Haryana

Karnal

365/2010

Ankom laboraties Situated - Complainant(s)

Versus

Senior Post Master - Opp.Party(s)

Vineet Rathor

18 Sep 2015

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No.365 of 2010

                                                               Date of instt. 19.5.2010

                                                               Date of decision:20.10.2015

 

Ankom Laboratories situated at plot No.86, Sector 3, HSIDC, Karnal through its proprietor Smt.Renu Wadhwa.

                                                   ……….Complainant.

                             Versus

 

Senior Post Master, Department of Post, Head Post office, Karnal.

                                                           ……… Opposite party.

 

                     Complaint U/s  12  of the Consumer

                     Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Sh.Anil Sharma ………Member.

                   Smt.Shashi Sharma…..Member.     

 

 Present:       Sh.Vineet Rathore Advocate for the complainant.

                   Sh.S.D.Kapoor PRI for the OP.

ORDER:

 

 

                        The facts giving rise to the present complaint u/s 12 of the Consumer Protection Act 1986(hereinafter  to be referred as the Act) are that complainant was dealing  in the trade of Medicines and used to send products through speed post/registered parcel to the  customers by availing the services of postage provided by the Opposite Party ( in short OP).  On 5.01.2010 complainant booked one consignment of  medicines amounting to Rs.14385/-  through speed post to be delivered at  District Burdwan. Receipt of Rs.585/- was issued towards postage charges for sending the consignment and the postage transaction was having  number EH1245115IN. It was usual practice that after booking the consignment used to be delivered within 4/5 days. After waiting for a reasonable time, the complainant enquired about the status of the dispatched goods as the consignment was reported to be not delivered by the consignee. Initially, the OP lingered on the matter on one pretext or the other and did not give any satisfactory reply. Then the complainant moved application dated 22.1.2010 reporting the non  delivery  of the consignment and in reply thereto the OP vide letter dated 25.01.2010  assured that matter was  under enquiry and would be communicated shortly. A complaint in that regard was also  put on  Customer Grievance handling system on the internet.  On 5.3.2010 while  the complaint was enquiring about the non delivery of the consignment on the Internet, it was reported under the heading of communications that “ The article is in Kolkata RMS or Burdhwan RMS. The Kolkata RMS has been intimated but no trace found. S/doing SMS it is found that the article has been dispatched to Karnal”. However, no official of the postal department gave any satisfactory reply as to where the consignment was lost. In this way, there was deficiency in services on the part of the OP on account of non delivery of the consignment, due to which the complainant suffered mental pain and agony apart from huge monetary loss.

2.                Notice of the complaint was given to OP, who appeared and filed written statement disputing the claim of the complainant. Objections have been raised that complaint is not maintainable in view of Section 6 of the   Indian Post Offices Act, 1898 and the rules framed thereunder; that the complaint is bad for want of notice u/s 80 of the Code of Civil Procedure;  that the complainant  is bad for non joinder and mis joinder of the parties; that the complaint is not maintainable as per provisions of Section 3  of the Act; and  that the department of posts is exempted from loss, mis delivery, delay or damage under Section 81 of the Post Office Guide I.

                   On merits, it has been submitted that speed post article No. EH1245115IN. was booked from Karnal head office on 5.1.2010 but the contents of the envelope were not specified at the time of booking of the speed post article.  There was  no willful default on the  part of the OP.  As per provisions of law,  compensation equal to double composite charges or Rs.1000/- whichever is less, could be paid by the department and accordingly Rs.1000/- had already been sanctioned, vide office letter  dated 27.10.2010. The complainant is not entitled to any  further compensation.

3.                In evidence of the complainant affidavit of Smt.Renu Wahdwa, the proprietor Ex.C1 and documents Ex.C2 to Ex.C7 have been tendered.

4.                On the other hand no evidence has been led by the OP.

 

5.                We have heard the learned counsel for complainant and Sh.S.D.Kapoor, representative of Ops and  have gone through the case file very carefully.

6.                There is no dispute between the parties regarding the fact that complainant had booked speed post article  No. EH1245115IN from Karnal on 5.12.2010 to be delivered at district Burdwan. The article/consignment contained medicines .The speed post article was neither delivered to the consignee nor returned to consignor.

7.                It has been alleged in the complaint that the complainant was dealing in the trade of medicines and used to send speed post /registered parcels to the  customers by  availing  services of postage provided by the OP.  It is quite apparent from the pleadings of the complaint that consignments contained medicines used to be  sent to various customers in the course of business of running trade of medicines.  No doubt the OP has not raised objection regarding maintainability of the complaint on the ground that services of speed post of the OP were availed by the complainant for commercial purposes and the complainant does not fall within the definition of consumer but it is a legal question and can very well be considered even without specific objection raised by the OP. Thus, before proceeding to deal with the other aspects of the case, it is necessary to decide the question as to whether complainant falls within the definition of consumer as provided u/s  2(1)(d) of the Act.

8.                The learned counsel for the complainant vehemently argued that complainant is  consumer qua the OP as the OP  agreed to provide speed post services and received service charges for that purpose.  As the consignment sent by the complainant through speed post service of the OP was neither delivered to the consignee nor returned to the complainant there was deficiency in services on the part of the OP.

 

9.                The  “Consumer” has been defined u/s 2(1)(d) of the Act, according to which  Consumer means any  person who buys any goods or  hires or avail, of any service for consideration, but doesnot include a person who obtains such goods for resale or for commercial purposes or who  avails such services for any commercial purposes. However, there is explanation that “commercial purposes” 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.

 

10.               The complainant was dealing in the trade of medicines and used to send the products through speed post/registered parcels to the customers by availing the services of postage provided by the OP.  The consignment sent by the complainant through speed post contained medicines. There is no allegation of the complainant that medicines were not sent for the purposes of business i.e. commercial purposes. The complainant neither   pleaded in the complaint nor there is material on record which may show that consignment was sent by the complainant through speed post for the purpose of earning livelihood by means of self employment. Thus, it is emphatically, that services of the OP were hired by the complainant for commercial purposes. Therefore, the complainant does not fall within the definition of complaint. As  the complainant does not fall within the ambit of definition of Consumer as provided u/s 2(1) (d) of the Act, therefore, there is no need to deal with the other aspects of the case.

 

11.               As a sequel to the foregoing discussion, we do not find any merit in thepresent complaint. Consequently, the same is hereby dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:20.10.2015                                                                            

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.

 

 

 

 

 

 

 

Present:        Sh.Vineet Rathore Advocate for the complainant.

                   Sh.S.D.Kapoor PRI for the OP.

 

 

                   Arguments heard. Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:20.10.2015                                                                            

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

 (Anil Sharma)       (Smt.Shashi Sharma)    

   Member.                             Member.