also as the services of OPs availed for transportation of goods for carrying out commercial activity of selling consigned those goods to the customers and as such, certainly the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act. If the complainant is not a consumer, then certainly consumer complaint is not maintainable.

10.              Therefore, as a sequel of the above discussion, complaint is dismissed ex-parte with observation that complainant may approach Civil Court/appropriate authority for availing remedy of seeking compensation etc. No order as to costs. Copies of order be supplied to the parties free of costs as per rules. 

11.                        File be indexed and consigned to record room.

                                                            

                      (Babita)                                     (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:23.05.2016

Gurpreet Sharma.