Punjab

StateCommission

FA/571/2014

DTDC Courier & Cargo Ltd. - Complainant(s)

Versus

Standard Corporation India Ltd. - Opp.Party(s)

Rohit Goswami

02 Jun 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                    First Appeal No.571 of 2014

 

                                                          Date of Institution: 20.05.2014    

                                                          Date of Decision:  02.06.2016

 

DTDC Courier & Cargo Ltd., Regd. Office DTDC House No.3, Victoria Road, Banglore 560047 through its Managing Director/Attorney Rajeev Chandan.

                                                               Appellant/Opposite party no.1          

            Versus

 

1.      Standard Corporation India Ltd., (Formerly Standard Combines        Pvt. Ltd, Standard Chowk, Barnala through its Authorized                 Signatory Shri Rajesh Kumar Deputy General Manager (Legal)     of the Company.

                                                            Respondent no.1/Complainant

 

2.      Pawan Kumar Franchise Holder/Incharge of DTDC Courier     and Cargo Ltd., near Dr. Bhim Nursing Home, Handiaya Bazar,                  Barnala.

                                                           Respondent no.2/ Opposite party no.2

 

                                                         

First Appeal against order dated 02.04.2014 passed by the District Consumer Disputes Redressal Forum,  Barnala

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.J.S Gill, Member

Present:-

          For the appellant              : Sh.Rohit Goswami, Advocate  

          For the respondent no.1 : Sh.Harsh Goyal, Advocate

          For the respondent no.2 : Ex-parte.

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party no.1 in the complaint) has directed this appeal against order dated 02.04.2014 of District Consumer Disputes Redressal Forum Barnala accepting the complaint of respondent no.1 of this appeal by directing the OPs to pay consolidated amount of compensation of Rs.1 lac jointly and severally. Respondent no.1 of this appeal Standard Corporation India Ltd is the complainant in the complaint and respondent no.2 is opposite party no.2 in the complaint and appellant of this appeal is opposite party no.1 in the complaint and they be referred as such hereinafter for the sake of convenience.  

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant/company invented a new device known as 'Standard Cutting Baler for agricultural purpose' i.e. for eliminating the menace of air pollution after harvesting. Sh. Nachhattar Singh Managing Director of the Company, invented a new device known as "Standard Cutting Baler", for agricultural purpose for eliminating the menace of air pollution after harvesting. The complainant/company intended to get the same patented in the name of the Company under the provisions of the Patents Act, 1970. The complainant/company sent all the required documents, for the grant of patent in envelope to one Mr. Umesh Motish, vide receipt no.Z08422008 dated 30.10.2013. OP no.2 assured the complainant that said booked envelope would reach the destination on 01.11.2013 positively. The said envelope did not reach the destination, as assured by OP no.2. The complainant visited the office of OP no.2 to enquire about the status of the delivery of said envelope and it was assured that it would be delivered in the evening on the said date i.e. 02.11.2013. Mr. Umesh Mothis informed the complainant on 04.11.2013 telephonically that the said envelope had not reached him till then. The complainant wrote complaint regarding non-delivery of consignment to consignee and handed over the original complaint to OP no.2. Even the said envelope has not reached to Umesh Motish till 07.11.2013. On receipt of email from said Umesh Motish regarding non-delivery of the said documents, the complainant sent fresh documents through On Dot Couriers and Cargo Ltd, vide receipt no.630614244 dated 08.11.2013, as the said documents were very important documents for getting the new device, invented by the Managing Director of the complainant/company. The complainant/Company suffered mental harassment for non-delivery of the consignment to Mr. Umesh Motish, the authorized person of the complainant/company, which amounts to deficiency in service and unfair trade practice. The complainant has, thus, prayed for compensation from the OPs.

3.      Upon notice, OP no.1 appeared and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is not maintainable. The complainant is not a 'consumer' as defined under Section 2(d)(i) of the Act. The complainant is a private limited company and there is no question of suffering any mental harassment by a private company, which is corporate body only and not a natural person. All terms and conditions were read over to complainant at the time of booking the consignment and complainant has accepted the same at the time of booking the consignment, as such OP is liable to pay Rs.100/- as damage which occurred during the course of business. OP no.1 averred in written reply that complainant/company is private limited company and manufactures all agricultural implements for commercial purpose. All the products manufactured by the complainant/company are not sold in the market for the livelihood and it sells them for commercial purposes in the market to earn the profit at large. The terms and conditions of booking were read over to complainant, which were accepted by him. The OPs are liable to pay Rs.100/- only in case of loss of non-delivery of consignment during the course of service. Address mentioned by the complainant is different because the complainant gave the address on the consignment as Mr. Umesh Motish Advocate Mohship Consultants, V.B Plaza, 221, IInd Floor, Opposite Moho, Dwarka, New Delhi, Mobile 099685-73468. The address was actually as Mr. Umesh Motish of Motiship Consultants 221, 2nd Floor, Opposite Metro V.B Plaza, Sector 12, Dwarka New Delhi-75 on the consignment booked with OPs. Frantic efforts were made to locate the address on 05.11.2013 and the house of the consignee was found locked from 06.11.2013 to 14.11.2013. OPs denied any deficiency in service on their part and prayed for dismissal of the complaint.

4.      OP no.2 was set exparte before District Forum, vide order dated 10.12.2013.

5.      The complainant tendered in evidence, copies of the documents Ex.C-1 to Ex.C-8, affidavit of Rajesh Kanodia complainant is Ex.C-9. As against it; OP no.1 tendered in evidence affidavit of Kudleep Singh Maini posted as A.M at D.T.D.C Office Ex.OP-1/1 and original courier envelope Ex.OP-1/2. On conclusion of evidence and arguments, the District Forum Barnala accepted the complaint of the complainant by virtue of order dated 02.04.2014. Dissatisfied with the order of the District Forum Barnala dated 02.04.2014, the opposite party no.1 now present appellant, carried this appeal against the same.

6.      We have heard learned counsel for the parties and have also examined the evidence on the record of the case.

7.      The forceful submission raised by the counsel for the appellant before us is that there is no relationship of 'consumer' and 'service provider' between respondent no.1 of this appeal and appellant of this appeal in this case. The submission of counsel for appellant is that the complainant/Standard Corporation India Ltd is a Private Limited Company, which deals in commercial activities. There is no question of earning livelihood exclusively by self-employment by a private limited company, which is corporate body and hence it is not a 'consumer' of OP no.1, the present appellant. Much emphasis has been laid on this point by counsel for the appellant before us. We have also heard counsel for the respondent no.1 in this appeal and he argued to the contrary by contending that the order of District Forum is correct because complainant is indulging in commercial activities to earn its livelihood. It was submitted that complainant has not specifically pleaded in the complaint that complainant is 'consumer' of the OPs. From perusal of pleadings of the parties and evidence on the record, it is proved fact even from the pleadings of the complainant that complainant is a private limited concern and Resolution Ex.C-1 has been passed for Nachhattar Singh Managing Director and it is incorporated under the Companies Act. The resolution has been passed by Boards of Directors on 25.04.2008, vide Ex.C-1. Ex.C-2 is application for grant of patent, which was sent through courier. Ex.C-3 is the receipt of courier. Ex.C-4 is complaint lodged by the complainant with OPs for non-delivery of the consignment. Ex.C-5 and Ex.C-6 pertains to enquiry. Ex.C-7 and Ex.C-8 are the courier receipts for sending consignment through other courier.  We have examined the affidavit of Rajesh Kumar Ex.C-9 on the record. He admitted that the complainant is a company and he is Managing Director of the complainant/company. The complainant is a private limited company as gathered by us from the above-referred substance on the record. Even Kuldeep Singh in his affidavit    Ex.OP-1/1 has categorically stated that complainant is a private limited company dealing in commercial purposes for earning profits. He stated that complainant is not a 'consumer', as services were not hired for personal purposes by the complainant and those were hired for commercial activities only.

8.      From critical analysis of the above-referred evidence on the record, we are of this view that complainant is not proved to be a 'consumer' of the OPs. The definition of 'consumer' has been provided under Section 2(i)(d) of the Act, "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 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 purposes;

     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.

 

          It is, thus, evident that the explanation appended with Section 2(i)(d) of the Act makes it clear that  '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.

9.      Undoubtedly, complainant is a private limited company and had availed services of the OPs for commercial purposes for getting the device patented, which was to be marketed by the complainant, as private limited company. We reject the contention of counsel for the complainant that services were hired for earning livelihood exclusively for the purpose of self-employment by complainant because a private limited company always deals in commercial activities with sole aim of earning profits only. The District Forum has, thus, wrongly held the complainant to be a 'consumer' and on that premise mulcted the OP now appellant for the deficient service. We, thus, hold that complainant is not proved to be a 'consumer' because private limited company always indulges in commercial activities with the sole aim of earning profits. Services in this case were availed of by the complainant for commercial purposes and hence the case in hand dehors the purview of Section 2(i)(d) of the Act. Once, we have come to the conclusion that complainant is not proved to be a 'consumer' of the OPs and hence order of the District Forum to the contrary is absolutely unsustainable in the eyes of law. The transaction in this case is clearly relating to business activities and it would fall in the category of commercial purposes, which have been taken out of the purview of Consumer Protection Act, 1986, vide Amendment Act 62 of 2002 w.e.f. 15.03.2003. We refer to law laid down by National Commission in "Shailaja Finance Ltd.. Versus.. GTM Builders & Promoters Pvt. Ltd and another", in C.C No.117 of 2014, decided on 07.05.2014. In the presence of law laid down in Shailaja's case (supra), OPs cannot get any benefit from law laid down by Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in "Arovi Granites (P) Limited versus Blue Dart Express Limited and Another" reported in 2008(1) CPJ P-61 .

10.    As a corollary of our above discussion, we accept the appeal of the appellant and set aside the order of District Forum dated 02.04.2014 resulting into dismissal of the complaint.

11.    The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited an amount of Rs.2,50,000/-. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant by way of crossed cheque/demand draft after the expiry of 45 days.

12.    Arguments in this appeal were heard on 31.05.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

13.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                             (J.S GILL)

                                                                              MEMBER

 

June 2,  2016                                                             

(ravi)