State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





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



DATE OF FILING: 12.01.2009

DATE OF FINAL ORDER: 27.03.2009


APPELLANT/COMPLAINANT


Mr. Ravi Soni

Partner and Authorized Representative of

M/s. Eastern Chemicals Industries

Residing at 612/1, Block-‘O’, New Alipore

P.S. – New Alipore, Kolkata – 700 053



RESPONDENT/OPPOSITE PARTY



M/s. Ashoka Packers & Movers

Having its Registered Office at 317, Kabra Complex

61, M.G. Road, Secunderabad, Pin – 500 003 and

Kolkata Branch Office at

C/o. Sunshine Packers

1, Cock Burn Lane (behind 13, Royed Street)

Kolkata – 700 016



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

MEMBER : MR. A.K. RAY

FOR THE APPELLANT : Mr. S. Das, Advocate

FOR THE RESPONDENT/O.P. :





: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT



This appeal was filed against the order dated 12.12.2008 passed by District Consumer Disputes Redressal Forum, Kolkata Unit-I in Case No.385/2008 whereby the case was held to be not maintainable and accordingly was dismissed.

The case as made in the complaint was that the petitioner entered into an agreement with the OP on 21.5.08 for shifting a Tata Indica Car through their container services and accordingly the petitioner handed over the car to the OP and also made payment of Rs.10,000/- as service charge. The car was to reach the destination at Kolkata by 02.6.2008. The car did not reach Kolkata on the date fixed and upon enquiries the petitioner got evasive replies from the OP. On 10.6.08 at about 9:00 P.M. the petitioner was asked to receive the car in a damaged condition from one Ibrahim Bin Khaled Kaser who was given the job of driving the car from Hyderabad to Kolkata by the OP. The said driver disclosed the fact that he started his journey from Hyderabad on the morning of 08.6.08 and the car met with an accident on its way to Kolkata near Kolaghat on 10.6.08 and as a result thereof the headlight on the right side as also the windscreen of the car were broken and cracked respectively. The car and the key were handed over to the petitioner. The receipts of toll taxes paid by the said driver were also handed over to the petitioner. As the OP violated the agreed terms and sent the car not in container but by driving and caused loss to the complainant, the present complaint was filed claiming Rs.75,000/- towards compensation and Rs.15,000/- towards cost.

Though the acknowledgement card has been received back showing service of notice upon the respondent in the appeal, but at the time of hearing Mr. S. Das, the Ld. Advocate appeared for the Appellant and the Respondent was absent on calls.

Considering the contentions of the appellant we find that the complaint had been dismissed by the impugned order on the sole ground that the complainant is not a consumer as defined u/s.12 of the Consumer Protection Act. Admittedly, the case was not heard upon evidence and at the initial stage of the proceeding by Order No.2 dated 12.12.08 the complaint was dismissed holding the same to be not maintainable. From the pleadings in the complaint it appears that the complainant has hired the service of the OP and paid a sum of Rs.10,000/- a service charge for carrying and shifting the car from Hyderabad to Kolkata by container. Copy of the money receipt showing such payment has been also produced an Annexure to the complainant. In the circumstances there is no reason to hold that the complainant is not a consumer u/s.12 of the C.P. Act. The definition of consumer as contained in Section 2(1)(d) of the C.P. Act has been perused and it is found that the petitioner satisfied the requirements prima facie.

It has been argued by the appellant that the Forum below before passing the impugned order expressed that the complainant being a business firm, its taking of service was for commercial purpose and so the proceeding is not maintainable. In this connection reference has been made to Harsolia Motors-Vs-National Insurance Co. Ltd. reported in 2005(1) CPJ 27 wherein it has been decided as follows:

“Commercial purpose means goods purchased or services hired should be used in activity directly intended to generate profit which is the main aim of commercial purpose and where goods purchased or service hired in activity which is directly not intended to generate profit, it would not be commercial purpose.”

In the present facts at that stage of the proceeding it is not available on record that the services hired was for the purpose of generating profit directly and, therefore, applying the law as decided by the Hon’ble National Commission the impugned order cannot stand.

We are of the opinion that the complaint cannot be dismissed in the manner it has been done by the Forum below and it is required to be heard in accordance with law upon evidence.

The appeal is allowed. The impugned order is set aside. The Forum below is directed to decide the matter afresh in accordance with law after granting parties opportunity to adduce evidence on affidavit.

There will be no order as to costs.







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

MEMBER PRESIDENT