District Consumer Disputes Redressal Forum
Dakshin Dinajpur, W. Bengal
(Old Sub-Jail Municipal Market Complex, 2nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)
Telefax: (03522)-270013
Present
Shri Sambhunath Chatterjee - President
Miss. Swapna Saha - Member
Shri Siddhartha Ganguli - Member
Consumer Complaint No. 50/2014
M/s. Labanya Infotech,
Represented by - Sri Subhadeep Saha
S/o Late Madhusudan Saha,
Havin Service Centre at Upendra Bhaban, Opp. of Purbasa Club,
Balurghat Public Bus Stand,
P.O. & P.S.: Balurghat,
Dist. Dakshin Dinajpur …………………Complainant(s)
V-E-R-S-U-S
1. The Overnite Express Limited, Balurghat Branch,
Represented by - The Branch-in-Charge,
Having its office at Biswaspara More,
PO & PS: Balurghat,
Dist.: Dakshin Dinajpur.
2. The Overnite Express Limited,
Regional Office, 7-A, Tiljala Road (Near Don Bosco School)
Kolkata-700046, West Bengal …………Opposite Party / Parties
For complainant …………… - Shri Samit Bhowmick, Ld. Adv. &
- Shri Benoy Brata Bhowmik, Ld. Adv
For OP Nos. 1 & 2 …………… - Shri Sumit Kr. Mohanta, Ld. Adv.
Date of Filing : 19.11.2014
Date of Disposal : 27.07.2015
Contd…P/2
Judgment & Order dt. 27.07.2015
Present case as per complaint is that the complainant has the service centre of Micromax Mobile Phone in the name and styled as M/s. Labanya Infotech. The complainant booked one consignment (No. *8045224843*) dated 7.8.2014 for delivery of the same to the consignee M/s. Ripple Technologies having its office at 17/5 Sahapur Colony East, Plot No.413 New Alipore, Kolkata through OP-1. The consignment was containing 4(four) Micromax Mobile phones along with job sheet of listed customers for repairing.
The OPs failed to delivery the same to the proper addressee and also failed to return the same and for that reason the complainant sustained irreparable loss and mental agony.
The complainant contacted to the OP-1 through email and reply was given that the consignment is untraceable and the complainant asked to wait for some time. In spite of waiting for some time whenever the OPs failed to trace out the consignment the complainant found that his grievance was not made by the OPs. The complainant had to file this case praying for return back the consignment, in default to pay the complainant a sum of Rs.21,804/- as compensation for loss of the article to the complainant and also prayed for compensation of Rs.50,000/- and for mental pain and agony.
The OPs filed written version whereby the OPs denied the material allegations made by the complainant. It was specifically stated that the complainant has not approached the Forum with clean hands. It was specifically stated that the complainant is not a consumer as defined in the CP Act, under section 2(d). The complainant – company is carrying his business for servicing of Micromax mobile phones and documents filed by the complainant to prove the facts that he is carrying
Contd…P/3
a business and nowhere in the complaint, the complainant stated that he was running a business for the purpose of livelihood by way of self-employment. In support of the said contention OPs cited various rulings. Relying on those rulings it was specifically stated that the case is not maintainable and same is to be dismissed.
On the basis of the pleadings of the respective parties following points are to be determined:-
- Is the case maintainable?
- Had the complainant booked the consignment to the courier for doing his business?
- Was there any deficiency in service from the side of the OPs?
- Is the complainant entitled to get relief as prayed for?
DECISION WITH REASONS
All the points are taken together since they are all inter linked with each other.
From the materials on record it is crystal clear that the complainant as M/s. Labanya Infotech is a service centre of Micromax Mobile Phones and it is admitted fact that the complainant was given mobile phones by different customers for rendering service to the complainant. It is also admitted fact that those mobile phones were handed over to the OPs for the purpose of sending the said consignment to the M/s. Ripple Technologies. Whenever it was found that the consignment had not reached to the addressee the complainant made several intimations to the OPs through emails and the emails were replied that the consignment was untraceable. Subsequently, the complainant filed this case.
Contd…P/4
The OPs raised objection regarding maintainability of the case since the complainant has claimed that he his running a service centre of Micromax Mobile Phones i.e. he is carrying his business and documents filed by the complainant also proves the said fact. Nowhere in the complaint it was mentioned that the complainant had running the business for the purpose of livelihood by way of self-employment. If it that be so, the CP Act is not applicable and the complainant will not get the relief because he dose not qualify as a ‘consumer’ within the meaning of section 2(1)(d) of the CP Act. On the basis of the said fact that the OPs prayed for dismissal of the case.
The Ld. Lawyer for the complainant in support of his contention stated that the case is maintainable and the complainant will be entitled to get the relief as prayed for has cited several rulings as reported in 2014 (3) CPR 69 (NC) , DTDC Courier & Cargo vs M/s. Caterpillar India Pvt. Ltd. where it was held by the National Consumer Disputes Redressal Commission, (NC) that the courier failed to delivery the article within the meaning of CP Act, so for his deficiency in service the complainant will be entitled to get relief.
Ld. Lawyer for the complainant cited another ruling as reported in 2012(3) CPR 198 (NC) it was also held there that non-delivery of parcel containing medical preparation to the consignee is deficiency in service and the complainant will be entitled to get value of consignment as well as the compensation.
To counter the said submission of the Ld. Lawyer for the OPs relied on the case disposed of by the National Commission being case CC No. 50of 2014 wherein it was held in the Hon’ble Court that in the complaint the complainant has not averred that it had bought DG set exclusively for the purpose of earning livelihood by means of self-employment. Hence, it would be difficult to hold the complainant as
Contd…P/5
consumer under the CP Act, 1986, section 2(d) has defined the term “consumer” which does not include a person who obtained such goods for resale for any commercial purpose. Therefore, the complainant will not be entitled to get relief as per provision as laid down in the act itself.
Ld. Lawyer for the OPs citied another ruling as disposed of by the National Commission in revision petition No. 274 2012 wherein it was held that the complainant has nowhere mentioned in the complaint that the complainant prayed for allotment for industrial plot for earning by means of livelihood by self-employment and in such circumstances, the complainant does not fall within preview of consumer u/s 2(d) of the CP Act, and on its count also, the complaint is liable to be dismissed.
Ld. Lawyer for the OPs citied another decision disposed of by the National Commission being revision petition No.1660 (2011) Abhikram vs. Hotel Himmatgarh Palace, it was argued by the Ld. Counsel for the respondent has simply argued that the hotel was to be developed for self-employment which argument cannot be accept because, firstly, no averment has been made in the complaint that services were availed for earning livelihood by means of self-employment.
On the basis of submission of respective parties it is admitted fact that the complainant is a service centre of Micromax Mobile phones and the complainant sold Micromax Mobile sets to different customers and since some problems cropped up for those mobiles sets, the purchasers deposited their mobile sets to the complainant rendering service and the complainant wanted to send those mobile sets to the M/s. Ripple Technologies situated at 17/5 Sahapur Colony East, Plot No.413 New Alipore, Kolkata and the said consignment was handed over to OP-1 who functions as courier service provider. During the
Contd…P/6
transit period the said consignment was lost. From the said materials on record and the documents filed by the complainant established the fact that the complainant was doing business and for that purpose he sent those consignments through courier. In the four corners of the complaint the complainant has not stated that he is earning livelihood by means of self-employment and in view of such circumstances the complainant does not fall within the purview of consumer under the CP Act, 1986 and on this count the complainant is liable to be dismissed relying on the cases disposed of by the National Commission being revision petition No.274 of 2014 of UP State Industrial Development Corporation (UPSIDC) vs Smt. Shyama Rani, Abhikram vs. Hotel Himmatgarh Palace disposed of by National Commission revision petition No.1660 (2011) and also relied on another ruling as disposed of by National Commission in CC No.237 of 2012 Jayantilal Trikambhai Brahambhatt vs Abhinav Gold International Marketing Pvt. Ltd. & Anr.
It is relevant to mention here that the rulings cited by the Ld. Lawyer for the complainant are not applicable in this case since facts and circumstances of this case are totally different from the present case. Therefore, those rulings cannot be of any help to the complainant in this case.
Considering the rulings as mentioned herein above and since the complainant does not fall within the ambit u/s 2(1)(d) of CP Act, 1986, therefore, we hold that the complaint as filed by the complainant is not maintainable and we hold that the complainant will not be entitled to get any relief as prayed for.
Hence, it is
Contd…P/7
O R D E R E D
that the instant petition of complaint CC No.50 of 2014 is dismissed on contest without any cost.
Let a plain copy of this order be furnished to the parties forthwith free of cost.
Dictated & corrected
………Sd/-….…….
(Sambhunath Chatterjee)
President
We concur,
……Sd/-..…… ………Sd/-……..
(S. Saha) (S. Ganguli)
Member Member
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