Date of Filing: 17.09.2007<br /> Date of Order:21.08.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 21ST DAY OF AUGUST 2008<br /> PRESENT<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 /> <br /> <br /> <br /> COMPLAINT NO: 1931 OF 2007<br /> M/s. Thermo Tech Controls<br /> # 12, C.K. Palya Road<br /> Hommadevanahalli, Gottigere Post<br /> Bannerghatta Road<br /> Bangalore 560 083<br /> Represented by its Managing Partner<br /> K.A. Tajmul Basha Complainant<br /> <br /> V/S<br /> M/s. Intercity Packers and Movers<br /> # B-50, DDUTL Building<br /> Industrial Suburb, Yeshwanthpur<br /> (Opp. Kanteerava Studio)<br /> Bangalore 560 022<br /> Represented by its Proprietor<br /> K.G. Vallabha Ramu Opposite Party<br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that the complainant is a registered partnership firm. Complainant is a manufacturer of Fire and Volume Control Dampers and he is supplying the same to its customers at several states and has earned lot of goodwill and name in its area of business. Opposite party is a transporter. The complainant has entrusted service to the opposite party for delivering consignment of fire and volume control dampers on 16.06.2007 to its customer M/s. Air Perfection at Jabalpur, Madhya Pradesh. On 21.06.2007 the consignment was detained at the check post by Madhya Pradesh Sales Tax Authorities on the ground that Form No. 49 is not furnished by the opposite party. Sales Tax authorities issued notice to pay penalty of Rs. 65,390/-. Complainant was constrained to pay the penalty on behalf of the opposite party. Complainant was forced to take back the consignment from Jabalpur to Bangalore. The consignment is still in the custody of opposite party at Bangalore. In view of the deficiency in service of opponent the complainant has suffered lot. The complainant has prayed that opposite party may be directed to pay sum of Rs. 2,79,103/- along with interest. <br /> 2. Notice was issued to opposite party. Opposite party has put in appearance through advocate. Filed defence version. It is submitted that complaint is not maintainable. Admittedly, the complainant had been entrusting consignment to opposite party to be delivered at various destinations in the country. The complainant had been engaging the services of the opposite party as part of its commercial activities. Hence, the complainant is not a ‘Consumer’ and as such cannot invoke the provisions of Consumer Protection Act. On this ground alone the complaint has to be dismissed. Apart from this legal defence the opposite party has also taken defence on merits also. It is submitted that the claim of the complainant is totally illegal and unjust. The opposite party has sent notice demanding payment. The amount outstanding from the complainant is Rs. 1,07,900/-. The complainant has not paid the transportation charges till today. It is the complainant who is at fault in respect of whole incident. Therefore, the opposite party requested to dismiss the complaint with costs.<br /> 3. Arguments are heard. The learned advocate of the opposite party argued that the present complaint is not maintainable before this forum since complainant is not a ‘Consumer’ as defined under the Consumer Protection Act 1986. The learned advocate submitted that the complainant cannot invoke the provisions of Consumer Protection Act and settle the dispute and also argued that complainant would have to approach the Civil Court. The learned advocate for the complainant in the course of argument filed a memo that opposite party has filed a civil suit in OS No. 3966/2008 before Hon’ble City Civil Court (CCH No. 18) Bangalore. The complainant admittedly is a manufacturer of Fire and Volume Control Dampers and the goods are supplied to its customers at several states. It is also pleaded by the complainant that it has earned goodwill and name in its area of business. Section 2(d)(i)of the Consumer Protection Act 1986 defines ‘Consumer’ as “any person buys any goods for a consideration which has been paid or promised or partly paid and partly promised……… 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 ……. but does not include a person who avails of such services for any commercial purpose.” It is not the case of the complainant that the service availed by him exclusively for the purpose of earning his livelihood by means of self employment. Therefore, the case of the complainant does not fall under the exception clause as defined under the Act. The complainant admittedly had engaged the services of the opposite party as part of its commercial activities and therefore, the complainant is not a consumer under the definition of the Consumer Protection Act. At this legal point itself complaint deserves to be dismissed. It is wholly unnecessary and unwarranted for us to decide the case on merits. Admittedly, the present opponent has filed Civil Suit in OS 3966/08 against the complainant. It is submitted during the course of argument that opposite party has filed a comprehensive civil suit for recovery of amount and other reliefs. The complainant has very well put up his appearance in that suit and counter claim or set off under the provisions of Civil Procedure Code. The civil court is the proper authority to decide the dispute between the parties by taking document and oral evidence. The dispute of the present nature cannot be resolved by the District Consumer Forum. The proceedings before the forum are disposed off in a summary manner. The present dispute cannot be disposed in a summary manner. Since civil suit is already pending between the parties that court is competent court to decide the dispute. If any finding is given on merits of the case by this forum that may lead to unnecessary complication and conflict of decisions. Therefore, we are of the opinion that the present complaint filed before this forum is not maintainable. The parties have to resolve their disputes in the civil suit. With this observation the complaint deserves to be dismissed and the same is dismissed. No order as to costs.<br /> 4. Send the copy of this Order to both the parties free of costs immediately. <br /> 5. Pronounced in the Open Forum on this 21ST DAY OF AUGUST 2008. <br /> Order accordingly,<br /> <br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> CV<br />