JUDGEMENT Complainant sole proprietor of M/s In-GEN-Motors having his shop room at 5B, N.C. Dutta Sarani, Kolkata - 700001by filing this complaint has alleged that he is an unemployed and has been carrying a business as proprietor of the said firm for his livelihood and it is a proprietorship firm and op has been carrying a business of transportation goods to the different destinations as per order through consignment notes by establishing branch offices in different parts of Kolkata and having its head office at New Delhi. Complainant wanted to send 90 carburetors to Rekha Agriplas Ltd. having Door No.30, 22, 77, Kanak Durga Talkies Road, Vijayawada, 520002 and complainant made an arrangement with the ops and the ops gave full assurance for transporting the goods to the destination of Rekha Agriplas Ltd. under consignment notes and accordingly a consignment notes was signed between the complainant and the ops on 18.11.2012 having No.9814377 with verbal commitment that the goods will be delivered to the destination as per consignment notes within 4/5 days and ops promised to deliver the goods to the destination as per consignment notes and complainant with a good hope and support arranged for transporting the goods with the ops and accordingly promised to pay the consideration as charges for delivery the goods to the destination. But subsequently op got the letter from Rekha Agriplas Ltd. on 09.11.2012 stating that the goods were not received or delivered till date. So, complainant was surprised and immediately wrote a letter to the ops stating the facts of non-delivery of goods to the destination on 09.11.2012 and even after lodging the complaint no reply was received. So, complainant lodged a complaint before the Hare Street Police Station regarding this incident. Thereafter complainant gave a letter to the ops through Ld. Advocate dated 18.12.2012 stating facts of non-delivery of goods and that was received by the op, but op did nothing and kept silent. Fact remains the value of carburetors (90 Pcs) was Rs.1,33,110/- and complainant sent legal notice to the op no.3 to get the said article as yet neither the consignee received the same and for negligent and deficient manner of service of the op, complainant has lost huge amount and practically he suffered a loss in his daily income for his livelihood and for which he has prayed for compensation and other relief and for redressal. On the other hand ops by filing written statement submitted that complaint is not maintainable and the entire claim is based on surmise and further submitted that op never received a letter dated 09.11.2012 or dated 18.12.2012 and it is submitted that the logal notice has no sanctity under law as the same contains false and fabricated facts. Further op submitted that the value of the goods as stated by the complainant is exorbitant amount and only for the purpose of this, the case is filed and further submitted that there was no deficiency or negligence on the part of the op. But they have not denied the allegation of para nos. 3, 5 & 6 of the complaint and prayed for dismissal of this case. Decision with reasons On proper consideration of the entire materials on record and after hearing the argument of the Ld. Lawyer of both the parties and also considering the complaint and written version, it is undisputed fact that complainant has a proprietorship firm and complainant has been running that business for his livelihood as unemployed person and fact remains he sent 90 carburetors to Rekha Agriplas Ltd. through the consignment of the op and op issued voucher after receiving the total charges for transporting the same vide C.N. No.9814377 and in that consignors copy it is noted that gross invoice value of the articles is Rs.1,33,110/- and weight of the article was 50 Kgs and it was received by the OM Logistics at Kolkata for consignment to Rekha Agriplas Ltd. Vijaywada, Andhra Pradesh and that fact of receiving the same by the op transporter has not been challenged and at the same time gross value of the article was Rs.1,33,110/- that is also proved by the complainant on the basis of the receipt granted by the op in favour of the complainant after receiving those articles for transportation to Vijayawada, Rekha Agriplas Ltd. Truth is that the article has not yet been handed over to the consignee or same has not been returned to the complainant by the op and in this regard there is no denial and on the contrary op has admitted that article was received for transportation and for delivery to the consignee. But Ld. Lawyer for the op specifically submitted by referring one judgement of Ludhiana Consumer Disputes Redressal Forum of C.C. No. 578 of 07.08.2013 having its decision dated 24.03.2014, the complainant is not a consumer because his purpose was commercial purpose and as per C.P. Act 1986, Commercial purpose does not include used by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment and complainant has failed to prove that this business was run by him only for the purpose of livelihood by means of self-employment. But in this regard we have also considered certain observations of the decision of the Supreme Court and National Commission we have gathered that if the transaction itself is made by an unemployed for his self-employment and for his livelihood in that case the goods bought or used by the complainant and services availed of by the complainant are completely for the purpose of earning complainant’s livelihood by means of self-employment. So, in the present case the complaint is maintainable and complainant is a consumer to the op no doubt and for which this present complaint is maintainable and at the same time in this case deficiency and negligence on the part of the op is well proved but op has not denied that fact. But their only plea is that the complaint is not maintainable because the transaction was for commercial purpose. But that matter had already been decided with such decision that complainant is a consumer and the transaction was completely for his earning livelihood by self-employment and practically an unemployed person is engaged by self-employment and running the business as proprietorship firm. So, under any circumstances it can be said that complainant comes under the purview of the definition of commercial purpose but the explanation clause of the Provision of C.P. Act 1986 Section 2(1)(d) is applicable and complainant is no doubt a consumer under the op and it is also proved beyond any manner of doubt that op received the said articles for transportation, taking the service charges but till today it has not been delivered to the consignee at Vijayawada and has not returned to the complainant. But truth is that about the said article op is very silent that means op either grabbed the entire articles which was handed over to the op by the complainant for transportation and value of the goods is no doubt as per invoice of the op Rs.1,33,110/- and fact remain that op has failed to explain before this Forum for what reason the article has not yet been handed over from the consignee. Then it is proved that op has misappropriated the said article valued at Rs.1,33,110/- and complainant as an unemployed engaged his self-employment lost that amount. But op is silent about that. So, the conduct of the op is no doubt negligent and deficient in manner and at the same time the transportation business as done by the op is maintained by adopting unfair trade practice and no doubt in the present case they have adopted unmerchantable practice and deceived the complainant by grabbing the entire articles which was handed over to the op by the complainant for transportation to the consignee Rekha Agriplas Ltd. at Vijaywada and in view of the above findings we are convinced to hold that op not only rendered negligent and deficient manner of service but also swallowed the entire 90 carburetors valud at Rs.1,33,110/-. But as per contract ops are bound to handover the same or the said value of Rs.1,33,110/- with compensation and in fact in this case ops are explained as dishonest business man in transport business and they are adopting unfair trade practice and for which the complainant is entitled to get relief as prayed for as consumer because he is engaged in his personal business for self-employment and for earning livelihood and such sort of loss practically he has lost his daily earning also as self-employment person. Thus the complaint succeeds. Hence, it is ORDERED That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against the ops. Ops are jointly and severally hereby directed to pay a sum of Rs.1,33,110/- (value of the transportation cost of 90 carburetors) to the complainant and also for causing harassment and mental pain and agony, ops jointly and severally shall have to pay a sum of Rs.25,000/- as compensation. For adopting unfair trade practice and for deceiving the complainant in such a manner, op shall have to pay punitive damages of Rs.20,000/- to this Forum. Ops are jointly and severally hereby directed to comply the order very strictly within one month from the date of this order failing which for each day’s delay and for reluctant attitude to comply this Forum’s order, they shall have to pay a sum of Rs.200/- per day till full satisfaction of the decree and even after that if it is found that ops are reluctant in that case proceeding u/s 27 of C.P. Act 1986 shall be started against them for which further penalty shall be started against them for which they shall be liable.
| | [HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER | | 
