Date of Filing:18.11.2008<br /> Date of Order:03.11.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 03RD DAY OF NOVEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 2488 OF 2008<br /> <br /> M/s Associated Engineering Works,<br /> Gamini Compound Main Road,<br /> Tanuka, Andhrapradesh-534 211. Complainant<br /> <br /> V/S<br /> <br /> M/s On Time Seven Seas Logistics Pvt. Ltd.,<br /> (Formerly Seven Seas Shipping)<br /> No. 39/4, III Floor, ‘SHIVAS’,<br /> Doddakundi, Outer Ring Road,<br /> Marathalli Post, <br /> Bangalore-560037. Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant stating that the complainant in order to export/transport the consignment of polished granite slabs from Bangalore to Nashville USA had entered into an agreement with the opposite party to take consignment by administering all the process required in the matter of export to the country wherein the required conditions to be fulfilled, one such condition is process of fumigation. The opposite party is obligated to get the process of fumigation to the consignment of goods, thus the process of fumigation was completed and a certificate issued from Bangalore Pest Control Corporation dated 28/07/2007 for having fumigated the consignment of polished granite slab along with the wooden crates conducted on 26/07/2007 by using methyl bromide. The process of fumigation as stated in the fumigation was under gas light enclosure. The opposite party transported the consignment to Nashville, U.S.A. A bill of loading the combined transport issued from the opposite party for Rs. 1,96,800/- is produced which is dated 26/07/2007. It is submitted that the opposite party while transporting the consignment issued a certificate from the bureau of customs and border protection evidencing the transportation of consignment from Bangalore to Nashville USA. The authorities US department of Agriculture, animal and plant health inspection service and plant protection on inspection of the container having found that the fumigation process as stipulated by the prevailing rule and law in USA has not been complied. Having found that goods have not been fumigated on this ground the entry of goods has been refused and the same has been sent back to the place of transmit with a note refusal entry. The complainant has received the undelivered goods on 26/12/2007, the transmit of goods, sale of goods investment and re-investment in the business and payment to the owner etc., a chain of business ling was set at knot resulted in huge monetary loss, the number of days required for taking consignment and return of consignment is 155 days. The complainant on return of goods made separate and alternate arrangement to transport the goods to Nashville USA this process involve huge monetary loss consuming double the time and regular financial transaction is put to halt. The complainant prayed to direct the opposite party to pay Rs.8,50,000/- to the loss and damage caused to him. <br /> 2. Notice was issued to the opposite party. Notice was served. Opposite party appeared through Advocate and filed defence version stating that, the complainant company has engaged the services of the opposite party for transportation of granite slabs from Bangalore to USA. It is true that, the Bangalore Pest Control Corporation, a registered company and recognized by the Government of India and Member of Indian Pest Control having its office at No. 46, IV Main, New Tharagupet, Bangalore-02, which provides fumigation process, along with other services, to fumigate the goods in question. Assuming but not admitting that, if the fumigation process was done on the behest of the said company, then the said BPCC is a necessary party, hence this complaint is bad for non-joinder of parties. It is false to state that the US Authorities, Department of Agriculture, Animal and Plant Health inspection service and plant protection on inspection of the container having found that the fumigation process as stipulated by the prevailing rule and law in USA has not been complied and having found that the goods have not been fumigated and on this ground the entry of goods has been refused and the goods has been sent back with a note refusal entry. The flimsy amount of Rs.8,50,000/- as compensation arrived by the complainant by irrational and unlawful means is highly arbitrary based on false allegations. The averments of the complaint specifically not traversed are all denied as false. Assuming but not admitting that the complainant to be a consumer of the opposite party, then also the said company has rendered its services by transporting the goods from Bangalore to USA, which was the only services provided by it, thereby the question of deficiency of service against he said company does not arise and more so with the opposite party. In view of all these reasons stated above, the opposite party prayed to dismiss the complaint. <br /> 3. Both the parties filed affidavit evidence. Arguments are heard.<br /> 4. In the light of the arguments advanced before us following point arise for consideration:<br /> Whether the complaint is maintainable?<br /> <br /> REASONS<br /> 5. The learned Advocate for the opposite party argued and admittedly that the complainant is engaged in export of granite slabs and it is engaged in the business to earn profit. When the complainant is engaged and involved in commercial activity to generate profit, the complainant cannot be considered as a consumer under the Consumer Protection Act. Therefore, on this ground itself, he argued that the complaint is liable to be dismissed. The learned counsel submitted that the complainant could have approached the Civil Court for getting relief and this forum cannot entertain the complaint filed by the complainant. The learned counsel referred some decisions to support his argument. The Union Territory Consumer Disputes Redressal Commission, Chandigarh in City Heart Hotels Pvt Ltd.,Vs. ICICI Bank in II (2008) CPJ 509, wherein it has been held as under:-<br /> “Consumer Protection Act, 1986 – Section (2)(1)(d) – Consumer – Commercial concern – Credit card machine installed at business premises – Payments withheld by bank – Machine for receiving payments vital link of chain of commercial activity to generate profit – Service hired acted as vital link of commercial activity being undertaken by complainant – Commercial concern involved in commercial activity to generate profit, not consumer – Complaint not maintainable under Consumer Protection Act.” <br /> <br /> 6. Even it is not the case of the complainant that, it is engaged in the business to earn livelihood or for the purpose of self employment. The complainant being a company even it cannot take defence or plead that it is engaged in self employment or to earn livelihood. It is now well settled law that any service hired by a commercial concern or company or by an individual who is not earning his livelihood and which is for generating profit through a commercial venture does not fall within the ambit of Consumer Protection Act. Another decision relied on by the opposite party Advocate is of Hon’ble National Commission, New Delhi in Sidheswara Iron and Steel (P) Ltd Vs. Kirloskar Electric Co Ltd. & Another in IV (2007) CPJ 312 (NC), wherein it has been held as under:- <br /> “Consumer Protection Act, 1986 – Section (2)(1)(d), 2(1)(e) and 2(1)(g) – Consumer Dispute – Consumer – Commercial purpose – Machine not supplied in time – Breach of contract alleged – Loss suffered – Compensation claimed – Sale purely for commercial purpose – Complainant a company – Goods purely for resale, for commercial use – Not for self employment to earn livelihood – No consumer dispute involved – Complainant no consumer – No relief entitled.” <br /> <br /> <br /> 7. In this case also, the present complainant is a company/firm and the opposite party is also a registered company. Any contract between the parties will not come within the purview of consumer disputes and the complainant is not qualified to be a consumer. The only remedy available to the complainant is to file a civil suit and get the relief and the complaint deserves to be dismissed as not maintainable before this Fora. The complainant will save the limitation in filing the civil suit because he had chosen a wrong forum. The time spent here will be given benefit to the complainant in case he is advice to file a civil suit. With this observation the complaint deserves to be dismissed. The other points which are urged by the complainant need not be gone into and it would wholly unnecessary to decide the matter or give findings on other issues or points, because the complaint itself is not maintainable since the complainant cannot be considered as a consumer under the definition of Consumer Protection Act. In the result, I proceed to pass the following:- <br /> ORDER<br /> 8. The complaint is dismissed as not maintainable. <br /> <br /> 9. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> <br /> 10. Pronounced in the Open Forum on this 03RD DAY OF NOVEMBER 2009. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />