CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.870/2007
M/S EXIMCORP. INDIA PVT. LTD.,
DELHI OFFICE:-
KHASRA NO.87/1, 50 KM MILESTONE,
ROHTAK ROAD, MUNDKA,
NEAR SARSWATI DHARMKANTA,
NEW DELHI-110041
…………. COMPLAINANT
Vs.
M/S PACIFIC INTRNATIONAL LINES(PIL),
DELHI OFFICE:-
CAPITAL TRUST HOUSE, 2ND FLOOR,
47 COMMUNITY CENTRE, FRIENDS COLONY,
NEW DELHI-110065
…………..RESPONDENT
Date of Order: 12.01.2016
O R D E R
A.S. Yadav, President
Complainant is company duly incorporated under the provisions of Companies Act, 1956 involved in the activity of import and trading of merchandise and OP provides carriage services for cargo from various ports of Inland Container Depot to their destinations.
It is further stated that in the course of business, the overseas suppliers of complainant dispatched certain goods contained in 6containers / 73 packs of MDF Boards through OP for carriage from the port of loading i.e. Lyttelton port in Newzeland to Inland Container Depot, Delhi, the place of delivery. In terms of Bill of Lading, OP was supposed to deliver the goods at the Inland Container Depot at Delhi and was entitled to Inland Haulage. Pursuant to the Bill of Lading, OP issued invoices towards Inland Haulage Container Washing Charges and Documentation Charges. Complainant issued six cheques in favour of OP which are detailed in para 6 of the complaint. Out of six cheques advanced by complainant, one of the cheques for a sum of Rs.2,809/- was by mistake issued without signatures. OP despite knowing that the cheque was unsigned presented it to bank and wrongly informed that the said cheque has been returned for insufficient funds and demanded the like amount. Thereafter, complainant handed over a bank draft for a sum of Rs.2,809/- to OP.
It is further stated that even when the subject cheque was issued the container had not arrived at the port of Inland Container Depot. It is further stated that on 06.08.2007, after the arrival of cargo at ICD Delhi terminal, complainant approached OP for delivery of goods however OP with malafide intention declined to issue the delivery order and contended that invoice dated 04.08.2007 was pending on the part of complainant. Complainant informed OP that he has already made the payment by way of bank draft. It was informed by OP that demand draft was appropriated by them towards penalty imposed as per the Rules of their Association in India. Complainant was made to pay an additional payment of Rs.2,809/- to OP. Complainant demanded the unpaid cheque from OP and only then he came to know that that cheque was not returned by bank for insufficient funds rather the same was returned as not signed. It is stated that the entire action of OP amounts to unfair trade practice.
It is prayed that OP be directed to pay the complainant Rs.2,809/-(which was paid twice by him to OP) and also to pay Rs.21,000/- for compensation as well as Rs.11,000/- for litigation expenses.
OP moved an application for rejection of the complaint on the ground that complainant is not a consumer within the meaning of section 2(d) of Consumer Protection Act as is involved in commercial activities and services of OP were availed for commercial purposes.
We have heard Ld. Counsel for parties and carefully perused the records.
Admittedly complainant is a company involved in the activity of import and trading of merchandise and transaction out of which the complaint arises was in the course of core business of the company. Here it is appropriate to reproduce section 2(d) of Consumer Protection Act:-
Section 2(1)(d) of Consumer Protection Act 1986 defines ‘consumer’ as under:-
“(d) ‘consumer’, means any person who –
- buys any 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 than the person who buys such goods for consideration paid or promised or partly paid or party 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 resale or for approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
- 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 service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of 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 purposes of earning his livelihood by means of self-employment.]”
It is evident that the case of the complainant does not fall in the exceptional clause, by all means complainant is not a ‘consumer’.
Reference is placed on the case of Economic Transport Organization, Delhi Vs Charan Spinning Mills Private Ltd. and Others [2010(4) SCC 114] where Hon’ble Supreme Court has held as under:-
“52. We may also notice that Section 2 (1)(d) of the Act was amended by the Amendment Act 62 of 2002 with effect form 15.03.03 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 of for any commercial purpose, then the person availing the services will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.”
In view of the above, complainant is not a consumer hence the complaint is dismissed.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
