J.S. Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that the complainant is running its business at Phagwara, District Kapurthala and as per orders given by Bharat Distributor 19, Sunder Nagar, Mandhour, Ambala City, Haryana the complainant had dispatched material through the opposite party being transporter, which included invoice No.286 dated 23.11.2013 of two boxes containing material of Rs.24,628/- and in the said boxes as per the late order of the aforesaid firm more material vide bill No.287 dated 25.11.2013 for a sum of Rs.13063/- and bill No.289 dated 26.11.2013 for a sum of Rs.20905/- were also made part of the dispatched goods through opposite parties and as such the total price of the material given for transportation was Rs.58,598/-. Extra bill were drawn by the complainant on account of non availability of ST 38 Form, but entire goods worth Rs.58598/- were dispatched vide GR No.PHGIC23004 dated 23.11.2013. Unfortunately the said material did not reach the destination and were reported to be misplaced on way to the destination. The complainant has been making inquires from the opposite parties at Phagwara branch of the opposite parties, where the said material was handed over and booked but they were unable to trace out the same and ultimately, advised the complainant to lodge a complaint with the opposite parties at the said office. The complainant was given non traceable certificate of the dispatched goods from Ambala on 29.1.2014 and all the requisite documents alongwith claim were lodged with the opposite parties on 12.2.2014, which was received by the opposite parties on 14.2.2014. Thereafter till date, the opposite parties have failed to make the payment of the lost goods. Although the complainant has been pursuing the matter thoroughly with the representative of the opposite parties. On such like averments, the complainant has prayed for directing the opposite parties to pay it Rs.58598/- being the value of lost goods alongwith interest. It has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding maintainability, not approaching the Forum with clean hands, non service of notice under section 16 of the Carriage by Road Act, 2007, jurisdiction etc. On merits they pleaded that the opposite parties has booked the consignment of invoice No.286 only and that too on 23.11.2013 as shown in the consignee copy/G.R. of the said goods. That two more bills as alleged are dated 26.11.2013, so there was no occasion to take the goods of other two bill No.287 and No.289. The same are fabricated. They admitted that goods were lost in transit and complainant was offered the payment of Rs.2100/- as per rule 12 of the Carrier by Road Rules, 2011 but the complainant refused to accept the same. They denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered affidavit ExCA alongwith copies of documents Ex.C1 to C8 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. The complainant firm can not be termed as consumer under the Consumer Protection Act 1986 as complainant firm availed the services of the opposite parties for commercial purpose. This fact is evident from the contents of the complaint. The remedy of the complainant is to approach the Civil Court.

7. In PANVIJ BIOTEC NIGERIA LTD VERSUS NATIONAL CONTAINER LINE AND OTHERS IV (2004) CPJ 80, it has been held by Hon'ble State Consumer Disputes Redressal Commission of New Delhi as under:-

           	"The learned District Forum dismissed the complaint, filed by the appellant/complainant in limine on the ground that the complainant was not a consumer in terms of provisions of Section 2(1)(d)(ii) of the Act, as the services in question had been availed of by the complainant for commercial purposes. Aggrieved by the impugned order, the appellant/complainant has preferred the present. appeal before this Commission. We have heard the learned Counsel for the appellant on the question of admission of the present appeal and have also carefully gone through the documents/material on record. In terms of provisions of Section 2(1)(d)(ii) of the Act, a person, who avails of services for  commercial purposes is not a consumer. It is an admitted fact on the part of the appellant that both the  complainant as well as the respondent No.4 who is the consignor of the goods are public limited company manufacturing and dealing  in Pharmaceutical.  Further more, the consignment of Pharmaceutical goods was consigned  for delivery at Lagos through the respondents Nos. 1 to 3. Thus the services availed of and rendered were for commercial purposes and as such, we do not find any infirmity in the impugned order of the learned District Forum so as to call for any interference in the same in the exercising of our appellate jurisdiction."

8. 		Further in Economic Transport Organization Versus Charan Spinning Mills (P)  Ltd. & Anr. 2010 (2) CLT 302, it has been held by the Hon'ble Supreme Court as under:-

"We may also notice that Section 2 (d) of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003 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 service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a 'consumer' and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment"

9. The ratio of above cited authorities is applicable on the facts of the present case. In the present case complainant who is partnership firm availed the services of the opposite parties for commercial purpose. So it can not be termed as consumer under the provisions of Consumer Protection Act, 1986. Thus the present complaint is not maintainable.

10. In view of above discussion, the present complaint is dismissed with liberty to the complainant to approach Civil Court, if so advised. In the circumstance of the case, there shall be no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Parkash Singh Lamme Jaspal Singh Bhatia

Member President