Haryana

Kurukshetra

CC/20/2021

Naresh Kumar - Complainant(s)

Versus

Shree Bala Ji Transport Company - Opp.Party(s)

M.S.baweja

19 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KURUKSHETRA.

 

                                                                    Complaint No.:    20 of 2021.

                                                                   Date of institution:         12.01.2021.

                                                                   Date of decision: 19.05.2022.

 

Naresh Kumar, Proprietor Megha Kariyana Store, Pipli, Kurukshetra.

 

                                                                                                …Complainant.

                                                 Versus

 

1. Shree Balaji Transport Company, Subhash Mandi, near Union Bank of India, Kurukshetra, through its Partner.
2. Shri Sahil Bansal, Partner Shree Balaji Transport Company, Subhash Mandi, near Union Bank of India, Kurukshetra.

...Respondents.

 

CORAM:   NEELAM KASHYAP, PRESIDENT.    

                   NEELAM, MEMBER.

                   ISSAM SINGH SAGWAL, MEMBER.           

 

Present:       Shri M.S. Baweja, Advocate for the complainant.

                   Opposite Parties ex-parte vide order dated 31.03.2022.

 

ORDER:

 

1.                This is a complaint under Section 35 of the Consumer Protection Act, 2019 (for short “Act”).

2.                In the complaint in hand, complainant alleged that he booked five drum of honey weighing 247 kilogram for transportation Kurukshetra to Delhi in the name of Ambrosia Apiaries Delhi on 27.10.2020 and OPs issued a receipt after receiving the transportation charges amounting Rs.630/- from him  with the assurance that the same would be delivered to the addressee. The OPs had not sent the consignment to the addressee at Delhi. On complaint by the consignee, the complainant visited to the OPs, who assured that the same will be delivered after 2-3 days in the month of November 2020, but the same was not delivered at the destination at Delhi. He visited to the OPs on 10.11.2020 and drum of honey, which was not delivered to the consignee, was lying at their transport in damaged position. On inquiry, it came to the notice that 92 kg honey less out of 247 kg. On this, the OPs assured that the amount of less honey to be paid within a week to him, but the same has not been paid to him till date, which comes to Rs.14800. He served a legal notice upon OPs through his counsel, but inspite of the legal notice, the OPs failed to do the needful in the matter. The OPs failed to deliver the consignment of complainant to the destination, which comes under the deficiency in service, constraining him to file the present complaint against the OPs, before this Commission.

3.                On receipt of notice of complaint, OPs failed to appear before this Commission on 31.03.2022 and was proceeded against ex-parte, on that date, by this Commission.

4.                In order to support his case, complainant tendered affidavit Ex.CW1/A along with documents Ex.C-1 to Ex.C-6 and closed the same.

5.                We have heard the learned counsel for the complainant and gone through the case file as well carefully.

6.                Learned counsel for the complainant has argued that the complainant booked five drum of honey weighing 247 kilogram for transportation Kurukshetra to Delhi in the name of Ambrosia Apiaries Delhi on 27.10.2020 and OPs issued a receipt after receiving the transportation charges amounting Rs.630/- from him. The OPs had not sent the consignment to the addressee at Delhi and when the complainant visited to the OPs on 10.11.2020 and drum of honey, which was not delivered to the consignee, was lying at their transport in damaged position. On inquiry, it came to the notice that 92 kg honey less out of 247 kg. On this, the OPs assured that the amount of less honey to be paid within a week to the complainant, but the same had not been paid to him till date, which comes to Rs.14800/-. The OPs failed to deliver the consignment of the complainant to the destination, which is an act of deficiency in service on the part of OPs.

7.                 Taking into consideration all the facts and circumstances of the case and without going into any other controversy of the case, firstly, this Commission has to decide whether the complainant falls with the ambit of consumer or not, as envisaged u/s 7 of Consumer Protection Act, 2019, which reads as under:-

(7) "consumer" means any person who— (i) 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 (ii) 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.

 

8.                 In 2^nd para of his complaint, complainant stated that he booked five drums of honey weighing 247 kilogram for transportation from Kurukshetra to Delhi. 247 kilogram honey, is a huge quantity of honey, which cannot be used for domestic consumption by anyone. In the complaint, complainant himself stated that when he visited to the OPs site, he found 92 kg of honey was less, out of total 247kg, which comes to Rs.14800/-, as such, after calculating the total value of 247 kg honey, its comes to Rs.39,732/- (14800 ÷ 92 x 247), which is hefty/large amount. Moreover, in the whole complaint, complainant nowhere pleaded that he was supplying the said huge quantity of honey for earning his livelihood by means of self/employment. Undisputedly, complainant firm had hired the services of OPs, but that too were for commercial purposes for earning profit, because, the complainant was indulging in supplying huge quantity of 247 kg honey to someone for business purposes to earn the profits and the said activities cannot be termed as work for earning livelihood by way of self-employment. Our view is also supported by the case law titled U.P. Power Corporation Ltd. & others Vs. Anis Ahmad. 2013(3) CLT page 227, wherein it has been held that Commercial purpose-Consumer-Complaint-Complainant-Person(s) availing services for ‘commercial purpose’ do not fall within the meaning of “consumer” and cannot be a “complainant” for the purpose of filing a “complaint” before the Consumer Forum.  It has also been held in the said authority that Commercial purpose-complainants having electrical connections for industrial/commercial purpose-They do not come within the meaning of “consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986-They cannot be treated as “complainant”-They are not entitled to file any “complaint” before the Consumer Forum..

9.                Keeping in view the ratio of the law laid down and the facts and circumstances of the present case, we are of the considered opinion that commercial nature of transactions are involved in the present case, therefore, we have no hitch to reach at a conclusion that the present complaint is not maintainable before this Commission and the same is liable to be dismissed, on this ground only. Once the complainant is not falling within the definition of consumer, then this Commission is not required to pass any comment on the merit of the case.

10.              Hence, due to the reasons stated hereinbefore, present complaint is, dismissed, it being not maintainable, before this Commission, leaving the complainant to bear his own costs of litigations. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Dated: 19.05.2022.

    

                                                                                        (Neelam Kashyap)               

(Neelam)                    (Issam Singh Sagwal)                   President,

Member.                    (Member).                                     DCDRC, Kurukshetra.

 

 

 

                  
Typed by: Sham Kalra, Stenographer.