BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    18^th DAY OF JULY 2019

Complainant/s: -                           

M/s.Mandovi Engineering Corporation

14-A, 19^th Main Road, Rajajinagar, 1^st Block, Bengaluru-10.

Sri.Ravi Kulkarni,

Age 55 years

Inperson

V/s

Opposite party/s:-    

1. DTDC Express Ltd.,

No.3, Victoria Road, Bengaluru-47.

Sri.Prasanna.

Sri.Mohanraj,

Smt.Roopa Executives of DTDC

By Adv.Sri.P.K.Venkatesh Prasad

ORDER

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking direction against the Opposite Party (herein after called as OP) to refund an amount of Rs.30,000/-.

2. The brief facts of the complaint is as under:

The complainant submits that, he booked consignment vide Docket No.DTDC D 27348274 dtd.11.04.16 containing Epoxy Adhesive imported from Permabond - Europe and was to be sent to Shubam Industrial Marketing, Ahmedabad for trials at very important customer. The Complainant further submits that, very clearly instructed the OP to deliver the material by surface transport. Upon several requests also, the OP did not deliver the material at all to the customer. OP sent message that the material is delivered which is false. There was violation of customer service since the material was not delivered inspite of several visits to OP’s office. Hence this complaint.

3. After issuance of notice, OP did not appear, hence placed exparte. Later, on 16.01.17, learned counsel for the OP appeared and filed version along with application U/s.151 of CPC seeking permission to file version.  The said application rejected on 16.01.17 on the ground that, OP has sought permission to file version after expiry of 30 days. Hence, the version is not taken in to consideration.

4. The Complainant to substantiate his case filed affidavit evidence and produced the documents. The Complainant also filed written arguments. We have gone through the available materials on record. Heard.

5. The points that arise for our consideration are:

1. Whether the Complainant is a consumer comes within the purview of definition Sec.2(1)(d) of the CP Act ?

2. Whether the complainant proves the deficiency of service on the part of OP, if so, entitled for the relief sought for ?

3. What order ?

        5. Our answer to the above points are as under:

Point No.1:- In the negative

Point No.2:- Does not survive for consideration

Point No.3:- As per final order

REASONS

7. Point No.1: We have briefly stated the contents of the complaint. On going through the complaint, one of the question that crops up for our consideration is whether the Complainant is a consumer comes within the purview of definition Sec.2 of the CP Act ? In this context, we placed reliance on the contents of para 2 wherein the Complainant stated that “he booked consignment vide Docket No.DTDC D 27348274 dtd.11.04.16 containing Epoxy Adhesive which is imported from Permabond - Europe and was to be sent to Shubam Industrial Marketing, Ahmedabad for trials at very important customer.” Further, he has also taken specific contention stating that “DTDC did not deliver the material at all to customer.”

8. The Sec.2(1)(d) of the CP Act has been amended with effect from 15.03.03, wherein it has been stated that, if the service is availed for the commercial purpose which is excluded from U/s.2(1)(d) of the CP Act. The present complaint is filed after coming in to the force of the said amendment. If the service is availed for the commercial purpose, he is not a consumer, in this context, we placed reliance on the decision of Hon'ble Supreme Court in the case of Birla Technologies ltd., vs. Neutral Glass and Allied Industries ltd., in Civil Appeal No.10650/2010, dtd.15.12.10 arising out of SLP (C) No.9526/2010, wherein the relevant para 7 to 11 reads thus:

7. Shri U.U. Lalit, learned Senior Counsel appearing on behalf of the appellant pointed out that there is a basic error committed by the National Commission inasmuch as it has proceeded on the basis that the complaint was filed on 1.8.2000, which was prior to the amendment of Section 2(1)(d)(ii) by theAmendment Act, 2002. Shri Lalit pointed out that the complaint in fact was filed on 26.6.2003 i.e. after the amendment of the said Section, which came on 15.3.2003. The learned Senior Counsel, therefore, submitted that even if there was any service which was hired from the appellant in view of the finding of the National Commission that the goods themselves were purchased from the appellant for commercial purposes, there would be no question of the service being included in Section 2(1)(d)(ii)particularly in view of the amendment. The learned Senior Counsel pointed out that the service offered by the appellant was only for proper working of the Modules which were included in the software and as such was for commercial purpose. He, therefore, pointed out that the order of the National Commission holding the complaint maintainable to the extent of services offered is clearly incorrect, as it proceeds on the wrong assumption that the complaint was filed on 1.8.2000 i.e. before 15.3.2003 when the amendment was made to Section 2(1)(d)(ii).

8. Shri Sidharth Bhatnagar, learned Counsel appearing on behalf of the respondent could not dispute this proposition and fairly accepted that the complaint was in fact filed on 26.6.2003 i.e. much after the amendment to Section 2(1)(d)(ii), by which the following words were added:-

"but does not include a person who avails of such services for any commercial purpose."

9. In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to `goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self- employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.

10. However, the National Commission has observed that if the respondent/complainant choose to file a suit for relief claimed in those proceedings, they can do so according to law and in such a case, they can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting proceedings under the Act while computing the period of limitation prescribed for such a suit.

11. Shri Lalit, learned Senior Counsel did not assail this observation. We, therefore, do not wish to interfere with that observation. However, we observe that the parties may avail of the remedies available to them in accordance with law. The appeal is allowed. The order of the National Commission is set aside and the complaint is dismissed with costs assessed at Rs.50,000/-.

9. The said decision is of the Hon'ble Supreme Court which is binding on all subordinate courts including Hon’ble High Court under article 141 of the Constitution. In this view of the matter, we come to the conclusion that, complaint filed by the complainant before this forum has no legs to stand. The only option left open to the Complainant is to file the suit before the competent court of law having got jurisdiction to try the same. We made it clear that, with regard to the limitation is concerned, the Complainant can very well invoke Sec.14 of the Limitation Act with reference to the decision of Hon'ble Supreme Court in the case of Laxmi Engineering works v. PSG Industrial Institute, II (1995) CPJ 1 (SC) on the question of limitation. Accordingly, we answered the point no.1 in the negative.

10. Point no.2: In view of our findings on point no.1, this issue does not survive for consideration. Accordingly it is answered.

11. Point no.3: In the result, we passed the following:

ORDER

          The complaint filed by the Complainant is dismissed holding that the Complainant is not a consumer. 

2. Anyhow, an option is left open to the Complainant to get redress his remedy before the competent court of law having got jurisdiction to try the same.

          3. Looking to the circumstances of the case, we direct both the parties to bear their own cost.   

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 18^th day of July 2019)

        MEMBER                                             PRESIDENT

Witnesses examined on behalf of the complainant dated.12.01.17

Sri.Ravi Kulkarni

Copies of Documents produced by the complainant:

            MEMBER                                           PRESIDENT