STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(First Appeal No.11 of 2011)

Tejinder Singh Proprietor of M/s Neena Crockeries, D-148, Phase VII, SAS Nagar, Mohali, through its Special Power Of Attorney, Mr. Ramandeep Singh.

……Appellant

V e r s u s

1.            M/s TCI XPS Cargo through its Chief Executive Officer, TCI, 69, Industrial Area, Sector 32, Gurgaon 122001, Haryana.

2.            M/s XPX Cargo through its Area Manager, Plot No.21, Transport Area, Sector 26, Chandigarh.

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Ajay Mehra, Adv. for appellant

                   Sh. Maninder Arora, Adv. for the respondents

PER  JAGROOP  SINGH   MAHAL, MEMBER

1.                      This is complainant’s appeal directed against the order dated 22.12.2010, rendered by the learned District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it dismissed the complaint filed by the complainant/appellant.

2.                      The facts in brief are that on 28.1.2010 the complainant booked various crockery items worth Rs.64,984/- through OP-2 for delivery to M/s Chef Xincai, R.B. Centre, Kadri, Nanthoor Road, Mangalore.  The material was properly packed in 9 sturdy cartons and OP-2 thoroughly checked the sturdiness of the cartons.  The goods were to be delivered to the consignee at Mangalore within a period of 7 days but the OPs failed to do so.  After exchange of a lot of correspondence, the OPs informed that the consignee refused to accept the consignment as the material was open and was in damaged condition.  The complainant approached the OPs to pay damages but they did not pay any heed. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      The OPs in their joint reply took preliminary objections, inter alia, that the complaint was not maintainable; that he was not a consumer and had concealed material facts.  On merits, the booking of the consignment was admitted. It was stated that the complainant being the consignor did not disclose the correct particulars of the material.  It was denied that the consignment was promised to be delivered within 7 days to the consignee.  It was averred that on 6.2.2010, the consignment was seized by the Commercial Tax Officer, Sales Tax Check Post, Dhulkhed, NS-13, Taluq INDI, Distt. Bijapur and the same was released after much efforts on 16.3.2010 and ultimately the consignment reached destination on 20.3.2010.  The consignment reached the consignee on 31.3.2010 but it refused to accept the same.  It was stated that there was no damage to the consignment and it was opened by the officials of the Sales Tax Check Post.  It was denied that there was any deficiency in service or unfair trade practice on their part.  Remaining averments were denied being wrong. 

4.                      Parties led evidence in support of their case.     

5.                      After hearing the Counsel for the parties and on going through the evidence on record, the learned District Forum dismissed the complaint.

6.                      Feeling aggrieved, the instant appeal has been filed by the appellant/complainant.

7.                      We have heard the Counsel for the parties and have gone through the evidence on record of the case carefully. 

8.                      The OPs/respondents had in preliminary objection No.2 of their reply taken a ground that the complainant does not fall under the definition of a ‘consumer’ as provided under Section 2(d) of the Act.  This fact was neither mentioned by the ld. District Forum in para 2 of the impugned order, while giving a brief of the reply filed by the OPs, nor any finding was returned on this point.  We are of the opinion that it was a very material fact which should have been discussed by the ld. District Forum, though the final outcome of the complaint is not going to be affected. 

9.                      According to the complainant, he is running the business of manufacturing various crockery items for the last many years as mentioned by him in para 1 of the complaint.  He further mentioned that for transportation of the goods, he availed the services of OP transport company.  It was mentioned in para 2 of the complaint that on 28.1.2010 he delivered to the OPs/respondents various crockery items worth Rs.64,984/- which were booked vide GR No.437295935 dated 31.1.2010 for onward transportation and delivery to his customer M/s Chief Xincai, R.B. Centre Kadri, Nanthoor Road, Mangalore.  According to him, all the goods/material was properly packed in 9 packages in sturdy cartons/ boxes. This description shows that the goods were being sent by the complainant to his customer for sale through 9 packages.  It was, therefore, a commercial transaction because the complainant is running the business under the name and style of M/s Neena Crockeries. The complainant had availed the services of the OP for a commercial purpose. The next question would be whether in view of these facts, the complainant would fall within the definition of a ‘consumer’ as defined under sub clause (ii) of clause (d) of sub Section (1) of Section 2 of the Act.  We are of the opinion that the answer to this question would be in the negative. 

10.                   The relevant portion of sub clause (ii) ibid reads as follows:-

“2(1)(d)       “consumer” means any person who –

(ii)     hires or avails of any services for a consideration …………………………   but does not include a person who avails of such services for any commercial purpose.”

It is, therefore, clear that since the complainant has availed the services of the OPs/respondents for a commercial purpose, in sending his commercial produce to his customer for sale, the complainant would not fall under the definition of ‘consumer’ to avail the benefit under the Act.  The complaint is, therefore, liable to be dismissed on this score alone.         

11.                   The ld. Counsel for the appellant has argued that the goods were not delivered by the OPs/respondents to his client for about two months and when offered for delivery, the same had been opened and, therefore, his client refused to take delivery of the same.   It is also argued that the goods were in a damaged condition, but this fact has been denied by the OPs/respondents.  There is no dispute about the fact that there was delay in sending the goods to the consignee.  However, the contention of the OPs/respondents is that the goods were seized by the Commercial Tax Officer, Sales Tax Check Post, Dhulkhed, NS-13, Taluq INDI, Distt. Bijapur on 6.2.2010 and the same were got released on 16.3.2010 after much efforts by the OP Company. Annexure R-2 is the copy of the release order which proves that the goods had been seized and were got released by the OPs.  According to the OPs, the consignment reached destination on 20.3.2010 and an intimation was given to the consignee who took some time to prepare a demand draft and the goods were ultimately offered to the consignee on 31.3.2010, but the consignee refused to take the delivery. The complainant has not produced any evidence to suggest that the goods were seized due to any deficiency on the part of the OPs.  In the absence of evidence, we cannot presume that the delay was due to any deficiency on their part.  The contention of the complainant is that when the goods were offered neither there was any damage nor the same were short.  However, the consignee refused to take delivery simply because the cartons were open.  The contention of the complainant that there was any damage to the goods, therefore, cannot be accepted as correct because he has only presumed this fact without any personal knowledge.  He has not produced the affidavit of the consignee or any other person who was present at the time of offering delivery to the consignee to prove the shortage or damage to the goods.  We are, therefore, of the opinion that the contention of the OPs/respondents was rightly accepted and that of the complainant was rightly declined by the ld. District Forum.

12.                   Since there was no negligence on the part of the OPs/respondents, the allegation that there was deficiency in service on their part was rightly not accepted by the ld.  District Forum.

13.                   In view of above discussion, we are of the opinion that the complaint was liable to be dismissed and has been rightly dismissed by the ld. District Forum. The impugned order dated 22.12.2010 is perfectly legal and valid.  There is no merit in this appeal and the same is accordingly dismissed with litigation costs of Rs.5,000/-.

                   Copies of this order be sent to the parties free of charge.

Pronounced.

5^th July, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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