DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
CONSUMER COMPLAINT NO.483 of 2010
DATE OF INSTITUTION: - 06.08.2010
DATE OF ORDER: -23.01.2017
Parveen Goyal son of Sh. Jiwan Ram Proprietor M/s D.C. Trading Company, Grain Merchant and Commission Agent, Near Dhani Railway Fatak, Behind Petrol Pump, Charkhi Dadri, Tehsil Charkhi Dadri, District Bhiwani.
……………Complainant.
VERSUS
- Triveni Transport Company, Near Chotti Bazari City, Dadri, District Bhiwani.
- Sh. Ashish Kumar Prop. Triveni Transport Co., Near Chotti Bazari City Charkhi Dadri, District Bhiwani.
- Sh. Santosh Kumar (Broker & Partner) M/s Krishna Broker Agency a-71 floor Grain Mandi Chandpol, Jaipur (Rajasthan).
- Sh. Umesh (Broker & Partner) M/s Krishna Broker Agency a-71 floor Grain Mandi Chandpol, Jaipur (Rajasthan).
- Sh. Shishpal (truck driver) and owner of the Truck no. HR47A/2574 (name & address of above Drier & owner to be disclosed by respondent no. 2).
………….. Opposite Parties.
COMPLAINT U/S 12 & 13 OF CONSUMER PROECTION ACT
BEFORE: - Shri Rajesh Jindal, President.
Ms. Anamika Gupta, Member.
Present:- None for complainant.
OP no. 1 & 4 exparte.
Sh. Sandeep Sheoran, Advocate for Ops no. 2 & 3.
None for OP no. 5.
ORDER:-
Rajesh Jindal, President:
Brief facts of the present complaint are that on dated 12.06.2009 he had entrusted 485 sacks of Barley of Rs. 210028/- for export, weight 230 Quintal 800 gram after reducing vacant sacks 227 Quintal approximately to Ashish Kumar Proprietor and the said goods delivery was given through the addressee Ops no. 3 & 4 at L.T.C. Export India Pvt. Ltd. Bombay. It is alleged that the goods shall be sent through transport in truck no. HR-47A/2574 mentioned in the builty G.R. No. 339 dated 12.06.2009 and received the above builty by the complainant & Rs. 18000/- paid at the time of delivery as freight charges and remaining balance Rs. 1295/- was to be paid at the time of delivery. It is alleged that after some days later complainant came to know that the said goods was rejected by the LTC Export India Co. and the rejected goods have not get by complainant & complainant asked the addressee Ops no. 2, 3 & 4 for his goods but no answer was given by the Ops. The complainant further alleged that due to the act and conduct of the OPs he has to suffer mental torture, harassment and humiliation. Hence, it amounts to deficiency in service on the part of OPs and as such, he has to file the present complaint.
2. OP no. 1 & 4 have failed to come present. Hence they were proceeded against exparte vide orders dated 05.07.2013 & 06.01.2014.
3. On appearance, Ops no. 2 & 3 filed written statement alleging therein that the answering respondents is not answerable to the dealings of the firm being run under the name and style of Triveni Transport Company, Charkhi Dadri, which has no tie up with the firm M/s Shree Shyam Roadlines. It is submitted that the name of the answering respondents are liable to be struck off from the array of the respondents and the complaint qua the answering respondents is liable to be dismissed with costs. Therefore, there is no deficiency in service on the part of Ops no. 2 & 3. It is prayed that the complaint be dismissed with costs.
4. In order to make out his case, the complainant has tendered into evidence affidavit Annexure CA and documents Annexure C-1 to Annexure C-27.
5. In reply thereto, the counsel for opposite party no. 2 & 3 has tendered into evidence documents Annexure R-1 and Annexure R-2.
6. This is very old case filed by the complainant on 06.08.2010. The complainant closed his evidence on 15.06.2016 and the Ops closed their evidence on 16.11.2016. From the perusal of the zimini orders, we found that the complainant or his counsel is not appearing in this case regularly. On many dates of hearings nobody appeared on behalf of the complainant. Today the case is fixed for arguments but none appeared on behalf of the complainant. It is oldest case with this District Forum and there is no justification to adjourn this case again and again without any just and reasonable cause. The counsel for the Ops no. 2 & 3 appeared. Arguments heard. We proceed to decide this case on the basis of the material on the record.
7. This complaint has been filed by the complainant for non delivery of the goods by the OP no. 1, which was entrusted by the complainant to OP no. 1 on 12.06.2009 to deliver the goods to LTC Export India Pvt. Ltd. Bombay at trinity shipping and alies services N.S. Dham Kota, Near Usha Petrol Pump Gandhi Dham Gujrat. The goods were taken and transported through truck no. HR-47A-2574 as mentioned in builty G.R. No. 339 dated 12.06.2009 and the complainant paid Rs. 18,000/- as freight charges and remaining balance of Rs. 1295/- was to be paid at the time of delivery of goods. As per the contention in the complaint, the said goods were not delivered at the destination to the consignee. Despite various assurances by the OP no. 2 & 3 the delivery of the goods were not made to the consignee. The FIR was also lodged by the complainant in this regard at city police station Charkhi Dadri but no action was taken by the police against the Ops.
8. The counsel for the OP no. 2 & 3 reiterated the contents of the reply. He submitted that the OP no. 2 & 3 are not the proprietor and manager of the OP no. 1 as alleged by the complainant. He submitted that Ashish Kumar OP no. 2 is the Manager of M/s Shree Shyam Roadlines Dharuhera, Sohna Road, Maheshwari, District Bhiwani, who has nothing to do with the OP no. 1,
9. We have perused the relevant material on the record. The present complaint has been filed by the complainant in the capacity of proprietor of M/s D.C. Trading Company, grain Merchant and Commission Agent, Near Dhani Railway Fatak, Behind Petrol Pump, Charkhi Dadri, Tehsil Charkhi Dadri, District Bhiwani. As per the pleadings of the complainant, the complainant used to send goods i.e. Barley to the concern having its office at Bombay. The complainant has produced a number of G.Rs. alongwith bills runing into several lakhs of rupees of his proprietorship concern and the receipts issued by the consignee. It is not the case of the complainant that he availed of the services of OP no. 1 exclusively for the purpose of earning his livelihood by means of self-employment. Vide Consumer Protection (amendment) Act No. 62 of 2002 following words have been inserted in Section 2 (1) (d) of the Consumer Protection Act [but does not include a person who avails of such services for any commercial purposes]. After the said amendment in Section 2 (1) (d), definition of consumer, a person who avails of any services for commercial purposes he is not a consumer. Under the Consumer Protection Act, 1996, a complaint can be filed only by a consumer. After the abovesaid amendment in Section 2 (1) (d) of the Act, the complainant does not fall within the definition of consumer because he is doing the business at large scale.
10. Hon’ble Supreme Court in ECONOMIC TRANSPORT ORGANIZATION versus CHARAN SPINNING MILLS (P) LTD. & ANR, I(2010) CPJ 4 (SC) held as under:-“25. We may also notice that Section 2(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15.3.2003, by addling the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’. After the said amendment, if the service of the carrier 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. But the said amendment will not apply to complaints filed before the amendment.”
The instant case is fully covered by the abovesaid judgment of Hon’ble Supreme Court of India. Consequently, we find that the complaint of the complainant is not maintainable before the District Consumer Forum. However, we refrain from giving the views on the merits of the case. The complainant shall be at liberty to take legal recourse for his claim against the Ops before the competent court/authority as per the provisions of law, if so advised. The complainant can take the benefit of law laid down by the Honble Supreme Court of India in Laxmi Engg. Works Vs P.S.G. Industrial Institute-II (1995) CPJ-I Supreme Court on the point of limitation under Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act while computing the period of limitation prescribed for such a suit. With this observation, the complaint of the complainant is dismissed. Certified copies of the order be sent to the parties free of costs. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: 23.01.2016. (Rajesh Jindal)
President,
District Consumer Disputes
Redressal Forum, Bhiwani.
(Anamika Gupta)
Member.
