STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1]    DTDC Courier and Cargo Limited, through its Managing Director, SCO No.267, Sector 35-D, Chandigarh.

2]    Excellent Enterprises, The Management and Proprietor, SCO 85-86, (Above Sant Shoes), Second Floor, Sector 17-D, Chandigarh.

……Appellants/Opposite Parties

V e r s u s

Pathfinder Edutech Pvt. Ltd., through its Director Mr. Krishna Murthy, SCO 481-482, First Floor, Sector 35-C, Chandigarh.

              ....Respondent/complainant

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

Argued by: Sh.G.L. Aggarwal, Advocate for the appellants.

                   Sh. Krishna Murthy S., Director of the respondent-Pvt.                         Ltd. Company, in person.

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

              This appeal is directed against the order dated 08.11.2012 rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-

“From the above discussion, we came to the conclusion that the complainant has been fully able to prove deficiency in service and unfair trade practice on the part of OPs.  Therefore, the complaint deserves to be allowed.  The same is accordingly allowed with directions to the OPs to jointly & severally pay a compensation of Rs.20,000/- to the complainant along with litigation cost of Rs.7,000/-, within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay compensation amount of Rs.20,000/- along with interest @12% p.a. from the date of filing this complaint i.e. 12.6.2012 till its actual payment, besides paying litigation costs”.

2.               The facts, in brief, are that the complainant is a Private Limited Company, engaged in the business of immigration. On 19.12.2011, the complainant Company sent an urgent international consignment of documents, from Chandigarh to Canada, through Opposite Party No.2, an authorized Courier Agency of Opposite Party No.1. At the time of sending the said documents, the Officials of the complainant Company made a special request, for its urgent delivery, as it was containing important immigration documents of three Indian applicants, which were required to be certified by a leading Canadian Law Firm, at Canada, and, thereafter, the same (documents) were to be forwarded to the Canadian High Commission. The complainant got the status, on 02.01.2012, from the website of Opposite Party No.2, that the consignment aforesaid, had been delivered to the consignee, on 28.12.2011. However, when the clients of the complainant Company, whose documents were sent through the aforesaid Courier, tried to contact the Opposite Parties, to know, as to when and where the documents were delivered, they (Opposite Parties) failed to give any satisfactory reply. It was stated that, ultimately, on much persuasion, the Opposite Parties, finally admitted that the courier containing the documents, aforesaid, was never delivered by them, to the consignee,  and, it remained lying in their office.

3.               It was further stated that, by not delivering the consignment to the consignee, which was containing important documents of immigration, the Opposite Parties had ruined the career of three innocent persons, without any fault, on their part.  It was further stated that due to the irresponsible behaviour and gross negligence, of the Opposite Parties, three clients of the complainant Company, were disqualified, for the Canadian Permanent Residence (PR), as the Rules for the same, used to change every year.  It was further stated that the documents were sent, after fulfilling all the requirements, as per the Rules, framed by the Canadian Authorities, for the year 2011, but due to non-delivery of the same, in time, all the expenses incurred by the complainant Company, went in vain, and, now, it again had to incur huge expenses, on meeting all the requirements, for obtaining Canadian PR, for its clients.

4.                 It was further stated that due to the aforesaid acts of omission and commission, of the Opposite Parties, the complainant Company suffered huge business loss, loss of reputation, apart from harassment caused to its clients. A legal notice was served upon the Opposite Parties, to redress the grievance of the complainant Company, but to no avail.  It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant Company, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay compensation, in the sum of Rs.10 lacs, on account of loss of business, reputation, financial loss, mental agony and physical harassment; and cost of litigation.

5.               Opposite Party No.1, in its written version,  pleaded that the complainant, being a Private Limited Company, was carrying on the immigration business, which is a commercial activity, and the services of the Opposite Parties, were availed of, by it, for commercial purpose. It was further pleaded that, therefore, it (complainant Company), did not fall within the definition of a consumer, under the Act, and, as such, the Consumer Complaint, was not maintainable. It was stated that a sealed consignment was booked with the Opposite Parties, by the complainant.  It was further stated that, all the terms and conditions of the consignment, were read over and explained to the authorized representative of the complainant Company, at the time of booking the same (consignment). It was further stated that, thus, in the event of any loss to the consignment or damage to the same, including its late delivery, the Opposite Parties, were liable to make payment of the Indian currency,  equivalent  to US$ 100, per consignment. It was further stated that the consignment had been delivered to the consignee, on 28.12.2011. It was further stated that, earlier the consignee was not available, at the given address, and efforts were made to trace it (consignee). It was further stated that even an effort was made to contact it, on telephone. It was denied that the consignment was delivered late, as alleged by the complainant Company.  It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

6.               Opposite Party No.2 was duly served, but none put in appearance, on its behalf, as a result whereof, it was proceeded against exparte, on 13.08.2012, by the District Forum.

7.               The complainant and Opposite Party No.1, led evidence, in support of their case.

8.               After hearing the Director of the complainant Company, Counsel for Opposite Party No.1, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

9.               Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

10.            We have heard the Counsel for the appellants, Director of the respondent Company, and, have gone through the evidence, and record of the case, carefully. 

11.            The Counsel for the appellants/Opposite Parties, submitted that, no doubt, a specific objection was taken by Opposite Party No.1, in its written version, that the complainant being a Private Limited Company, engaged in the business of immigration, which is a commercial activity, and its services, were availed of, by the said Company, for commercial purpose, and, as such, it did not fall within the definition of a consumer and the Consumer Complaint was not maintainable, yet the District Forum, neither took into consideration such an objection, nor recorded any finding thereon. He further submitted that, since the complainant Company did not fall within the definition of a consumer, and, the Consumer Complaint, was not maintainable, the complaint was liable to be dismissed, on this ground alone, but the District Forum fell into a grave error, in not doing so. He further submitted that, even otherwise, the Opposite Parties, in the event of loss to the consignment or its late delivery, were only liable to make payment to the extent of Indian currency equivalent  to US$ 100, per consignment, by way of damages, as per the terms and conditions of the consignment. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.

12.            On the other hand, the Director of the respondent Company, submitted that the services of the Opposite Parties were not availed of, by the complainant Company, for commercial purpose. He further submitted that, only the documents of three applicants, were sent through the Courier Agency of the Opposite Parties, who were seeking PR of Canada. He further submitted that these documents were to be verified, by a leading Canadian Law Firm, whereafter, the same (documents) were required to be sent to the Canadian High Commission. He further submitted that the complainant Company, thus, fell within the definition of a consumer. He further submitted that since, there was a late delivery of the consignment, huge business loss was suffered by the complainant Company. He further submitted that even, the reputation of the complainant Company was affected, as the important documents of three applicants, were not delivered, in time, and, in the meantime, the immigration Policy might have changed. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.

13.            The core question, that falls for consideration, is, as to whether, the complainant Company falls within the definition of a consumer or not. For proper decision of this question, the provisions of Sections 2(1)(d) and 2(I)(o), defining the ‘consumer’ and ‘service’  respectively, are extracted as under:-

“(d) "Consumer" means any person who, -

(i) 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 user 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; or

(ii)[hires or avails of] 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 of such services other then 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]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;]

Section 2(1)(o) defines service as under:-

(o) "service" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

14.            In the instant case, the complainant is a Private Limited Company. Admittedly, it is engaged in the business of immigration, i.e. a commercial activity.  The complainant Company, availed of the services of the Opposite Parties, for commercial purpose i.e. for the delivery of consignment, to a leading Canadian Law Firm, for the purpose of certification of the documents of three applicants. In the entire complaint, not even a fleeting reference was made, by the complainant Company, that it availed of the services of the Opposite Parties, for running the business, for earning its livelihood, by way of self employment. A Private Limited Company is a Juristic person, and it acts through its Managing Director or Directors. In the complaint, it was in clear-cut terms, stated by the complainant Company, that, on account of late delivery of consignment, booked with the Opposite Parties, it (Company) suffered huge business losses, worth Rs.10 lacs. It means that the complainant Company has been running a commercial activity, on a large scale, for commercial purpose, for earning huge profits. In Economic Transport Organization Vs.Charan Spinning Mills (P) Ltd., and  Anr., I (2010) CPJ 4 (SC), a Constitution Bench of the Hon’ble Apex Court, also held that, after the amendment of Section 2(d) of the Act w.e.f.15.03.2003, if the services of the carriers, had been availed of, for any commercial purpose, then the person availing of the same shall not be a consumer.  In  Birla  Technologies Ltd. Vs Neutral Glass and Allied Industries Ltd.  2011 (I) SCC 525 and Sanjay D.Ghodawat Vs R.R.B. Energy Ltd. IV(2010) CPJ178(NC), a case decided by a full Bench of the Hon’ble National Commission, similar principle of law, was laid down. In M/s MCS Computer Services (P) Ltd. Vs. M/s Allena Auto Industries Pvt. Ltd., Revision Petition No. 3517 of 2007, decided on 14.03.2012, it was, in clear-cut terms, held by the National Consumer Disputes Redressal Commission, New Delhi, that the respondent/ complainant, being a Private Limited Company and the commercial activity, being carried on by it, could not be said to be for earning its livelihood, by way of self employment. It was further held that the Private Limited Company, had to act through somebody and the question of livelihood and self employment, would not arise. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Since, the services of the Opposite Parties, in the instant case, were availed of, by the complainant Company, for commercial purpose, for earning huge profits, it did not fall within the ambit of a consumer, and, as such, the Consumer Complaint was not maintainable.

15.            For the reasons recorded above, the appeal is accepted, with no order as to costs. The order of the District Forum, is set aside. The complaint shall stand dismissed,  being not maintainable.

16.            However, the respondent/complainant Company, shall be at liberty, to resort to any other permissible legal remedy, which may be available to it, for redressal of its grievance.

17.            Certified copies of this order, be sent to the parties, free of charge.

18.            The file be consigned to Record Room, after completion

Pronounced.

01.03.2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg