Orissa

Rayagada

CC/13/2020

Sanjay Kumar Makhija - Complainant(s)

Versus

The Branch Manager, Gati Kintetsu Express Pvt. Ltd., - Opp.Party(s)

Self

03 Sep 2022

ORDER

DISTRICT   CONSUMER DISPUTES  REDRESSAL COMMISSION, RAYAGADA,

AT:  KASTURI NAGAR, Ist.  LANE,   L.I.C. OFFICE     BACK,PO/DIST: RAYAGADA, STATE:  ODISHA, PIN NO.765001,.E-mail- dcdrfrgda@gmail.com

…

C.C.CASE  NO._13______/2020                                          Date. 3.9.2022      

 

P R E S E N T .

Sri   Aswini Kumar Mohapatra,                                                  President.

Sri  Satish  Kumar  Panigrhi,                                                        Member

 

 

 

Sri  Sanjay Kumar  Makhija, Represented by its   Propritor, Bharat Traders, Main Road, Rayagada, Po/DIST: Rayagada, State:  Odisha,  PIN NO. 765 001.   Phone No.06856-236004, Cell No.9438377788.                                                                        … Complainant.

Versus.

1.The Branch Manager, Gati  Kintetsu  Express Pvt. Ltd.,  Indira Nagar, 2^nd. Lane, Infront of  Dr.DukhiShyam  Das house,  Po/Dist: Rayagada, (Odisha).

2.The Manager,  Corporate and  Registered office, Gati  Kintetsu  Express Pvt. Ltd.,  Plot No.20, Survey  No.12, Kothaguda, Kondapur, Hyderabad,500084, Telengana State (India)

                                                                                                …Opposite parties.

 

 

For the Complainant:- Self..

For the  O.Ps:- Sri K.Ch.G.S.Kumandan, Advocate, Rayagada.

 

JUDGEMENT.

 

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non  refund of  consignment note No. 705202822   with the invoice value of Rs.1,46,841/-   for which  the complainant   sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.Ps     put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps    taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act,. The facts which are not specifically admitted may be treated  as denial of the O.Ps.   Hence the O.Ps   prays the District Commision to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.Ps     and from the    complainant.    Perused the record, documents, written version  filed by the parties. 

This District Commission  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

         FINDINGS.

            Undisputedly  the   O.Ps are a Road carrier  having its head office  at  Hydrabad,Telengana State and branch office at  Rayagada.  Further there is no dispute  the consignment was booked  on Dt.26.07.2019 having the invoice value of Rs.1,46,841/- having  250 Kgs.   of ready made garments  bearing  consignment  No.705202822 ( copies of the same is  available in the file which is marked as Annexure-I).   The detail  lists ready made  garments  packet  which were  handed over to the O.Ps  by the  complainant  on Dt. 26.7.2019  is   available which is marked as Annexure-2).

            The main grievance of the complainant  is that  he entrusted the consignment of   250 Kgs.  of readymade garments for onward  transport and delivery to the  Consignee  M/S. Pepe  JhonAppearls LLP, Haridwar ,Uttarakhand state.  But till date  the  above consignment  has not been  delivered  to the consignee.   Hence  this  C.C. case filed by the complainant  against the O.Ps to get the   invoice  value.

The  O.Ps   in their written version contended  that the  case is not maintainable before the  District Commission as  there is a commercial transaction for profit and not for livelihood. In this connection  the O.Ps  relied citations  in their  written  version.

The O.Ps     taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act,  The facts which are not specifically admitted may be treated  as denial of the O.Ps .    Hence the O.Ps     prays the  District Commission to dismiss the case against  them  to meet the ends of justice.

Now the issues before this District Commission are:-

1)Whether the complaint petition is maintainable in this District Commission ?

2)Whether there is deficiency in service on the part of the O.Ps  ?

3. If so, the nature of relief to be granted to the complainant ?

Regarding  the Ist.  issue  the O.Ps have raised  preliminary objection in  their  written version and  contended that the complainant is not a consumer as the case he has agitated before this commission  is relating to the transaction being a commercial, this commission  has  no  jurisdiction, since the  complainant will not come within the meaning of consumer.

Admittedly, the complainant is a leading businessman,  who deals in  ready made dresses etc used to  resale the above products, to various destinations to their sub-dealer, retailer and, it should  be for profit/commercial purpose, though it is not pleaded so.   It is also not the case of the complainant, that as a self employed  person, he used to resale the  above materials, for  his livelihood or for his personal use. Further  from the  averments  and in evidence   there is no  pleadings  or proof  whatsoever  that the  complainant  conducted  business self  employment or for earning  his  livelhood.  Thus from the pleadings, it is  evident, that the complainant being a leading business man, had   resold wholesale  the  above  products.   In this case  the  complainant  is a leading  businessman, in  ready made dresses  used to transport  the above product  to various destinations   to their dealer and it  should be for profit/commercial purpose. . As seen from the  complaint petition compensation also claimed for  loss   sustained, thereby , making it  further clear that the above  transactions was only for the purpose  of business, which is aimed for profits coming within the meaning of commercial transaction. Having  this position, settled, now we have to see, the definition for consumer.

At this stage, it is appropriate to quote Section  2(1)(d) of C.P. Act,  which reads as follows:-

            “(d)”Consumer” means any person who-

1. 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
2. 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”.

 

As claimed by the complainant, he hired the services of the O.Ps for consideration, which is also evident from  Annexures.  Originally all kind  of hiring of services were brought under the umbrella of consumer,  which was taken away with effect from  15.3.2003. Therefore, under  the  present definition available, if a person had hired the service of another, for consideration, for any commercial purpose, certainly that person will  not come within the meaning of consumer and in that case, Consumer  commission  will not have jurisdiction.

For better appreciation this commission relied citation which are mentioned  here:-

It is held and reported   in CTJ- 2010 page No. 361  in the case of Economic Transport Organisation  Vrs.  Charan Spinning Mills (P) Ltd and aother  where in  para – 25  the Hon’ble Supreme Court observed “After the said  amendment if the service  had been  availed for any commercial  purpose then the person  availing the service will not be a  “Consumer” and consequently, complaints will not be maintainable in such  cases”.

Again it is held and reported  in  CPR- 2011(4) page No. 108  in the case  of   Sri Sam Manohar  Vrs  M/S. Sathish Transport  where in the  Hon’ble Tamilnadu  State Commiission  observed  “Commercial users do not come within the ambit of consumer”.

Further it is held and  reported in  CPR 2011(4) page No.15  where in the Hon’ble West  Bengal  State Commission observed  “ Persons doing business on purely resale and  commercial basis are not consumers”.

Again  It is held and reported in CPR 2015(1)  page No. 289 where  in the  Hon’ble National Commission observed “Inter se dispute between two business persons can not be raised before Consumer forum.

Further  it is held and reported in CPR- 2014(3) CPR-117  where in the  Hon’ble  National Commission observed  “Commercial users can not maintain  consumer complaint”

 

 In the present  case  in hand,  as per the findings recorded by  us, the transaction between the complainant, and the O.Ps   was for commercial purpose, aiming towards profits and such services is not attracted by  the provisions of C.P. Act., 2019 and the consequential result would be the   Consumer Commission   has no jurisdiction.

Thus from the pleadings, it is evident, that the complainant being a leading business man, had transported the goods namely  ready  made  dresses, in this case through the O.Ps transport  vehicle  or the vehicle engaged by them only  for commercial  purpose.   As seen from claim compensation  also claimed, for loss of  reputation   in the market, thereby,  making it further  clear that the transport  was only  for the purpose of business, which     is  aimed  for profits  coming  within the  meaning of commercial  transactions.

In view of the order passed by the  Apex Court  the complaint filed in the present case before the commission to get relief is not maintainable under the C.P. Act. As the case  is  not maintainable before the commission we need not discussed other two issues.  Accordingly, without  going into the merits of the case, this commission  dismiss  the above complaint petition  with liberty to the complainant to seek appropriate remedy available to him before the appropriate forum.

To meet the ends of justice  the following order is passed.

 

 

 

 

ORDER

 

In resultant the complaint petition     stands  dismissed.

 

The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is disposed of.

           

The complainant  may take advantage of the ruling  of the Hon’ble Supreme Court in the  case of Laxmi Engineering  works  Vrs. PSG   Industrial  Institute  reported in   SCC 1995(3) page No. 583  to seek  exclusion  of the time  spent in  prosecuting this complaint, before this commission  as per provision of Section-14 of Limitation Act, 1963.

A copy of this order as per the statutory requirements, be forwarded to the parties    free of  charges.

Dictated and corrected by me.

Pronounced in open commission  today on this        3rd.    day of    September,  2022  under the seal and signature of this   commission. 

 

                                                            Member.                                              President