State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO. FA/09/20



DATE OF FILING: 16.01.2009

DATE OF FINAL ORDER: 16.04.2009


APPELLANT


MCC-PTA India Corp Private Ltd.

22, Camac Street, Block ‘C’, 4th Floor

Kolkata – 700 016



RESPONDENTS



1) AFL Private Limited

54/1A, Hazra Road

P.S. – Bhawanipur

Kolkata – 700 019

2) Sushila J.D. Enterprise

(A Franchisee of AFL Pvt. Ltd.)

Sukumar Sen Gupta Market, 1st floor, Room No.4

Basudevpur, P.O. – Khanjanchak

Haldia 721 602, Purba Medinipur, West Bengal



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY

MEMBER : MRS. S. MAJUMDER



FOR THE APPELLANT : Ms. K. Mukhopadhyay, Advocate

FOR THE RESPONDENTS : Mr. P. Banerjee, Advocate





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT





This appeal was filed challenging order dated 18.12.08 passed by District Consumer Disputes Redressal Forum, Kolkata Unit-I in Consumer Complaint No.397 of 2008 whereby the complaint itself was dismissed in limini.

The complaint was filed contending that the complainant entered into an agreement with OP1 in respect of providing service for carrying documents to places all over India on agreed terms as OP1 carried on business of carrying documents to places all over India. In terms of the said agreement on 12.01.07 complainant had sent an envelope containing a cheque for the amount of Rs.5,18,467/- dated 29.12.06 to be delivered to Matri Contruction at Haldia. The document was sent through the OP2 which is a franchisee of OP1. A letter was received by the complainant from OP2 stating that it had wrongly delivered the said consignment to another party instead of the addressee which has already encashed the cheque. Ultimately the complaint was filed against the OPs for payment of Rs.5,05,322/- interest and cost.

By the impugned order it was held that the petitioner is not a consumer u/s.2(1)(d) of the Consumer Protection Act as the petitioner is a business house and accordingly the complaint was dismissed.

Heard Ms. K. Mukhopadhyay, the Ld. Advocate for the Appellant and Mr. P. Banerjee, the Ld. Advocate for the Respondent.

On behalf of the appellant it is contended that the complainant may be a business house but it has hired a service from the OP1 for carrying articles on payment of charges under an agreement. Law has been settled in Harsolia Motors-Vs-National Insurance Co. Ltd. reported in (2005)1 CPJ 27 holding that in case of hiring such service even by a business house/company, the hirer becomes a consumer when such service is not for commercial purpose as the complainant does not earn profit from such service.

Mr. Banerjee, the Ld. Advocate for the OP1 stated that law is settled that a company carrying on business for commercial purpose, is not a consumer particularly when in the present transaction there is no case of earning livelihood by self-employment. Mr. Banerjee contended that the judgment referred by appellant only relates to insurance matters and is not applicable in this case.

Considering the above contentions we are of the opinion that such hiring of service does not amount to a commercial purpose as by such service no profit is earned by the complainant and, therefore, the complainant is a consumer. Law referred hereinabove in the case of Harsolia Motors (Supra) laid down the said law and respectfully agreeing with the same, we accept the said proposition and we hold that the complaint is maintainable. The relevant finding in the said case is as follows:

“Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words ’for any commercial purpose’ it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.”

Therefore, the impugned order is set aside and the appeal is allowed. The Forum below is directed to decide the matter in accordance with law. A copy of this order may be sent down to the Forum below.







(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti)

MEMBER(L) MEMBER PRESIDENT