// ORDER ON ADMISSION //
The complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against OP alleging deficiency in service in putting the fine and without any reasons has stopped the business of the complainant along with compensation of Rs.7,65,000/- to the complainant and Rs.3,00,000/- towards physical and mental agony and Rs.5,00,000/- towards deficiency in service and Rs.35,000/- for litigation and miscellaneous expenses.
2. Brief averments of the Complaint are as under;
That the complainant in the capacity of representative of the company has filed this complaint.
The complainant transports the granite stones from Bannikoppa to Goa through the Goods rail and they deposit the rental charges to the OP and for this the OP used to give service to the complainant and their process is continued since two years.
The complainant further alleged that the complainant used to put the granite stones through crane after weighing it and then they used to load in the rail and then the details of the weight of the load was submitted to the OP. The complainant alleged that even the Land and Mines department also gives the report regarding the weight of said granite stones.
The complainant further alleged that on 17-01-2016 he loaded 59 granite stone boxes in the goods rail in Reck No. R.R. 12. After submitting the weight report of the granite stones and the report given by the Land and Mines Department to the OP, then the granite stones was loaded from Bannikoppa to Goa. After this, the rent of Rs.26,63,351/- of this load was sent through D.D. and deposited it. The complainant alleged that after this the OP gave a letter to him saying that out of 59 boxes sent, 53 boxes contains more weight of granite stones. The complainant sent the weight of granites stones to the weight of 3600 – 3700 Metric Ton. But the railways informed the weight as 4437.80. So from this it shows that he/complainant has put more weight of granite stones. So, the complainant has sent 737 tons more granite stones and informed him to go and get it corrected regarding the weight to the said place. The said fact was informed to the complainant.
The complainant further alleged that the land and Mines Department has given a document stating that the weight which were in the Rail Goods are 1243.067 CBM Cubic Meter, i.e., 1243.067 X 3 Mt = 3729.201 Metric Ton. The weight measured by the Land and Mines Department and the complainant is same and due to this reason it is clear that complainant has not sent any more granite stones.
The complainant further alleged that the OP’s did not agree to him that he has not put more granite stones and suggested OP’s to measure it once again and clarify their doubts. But the OP’s did not agree for this also and the said Rail was stopped in Alwar. There was no proper place for removing the granite stones in Alwar. So the said Rail was further stopped at Castle Rock. The complainant further alleged that in Castle rock the weight was measured once again and the complainant has spent nearly Rs.7,00,000/- for this weighing. So the remaining stones were arrange in 2 boxes and was sent and for this Rs.65,000/- expenses occurred.
The complainant further alleged that the OPs’ issued a notice to him stating that he has sent more weighing Granite stones for this, they have asked him to pay fine of Rs.17,41,893/- alongwith Rs.9,32,733/- for making the rail to stop without any sufficient reasons and Rs.2,16,374/- for senting charges and Rs. 51,525/- for crane bill charges. The complainant further alleged that the OPs’ further intimated in the notice that one more bill is pending and the complainant has to pay the bill immediately till the payment of these two fine, any service will not be given to the complainant.
The complainant further alleged that the OPs’ don’t have any perfect document to show that more weight granite stones are loaded in the rail and without reasons they have imposed fine to the complainant. If the said fine amount is certified by the OPs’ then only the complainant is liable for paying the fine amount. Merely telling that the complainant has loaded more weight of Granite stones in the load is not correct. The OPs’ are further telling that after payment of these two fine amount only the service will be provided to the complainant. From this it clearly shows the deficiency of service on the part of OP.
The complainant further alleged that the complainant had sent an application to OPs’ stating that we have not sent more weight of granite stones, and for confirmation the complainant asked the OPs’ to weight it once again. But the OPs’ did not heed to the request of the complainant but told them just to correct the weight of the granite stones then later on will check the weight once again. Whereas the OPs’ did not stick on to their words.
The complainant further alleged that due to their deficiency in service by OPs’ the complainant has suffered with severe loss and it is not correct on the part of OPs’ to stop the business of the complainant without sufficient reasons. Hence prays for to abolish the fine amount put by OPs’ and order the OPs’ to give service to the complainant.
3. Heard on Admission from the complainant side.
4. On going through the pleadings and documents produced by the complainant, the office had raised the objections regarding the pecuniary and territorial jurisdiction of the complaint filed. Hence we decided to take the following as preliminary in view of the admission of the complaint.
POINTS
- Whether the complainant proves that he is a consumer and the complaint has brought is maintainable.
- What order?
5. The finding on the above point in the Negative for the following;
REASONS
6. The learned counsel for the complainant vehemently argued that the OP No.1 office is at Bannikoppa village, Yelaburga taluk and Koppal district. Hence submits that this Forum has jurisdiction to entertain the complaint. The counsel for the complainant further argued that the complainant is a consumer and these is a deficiency in service on the part of OP.
7. The short point for consideration in this complaint is whether the complainant falls within the ambit of the definition of “Consumer” as provided under Sec. 2(1)(d) of the Consumer Protection Act – 1986. In order to find answer to the above question, it is necessary to have look on the relevant definition of ‘Consumer’ which reads as under;
“Section 2(1)(d) of the Consumer Protection Act – 1986 defines ‘Consumer’ means;
- 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
- [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 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 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;]
8. On reading of the above, it is clear that the customer is a person who purchases goods for consideration but does not include the person who buys the goods for commercial purpose. If the goods are purchased for earning livelihood by way of self employment, then it shall not be treated as the commercial purpose.
9. To know whether the complainant comes within the ambit of Section 2(1)(d) of the Consumer Protection Act – 1986, it is necessary to look on the pleadings of the complainant. The cause title of the complaint itself clearly shows that it is a logistic Pvt.Ltd., and represented by its Project Manager. The Logistics Pvt.Ltd., is a company where its business is to load the goods and transport to the concerned party. It is nothing bu shifting goods from manufacturing unit to suppliers.
10. The complainant himself as averred in his complaint in para – 1 of the pleadings that the complainant transports the granite stones through rail goods from Bannikoppa to Goa and then deposits the rental charges to the OP. For this, the OP renders service to the complainant and this process is continued since two years.
11. The said business itself clearly says that it is purely a commercial business. Thus it cannot be said that the said transport is exclusively for the purpose of earning livelihood by way of self employment. Thus explanation to Section 2(1)(d) of the Act is of no relief to the complainant.
12. The counsel for the complainant has relied upon the citation reported in III (2007) CPJ 221 (NC) – Maharashtra Mathadi and Unprotected Labour Board Vs TATA Iron & Steel Company, wherein it is held thus;
“(i) Consumer Protection Act, 1986 – Section 2(1)(d)(ii) – Consumer – Beneficiary of Services – Maintaibility of claim – Loading and unloading of material from wagons – illegal strike, workers suspended – Wagons not unloaded – Complainant suffered loss on account of demurrage charges – Claim for loss – Complainant/respondent beneficiary of contract, falls within ambit of Section 2(1)(d)(ii) of Consumer Protection Act – Complaint maintainable.
[Pg.221,223 (paras 2,7)]
(ii) Consumer Protection Act, 1986 – Section 2(1)(o) Services – Bars rendering of any service free of charge or under a contract of personal services – No body’s ease services rendered by workers “Free of charge” – Hence fall within definition of services as in Section 2(1)(o) of Consumer Protection Act.”
13. We have gone through the rulings; they are not applicable to the facts of the case in hand as it is related to Benefeciary of Services.
14. The counsel for the complainant has relied upon another citation reported in I (2006) CPJ 178 (NC) – Mrs. Shipra Sengupta V/s G.M.(Commercial) Southern Railway and Anr.,, wherein it is held thus;
“(i) Consumer Protection Act, 1986 – Section 2(1)(g) – Railway Services – Fine – Refund of – Appellant, valid ticker holder, fined upon dissatisfaction about proof of her age – Medical reports shown confirmed her age as 64 – Additional proof also submitted – Same disregarded for want of proof of age signed by Government Agency – Senior citizen availing concession, ticket mentioned some proof of are requiring during journey – Some proof not to be equated with documentary proof issued by Government – Refund of penalty amount with compensation of Rs.25,000/-“
15. We have gone through the rulings, the facts and circumstances of the case in hand and the facts and circumstances of the said citation are also together different. Because here the complainant is not a consumer. Therefore the present complaint filed by the complainant is not maintainable. Hence the said citation is not applicable to the case in hand.
16. In view of the above, we don’t find any relief to the complainant as prayed above. Hence as per the provisions of Consumer Protection Act – 1986 the complainant is not a consumer. Hence, at the same time the complainant is at liberty to file complaint where jurisdiction lies. As such the complaint is accordingly dismissed.
Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 29th day of February 2016.
