Order Below Exhibit 1
PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) Heard Ld.Advocate for the Complainant.
The Complainant is a registered partnership firm interalia carrying on business as Exporters of garments. The Opposite Party No.1 is a foreign shipping company, carrying on business as a Shipping Line/Carrier and is represented in Mumbai through its Agents, the Opposite Party No.2. Pursuant to the export order the Complainant entrusted to the Opposite Party No.2, 123 cartons containing 5850 pieces of 100% Cotton Woven Men’s Shirts covered under Invoice No.2104 to deliver the same to the Opposite Party No.3 – the Consignee i.e. White Owl Clothing Inc,; a foreign Company registered under the laws of USA and carrying on business at San Diego, CA 92154, USA. It is submitted that when the said consignment was discharged at the Port of Los Angeles, the consignment was found to be in crushed/torn/wet water damage condition. At the time of survey at Opposite Party No.3’s warehouse the surveyors found that virtually every carton was showing sing of crushing and a number of them were stained with mold. The Opposite Party No.3 rejected the consignment as the same was not salable. The Complainant then contacted Opposite Party No.1 & 2 for settlement of claim, however, Opposite Party No.1 & 2 neglected to settle the claim. It is alleged by the Complainant due to the gross deficiency in service on the part of Opposite Party No.1 & 2 the Complainant has suffered loss and therefore, Complainant has filed this complaint to recover Rs.17,78,292/- as a compensation for loss plus interest, etc.
2) Ld.Advocate for the Complainant has submitted that Complainant is a ‘Consumer’ under the Consumer Protection Act, 1986. The Complainant is a partnership firm. In support of her contention the Complainant has produced copy of the certificate of registration of firms. It is submitted that the Complainant is carrying on business for earning livelihood and therefore, Complainant is a ‘Consumer’.
3) By the amended provision of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, a person who avails such services for commercial purpose is excluded from the definition of Consumer. In the instant case, the Complainant Jal Exports is a partnership firm and it is carrying on business as a Exporters of garments. From the averments made in the complaint itself it is clear that the Complainant is carrying on business of export garment on large scale. The consignment in question consisting of 123 cartons according to the Complainant was valued at US$ 34690.50. The Complainant had availed services of Opposite Party No.1 & 2 to sent aforesaid consignment to Opposite Party No.3 who had placed order with the Complainant. In the complaint the Complainant has claimed sum of Rs.17,78,292/- towards loss and Rs.1,75,000/- as a damages on account of loss of business and mental torture, etc. Considering large scale business of the Complainant it cannot be say that Complainant is carrying on business for livelihood as alleged by the Complainant. The Hon’ble Supreme Court in the matter of Economic Transport Organization - Applicant V/s. M/s. Charan Spinning Mills (P) Ltd. & Anr. - Respondents, reported in 2010(2)(CPR) 181(SC) has held that -
“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.”
4) Considering the facts stated in the complaint and aforecited decision of the Hon’ble Supreme Court we hold that Complainant is not a ‘Consumer’ as defined under the amended Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 and therefore, complaint is rejected. No order as to cost.
