Delhi

North

CC/153/2018

M/S. AKASH GANGA SEEDS(INDIA) LTD., - Complainant(s)

Versus

M/S. DELHI UP MP TRANSPORT CO. (KHURANA'S) - Opp.Party(s)

RAKESH CHAUHAN

08 Aug 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

CONSUMER COMPLAINT NO.: 153/2018

 

In the matter of

M/s Akash Ganga Seeds (India) Ltd.

(Through its Director Shri Pankaj Gupta)

At 2547, Hudson Line

Mall Road, Delhi- 110009                                                                                          …       Complainant

Versus

M/s Delhi UP MP Transport Co. (Khurana’s)

(Through its Authorised Signatory)

Hamilton Road, Mori Gate

Delhi- 110006                                                                                                              …       Opposite Party

 

ORDER

08.08.2023

 

Present:       None for Complainant, However, Shri Narendra Singh, Adv. appeared for Complainant during arguments

None for OP

(Divya Jyoti Jaipuriar)

We have heard the arguments of Shri Narendra Singh Ld. Advocate of the Complainant on last date of hearing on the preliminary issue that whether the Complainant Company herein is consumer or not within the meaning of Section 2 (1) (d) of the erstwhile Consumer Protection Act, 1986 as this complaint was filed prior to introduction of Consumer Protection Act 2019.

2. Before proceeding further, it is important to briefly deal with the important facts of the case. The Complainant herein is a private limited company supposedly engaged in the business of seed production and sale. The Complainant Company sold some seeds to one M/s Khatri Kharidi Bikri Kendra, Ambikapur, Madhya Pradesh (Not a party) and booked the consignment of seeds through M/s Delhi UP MP Transport Co. (Khurana’s) (OP herein). It is the case of the Complainant Company that the OP did not deliver the said consignment to the consignee causing loss of business and loss of reputation of the Complainant Company. Documents so annexed also indicate that the OP herein informed the Complainant Company vide its letter dated 10.02.2018 that the truck carrying the consignment met with an accident and the entire load of the truck was destroyed. Thereafter, the Complainant Company had  sent a letter dated 02.04.2018 to OP claiming for the invoice value of the consignment valued at Rs. 1,15,940/-. Thereafter a legal notice was sent to the OP on 21.05.2018. As there was no reply or payment of claim by the OP, the Complainant Company filed this complaint.

3. On the onset, during arguments, we enquired from the Ld. Advocate for the Complainant to explain as to how the Complainant Company is covered under the definition of “Consumer” as defined in section 2 (1) (d) of the erstwhile Consumer Protection Act, 1986 in view of the fact that the Complainant Company hired the services of the OP for commercial purpose in order to send the consignment to the buyer of the products sold by the Complainant Company. In reply, Ld. Advocates for the Complainant has argued that as the Complainant Company availed the services of the OP for transporting its consignment, it becomes a Consumer within the meaning of the provisions of the Consumer Protection Act, 1986. It is also argued by the Ld. Advocates of the Complainant that although the consignment was sent for business purpose, it is still covered under the provisions of the Consumer Protection Act, 2019. Ld. Advocate for the Complainant, during argument, also argued that sending the consignment to the buyer of the product cannot be termed as the commercial transaction as the relationship between the Complainant Company and the OP is not commercial in nature.

4. In support of his arguments, Ld. Advocate for the Complainant has relied on the judgment of Hon’ble National Commission in the matter of Lucky Forwarding Agency vs Binder Devi [(1999) 1 CPJ 400]. We are also aware of other judgments on similar aspect, some of which are as follows:

1. Patel Roadways Limited vs Birla Yamaha Limited [(2000) 4 SCC 91]
2. Trans Mediterranean Airways vs Universal Export [(2011) 10 SCC 316]
3. M/s Bakshi Enterprises vs DHL [DSCDRC CC No. 19/2010, decided on 30.09.2021]

5. Before proceeding further, it is paramount to reproduce relevant provisions of the Consumer Protection Act, 1986. Section 2 (1) (d) of the Consumer Protection Act, 1986, reads as under:

“2. Definitions.- (1) In this Act, unless the context otherwise requires,—

...

(d) "consumer" means any person who—

(i) 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 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

(ii) 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 purposes;

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;

…”

6. It is important to mention here that the expression “but does not include a person who avails of such services for any commercial purposes” in Section 2 (1) (d) (ii) of the Consumer Protection Act 1986 was not there in original legislation that was passed in 1986. This expression was added by Consumer Protection (Amendment) Act, 2002 [Act 62 of 2002], which came into effect on 15.03.2003. By the same Amendment Act, the explanation to this clause was also substituted to read as above.

7. Ld. Advocate for the Complainant relied on the judgment in the matter of Binder Devi (supra) in which the consignment booked by the Complainant therein was lost by the transport company. In the said case, Hon’ble National Commission had upheld the order passed by the then District Forum and the liability of the carrier was fixed. But the said judgment was passed in a complaint the facts of which were from a date prior to 2003 amendments in the Consumer Protection Act, 1986. The facts in the Binder Devi case (supra) dated back to the year 1995, when the commercial usages were also part of the Consumer Disputes. After the amendment of 2003, Commercial usages were specifically excluded from the purview of the application of Consumer Protection Act, 1986. Hence, the judgment of Hon’ble National Commission in Binder Devi case (Supra) shall not have any application in the facts and circumstances of the present case.

8. Even the judgments of Hon’ble Supreme Court in the matter of Patel Roadways (supra) and Universal Exports (supra) cases, which are referred above, are not applicable in the case in hand for the same reason that the facts of both these cases are from a date prior to 2003 when the 2002 amendments in Consumer Protection Act, 1986 came into effect.

9. The facts in Patel Roadways case (supra) date back to 1994. Similarly, the facts in Universal Exports case (supra) also date back to 1994. After the amendment in the Consumer Protection Act, 1986 in the year 2003, both these judgments have no application in the case in hand. When Hon’ble Supreme Court passed the judgments in Patel Roadways (Supra) and Universal Export (supra) cases, the expression “but does not include a person who avails of such services for any commercial purposes” in Section 2 (1) (d) (ii) of the Consumer Protection Act 1986 was not there and services availed for commercial purposes were also covered under the ambit of Consumer Protection Act, 1986, although goods purchased for commercial purposes were out of purview of Consumer Protection Act, 1986 since inception. Once the legislator has introduces the amendment in 2003 and introduced this expression, lis involving any availment of services for commercial purposes cannot be entertained by District Forums.

10. We are also aware of the judgment of Hon’ble Delhi State Commission in the matter of Bakshi Enterprises case (Supra). Although this case was based on the facts subsequent to the 2002 amendment, but the services so availed by the Complainant therein was not for commercial purposes. In Bakshi Enterprises case (supra), the service of transport of shipment from Delhi to Disseldore, Germany was not for export or for resale, but for display of these transported items in a display at exhibition where the Complainant therein was also participating as entity. While passing the said order, Hon’ble Delhi State Commission has not specifically dealt with the issue that the Complainant therein is a consumer or not, but the fact that Complainant Firm therein used the services of the Transporter to transport the items not for commercial purpose of resale/ export but to exhibit the same in a exhibition to promote his goods is relevant. As the transport of the goods in Bakshi Enterprises case (supra) was not for earning profit, the same cannot be said to be a commercial use of the services. In the case in hand, the consignment was sent to to Ambikapur and for its sale for earning profit. This is the fundamental difference between the judgment in Bakshi Enterprises (Supra) and present complaint case.

11. In this context, we would also like to refer to the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works vs. P.S.G. Industrial Institute [(1995) 3 SCC 583], in which Hon’ble Supreme Court has explained the term “Commercial Purpose”. While examining the issue, Hon’ble Supreme Court, in Laxmi Engineering case (Supra) has held as under:

“10. … Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself; any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/ their behalf. The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business ­to­ consumer” disputes and not for “business­to­business” disputes. This scheme of the Act, in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.

11. … The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., “uses them by himself”, “exclusively for the purpose of earning his livelihood” and “by means of self­employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood.”

12. In Lilavati Kirtilal Mehta Medical Trust vs Unique Shanti Developers and others [(2020) 2 SCC 265], Hon’ble Supreme Court, while dealing with the issue of transaction for commercial purpose, has laid down certain guidelines and held as under:

“19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is “for a commercial purpose”:

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/ industrial activity or business­to­business transactions between commercial entities.

19.2. The purchase of the good or service should have a close and direct nexus with a profit­generating activity.

19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of self­employment” need not be looked into.”

13. Hon’ble Supreme Court in Lilavati Trust case (supra) has guided that to decide that a transaction is for a commercial purpose or not, the facts and circumstances of each case has to be considered and there cannot be any straightjacket formula for that purpose. However, the dominant intention or dominant purpose for the transaction and close and direct nexus with a profit generating activity are two broad parameters to ascertain that whether the transaction in question is commercial in nature or not. Further, for application of the explanation of section 2 (1) (d) of the erstwhile Consumer Protection Act, 1989, it is also to be examined that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/ or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of “generating livelihood by means of self- employment” need not be looked into.

14. While applying the principles laid down in Lilavati Kirtilal Mehta Medical Trust case (supra), Hon’ble Supreme Court in the matter of Shrikant G. Mantri vs. Punjab National Bank [(2022) 5 SCC 42] has examined the overdraft facility being utilised by a stockbroker has held that relations between the appellant [Stockbroker] and the respondent [Bank] is purely “business to business” relationship. Hon’ble Supreme Court, therefore concluded that as such, the transactions would clearly come within the ambit of ‘commercial purpose’ and it cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”. Hon’ble Supreme Court has also opined that if the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes.

15. In the case in hand, the facts clearly indicate and the Complainant Company also admits in the complaint that the consignment was booked for transporting the same to the Complainant’s client/ purchaser namely M/s Khatri Kharidi Bikri Kendra, Ambikapur, Madhya Pradesh. This is a business-to-business transaction and the sole purpose of the said transaction was to earn profit. This is also apparent from the averment of the Complainant that because of the actions of the OP, the “Complainant has suffered financially” and also “also lowered down his [its] reputation not only in the eyes of his [its] clients…”. These statements clearly indicate that the transaction between the Complainant Company and the OP is business-to-business, commercial in nature and it has a direct nexus with profit generating activity of the Complainant Company.

16. In view of the above, we are of the opinion that the transaction in question in this complaint is commercial in nature and it is not covered under the ambit of the Consumer Protection Act, 1986. Hence, this complaint is liable to be dismissed on the sole ground that Complainant Company is not a consumer within the ambit of section 2 (1) (d) of the Consumer Protection Act, 1986.

17. Accordingly, for the foregoing reasons, this complaint is dismissed. However, we grant liberty to the Complainant to approach the Forum/ Court of appropriate jurisdiction, if so advised for the relief so claimed in this complaint. We also clarify that while dismissing the complaint we have only examined one aspect that whether the Complainant is a consumer or not for application of the provisions of the Consumer Protection Act, 1986 and we have not examined the case on the facts and evidences and we have not examined the case on its merit. Therefore, we clarify that as we have not expressed any opinion on the merits of the case, if the Complainant approached any other Forum/ Court, the same shall decide the case on its own merit without being influenced by any of the observations made in this order. For explaining the delay, if any, the Complainant Company may seek the benefit of the judgment of Hon’ble Supreme Court in the matter of Laxmi Engineering Works (supra), if so advised and if so available to it.

18. Office is directed to supply the copy of this order to the parties as per rules. Thereafter, file be consigned to the record room.

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

___________________________

Harpreet Kaur Charya, Member