This complaint coming up before us for hearing on 02-04-14 in the presence of Sri V. Naga Raju, advocate for complainant and                                 Sri M. Nageswara Rao, advocate for 2^nd opposite party, Sri M.D. Prasad, advocate for 3^rd opposite party and 1^st opposite party remained absent and set exparte, upon perusing the material on record, after hearing both sides and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-    

          The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking payment of Rs.67,600/- being the cost of four mobile phones; Rs.4056/- being interest @24% p.a., from 25-12-12 to 25-03-13; Rs.1,00,000/- towards mental agony and Rs.10,000/- towards legal expenses.

2.   In brief the averments of the complaint are hereunder:

          The complainant is doing business in self employment.                              The complainant used to place an order for purchase of mobiles through the              2^nd opposite party.   The 1^st opposite party is online marketing service.  The 2^nd opposite party on 25-12-12 approached the complainant and placed an order for purchase of six mobiles of Samsung company i.e., Samsung Sduos S. 7562 and cost price of each mobile is Rs.16,900/-.   The complainant paid Rs.1,01,400/- through her SBI account to the 1^st opposite party who in turn received the said amount through its Axis Bank vide online transaction.   After placing the above order cost of the said mobile was decreased by Rs.2,000/-.   The complainant approached the 2^nd opposite party and asked him to cancel the said order.   The 2^nd opposite party promised the complainant to return the above order to the 1^st opposite party after receiving mobiles and it will be adjusted and fresh stock will be sent to the complainant.   The complainant received the stock on 05-01-13 and on the same day returned the mobiles in one cartoon box weighing 4 kgs through the 3^rd opposite party.  The 1^st opposite party on 07-01-13 received the stock from the complainant.   The 1^st opposite party on 12-01-13 informed the complainant that it received two mobiles from out of six mobiles and the complainant got surprised.  The 1^st opposite party on 12-01-13 sent two mobiles worth of Rs.33,800/- only.   The 1^st opposite party ought to have rejected the cartoon if found or doubted tampering of consignment sent by the complainant.  The opposite parties 1 and 2 colluded with the 3^rd opposite party and cheated the complainant to have wrongful gain of Rs.67,600/-.   The 1^st opposite party failed to return four mobiles or its worth of Rs.67,600/- and it amounted to negligence and insufficient service.   The complainant contacted the opposite parties 1 and 2 through phone as well as e-mail.   The 1^st opposite party did not listen to complainant’s voice.  The complainant sustained heavy loss in business due to non return of mobiles by the 1^st opposite party on account of festival season.   The complainant issued notice to the opposite parties.   The opposite parties 2 and 3 received notice.  The 2^nd opposite party gave false reply.   The complaint therefore be allowed.

3.  The 1^st opposite party remained exparte. 

4.  The contention of the 2^nd opposite party in brief is hereunder:

          The complainant may proceed against the 1^st opposite party for the reliefs as all the monitory transactions are between him and the 1^st opposite party.  The 2^nd opposite party gave a suitable reply.  The amount claimed by the complainant is exorbitant and there is no basis for such claim.   The complaint therefore be dismissed.

5.    The contention of the 3^rd opposite party in nutshell is hereunder:

          The complainant is a business woman doing business under the name and style of M/s Hasini Enterprises and as such is not a consumer under the provisions of the Consumer Protection Act.  The complainant availed services of the opposite party for commercial purpose of procuring business.   One           L. Sai Kishore booked the consignment as seen from the courier receipt furnished along with the complaint and thus there was no privity of contract between the complainant and the 3^rd opposite party.   The complainant has no cause of action to file this complaint.   The 3^rd opposite party on 05-01-13 received a shipment (article) from one L. Sai Kishore to be delivered to the consignee Yebhi.com shop online trading, Gurgaon vide consignment receipt No.13684035201.   The 3^rd opposite party delivered the said article on               07-01-13 to the consignee intact.   The consignee received the said article without any protest.  The 3^rd opposite party was not aware what was contained in the shipment/consignment.   If really there was shortage of items it is in between the complainant and the consignee of the shipment.   The 3^rd opposite party has nothing to do with it.   The complaint is bad for misjoinder of parties.   The liability of the 3^rd opposite party if any is limited to Rs.5,000/- as per terms and conditions.   The complaint may therefore be dismissed with exemplary costs being vexatious.       

4.  Exs.A-1 to A-14 were marked on behalf of complainant.  No documents were marked on behalf of opposite parties.

5.  Now the points that arose for consideration in this complaint are:

          1. Whether the complainant is a consumer?

2. Whether this Forum has no jurisdiction to entertain the complaint?

3. Whether there is privity of contract between the complainant and                      the 3^rd opposite party?

4. Whether the opposite parties committed deficiency in service

     and if so by whom?

          5. Whether the complainant is entitled for return of Rs.67,600/-?

6. Whether the complainant is entitled to compensation?

          7. To what relief?

6.   POINT No.1:-    Section 2 (1)(d)(i) of Consumer Protection Act excluded a person who buys goods for resale or for any commercial purpose while section 2(d)(ii) of the said Act excluded a person who availed services for any commercial purpose.  

7.   As the complainant described her occupation as business, the registry on 23-04-13 raised the following among other defects:

          “3. State how the complainant is a consumer.  The complainant is a                      business man, the transactions are business purpose?

          4. State how this complaint is maintainable before this Forum for                          want of territorial jurisdiction?” 

8.      The explanation ‘exclusively for the purpose of earning livelihood by means of self employment’ to sub-clause is added in 1993 in order to safeguard the interest of small consumers who buys goods for earning their livelihood by self employment.   If the purchase is a) for exclusive use of buyer himself, b) for his livelihood and c) by self employment, the buyer of goods (or hirer of services) still falls under the definition of consumer though the purpose was commercial.

9.  The Supreme Court in M/S Laxmi Engineering Works v. PSG Industrial Institute AIR 1995 SC 148  did not accept the view repeatedly taken by the National Commission that where a person bought goods with a view of using it for carrying on a  large scale for earning profit, it was to be treated as for commercial purpose.   The Apex Court held, “The explanation reduces the question what is ‘commercial purpose’ to a question of fact to be decided on the facts of each case…..  The several words employed in the explanation viz ‘uses them by himself’, exclusively for the purpose of earning his livelihood’ and ‘by means of self employment’ make the intention of the parliament abundantly clear that the goods bought must be used by the buyer himself by employing himself for earning his livelihood”.

10.    In Cheema Engineering Services v. Rajan Singh 1997 (1) CPR 30 (SC), the Supreme Court held:

          “The Explanation to the definition of 'consumer' has been added        by way of an amendment in 1993 which reads as under:-

"Explanation,-For the purpose of sub-clause (i), "Commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment."

11.   In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) if section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is: whether the respondent has been using the aforesaid machine for self-employment? The word                      'self-employment 'is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is included that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for                        self- employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose.                         Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.                'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for                         self-employment and that, therefore, it is not a commercial purpose.

12.    The burden is on the complainant to prove that she comes within the exception provided under the Consumer Protection Act as held in the above decision.  In cause title it was mentioned that the complainant is the proprietor of M/s Hasini Enterprises, Nagarampalem, Guntur.  Even in Ex.A-3 notice dated 15-02-13 the complainant clearly mentioned that she is the proprietor of M/s Hasini Enterprises, Guntur.   For the 3^rd objection, the complainant in para III of her complaint and para II of her affidavit filed along with the complaint on 22-04-13 mentioned that she is doing business in self employment.  But in her evidence affidavit filed on 24-02-14 the complainant did not mention about she doing business for self employment for the reasons best known to her.   Thus there is a contradiction regarding the nature of business mentioned by the complainant in the affidavits filed by her on 22-04-13 and 24-02-14.    Under those circumstances, we opine that the contention of the 3^rd opposite party about the complainant doing business for commercial purpose has got corroborated by the complainant herself.   The complainant simply mentioned the words ‘self employment’ only when the registry raised the objection to have jurisdiction of this Forum.   We therefore opine that the complainant does not come under the purview of consumer and answer this point against the complainant.

13.  POINT No.2:-  The averments of the complaint alone has to be taken into consideration to exercise jurisdiction.   The subject consignment was booked at Guntur to the consignee i.e., the 1^st opposite party and as such a part of cause of jurisdiction arose at Guntur.   We therefore opine that this Forum has jurisdiction to entertain the complaint and answer this point in favour of the complainant.  

14.  POINT No.3:-   The 3^rd opposite party in its version and affidavit clearly mentioned that there is no privity of contract between it and the complainant.  In order to prove the same the 3^rd opposite party relied on Ex.A-12 consignment note.   In Ex.A-12 name of the consignor was shown as one L. Sai Kishore.  The complainant got issued notice through her advocate on 15-02-13 to the opposite parties wherein it was mentioned ‘My client received the above order on 05-01-13 through courier service and on the same day my client returned the stock to No.1 among you.   On 05-01-03 my client sent the six mobiles in one cartoon box and its weight was 4 kgs and it was sent through Blue Dart Couriers from Guntur to No.1 among you.’               

15.  The complainant mentioned the same in her complaint as well as in her affidavits filed on 22-04-13 and 24-02-14.   Inspite of the contention of the 3^rd opposite party regarding its contractual liability the complainant did not chose to mention that L. Sai Kishore on her behalf consigned six mobiles to the 1^st opposite party through the 3^rd opposite party.   Under those circumstances, the contention of the 3^rd opposite party that it has no privity of contract with the complainant is well founded and therefore we answer this point against the complainant.

16.  POINT No.4:-     The 2^nd opposite party is an employee of the                 1^st opposite party as seen from cause title of the complaint.   It is not the case of the complainant that the 3^rd opposite party delivered short the goods covered by Ex.A-12.   Ex.A-12 did not disclose that the consignor there in sent six mobiles to the consignee and their value. The                      2^nd opposite party in his version and affidavit specifically denied that he has no knowledge about the complainant sending six mobiles and further mentioned that he has been in constant touch with the 1^st opposite party regarding the complainant’s claim. It is the specific case of the                     3^rd opposite party that it is not aware what the consignment covered by Ex.A-12 contained. For want of details in consignment note the complainant has to blame herself in our considered view.   In view of the afore mentioned discussions we opine that the opposite parties did not commit any deficiency of service and answer this point against the complainant.  

17.  POINTS 5&6 :-   In view of above findings, we are of the considered view that the  complainant is not entitled to the value of mobiles or compensation and answer these points against the complainant.

18.  POINT No.7:-    In view of above findings, in the result the complaint is dismissed without costs.

Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 7^th day of April, 2014.

MEMBER                                  MEMBER                                PRESIDENT

 APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:       NIL  

        PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.