Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:
(1) This appeal is filed against the order of dismissal of the Complaint No.133/2008 passed by the Consumer Disputes Redressal Forum, Mumbai Suburban District, on 02.07.2008.
(2) The facts lie in narrow compass. The Complainant had filed consumer complaint alleging deficiency in service against the British Airways. According to Complainant he had sent some perishable goods as consignment from Mumbai to New York via London by British Airways after paying total freight charges. According to Complainant when Consignee named in the Airway bill took delivery of the goods it was found that it was perished and therefore, he suffered damages. He therefore filed consumer complaint claiming Rs.10,00,000/- by way of damages for the deficiency in service rendered by British Airways, the Opponent. Said complaint was dismissed at the stage of admission itself observing that the consignment was sent for export by the Complainant and therefore, he cannot be said to be a consumer within the meaning of section 2(1)(d)(ii) of the Consumer Protection Act. Hence, the District Forum was pleased to dismiss the complaint by order dated 02.07.2008. Aggrieved by the said order the Complainant has filed appeal.
(3) The appeal was dismissed by us by an order dated 22.03.2010 on the ground that there was delay of 46 days. Against the dismissal of the appeal on the ground of limitation the Appellant preferred Revision Petition in the Hon’ble National Commission. The Hon’ble National Commission was pleased to condone the delay and directed us to decide the appeal on merit. We therefore heard Advocate Mr.M.Shah Alam Khan, for the Appellant and Mr.H.D. Nanawati, Advocate for the Respondent.
(4) We have perused the impugned order. We are finding that the District Forum erred in law in dismissing the complaint at the stage of admission itself. It lost sight of the fact that Complainant had styled himself as Proprietor of M/s. Hind Exports and he was exporting vegetable goods to foreign countries. He was doing his export business to earn his own livelihood by way of self employment. Such a person can be said to be a consumer in view of the explanation appended in Section 2(1)(d)(ii) of the Consumer Protection Act 1986. Normally a person engaged in commercial activity is not permitted to file consumer complaint, but in the instant case Appellant was the Proprietor of M/s.Hind Exports doing small export business to earn his own livelihood by way of self employment. Such a person is permitted to file consumer complaint as is clear from Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. In the circumstances, we are finding the District Forum erred in law in dismissing the complaint at the stage of admission itself and therefore, by allowing this appeal, we will have to admit the complaint and remit it back to Consumer Disputes Redressal Forum, Mumbai Suburban District for deciding on merit. In the circumstances, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Order passed by the Consumer Disputes Redressal Forum, Mumbai Suburban District, Bandra, Mumbai is quashed and set aside.
(iii) The Complaint No.133/2008 is admitted and remanded back to Consumer Disputes Redressal Forum, Mumbai Suburban District for fresh disposal on merit.
(iv) Both parties are directed to appear before the Consumer Disputes Redressal Forum, Mumbai Suburban District, Bandra, Mumbai on 31/03/2011.
Pronounced on 17th February, 2011.
