CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.404/2013
M/S GARAV AGENCIES
ITS OFFICE AT A-175,
BUDH NAGAR, INDRA PURI,
NEW DELHI-110012
THROUGH IT’S A.R. MR. MANISH
…………. COMPLAINANT
VS.
- M/S QUINHUANGDAO XUNFA GLASS C. LTD.
NORTH OF QUINQING TOLL STATION, QUINHUANGADO
HEBEI PROV. P.R. CHINA-066326
THROUGH ITS CEO/MANAGING DIRECTOR
- MAERSK LINE INDIA PRIVATE LTD.
ROOM NO.227, ADMINISTRATIVE BLOCK,
CONCOR BUILDING TUGHLAKABAD,
NEW DELHI-110044
THROUGH ITS CEO/MANAGING DIRECTOR\
ALSO AT:-
6TH FLOOR TOWER, 9A, DLF CYBER CITY,
PHASE-III, GURGAON-122002
ALSO AT:-
MAERSK LINE INDIA PRIVATE LTD.,
EMPIRE INDUSTRIES COMPLEX, 414, SENAPATI BAPAT MARG
LOWER PARPEL
MUMBAI-400013
3. TNT INDIA (P) LTD.
(& TNT INTERNATIONAL EXPRESS)
32, OKHLA INDUSTRIAL AREA, PHASE III,
NEW DELHI-110020
………….. RESPONDENTS
Date of Order:14.12.2015
O R D E R
A.S. Yadav – President
Complainant is a proprietorship firm and filed the present complaint through its Authorized Representative Sh. Manish. In the month of June 2012 complainant placed an order for booking of certain goods (as detailed in para 2, sub-para 2.2 of complaint) for a total sum of Rs.11,75,261/- and paid the entire amount. The goods reached at the Delhi office of OP-2. Complainant requested OP-2 to deliver the said goods to complainant but OP-2 refused to deliver the said goods and asked to produce the bill of lading for ocean transport or multimodal transport vide B/L No.573308211 dated 28.06.2012. Complainant immediately contacted OP-1 for sending the requisite documents but OP-1 informed that the said documents have already been dispatched through OP-3. Thereafter complainant contacted OP-3 at Delhi office and demanded the documents detailed in sub-para 2.6 of the complaint but OP-3 denied the same on one pretext or the other. Ultimately OP-3 informed complainant that these documents were misplaced in the office and same could not be traced. OP-3 also gave a certification of lost shipment dated 070.8.2012 to OP-1. Thereafter complainant contacted OP-1 and demanded said documents for the release of said goods but OP-1 showed inability to supply the said documents and also issued lost declaration certificate to complainant on 12.09.2012. OP-1 avoided the same for the reason best known to him. Complainant made several visits to office of OP-2 and OP-3 and requested to release the goods because the business of complainant suffered and he also lost faith and reputation in the market as well as amongst his clients. Thereafter complaint went to the office of OP-2 and OP-2 demanded bank guarantee for amount of Rs.31.50 lakhs but OP-2 refused accept and returned the said bank guarantee because it was not for a period of 5 years as per his demand.
It is further stated that OP-2 also promised to issue delivery order after a sum of Rs.2,55,282/- is paid. The same was paid but delivery order was not issued. It is stated that complainant had suffered a loss of business as well loss of reputation in the market and has also lost its customers in the market due to efficiency in service on the part of OP-1 to OP-3. Complainant was forced to send a legal notice through speed post dated 22.04.2013 to OPs and the same was served upon them but till date neither OPs has replied to the said legal notice nor made any payment/delivery of goods to complainant firm.
It is prayed that OPs be directed to release the goods lying with office of OP-2 and pay a sum of Rs.50,000/- as compensation, Rs.3 lakhs towards loss of business and reputation and Rs.55,000/- for litigation expenses. It is further prayed that OPs be directed to pay Rs.2,55,282/-, Rs.10,000/- and Rs.8876.44 to his client with interest @ 24% alongwith expenses of RS.70,000/- spent on bank guarantee.
Complainant is running business under the name and style of Garav Agencies. An order for booking of certain goods valued at Rs.11,75,261/- was placed which means that complainant is indulging in commercial activities. The only question which required determination is whether complainant is a ‘consumer’ within the definition of Section 2(1)(d) of Consumer Protection Act 1986 defines ‘consumer’ as under:-
“(d) ‘consumer’, means any person who –
- 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 party 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 resale or for approval of such person but does not include a person who obtains such goods for resale or for any commercial purpose; or
- 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 than the person who hires or avails of the service for consideration paid or promised, or partly paid or party promised, or under any system of deferred payment, when such services are availed of with the approval of first mentioned person, but does not include a person who avails of such services for any commercial purpose.
[Explanation – For the purposes of this clause, ‘commercial purpose’ does not include use by a person 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.]”
There is no averment made in the entire complaint that complainant is running business to earn his livelihood. Ld. Counsel for OP-3 has referred to the case of Economic Transport Organization, Delhi Vs Charan Spinning Mills Private Ltd. and Others [2010(4) SCC 114] where Hon’ble Supreme Court has held as under:-
“52. We may also notice that Section 2 (1)(d) of the Act was amended by the Amendment Act 62 of 2002 with effect form 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 service of the carrier had been availed of for any commercial purpose, then the person availing the services will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.”
Ld. Counsel for OP-3 also referred to case of Laxmi Engineering Works Vs P.S.G. Industrial Institute, II(1995) CPJ 1(SC)=1995(3)SCC583, wherein the Hon’ble Apex Court has held as follows:-
….. On this interpretation of the definition clause, persons buying goods either for resale or for use in large scale profit-making activity will not be ‘consumers’ entitled to protection under the Act. It seems to us clear that the intention of Parliament as can be gathered from the definition section is to deny the benefits of the Act to persons purchasing goods either for purpose of resale or for the purpose of being used in profit-making activity engaged on a large scale. It would thus follow that cases of purchase of goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit will all fall outside the scope of the definition. It is obvious that Parliament intended to restrict the benefits of the Act to ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. In order that exclusion clause should apply it is however necessary that there should be a close nexus between the transaction of purchase of goods and the large-scale activity carried on for earning profit.”
Reference is also made to case of Synco Textiles (P) Ltd. Vs Greaves Cotton and Co. Ltd. (1991) 1 CPJ 499 – in that Hon’ble National Commission dealt with the meaning of the words “for any commercial purpose” in the following words(majority opinion):-
“Since cases of resale have been separately referred to, it becomes obvious that the words ‘for any commercial purpose’ are intended to cover cases other than those of resale of the concerned goods. The words ‘for any commercial purpose’ are wide enough o to take in all cases where goods are purchased for being used in any activity directly intended to generate profit.”
Ld. Counsel for OP-3 has also referred to case of Punjab Agriculture University, Ludhiana Vs UTI of India & Anr. The facts of that case are entirely different.
As already stated above, there is no averment in the entire complaint that complainant was running aforesaid business to earn his livelihood. Complainant is not a ‘consumer’. Hence complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
