DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

Civil Station, Palakkad – 678001, Kerala

Dated this the 22^nd day of May, 2010

Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

CC.No.86/2009

N.P.Suresh Kumar,

Managing Partner,

B & R Hot Link System,

Chetty Street,

Opp. P & T Quarters,

Sulthanpet,

Palakkad – 1. - Complainant

(By Adv.S.T.Suresh)

Vs

1.The Manager,

DTDC Couriers,

Apex Residency,

Near Aroma Theatre Complex,

Palakkad

2.The Manager,

DTDC Courier & Cargo Ltd.,

Door No.59/3368, A.P.M.Buildings,

North Railway Station Road,

Cochin 682018

3.The Manager,

DTDC Couriers,

DTDC House No.3, Victoria Road,

Bangalore – 47 - Opposite parties

(By Adv.Binu Mathew & Adv.Sijin for opposite parties)

O R D E R

By Smt.Seena.H, President

Case of the complainant in brief:

Complainant is the Managing Partner of B & R Hot Link System, dealers of legal metrology equipments supplying to various clients. Complainant booked M/s.Avry make compression lood cell 3 numbers to deliver to M/s.Senstech Pvt Ltd., Bangalore through 1^st opposite party. 2^nd and 3^rd opposite parties are the Regional and Zonal office of the DTDC Courier. The goods were entrusted to the complainant for repairs by one of their client. The client who have entrusted the equipment for repairing purpose with the complainant is M/s.G.K.Granite, Aluva, Ernakulam. Complainant booked the items on 28/01/2009 to be delivered at Bangalore. The cost of the items booked comes around Rs.1,50,000/-. The grievance of the complainant is that till date the consignee has not received the same and enquiry reveals that the opposite parties have misplaced or lost the same in transit. The client of the complainant is demanding back the articles entrusted with the complainant. If the items are not traced complainant will be constrained to pay the cost of the same. Lawyer notice issued to be opposite parties were not replied. The act of opposite parties amounts to clear deficiency in service on their part and hence the complaint. Complainant prays to direct the opposite parties to return the consignment failing which to pay an amount of Rs.1,50,000/- being the cost of the consignment booked and to pay Rs.50,000/- as compensation and cost of the proceedings.

Opposite parties filed version contending the following:

The main contention of the opposite parties is that complainant is not a consumer. Complainant is a business firm engaged in commercial activity and has

availed the service of the opposite parties for commercial purpose. Opposite parties submitted that complainant himself has admitted that the items were entrusted by M/s.G.K.Granite to whom the complainant has sold the legal metrology equipments. Therefore the complainant is not a consumer as contemplated under the Consumer Protection Act.

Opposite parties submit that they say of the complainant that he has entrusted one consignment for carriage with the 1^st opposite party is incorrect. It was entrusted to one of its franchisees. The relationship between the opposite parties and its franchisees is on principal to principal basis and the opposite parties are not liable for the wrong done if at all by the franchisee. Moreover, the said franchisee is not made a party to the complaint. Hence complaint is bad for non-joinder of necessary parties. Opposite parties further submit that the complainant had neither disclosed the contents of the consignments nor its value while entrusting the same for carriage. No such communication or declarations were made to the franchisee through whom the complainant allegedly booked its consignment. The averment that the value of the items comes to around Rs.1,50,000/- is false. The opposite parties are not aware of such fact. The fact that the contents of the packet contained 3 set of lood cell and that the consignee has not received the consignment is also denied by opposite party. The complainant has not contacted the 1^st opposite party or the other opposite parties as alleged. Opposite parties has not received any lawyer notice. According to opposite parties there is no deficiency in service on their

part. Further opposite parties submit that the liability of opposite party is limited under the contract. The terms and conditions of the carriage is clearly mentioned in the consignment leaf. As per the stipulation liability of carrier is limited to Rs.100/-. Opposite parties pray for dismissal of complaint with cost to the opposite parties.

Complainant and opposite parties filed their respective affidavits. Exts.A1 and A2 series marked on the side of the complainant. No documentary evidence on the part of opposite parties.

Now the issues for consideration are;

1. Whether complainant is a consumer?

2. Whether there is any deficiency in service on the part of opposite parties?

3. If so, what is the relief and cost complainant is entitled to?

    

Issue No.1

Opposite party inter alia contented that since complainant is a commercial establishment and has availed the services of opposite party for commercial purpose, complaint is not maintainable before the forum.

Complainant has admitted that they are the dealer of legal metrology equipments supplying legal metrology equipment to various clients. No where in the affidavit there is a pleading that the establishment is for his livelihood. Hiring services for commercial purpose is specifically excluded from the purview of the

Consumer Protection Act. The learned counsel for the complainant has argued for the point that since the transaction between the complainant and opposite parties is not a commercial transaction complainant is a consumer. In Economic Transport Organization V Charan Spinning Mills (P) Ltd and another (SC) (CP) 2010 CTJ 361 Hon'ble Supreme Court has specifically held that if the service of a carrier is availed for any commercial purpose, the person availing the service will not be a consumer and hence a complaint in such a case will not be maintainable under the Act. Admittedly complainant is a business firm who are the dealers selling legal metrology equipment to customers. The goods entrusted to the opposite parties are equipments entrusted to the complainant for repairs by the customers. Hence we are of the view that commercial purpose is involved in the said transaction also. In the light of the decision rendered by the Apex Court we are of the view that complaint is not maintainable before the forum.

Issue No.1 having found against the complainant with out going into the other issues, we dismiss the complaint with direction to approach appropriate court for relief.

Pronounced in the open court on this the 22^nd day of May, 2010

Seena.H

President

Preetha.G.Nair,

Member

Appendix

Date of filing: 08/07/2009

Witnesses examined on the side of complainant

Nil

Witnesses examined on the side of opposite parties

Nil

Exhibits marked on the side of complainant

Ext.A1 – Photocopy of consignment Note No.010240904 dt.28/01/2009

Ext.A2 (Series) – Lawyer notice, postal receipt and acknowledgement card etc.

Exhibits marked on the side of opposite parties

Nil