Punjab

Ludhiana

CC/15/304

M/s Fusion Incorporated - Complainant(s)

Versus

M/s Three Aces Global Logistics - Opp.Party(s)

18 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 304 of 06.05.2015

Date of Decision            :   18.04.2016

 

M/s Fushion Incorporated, having its office at SCF No.6, Phase 11, SAS Nagar, Mohali, through its Partner Sh.Amitabh Aikat.

….. Complainant

                                                         Versus

1.M/s Three Aces Global Logistics Pvt. Ltd., 55, Bindra Complex C-145, Phase 5, Focal Point, Ludhiana, (Pb), through its Shipping Agent, Sh.Gurmeet Singh.

2.Sh.Gurmeet Singh, Shipping Agent of M/s Three Aces Global Logistics Pvt. Ltd., 55, Bindra Complex C-145, Phase 5, Focal Point, Ludhiana, (Pb).

…Opposite party

 

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

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

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

Ops                                :         Ex-parte.

For OP3                         :         Sh.Gurmeet Singh.

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant, a company having its office in Mohali and  alleged       to be a partnership concern with Ms.Rewa Aikat and Amitabh Aikat as partners. This company through its above named directors/partners availed the services of OPs for dispatch of two consignments of its products i.e.one by Air cargo and second by Ship/Sea Line Cargo to its buyer firm at St.Louis in USA. Total charges payable by the complainant company to the OPs were settled at Rs.39,514/-. Complainant company paid the total charges to Ops for both consignments and that fact was acknowledged through email dated 20.1.2015. At the time of making payment, it was disclosed to the complainant as if no other amount would be payable by him either to the OPs or by its buyer’s firm in USA at the time of release of consignment sent through ship/sea shipment. However, contrary to that assurance, OPs demanded additional amount of Rs.26,048/- as charges for the sea shipment of the consignment. Demand of 454 U$ dollars was put forth by USA agent of OPs. That demand alleged to be illegal and as such, it is claimed that OPs indulged in unfair trade practice. Directions sought against OPs to not to charge the additional demand of Rs.26,048/- before releasing of the consignment sent through Sea Shipment. Even directions sought against OPs for calling upon them to ask their agent in USA not to demand 454 U$ dollars for the release of consignment. Rs.50,000/- as compensation for mental harassment, but Rs.20,000/- as litigation expenses and Rs.1 lac by way of damages on account of sustained loss due to non release of consignment claimed.

2.                In the written statement submitted by the OPs, it is pleaded interalia as if the complaint is bad for mis-joinder and non-joinder of parties; complainant has not sustained or suffered any damage; complainant is not a consumer as per provisions of Consumer Protection Act; service for carriage provided in accordance with law of The Multimodal Transport of Goods Act, 1993 and complaint not filed by the duly authorized person. Besides, it is claimed that complainant has not placed on record any partnership deed or any document for proving their plea of above named lady as the Director. Air shipment was handled against invoice No.DD013994 for consideration of Rs.39,514/-. However, Sea shipment was handled through bill of Lading bearing No.LDH/0884/SAN against invoice bearing No.LDH-001098 for consideration of Rs.26,048/-, being amount of Freight and Freight Related Charges. Complainant is withholding the amount of Rs.26,048/- without any reason and contents of email alleged to be not genuine. Air shipment charges were towards local applicable charges and same fact was clearly mentioned on the Airway Bills/MTD issued to the complainant. What charges are payable in India and what charges payable at the destination, those are clearly mentioned in the relevant bills of the two different kinds of shipments. Ops claims  that  they have reserved  right  to  file  suit  for  recovery of          Rs.26,048/-, in case, these charges not paid by the complainant. Allegations of adoption of unfair trade practice specifically denied.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C5 and thereafter, his counsel closed the evidence.

4.                On the other hand, in order to rebut the case of complainant, Sh.Gurmeet Singh, Branch Manager tendered in evidence his affidavit Ex.RA and then closed the evidence.

5.                Written arguments not submitted, but only oral arguments    addressed. Records gone through carefully.

6.                Bone of contention remains as to whether the complainant is a consumer as per provision of Section 2(1)(d) of the Consumer Protection Act, 1986 or not? After going through paras no.1 to 3 of the complaint, it is made out that complainant company carrying on business of exports. In furtherance of business of exports, services of OPs were availed for dispatch of two consignments of its products i.e. one by Air Cargo and the other   by Ship/Sea Line Cargo. Those goods were to be delivered to the buyer firm at St.Louis in USA. So, certainly services of OPs were hired by the complainant in connection with commercial activities/transactions of complainant’s company. As per Section 2(1)(d) of the Consumer Protection Act, 1986, consumer means a person, who purchases goods for consideration or who hires or avails services for consideration, paid or promised to be paid or partly paid and partly promised to be paid for self consumption. Provisions of this Section 2(1)(d) of Act further lays that in case the services hired or availed for commercial purposes, then the concerned person cannot be treated as a consumer at all. 

7.                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 relations 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 buyer firm at St.Louis in USA. So, virtually the consignment services availed for business transaction and as such, complainant company/firm is not a consumer.

8.                Besides, complainant has not produced on record any document to show that Sh.Amitabh Aikat is its Partner or its Director. In para No.1 of the complaint, it is mentioned as if Ms.Rewa Aikat and Sh.Amitabh Aikat are the partners of partnership concern, but in para no.2, it is mentioned as if Ms Madhu Aikat d/o Sh.Amitabh Aikar is the Director Exports of complainant’s company. So, virtually two contradictory pleas are taken in para no.1 and 2 of the complaint because at one point, it is claimed as if complainant concern is a partnership concern, but in para no.2, it is claimed as if it is a company run by its Directors for carrying on business of Exports. So, non production of the copies of partnership deed or of the certificate of registration of the Firm issued by the Registrar            of the Firms or concerned authorities is fatal to the case of the                complainant, particularly when resolution of the board of Directors or Forms A & C even not produced by the complainant to show as to in which capacity, the complaint filed through Sh.Amitabh Aikat on behalf of the complainant. As such, this consumer complaint being not maintainable merits dismissal.

9.                As a sequel of the above discussion, present complaint dismissed by leaving the parties to bear their own costs. Copies of order be supplied to the parties free of costs as per rules.

10.              File be indexed and consigned to record room.

 

                   (Vinod Bala)                (Babita)                 (G.K. Dhir)

          Member                        Member                  President

Announced in Open Forum

Dated:18.04.2016

Gurpreet Sharma.