Delhi

North East

CC/206/2018

M/s Book Magic India Pvt. Ltd. - Complainant(s)

Versus

M/s New Dhillon Star Carriers Pvt. Ltd. - Opp.Party(s)

15 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 206/18

 

In the matter of:

 

	M/s Book Magic India Pvt. Ltd Through its Authorized Representative Sh. Pawan Teltia Having office at 3993-A-8, 2nd Floor Raghu Ganj, Chawri Bazar Delhi-110006.	Complainant
	Versus
	M/s New Dhillon Star Carries Pvt Ltd 487/9, 1st Floor, Darpan Complex, G.T.Road, Dilshad Garden Delhi-110095.	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

28.09.2018 15.01.2019 15.01.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Complainant is a private Ltd Co. registered with ROC and has filed the present complaint against the OPs which are into transportation business alleging deficiency of service for non delivery of the consignment of books to the desired destination and having lost / destroyed the study material in transit.
2. Complainant relied upon judgment of Hon’ble NCDRC in Expeditors International India Pvt Ltd Vs Carpenter Classic India Pvt Ltd II (2016) CPJ 253 (NC) for liability of carrier in the event of delivery of consignment of goods in damaged condition.
3. We have heard the counsel for the complainant on the maintainability of the complaint for being admissible under Section 2 (1) (d) of CPA.

The word ‘consumer’ is the fulcrum of the Consumer Protection Act (the Act) and is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and 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 that 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
2. 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 purpose.

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 purpose of earning his livelihood by means of self employment.

 

The term ‘consumer’ has, thus, been defined to mean, a person who                 is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or    
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

 

4. On bare reading of the above, it is clear that consumer is a person who buys goods or hires/avails of services for consideration but excludes a person who does the same for commercial purpose. Admittedly in the instant case, the complainant company had entered into a sale supply with one Gyan Ganga Ltd Co, located at Patna for sale of books of nursery rhymes vide bill of supply / invoice no. BM-3487 dated 31.01.2018, order no. 4170 dated 27.01.2018 for a sum of Rs. 67,620/- to be dispatched by road by availing transportation services of OP. Therefore it is clear that the services of OP were hired by the complainant for commercial purpose in course of business.  Requirements of restricted meaning of “Commercial Purpose” are that the complainant ought to have availed the services of OP exclusively for purpose of earning livelihood by way of self employment. Undisputedly in the present case however, the complainant is a private Ltd Co. and not a natural person. The use of words ‘Livelihood by means of self employment’ makes it explicit that the explanation is applicable only to the cases in which the complainant is a person and is of no avail if the complainant is a juristic person.
5. This Forum had directed the complainant to place on record the copy of its Memorandum & Articles of Association and on perusal of the same, the main objects to be pursued by the complainant on its incorporation inter alia are ;

 

1. To carry on the business as agents, representative, importers, exporters, distributors, publishers, sellers, press agents, whole seller of all type of books, journals, C.D’s periodicals, magazines, specially for kids etc.
2. To carry on in india or elsewhere the business to publish, print, produce, promote, organize, manage, acquire run maintain amalgamote, establish commercialize, control circulate, develop, sponsor, import, equip, job work, market wperate, own, purchase, sell, protect, participate and to act as a agent, stockist, distributor, representative, news feeder correspondent, communicator, supplier or otherwise to deal in all types, taste, varieties and languages of all types of books, newspapers, periodicals, magazines, pamphlets, journals, special bulletins, souvenir, newletters, or other allied publications on any subject.

 

6. On bare perusal of the above it is clear that the object of the complainant company is to carry on business of export import, distribution, publication and whole sale of all type of books, journals, magazines etc for kids and it is clear that the consignment in question was booked for OP in due course of the business and to further and promote the growth of business. The Hon’ble National Commission in the recent judgment of Shree Sharda Chains Pvt Ltd Vs Parsvnath Developers Ltd II (2018) CPJ 457 (NC), in a case of complainant as a Pvt Ltd Co. having entered into an agreement for purchase of shop for running jewellery business held that the object of the complainant was to carry on business of export import of jewellery from the shop proposed to be bought with an intention to promote the business and therefore held that the services of OP were engaged by the complainant for commercial purpose and the complainant cannot be termed as a consumer thereby dismissing the complaint in limine.
7. We are guided by the above settled principle of law as can be safely applied in the present case specially after appreciating the nature of transaction entered into between complainant and OP and the perusal of Memorandum of Association placed on record.
8. We therefore dismiss the present complaint as non maintainable and barred under section 2 (1)(d)(ii) of Consumer Protection Act as complainant herein is not a consumer having any locus standi to press the present complaint under Consumer Protection Act. The judgment relied upon by the complainant is not applicable to the facts of the present case in view of the settled proposition of law questioning the very locus for filing such a complaint.   
9.  Let a copy of this order be sent to complainant free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  15.01.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member