(Per Shri Narendra Kawde, Hon’ble Member)
(1) This appeal is directed against the order dated 06/05/2006 in Consumer Complaint No.244/05, M/s.Fairtech Engineers Vs. M/s.Transport Corporation of India Ltd., passed by District Consumer Disputes Redressal Forum, Thane (‘District Forum’ in short). The District Forum dismissed the complaint with no order as to costs holding there by the appellant/complainant is a proprietary firm engaging in commercial activity. The appellant/complainant hired the services of the respondent/opponent for delivery of consignments (3 packets) containing Filter Elements worth `1,00,464/- to the consignee at Calcutta indicating the details of consignment on the proper address of the consignee. For availing service, the appellant/complainant paid freight amounting to a sum of `1,490/- in advance to the respondent/opponent. The consignment containing three packets sent under the note bearing No. 223314206 on 28/04/2003 to the consignee located at Calcutta, out of which two packets were lost and only one packet was delivered to the consignee at Calcutta office. The appellant/complainant pursued the claim against the loss of two packets consistently and also through their advocate by issuing legal notice to the opponent. But the opponent did not respond and therefore the appellant/complainant preferred to file consumer complaint before the District Forum, Thane which came to be dismissed on the ground that the complainant is not a consumer under the provisions of Sec.2(1)(d) of Consumer Protection Act, 1986. Aggrieved and dissatisfied with the impugned order, the appellant/complainant filed this appeal before us.
(2) This is an old appeal lying unattended and it was placed before us for hearing and disposal. Notice to both the parties was issued on 29/11/2011 for hearing on 21/12/2011. Intimation of hearing was also published on internet. However, none of the parties was present at time of hearing i.e. on 21/12/2011. Therefore, we proceed to decide this appeal on merit.
(3) On perusal of the record, we notice that there is no sufficient justification submitted by the appellant/complainant that the business/avocation prosecuted by them is for their self-employment and livelihood and therefore the District Forum came to the conclusion that the complainant is not a consumer under provision of Sec.2 (1)(d) of Consumer Protection Act, 1986 and complaint came to be dismissed. However, appellant/complainant has availed services of the opponent for transportation of their consignment. The service of the transport as a service is covered u/s.2(1)(o) of the Consumer Protection Act, 1986. There is no appearance or written version filed by the respondent/opponent before the District Forum. Further, it is alleged by the appellant/complainant that they were required to pay an amount of `12,568/- as sales tax to the Government for want of non-receipt of form ‘C’ under the Sales Tax Act from the consignee as the entire three packets consigned for delivery were admittedly not delivered by the respondent/opponent. The claim of the appellant/complainant is to the tune of `1,11,379/- whereas the goods consigned were to the tune of 1,00,464/- is not understood as to how the claim is inflated when delivery of 1 packet of the consignment was duly received by the consignee at their Calcutta office. All these issues are required properly to be appreciated. Therefore, in the interest of justice, we deem it fit to remand the case to the District Forum for de-novo enquiry. We hold accordingly and pass the following order.
ORDER
(1) The case is reminded back to the District Forum, Thane for de-novo enquiry.
(2) Parties to appear before the District Forum, Thane on 19/03/2012.
(3) District Forum, Thane is directed to dispose off the case within the period of three months.
Pronounced on 21st December, 2011.
