UTPAL KUMAR BHATTACHARYA, MEMBER
Instant Appeal u/s 15 of the C.P. Act, 1986 has been filed by the Appellants/OPs challenging the judgment and order dated 13.06.2016 passed by the Ld. District Forum in complaint Case No. CC/105/2015 allowing the complaint on contest against the Appellants/OPs with cost of Rs. 1,000/- .
The Appellants/OP Nos. 1 and 2 / DTDC were directed to pay Rs. 20,929/- ( Value of medicines) together with litigation cost and compensation against physical and mental harassments of the Respondent/ Complainant for amounts of Rs. 1,000/- and Rs. 2,000/- respectively to the Respondent/Complainant.
Entire amount of Rs. 23,929/- was to be paid within 30 days from the date of the said order , failing which , as ordered , interest @ 10% p.a. should be charged upon the awarded amount from the date of the impugned order till full realization.
The facts of the case, as emerged out of the complaint , were that the Respondent/Complainant, an unemployed youth , has been carrying on a business of medicines under the name and style “M/s . Roy Medical Agency” to earn his livelihood . The said Respondent/Complainant had booked a consignment bearing No. D19074353 in the office of the Appellant/OP No.2 on 12.09.2014 for the purpose of sending some medicines to Madurai , Tamil Nadu. A service charge of Rs. 600/- ,against proper money receipt, was paid by the Respondent/Complainant to the Appellants/OPs . The said consignment , however, could not be delivered to the consignee by the Appellant OP No.2 who , on 06.02.2015 , returned the undelivered consignment to the Respondent/Complainant . The Respondent/Complainant , on receipt of the said consignment on return , found the medicines were completely damaged .
The Respondent/Complainant claimed the entire value of the consignment from the Appellants/OPs which the Appellant/OPs very cleverly evaded to pay back. In the complaint case filed before the Ld. District Forum , the Respondent/Complainant , pointing out the above deficiency on the part of the Appellants/OPs, claimed the entire value of the medicines along with service charges paid to the Appellant/OPs for hiring the services together with cost and compensation . The impugned judgment and order against which the instant Appeal was preferred , had originated from the said complaint case .
Heard Ld. Advocates appearing on behalf of both sides .
The Ld. Advocate appearing on behalf of the Appellants /OPs submitted that the Respondent/Complainant used to run a medical agency , admittedly his business , for the purpose of earning his livelihood.
Drawing notice of the Bench to running page No. 14 , being the tax invoice of the Respondent/Complainant agency , the Ld. Advocate continued that the transaction in question appeared to be a commercial one .
Drawing further notice to the reply at running page -25 against question No. 4 at running page -23 , the Ld. Advocate pointed out the Respondent/Complainant’s admission about sending the medicines to a company which meant the transaction involving the issue was nothing else than a commercial one.
Admittedly, as continued , the Respondent/Complainant was running a business for the purpose of earning his livelihood but the complaint was seen to be devoid of any averment towards the said business being done by the Respondent/Complainant by way of self employment.
Questioning the identity of the Respondent/Complainant as a consumer , as claimed in the instant complaint, the Ld. Advocate, in fact, challenged the maintainability of the complaint itself . In this context , the Ld. Advocate cited the decision of the Hon’ble National Commission in revision Petition No. 3517 of 2007 [Okhla Industrial Stated Phase III –vs-M/s, Allena Auto Industries Pvt. Ltd.] wherein the Hon’ble National Commission was pleased to rule out the claim of a private Ltd Company’s, earning livelihood by means of self employment through commercial activity with the observation as under :- “ Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise.”
Since the complaint , as contended , was beyond the jurisdiction of the Consumer Fora for the Complainant’s not being a consumer in view of the above , the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondent/Complainant , per contra , submitted that the Respondent/Complainant used to do the subject business for the purpose of earning his livelihood by way of self employment .
The Ld. Advocate went on to cite the decision of the Hon’ble Apex Court in Civil Appeal Nos. 2109 – 2110 of 2018 [ Paramount Digital Color Lab –vs- Agfa India Pvt. Ltd.] reported in 2018 SCC online SC 253 wherein the Hon’ble Apex Court was pleased to enlighten that a person’s falling within the definition of Consumer because of his activity being commercial one should always be determined based on facts and circumstances in every case.
On the instant occasion, the quantum and manner of transaction, as continued, speak the Respondent/Complainant’s activity, although a commercial one, was by way of self employment .
As contended , since the Respondent/Complainant received the services of the Appellant/OPs on payment of service charges, he was a consumer within the meaning as envisaged u/s 2 (1) (d) of the C.P. Act, 1986.
With the above submission, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record . The Complainant, although mentioned his activity for self employment in the BNA, never mention the same in the original complaint which appeared to have recorded the business which he used to run was for earning his livelihood only. It appeared that the Appellant subsequently realized the lapse it had committed while drafting the complaint and in his attempt to put his claim in right track the point of ‘self employment’ was incorporated in the BNA.
In the explanatory note of the definition of consumer as provided u/s 2(1) (d) of the C.P. Act, 1986, it has been clarified that the ‘commercial purpose’ does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purposes of earning his/her livelihood by means of self-employment.
In absence of any averment in the complaint in respect of the Respondent/Complainant’s doing the business for earning his livelihood by means of self employment , we have reservation to accept the logic of the business’s not being a commercial one .
Moreover, the Respondent/Complainant used to run his business through an agency . An agency running solely by a person without any assisting hand is hardly having any tenable reason to take into confidence.
We are , therefore, of the considered view that the transaction on the instant occasion was a commercial one and the issue was accordingly beyond the jurisdiction of the Consumer Fora for being adjudicated .
Hence,
Ordered
That the Appeal be and the same is allowed on contest without cost . The impugned judgment and order stands set aside . Consequently, the complaint also stands dismissed. The Respondent/Complainant , may , however, move the appropriate Civil Court to get their grievances addressed and in that case , he will be entitled to the benefit of observations of the Hon’ble Supreme Court in Lakshmi Engineering Works –vs- PSG Industrial Institute, 11, AIR 1995 SC 1428 for the purpose of exclusion of the time spent in pursuing its case before this Commission.
