Chandigarh

DF-II

CC/834/2021

Biolife Remedies. - Complainant(s)

Versus

S.G. Logistics. - Opp.Party(s)

Adv. Manjot Singh Rai.

01 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	834 of 2021
Date  of  Institution	:	23.11.2021
Date   of   Decision	:	01.05.2023

 

 

 

 

 

Biolife Remedies, 728B, FF, Sector 82, JLPL Industrial Area, Mohali, through its proprietor Sh.Niraj Bhasin

            …..Complainant

 

Versus

 

S.G.Logistics, Plot No.18, Transport Area, Sector 26, Chandigarh through its Proprietor or owner or Manager. 

    ….. Opposite Party

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MRS.SURJEET KAUR,         MEMBER

                               

Argued by:    Sh.Gaurav Kant Goyal, Adv. proxy for Sh.Manjot Singh Rai, Counsel of complainant.

 

Sh.Vineet Mittal, Counsel of OP

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

         The complainant has filed the present complaint pleading that the complainant company, engaged in manufacturing & sale of Pharmaceutical goods & products, hired the service of OP Company for transportation & delivery of their consignment.  It is stated that the complainant company gave the consignment on 19.10.2020 to the OP along with Bill and paid Rs.1680/- for said services (Ann.C-1 & C-2).  It is stated that the OP informed the complainant company that the consignment the said consignment will be delayed due to lockdown on account of Covid-19 to which complainant company agreed.  It is also stated that in Jan., 2021 the OP informed the complainant company about the delivery of said consignment, but in Feb., 2021, the complainant company received a call from the consignee/purchaser about non-delivery of consignment. It is submitted that the complainant company kept on enquiring from the OP Company about the delivery of said consignment and after much persuasion, the OP Company told that since a third party with whom the OP had contract for delivery of consignments in the area of Guwahati had closed their office, therefore, they are unable to locate the consignment.  It is pleaded that the OP has failed to deliver the consignment of complainant company due to which the complainant company suffer loss of value of consignment of Rs.63,508/-, transportation charges of Rs.1680/- paid to OP and loss of business of Rs.2 lacs as the consignee had failed to receive the goods in time and lost faith in the complainant which resulted in cancellation of orders by consignee.  The complainant company got issued a legal notice dated 24.9.2021 to OP but the OP never replied to it. Hence, this complaint has been preferred alleging the said act & conduct of the OP company as deficiency in service which caused loss and harassment to the complainant. Lastly prayed that the OP be directed to pay Rs.63,508/- as value of goods that were misplaced and lost by the OP; to pay interest at the rate of 24% per annum from the date of filing of the complaint; to pay a sum of Rs.2 lacs as costs towards harassment, mental agony and Rs.40,000/- be awarded to the complainant as litigation costs.

 

2]      After the service of notice of complaint upon the OP, the OP Company has filed written version stating that the present complaint is not maintainable as the complainant company involved in commercial activities, is not covered under the definition of ‘consumer’ as it deals with manufacturing & sale of pharmaceuticals goods & products; engaged in profit generating business and has also engaged in huge amount of generating profit by manufacturing and sale of pharmaceutical goods & products. On merits, while admitting the receipt of consignment from complainant company, it is stated that the delivery of said material/consignment was on ‘To Pay basis i.e. the ‘Courier or freight charges’ of the consignment are collected from the consignee at the time of delivery, but the consignee never came to take the goods from the OP, resulting into non-delivery of the consignment.  It is submitted that in this regard the complainant company/consignor has been duly intimated but there was no response from the complainant side.  It is also submitted that due to the failure of the consignee to take the delivery of the material, the said material is lying in the warehouse of the OP and the OP has to incur expenses to keep the consignment in warehouse as the consignment has occupied & blocked the spare of warehouse of answering OP.  It is further submitted that till date the freight expenses of Rs.1680/- has not been paid to OP.  It is pleaded that due to non-payment of freight charges, answering OP informed the complainant company to take back the goods as the delivery of the consignment was on To-Pay basis and as the consignee never came to take the goods from the OP, the complainant company was told to take their goods back but the complainant company failed to respond and instead filed present complaint which is false and frivolous.  Denying all other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

3]      The Opposite Party has also filed a separate Mis. Application dated 15.06.2022 for dismissal of the complaint on the ground of maintainability alleging the complainant company does not fall within the definition of “consumer” as it is a proprietorship firm dealing with manufacturing & sale of pharmaceuticals goods and products; engaged in profit generating business by manufacturing and sale of pharmaceuticals goods & products.  It is also stated that the complainant company is not a “consumer” as it has availed the services of OP exclusively for the purpose of generating and enhacing income.  It is prayed that the this application be allowed and the complaint be dismissed being not maintainable.

 

4]      The complainant has filed reply to that  Misc. Application dated 15..06.2022 of OP stating that the OP is trying to mislead the Commission. It is stated that since the complainant is a proprietorship concern, all the losses and profits are borne by the proprietor alone personally. It is submitted that the complainant is a proprietorship concern engaged in manufacturing and selling of pharmaceutical goods, whereas the OP is running a business of transportation and logistics and this being so, there was no transaction between the OP and the complainant, which was of commercial nature. It is submitted that the complainant had availed the services of the OP merely for getting the goods transported from Chandigarh to Assam which the OP failed to do. It is also submitted that the complainant was merely to get its goods transported from Point A to B, the profit if any was to be earned on the sale of goods by the consignee upon their delivery by the OP and as such the transaction between the complainant and the OP remains that of a consumer and a service provider. Lastly it is prayed that the application of OP be dismissed with cost.

5]      Parties led evidence in support of their contentions.

6]      We have heard the ld.Counsel for the parties and have gone through the entire record.

7]      The complainant company itself stated that it is a proprietorship concern engaged in manufacturing and selling of pharmaceutical goods and engaged in commercial activity and it availed the services of the OP Company for delivery of the goods/medicines to the consignee at Assam. Thus, as per pleading of the complainant,  it  claimed  to  be ‘consumer’ as defined under Section 2(7) of The Consumer Protection Act, 2019.

 

7]      Now the question which arises before this Commission is that whether the complainant is a ‘consumer’ under the definition provided under Section 2(7) of The Consumer Protection Act, 2019.

 

8]      In order to find out answer to this question, we have to study the definitions of ‘consumer’ provided under The Consumer Protection Act, 1986 and The Consumer Protection Act, 2019.  Hence, we needs to study the “Explanation” provided to definition of ‘consumer’ under Section 2(d) of The Consumer Protection Act, 1986 and the “Explanation” provided to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019, which are reproduced hereunder:-

        Section 2(d) of The Consumer Protection Act, 1986:-

       

        Section 2(7) of The Consumer Protection Act, 2019

        Section 2 (7) "consumer" means any person who—

1. 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

 

2. hires or avails of any service 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 service other than 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 service for any commercial purpose.

 

Explanation.—For the purposes of this clause,—

(a)     the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

(b)     the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

        So, the comparative study of ‘Explanation’ to Section 2(d) of The Consumer Protection Act, 1986 and ‘Explanation’ to Section 2(7) of The Consumer Protection Act, 2018 is as under:-

 

    [A]     Explanation under Section 2(d) of The Consumer Protection Act, 1986, provides that ‘For the purposes of this clause, the expression ‘commercial purpose’ does not include use 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.

 

[B]     Explanation (a) under Section 2(7) of The Consumer Protection Act, 2019, provides that ‘For the purposes of this clause, the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.

 

9]      So the main difference between the Explanations, provided under the definition of ‘consumer’ under Section 2(d) of The Consumer Protection Act, 1986 and under Section 2(7) of The Consumer Protection Act, 2019 is that The Consumer Protection Act, 1986 provides benefit of “Explanation” to definition under Section 2(d) of being ‘consumer’ was granted to both the categories of complainants, who bought goods and to the complainants who availed services exclusively for the purpose of earning his livelihood by means of self-employment. But the “Explanation” to definition under Section 2(7) of The Consumer Protection Act, 2019 gives benefit of being ‘consumer’ only to the complainants, who “buy goods” but not to the complainants who “avail services” in connection with “commercial purpose”. So under the new Act i.e. The Consumer Protection Act, 2019, with regard to “commercial purpose” a complainant who ‘buys goods’ exclusively for the purposes of earning his livelihood by means of self-employment is a ‘consumer’; but a complainant who ‘availed services’ exclusively for the purpose of earning his livelihood by means of self-employment is not a ‘consumer’.  Therefore, it is clear that in the present complaint, the complainant is not a ‘consumer’ being ousted by the “Explanation” (a) to definition of ‘consumer’ under Section 2(7) of The Consumer Protection Act, 2019.

 

10]     The complainant relied upon the judgment of Hon’ble Supreme Court of India passed in Civil Appeal No.(s)5352-5353 of 2007 titled as National Insurance Co. Ltd. Vs. Harsolia Motors and Others, decided on 13.4.2023. However, the same is not applicable to the present case because the said case was decided while dealing with the provisions of The Consumer Protection Act, 1986, which was earlier in force and benefits of “Explanation” regarding exemption to “commercial activity” to definition under Section 2(d) of The Consumer Protection Act, 1986 provided to both categories of persons who “bought goods” and “availed services” for earning his livelihood by way of self-employment but the present complaint is filed in the year 2021 when The Consumer Protection Act, 2019 is in force and the benefit of “Explanation” (a) to definition under Section 2(7) of The Consumer Protection Act, 2019 provided to only one category of person who “bought goods” for earning his livelihood by way of self employment but ‘not to’ the other category of persons who “availed services” for earning his livelihood by way of self employment in relation to “commercial purpose”.

        It is observed that in case of “commercial purpose”, the “services” has been excluded from the definition of “consumer” as per latest decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Consumer Complaint No.886 of 2020 titled as M/s. Freight System (India) Private Limited Vs. Omkar Realtors & Develop Private Limited & Anr., decided on 25.01.2021.

  

11]     We are also of the opinion that in case of “commercial purpose” the “services” are not included in the definition of “consumer” under The Consumer Protection Act, 2019 and it has been excluded, therefore, the present compliant is not maintainable. It is also opined that if the complaint involving ‘commercial activity” of “services” as in the present complaint, is entertained, then it would amounts to evasion of court fee to be paid before the Civil Court and this will also amount to consume the time and energy of Consumer Commission by non-consumers instead of using that time & energy for the benefit of consumers.

 

12]     Taking into consideration the above discussion & findings, the present complaint being not maintainable is hereby returned to the complainant being dismissed. No order as to costs. The complainant shall, be at liberty, to approach an appropriate Authority/Court in the matter and the time spent herein would stand commuted/condoned for the purpose of limitation.

13]     The pending application(s) if any, stands disposed of accordingly.

14]     Office is directed to return the complaint to the complainant against proper receipt and after retaining its copy.

        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced

1^st May, 2023                                                                     

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(SURJEET KAUR)

MEMBER