PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it being the courier agency did not deliver the envelope containing two cheques of the Complainant to the addressee of the envelope and thereby caused financial loss to the Complainant.
2) The facts of this case as stated by the Complainant are that, he is in the business of readymade garments in the name & style M/s. Sheela Enterprise. The Complainant purchased the garments from M/s. Galaxy Garments at Kolkatta. The Complainant has stated that the bill for this purchase is attached as Exh.‘A’ but, there is no such Exh.‘A’ alongwith the complaint.
3) The Complainant has further stated that the Complainant issued two cheques one dtd.13/10/07 for Rs.19,238/- and 2nd cheque dtd.16/10/07 for Rs.16,922/- drawn on Bank of Rajasthan Ltd. Jalore Branch (Rajasthan) in favour of Kusum Baid of Galaxy Garments, Kolkatta from who he had purchased the garments. He put these cheques in an envelope having name of the party as Galaxy Garment and address of Galaxy Garments on this envelope. It was duly sticked and handed over to the Opposite Party for its delivery to Galaxy Garments at 178, Jamnalal Bajaj Street, 2nd floor, Kolkatta – 7, under the Opposite Party’s receipt No.62536 dtd.13/10/07. The Complainant also informed the said Kusum Baid about the dispatch of the above cheques.
4) On 25/10/07, Kusum Baid informed the Complainant that the said cheques were not received by Galaxy Garments. In turn the Complainant made enquiry about the same with the Opposite Party but there was no proper reply form the Opposite Party. Thereafter the Complainant sent a legal notice to the Opposite Party in this connection on 15/11/07. The Opposite Party replied to this notice and communicated that the envelop is not traceable. It is informed by the Complainant that the two cheques have been stolen and encashed through fraudulent means with bogus name. The Opposite Party through its counter part at Kolkatta lodged police compliant at Kolkatta for the loss of the cheques.
5) It is further stated by the Complainant that the Opposite Party has not rendered proper service to him and thus, filed this complaint for the loss of 2 cheques of Rs.36,160/- to be recovered from the Opposite Party. It is prayed by the Complainant that the order for payment for Rs.36,160/- with interest & penalty be passed against the Opposite Party.
6) The Complainant has attached the xerox copies of the following documents alongwith the complaint –
a) Two cheques bearing No.299225 & 299224, Advocates notice dtd.15/11/07, Letter dtd.16/11/07 from Opposite Party to M/s. Sheela Enterprises, Advocates letter dtd.14/01/08, Opposite Party’s letter dtd.18/01/08, Letter dtd.15/12/07 addressed to the DCDDI, Kolkatta.
7) The complaint was admitted and notice was served on the Opposite Party who filed its written statement wherein the Opposite Party has denied the allegations of deficiency and stated that the Complainant has filed this complaint with malafide intention to extort money & harass the Opposite Party. The Complainant and his Banker are in collusion with each other and the banker had allowed to encash the tampered cheques which were admittedly drawn in favour of Kusum Baid and there is nothing against the banker. Therefore, the complaint is misconceived and untenable in law.
8) It is further stated that this complaint is filed as a recovery suit for the amount of cheques. However, as per the terms & conditions 5, in case of loss in transit, the liability of the Opposite Party is only for Rs.15 per document.
9) The Opposite Party has submitted that the Complainant deliberately has not annexed the copies of the annexures to the complaint served on the Opposite Party. The Complainant has not annexed the bill as mentioned by the Complainant in his complaint.
10) The Opposite Party has admitted that a cover was dispatched through it vide Receipt No.2536, dtd.13/10/07 & the same was dispatched and sent to Kolkatta as per Dispatch Sheet No.15909, dtd.13/10/07.
11) It is also submitted by the Opposite Party that a complaint was also filed in this respect with Kolkatta Police by M/s. Pushpak Couriers with whom the Opposite Party has tie-up agreement for the delivery of the items through courier dispatched by them to Kolkatta. Pushpak Courier also filed a criminal case in the Kolkatta Court in the same matter as the police did not take cognizance of the matter.
12) Finally the Opposite Party has stated that the complaint being false, frivolous, vexatious, be dismissed with cost.
13) The Opposite Party has also attached the xerox copies of the following documents alongwith its written statement -
Receipt No.62536, dtd.13/10/07, with terms and conditions, dispatch sheet 15909, Letter dtd.16/11/07, 18/01/08, 20/04/08, Complainant in the Court of Learned Additional Chief Metropolitan Magistrate at Kolkatta, Cheques concerned in this case, complaint to DCDD(I) Kolkatta. The Opposite Party also filed an affidavit in evidence and written argument wherein it reiterated the facts mentioned in its written statement. The Complainant also filed his affidavit in rejoinder and the written argument wherein he reiterated the facts and point mentioned in the complaint.
14) We heard the Ld.Advocate for the Complainant and perused all the papers filed by both the parties and our findings are as follows -
The Complainant has himself submitted in the complaint that he is in the business of readymade garments and proprietor of M/s. Sheela Enterprises dealing in the garment business. All the correspondence is in the name of M/s. Sheela Enterprises who has availed the services of the Opposite Party i.e. the Courier Company. The Complainant has a transaction with M/s. Galaxy Garment at Kolkatta and has purchased garments from the said Galaxy Garments. The Complainant has sent the amount of Rs.36,160/- by cheques to Galaxy Garment. The cheques were in the name of Kusum Baid of Galaxy Garments. These all facts indicate that, the services availed by the Complainant are the part and parcel of his business transaction. The Complainant was to pay the amount to Galaxy Garments at Kolkatta for the purchases made by him in his business of garments. The services availed by him are the part of this commercial transaction. These services are availed for the commercial purpose hence, as per the definition of the term ‘Consumer’ under Sec.2(1)(d)(ii) of the Consumer Protection Act, the Complainant is not a consumer as the definition of consumer is as below –
“Any person who 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 use 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.
i) hires or avails 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 or 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 purpose.
Explanation :- for the purpose 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.”
The Hon’ble Supreme Court in Economic Transport Organization V/s. M/s. Charan Spinning Mills (P) Ltd. & Anr., has held as follows –
“We may also notice that Sec.2(d) of the Act was amended by amendment Act, 62/2002 with effect from 15/03/03 by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of Consumer. After the said amendment, if the services of the carrier had been availed for any commercial purpose, then the person availing the services will not be a “Consumers” and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.”
15) In view of the above observations, in our candid view, the Complainant in the case in hand is not a ‘Consumer’ within the meaning of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Therefore, this Forum does not have the jurisdiction to entertain this complaint and consequently the complaint is not maintainable. Hence, in view of this observation we pas the following order -
O R D E R
i)Complaint No.37/2009 is hereby dismissed for want of jurisdiction.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties.
