This complaint is coming on for final hearing before us in the presence of Sri Ashok Kumar Sharma, Advocate for the complainant and Sri J.S.Siva Ram, Advocate for O.P.1 and O.Ps. 2 to 4 appearing inperson and having stood over for consideration, the Forum made the following:-

O   R   D   E   R

                 This is a complaint filed under Section 12 of Consumer Protection

Act, 1986 seeking the relief to direct the O.Ps. to pay a sum of Rs.42,500/- with interest @ 24% p.a., and to pay a sum of Rs.50,000/- towards mental agony and to pay Rs.5,000/- towards costs on the following averments.

          The complainant’s wife is the proprietor of M/s Sadana Textiles and the complainant is working as Manager and looking after the business at Vizianagaram and the said business is being done to earn livelihood to maintain the family.  On 23-11-2011 the complainant purchased fancy shirting lenin shirting cloth etc., from Bhavik Impex, Mumbai for Rs.30,000/- and the same was properly packed and booked and the same was packed in one bundle and transported the same in O.Ps transports and the O.Ps. assured to deliver the goods in a proper condition.  Similarly on 6-12-2011 the complainant purchased shirting and dress material cloth from AK Fabrics, Mumbai for Rs.12,477/- and the same was properly packed and was booked in one bundle in O.P. transport for transporting the same to Vizianagaram.   The material was booked at carrier’s risk and at the time of booking the goods the O.Ps. 2 and 3 assured to deliver the same to the complainant within a period of 15 days from the date of booking the goods.  The complainant approached the 1^st O.P. to receive the same but the latter informed that they have not received the goods and assured to inform the complainant about the receipt of consignment as and when they receive it.  Though the complainant approached the 1^st O.P. many a times to get back the goods the O.P. failed to deliver the same. The complainant issued a letter to the O.Ps. calling upon them to deliver the goods but of no avail.  The 1^st O.P. orally informed the complainant that the goods were lost in transit and they are not in a position to deliver the same.  Due to non-delivery of goods the complainant sustained huge loss and suffered mental agony.  The complainant got issued a lawyer’s e-mail notice to the O.Ps. on 24-8-2012 upon which the 1^st O.P. gave a reply through mail stating that the goods were delivered to the complainant on 8-12-2011 and 19-11-2011 respectively.  As per rules the O.Ps. shall deliver the goods after obtaining the original LRs and endorsement over the original LRs from the concerned persons. 

          Since the complainant did not receive the goods from the O.Ps. and as she suffered mental agony and financial loss has filed the petition for the above said reliefs. 

          The 1^st O.P. filed counter traversing the material allegations made in the complaint and has averred that the complainant has no locus standing to file the complaint as he is not the owner of the complainant firm and was not duly authorized to file the present complaint.  It is averred that the complainant is a firm and must have been registered one but no proof of registration is filed along with complaint and in absence of the same the complaint is bad in law.

          It is averred that the complainant purchased the goods for business purpose to earn profits and as the said purchase was made for commercial purpose there exists no consumer and service provider relationship in between them and as such the provisions of C.P.Act are not made applicable to this case.  It is averred that after receiving the goods by the 1^st O.P. the complainants employee approached them and requested to deliver the goods and promised that he would return the original LRs as and when the same are received, upon which the 1^st O.P. believed his words and delivered the goods and obtained signatures and stamp of the complainant on the reverse of the copies of LRs available with them. 

          It is averred that there is no deficiency of service on the part of O.Ps. and to have a wrongful gain the present complaint is filed and as the same merits no consideration the complaint is liable to be dismissed.  On behalf of complainant he filed his evidence affidavit and got marked Ex.A.1 to A.6.  Per contra the O.Ps. filed the evidence affidavit of R.W.1 and got marked Ex.B.1 to B.4.  The complainant and O.Ps filed their respective written arguments.  Perused the entire material placed on record.

          Now the point for consideration is whether the complainant is entitled to get the reliefs prayed for.  It is the specific contention of the complainant that she has purchased cloths worth Rs.30,000/- on 23-11-2011 and Rs.12,477/- on 6-12-2011 and the said cloths were properly packed and transported the same in O.Ps transports and as the said bundles were not delivered she sustained loss and suffered mental agony.  The complaint is filed by the husband of the complainant by styling himself to be the Manager of M/s Savani Transport.  In the complaint it is averred that the wife of complainant is Proprietor of M/s Savani Transport.

          In the counter filed by the O.Ps. it is averred that complainant has no locus standing to file the present complaint as he is not the owner of complainant’s firm and is not duly authorized to file the complaint by the Management of firm as per Law.  It is their further contention that the complainant must be a registered firm but no proof is filed along with complaint.  When such a stand is taken by the O.Ps the burden is heavily rests on the complainant to prove that the complainant is the Proprietor and her husband who filed the complaint is her Manager. 

In a decision in II (2001) CPJ 391 RANGANNAGARI YADAV REDDY Vs. VIJAYA KUMARI

Wherein it is held:  In the absence of proof by way of some evidence the averments of the complaint by themselves cannot be accepted and when the complainant has failed to substantiate the allegations leveled in his complaint the same fails for want of evidence and is therefore liable to be dismissed.

In view of the principles laid down in the decision cited supra averments of the complainant by themselves cannot be accepted in the absence of proof by way of evidence.  The complainant did not file any Certificate issued by competent authorities to prove that M/s Savani Transport is the Proprietory concern or a firm.  Similarly no proof is filed to show that husband of complainant is acting as a Manager of M/s  Savani Transport.

          In this case the O.P.s have taken a plea that after receiving the goods by the 3^rd O.P. from O.Ps. 2 and 3 the 3^rd O.P. informed the complainant about receipt of the goods upon which her employee approached the 3^rd O.P. and requested to deliver the goods and when the goods were delivered he made an endorsement to that effect on the copy of LR and promised to return back the original LRs as and when received but to have a wrongful gain the present complaint is filed.  The complainant in his complaint has stated that the original LRs are with him and as per the rules and regulations the Ops shall deliver the goods after obtaining the original LRs and also by making endorsement over the original LRs about receipt of goods by the concerned person and as the goods were not delivered to the complainant they are in custody of the original LRs and they would file the same during the time of trial.  The complainant did not file the original LRs along with the complaint but has filed only the Xerox copies of the said LRs and made a note in the list of documents that he would submit the originals at the time of hearing.  For the reasons best known he did not submit the original LRs in the Forum at the time of hearing.  It is well settled where a party does not produce documents which will clearly show that a certain fact should be found in his favour, an adverse inference may be drawn against him that the evidence if produced would have gone against him.  And where a party fails to produce a material document which is presumably available to him,  it is a natural inference that if produced it will go against him.    

          Coming to case on hand the complainant only produced the Xerox copies of the LRs and made an endorsement in the list of documents that he would submit the originals at the time of hearing.  The original LRs are the best evidence to prove a particular fact but for the reasons best known the same were not filed into the Forum.  Hence an adverse inference could be drawn that in case the said documents are filed into the court it would go against the complainant.  The O.P. herein have taken a plea that the complainant purchased the goods for commercial purpose and as such the complainant will not come under the purview of the provisions of C.P.Act and hence not made applicable to her case. 

          In a decision in (2009) CPJ 34

Wherein it is held :  According to the definition of ‘Consumer’ in Section 2(d) of this Act, a person who hires or avails of any services for a consideration is a consumer.  The following category of service availors will not be Consumers (i) persons who avail any service for any commercial purpose (ii) persons who avail any free service (iii) persons who avail any service under any contract of service.

As seen from the principles laid down in the decision cited supra persons who availed any service for any commercial purpose will not be considered to be consumers.  In the complaint it is simply averred that the complainant is doing business for their livelihood and to maintain the family.  As we have already stated supra the complainant has taken a plea that his wife is the proprietor of M/s Savani Transport but as per the O.Ps. Savani Transport is a firm and Ashok Kumar Anchaliya was not duly authorized to defend the complaint.  If really the wife of complainant was doing cloth business for earning livelihood by means of self employment there was no need to      appoint Ashok Kumar Anchaliya as Manager to look after the business.  Since the complainant business is run by a Manager and when it is a firm it cannot be said that the wife of Ashok Kumar Anchaliya was doing business for earning her livelihood by means of self employment.

In a decision in I (2014) CPJ 251 RAJASTHAN STATE INDUSTRIAL DEVELOPMENT & INVESTMENT CORPORATION LTD., & ANR Vs.  NKM JEWELS PVT.LTYD., & ANR.,

PARA 9:-  A person who applies for allotment of plots for setting up three separate industrial units cannot, by any stretch of imagination, be said to be doing so exclusively for the purposes of earning his livelihood by means of self-employment.  In view of this, we are convinced that the respondent cannot be covered by the definition of a consumer and in this view of the matter his complaint before the District Forum was not maintainable since it was hit by the provisions of Section 2(1)(d)(ii) of the Act.

Since the complainant seems to be a firm and alleged to have appointed Ashok Kumar Anchaliya as a Manager to look after the business it cannot be said that the cloth business run by the complainant is true to earn livelihood by means of self employment of the wife of P.W.1.

The O.P. has filed the office copy of LRs, loading sheet and out coming register and got the same marked as Ex.B.1 to B.4.  In the counter of the O.Ps they have taken a plea that after the 3^rd O.P. received goods they informed the complainant about receipt of goods upon which the employee of the complainant has approached them and requested to deliver the goods and when the same were delivered he made a promise to return back the original LR as and when they receive and put his signature and stamp on the reverse copy of LRs evidencing the receipt of goods.  The above said contention raised by the O.Ps. has remained uncontroverted as the complainant did not file any rejoinder denying the above said facts or adduced any cogent evidence to disprove the said contention.  The copies of LRs contains the stamp of complainant and the signature of her employee.  The complainant has not explained as to how the stamp found on the reverse of copies of LRs were obtained by the O.Ps. when the same are in the custody of complainant. 

It is not the case of complainant that the stamp and signature found on the reverse of copies of LRs are not pertaining to their business concern and that the same were created for purpose of this case.  The other documents filed into the court by O.Ps, also lends support to their case to believe that an employee of complainant having received the goods from the 3^rd OP and put the stamp and signature on the reverse of the copies of LRs and taking advantage of the originals in their custody, the complainant filed this case to have a wrongful gain.  Hence in the above said facts and circumstances we are of the considered opinion that there is no consumer and service provider relationship in between the complainant and O.Ps. and the complainant has miserably fated to prove that there is any deficiency in service on the part of O.Ps in delivering the goods to them.

                     In the result the complaint is dismissed with costs of Rs.100/-.

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 25^th day of February, 2014.

Member                                                           President

CC. 70 of 2012

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1                                                            

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Xerox copy of Lr.No.583846 Ex.Mumbai to Vzm dt.24-11-11
2. Ex.A.2 xerox copy of Lr.No.572504 Ex.Bhiwandi to Vzm dt.6-12-11
3. Ex.A.3 Office copy of Letter dt.20-6-12
4. Ex.A.4 Office copy of Letter dt.20-6-12
5. Ex.A.5 Office copy of Lawyer’s notice dt.24-8-12
6. Ex.A.6 Reply mail issued by the 1^st O.P. dt.24-9-2012.

For O.P:-

1. Ex.B.1 Office Copy of Lr.No.583846 with endorsement dt.3-12-2011
2. Ex.B.2 Office copy of Lr.No.572504 with endorsement dt.11-12-2011
3. Ex.B.3 Office copy of Loading sheet of the complaint
4. Ex.B.4 Office copy of Register of the 1^st O.P. dt.3-12-2011.

                                                                                                President.