This appeal is directed against the judgment and final order dated 16/12/2021 delivered by Ld. D.C.D.R.C. Uttar Dinajpur in CC No. 32 of 2020.

 Here in this case the appellant Niramal Ray registered the Consumer complaint against op No. 1 to 3.

 The OP No. 1 and 2 inspite of receiving notice did not contest the case. The OP No. 3 only contested the case by filing WV.

  Ld. District Commission, after hearing, passed the impugned order under appeal by which the consumer complaint was dismissed and against the order this appeal follows: -

   The case in list is that the Complainant / Appellant is a businessman and he runs one shop under the name & style "Sree Ma Bastralaya" for his livelihood. Further to run the business Complainant / Appellant hired service from respective transport company (Respondents/ Opposite Parties) to bring goods. The complainant had purchased 90x100 colour plus bed sheet, 200 pcs. and 90x100 classic bed sheet, 110 pcs. from Ambika Fabrics, Jaipur amounting to Rs. 44,258/- (Rupees Forty-Four Thousand Two Hundred Fifty-Eight) only including GST on 03.03.2020 and put the same in Jaipur Office of Jai Bajrang Bali Transport Co.' (Opposite Parties) to bring the same from Jaipur to Raiganj. That Jai Bajrang Bali Transport Co. charged 1750/- as freight (including all charges) for transportation of the consignment from Jaipur to Raiganj. That complainant hired that service to delivery of consignment from O.P.s. Several days passed away but the Complainant/Appellant did not receive the consignment at Raiganj. The Complainant Appellant several times communicated with the Branch Manager, Raiganj Office but did not get positive feedback. The Opposite Parties stated the consignment has not yet reached at and has tried his level best to trace out the same but unable to trace the same. That it is pertinent to mention here the goods are garment item and if it is not properly stored then the same can be damaged.

  On 29.06.2020 the Complainant Appellant sent a Legal Notice through his appointed Advocate to the O.P.s and requested them to take necessary initiative so that complainant is able to get his consignment within 7 days after receiving of the Legal Notice. That O.P. No. 1 received the Legal Notice on 21.07.2020, O.P. No. 2 not received the Legal Notice and O.P. No. 3 received the Legal Notice on   02.07.2020.

  That even after receiving the Legal Notice, the Opposite Parties neither took any initiative to trace out the consignment of the complainant nor gave any reply to the same. Hence for the deficiency in service the Complainant / Appellant filed this instant case against the Opposite Parties.

  The Respondent/O.P. No. 1 & 2 did not appear in this case before the Ld. Forum below and as such the case was heard ex-parte against the Respondent/O.P. No. 1 & 2.

  The Respondent/O.P. no. 3 appeared before the Ld. Forum below and filed his Written Version stating that the manager, namely Soumitra Biswas, run a business at FCI More, Raiganj, Uttar Dinajpur in a rented premises That apart from this Transport Company, Soumitra Biswas is working as a commission agent under other transport companies. That this respondent gets commission only after handing over consignments to the respective customers. He admitted that appellant booked goods in transport and the same through Jai Bajrangbali Transport Co. from Jaipur. That respondent no. 3 stated that no unfair trade practice or deficiency in service occurred on his part. That deficiency in service or unfair trade practice occurred from the part of Respondent No. 1 as because he is owner of Transport Company and having sufficient knowledge, he did not take any initiative so that consignment reached Raiganj. That as the consignment did not reach Raiganj, the Respondent no.3 did not get any commission from that consignment and apart from that the Respondent no.3 tried his level best so that appellant is able to receive his consignment, as such he is not liable for the same.

  The OP/Respondents inspite of notice never approached this bench to contest the appeal.

  As a result, the appellant alone canvassed the argument through Ld. Advocate Mr. Mohpal touching the merit of the appeal.

Decision with reason:-

The sum and substance of the appeal case is that the complainant a small trader runs a clothing shop styled as ‘’ Sree Maa Bastralaya’’ a retail out let to maintain his livelihood.

 He purchased some clothing items from Jaipur, Rajasthan, amounting to Rs. 44,258/- on 03.03.2020 and put the said article at the office of OP No 1 a transporter “Sree Bajrangbali Transport Company” who received transportation charge Rs.1750/- from the complainant to reach the said article at Raiganj, Uttar Dinajpur.

But the article has not at all consigned by the transporter.

  So, the complainant registered the consumer complainant for deficiency of service on the part of the transporter.

Ld. District commission come to the conclusion that the complainant was not a consumer under the provision of sec.2(7) of CP ACT, 2019 as purchased the goods from Jaipur to resale it at Raiganj for commercial purpose and for that reason instant consumer case was dismissed.

 It is established beyond doubt that the complainant made payment of transportation charge to OP No. 1 and 2 for transportation of his clothing items for Jaipur to Raiganj. But ultimately from the transport company OP No. 1 & 2, the OP No. 3 could not receive the said items at Raiganj and as such he had no occasion to deliver it to the address of the complainant.

So, beyond any doubt, the deficiency of service on the part of OP No. 1 and 2 have sufficiently proved.

 Now the question is, whether such deficiency of service on the part of transporter should be excluded from the liability to compensate the sufferer on account of commercial activity.

  Firstly, there was no relation between the complainant and transporter (OP No1 & 2) as purchaser and seller. Only the service of OP No 1 and 2 was hired by the complainant for transportion of his purchased items.

Here, the contract was there between the complainant and the transporter. There was no nexus between them as purchaser and seller.

  After receiving charges of transportation there was an apparent warranty clause that the transporter would transport the items in safe condition within the stipulated time. No commercial relation was existed between the complainant and transporters (Op 1 & 2).

 Here, the complainant hired the service of OP No.1 and 2 for the purpose of earning his livelihood by means of self-employment.

   Suppose the complainant purchased the cloth items from the manufacturer or whole seller and any items was found to be defective then he could not raise any consumer dispute in consumer forum for any compensation as the transaction was covered with commercial activities.

 But here the complainant hired the transport service which is found deficient then he has the legal authority to claim compensation before consumer forum.

 So, the observation of Ld. Forum/ District Commission is found based on mis interpretation of law.

 The complainant deserves the right to be compensated as per provision of CP Act, 1919.

Thus, the appeal succeeds

Hence, it is ordered

  That the instant appeal is hereby allowed on merit without any cost. The Judgment and final order of Ld. DCDRC Uttar Dinajpur stands set aside.

  The instant consumer complaint bearing No. 32 of 2020 U/S 35 of CP Act, 2019 is allowed exparte against OP No. 1 and 2 and dismissed against OP NO. 3.

   OP No. 1 and 2 are directed to pay Rs. 44,258/- i.e. the value of consignment, RS 25,000/- as compensation and Rs. 10,000/- as litigation cost to the appellant/complainant Nirmal Roy within two months failing which interest @ 8% per annum to be carried on upon the decretal amount since the date of filing the consumer complaint (14.09.2020).

   Let the copy of order be supplied to the complainant and the same to be communicated to the address of OP No. 1 and 2.

  A copy of order be communicated to the Ld. D.C.D.R.C., Uttar Dinajpur.

If the OP/Respondents do not comply the order in due time, liberty is hereby give to the appellant to put the final order of this appellate authority into execution before Ld. D.C.D.R.C, Uttar Dinajpur.