BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    20^th DAY OF JULY 2019

O R D E R

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 pay Rs.5 lakhs with interest at 18% p.a. towards deficiency in service; to pay Rs.40,000/- towards cost of consignment with interest at 18% p.a. (the Complainant has to pay US $ 603/- to the Op for delivery of the consignment) and to award such other reliefs.

2. The case of the complainant to be stated in brief is that:

The complainant submits that, the Complainant had opened an Import account with OP to import raw materials from various countries and hence, OP is fully aware of the criticality of the consignments being done by the Complainant. The Complainant for its business, it had imported consignment from M/s.Combi Blocks and the same was dispatched through the OP.  The consigner sent the shipment from United States of America (USA) on 16.10.17. Though the consignment had arrived at Bengaluru on 18.10.17, the same was not delivered. Thereafter, the Complainant followed up with the OP, but they given reply that the goods were under clearance with the customs authorities. Inspite of repeated reminders since 19.10.17, no updates from the OP. The Complainant escalated the issue to the Vice President of the OP, but went in vain. The Complainant further submits that, on account of non-delivery of the consignment even after a month, the Complainant could not keep-up its commitment with its customer, thereby resulting in loss of face and reputation to the Complainant. Further the Complainant was not in a position to release the payment to the consigner without the receipt of the consignment. Since there was no proper response from OP, the Complainant issued legal notice, but OP not bothered either to reply to the said notice. In pursuant to the continuous follow ups, OP approached the Complainant on 29.11.17 with the damaged consignment which was not accompanied with the mandatory documents. Hence, the Complainant requested the OP to make video graph record while opening the package, but OP refused. Hence, the consignment has not been handed over to the Complainant. The Complainant further submits that, the Complainant had imported similar consignment through other agents viz., DHL and UPS during the same period. Furthermore, the OP also delivered three other shipments in the same period. Hence, within a span of 7 days the consignment was delivered. In view of the above, it is clear that, OP is guilty of gross negligence and also guilty of deficiency in service. Hence this complaint.

3. After issuance of notice, OP did appear and filed version denying the contents of the complaint stating that, the Complainant is not a consumer as per Sec.2(1)(d) of CP Act.  Any how the OP admitted that, the Complainant has import account with it. Further admits that, the Complainant had imported consignment from M/s.Combi Blocks and the same were dispatched through OP, but the same was delayed due to backlog in clearances before the customs authorities, which was beyond the control of the OP. Further the sender of any shipment through OP is bound by its conditions of Carriage or Service guide. The OP further submits that, after the release of the consignment from customs, the Complainant had demanded for an open delivery assuming that the shipment might be damage and this type of facility is beyond the policy and violates the conditions. Further, the Complainant was advised to collect the shipment by paying the duty and was made aware if there were any discrepancy pertaining to the shipment, the Complainant could notify the same to the OP.  But after the clearance from customs, the Complainant refused to take the delivery. The OP further submits that, although there was a slight delay caused on account of the shipment being held in customs clearance, the delivery was attempted, but the said delivery was refused by the Complainant. This states the malafide intention of the Complainant to extract damages from the OP. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. After filing the version, the Complainant has filed re-joinder denying the contents of the version filed by the OP, stating that, the Complainant is a consumer and there is a deficiency in service on the part of OP. The entire contents of the re-joinder is nothing but the contents of the complaint filed by the Complainant.

5. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Leo Christy, Manager of Operations of OP Company submitted evidence by way of affidavit.  Complainant and OP produced certain documents.  Both parties submitted their written arguments.  We have also heard oral arguments.

6. The points that arise for our consideration are:

1. Whether the Complainant is a consumer within the definition of 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?

        6a. 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 as well as the version filed by OP.  The OP by way of filing version contended that, the Complainant is not a consumer since the import of the said consignment is for commercial purpose. In this context, he placed reliance on the following decisions:

(1) Hon'ble National Commission in the case of  M/s.Suzuki Motorcycle India Pvt. Ltd., vs. M/s.Nagana Roadlines, CC.No.185/2009, dtd.12.10.15

(2) Hon'ble Supreme Court in the case of Birla Technologies ltd., vs. Neutral Glass and Allied Industries ltd., Civil Appeal No.10650/2010, dtd.15.12.10

Referring to the said decisions submit that, the complaint is liable to be dismissed as not maintainable with a direction to OP to approach the competent court/forum having jurisdiction to try the same.

          8. Per contra, the Complainant to prove that he is a consumer has taken the contention in his written arguments and referred the following decisions:

 (1) Regional Provident Fund Commissioner vs. Shivkumar Joshi, (2001) SCC 98  

(2) Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225

Referring to the said decisions submit that “Any person who is found to have hired services for consideration shall be deemed to be a consumer nothwithstanding that the services are for any connected commercial activity and may also be related to the services as indicated in Sec.2(1)(o) of the Act.” Hence, submits that, the Complainant is a consumer as defined under CP Act.

          9. We have gone through the respective contention raised by the OP and the Complainant in respect of the issue ‘consumer’. At the first instance, we would like to place reliance on the decisions cited by the learned counsel for the Complainant. These two decisions referred by the Complainant are of the Hon'ble Supreme Court are before amendment to Sec.2(1)(d)(i) of the CP Act. In the instant case, the said consignment was purchased was handed over to the OP for shipment after coming in to force of the amendment to Sec.2 of the CP Act dtd.15.03.2003 which excludes the service obtained for commercial purpose. So the arguments advanced by the learned counsel for the Complainant has no legs to stand.

          10. On going through the decisions cited by the learned counsel for the OP referred by the 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/-.

11. Further this forum also come across with another decision of the constitutional bench of the Hon'ble Supreme Court in the case of Economic Transport Organization vs. Charan Spinning Mills Pvt. Ltd., and anr., reported in (2010) 4 SCC 114, wherein at para 52 reads thus:     

52. 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 adding 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.

12. If the said judgments of the Hon'ble Supreme Court are considered which are delivered after the amendment to Sec.2(1)(d) of the CP Act in respect of goods/service hired or availed for commercial purpose which excluded from the ambit of the Complainant. As to know whether the Complainant has availed the service for the commercial purpose is concerned, we placed reliance on the email correspondence found at inkpage No.73, wherein the Complainant has sent email dtd.27.10.17, reads thus:

I have been told by Saif’s team that the material is under EDI clearance and nothing can be done. We have lost our face, our order from our customer and lost complete credibility – thanks to Fedex and the friendliness exhibited by our team. We have seen receiving other shipments routed through DHL without any hassles and in a timely manner. Perhaps the EDI has been implemented only for Fedex. Sorry, but your team has let us down badly and destroyed our credibility.

13. If the above text is strictly construed, the Complainant having the grievance that, they were lost their face and their order from the customer and lost complete credibility. This itself goes to show that, the service has been availed from the OP for the commercial purpose and nothing more than that. When such being the fact, complaint filed by the complainant is not maintainable before this forum. If the Complainant chooses to file a suit for relief claimed in the complaint, he can do so according to the law and in such a case, he 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.

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

15. 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 20^th day of July 2019)

          MEMBER                                     PRESIDENT

Witnesses examined on behalf of the complainant

dated 02.05.18

Sri.Narendra Kumar.R, Authorized Representative of the Complainant

Copies of Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party

dated 05.07.18

Sri.Leo Christy, Manager of Operations and Authorized Signatory of the OP.   

Copies of Documents produced by Opposite Party

      MEMBER                                               PRESIDENT

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    20^th DAY OF JULY 2019

O R D E R

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 pay Rs.5 lakhs with interest at 18% p.a. towards deficiency in service; to pay Rs.40,000/- towards cost of consignment with interest at 18% p.a. (the Complainant has to pay US $ 603/- to the Op for delivery of the consignment) and to award such other reliefs.

2. The case of the complainant to be stated in brief is that:

The complainant submits that, the Complainant had opened an Import account with OP to import raw materials from various countries and hence, OP is fully aware of the criticality of the consignments being done by the Complainant. The Complainant for its business, it had imported consignment from M/s.Combi Blocks and the same was dispatched through the OP.  The consigner sent the shipment from United States of America (USA) on 16.10.17. Though the consignment had arrived at Bengaluru on 18.10.17, the same was not delivered. Thereafter, the Complainant followed up with the OP, but they given reply that the goods were under clearance with the customs authorities. Inspite of repeated reminders since 19.10.17, no updates from the OP. The Complainant escalated the issue to the Vice President of the OP, but went in vain. The Complainant further submits that, on account of non-delivery of the consignment even after a month, the Complainant could not keep-up its commitment with its customer, thereby resulting in loss of face and reputation to the Complainant. Further the Complainant was not in a position to release the payment to the consigner without the receipt of the consignment. Since there was no proper response from OP, the Complainant issued legal notice, but OP not bothered either to reply to the said notice. In pursuant to the continuous follow ups, OP approached the Complainant on 29.11.17 with the damaged consignment which was not accompanied with the mandatory documents. Hence, the Complainant requested the OP to make video graph record while opening the package, but OP refused. Hence, the consignment has not been handed over to the Complainant. The Complainant further submits that, the Complainant had imported similar consignment through other agents viz., DHL and UPS during the same period. Furthermore, the OP also delivered three other shipments in the same period. Hence, within a span of 7 days the consignment was delivered. In view of the above, it is clear that, OP is guilty of gross negligence and also guilty of deficiency in service. Hence this complaint.

3. After issuance of notice, OP did appear and filed version denying the contents of the complaint stating that, the Complainant is not a consumer as per Sec.2(1)(d) of CP Act.  Any how the OP admitted that, the Complainant has import account with it. Further admits that, the Complainant had imported consignment from M/s.Combi Blocks and the same were dispatched through OP, but the same was delayed due to backlog in clearances before the customs authorities, which was beyond the control of the OP. Further the sender of any shipment through OP is bound by its conditions of Carriage or Service guide. The OP further submits that, after the release of the consignment from customs, the Complainant had demanded for an open delivery assuming that the shipment might be damage and this type of facility is beyond the policy and violates the conditions. Further, the Complainant was advised to collect the shipment by paying the duty and was made aware if there were any discrepancy pertaining to the shipment, the Complainant could notify the same to the OP.  But after the clearance from customs, the Complainant refused to take the delivery. The OP further submits that, although there was a slight delay caused on account of the shipment being held in customs clearance, the delivery was attempted, but the said delivery was refused by the Complainant. This states the malafide intention of the Complainant to extract damages from the OP. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. After filing the version, the Complainant has filed re-joinder denying the contents of the version filed by the OP, stating that, the Complainant is a consumer and there is a deficiency in service on the part of OP. The entire contents of the re-joinder is nothing but the contents of the complaint filed by the Complainant.

5. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Leo Christy, Manager of Operations of OP Company submitted evidence by way of affidavit.  Complainant and OP produced certain documents.  Both parties submitted their written arguments.  We have also heard oral arguments.

6. The points that arise for our consideration are:

1. Whether the Complainant is a consumer within the definition of 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?

        6a. 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 as well as the version filed by OP.  The OP by way of filing version contended that, the Complainant is not a consumer since the import of the said consignment is for commercial purpose. In this context, he placed reliance on the following decisions:

(1) Hon'ble National Commission in the case of  M/s.Suzuki Motorcycle India Pvt. Ltd., vs. M/s.Nagana Roadlines, CC.No.185/2009, dtd.12.10.15

(2) Hon'ble Supreme Court in the case of Birla Technologies ltd., vs. Neutral Glass and Allied Industries ltd., Civil Appeal No.10650/2010, dtd.15.12.10

Referring to the said decisions submit that, the complaint is liable to be dismissed as not maintainable with a direction to OP to approach the competent court/forum having jurisdiction to try the same.

          8. Per contra, the Complainant to prove that he is a consumer has taken the contention in his written arguments and referred the following decisions:

 (1) Regional Provident Fund Commissioner vs. Shivkumar Joshi, (2001) SCC 98  

(2) Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225

Referring to the said decisions submit that “Any person who is found to have hired services for consideration shall be deemed to be a consumer nothwithstanding that the services are for any connected commercial activity and may also be related to the services as indicated in Sec.2(1)(o) of the Act.” Hence, submits that, the Complainant is a consumer as defined under CP Act.

          9. We have gone through the respective contention raised by the OP and the Complainant in respect of the issue ‘consumer’. At the first instance, we would like to place reliance on the decisions cited by the learned counsel for the Complainant. These two decisions referred by the Complainant are of the Hon'ble Supreme Court are before amendment to Sec.2(1)(d)(i) of the CP Act. In the instant case, the said consignment was purchased was handed over to the OP for shipment after coming in to force of the amendment to Sec.2 of the CP Act dtd.15.03.2003 which excludes the service obtained for commercial purpose. So the arguments advanced by the learned counsel for the Complainant has no legs to stand.

          10. On going through the decisions cited by the learned counsel for the OP referred by the 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/-.

11. Further this forum also come across with another decision of the constitutional bench of the Hon'ble Supreme Court in the case of Economic Transport Organization vs. Charan Spinning Mills Pvt. Ltd., and anr., reported in (2010) 4 SCC 114, wherein at para 52 reads thus:     

52. 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 adding 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.

12. If the said judgments of the Hon'ble Supreme Court are considered which are delivered after the amendment to Sec.2(1)(d) of the CP Act in respect of goods/service hired or availed for commercial purpose which excluded from the ambit of the Complainant. As to know whether the Complainant has availed the service for the commercial purpose is concerned, we placed reliance on the email correspondence found at inkpage No.73, wherein the Complainant has sent email dtd.27.10.17, reads thus:

I have been told by Saif’s team that the material is under EDI clearance and nothing can be done. We have lost our face, our order from our customer and lost complete credibility – thanks to Fedex and the friendliness exhibited by our team. We have seen receiving other shipments routed through DHL without any hassles and in a timely manner. Perhaps the EDI has been implemented only for Fedex. Sorry, but your team has let us down badly and destroyed our credibility.

13. If the above text is strictly construed, the Complainant having the grievance that, they were lost their face and their order from the customer and lost complete credibility. This itself goes to show that, the service has been availed from the OP for the commercial purpose and nothing more than that. When such being the fact, complaint filed by the complainant is not maintainable before this forum. If the Complainant chooses to file a suit for relief claimed in the complaint, he can do so according to the law and in such a case, he 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.

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

15. 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 20^th day of July 2019)

          MEMBER                                     PRESIDENT

Witnesses examined on behalf of the complainant

dated 02.05.18

Sri.Narendra Kumar.R, Authorized Representative of the Complainant

Copies of Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party

dated 05.07.18

Sri.Leo Christy, Manager of Operations and Authorized Signatory of the OP.   

Copies of Documents produced by Opposite Party

      MEMBER                                               PRESIDENT

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    20^th DAY OF JULY 2019

O R D E R

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 pay Rs.5 lakhs with interest at 18% p.a. towards deficiency in service; to pay Rs.40,000/- towards cost of consignment with interest at 18% p.a. (the Complainant has to pay US $ 603/- to the Op for delivery of the consignment) and to award such other reliefs.

2. The case of the complainant to be stated in brief is that:

The complainant submits that, the Complainant had opened an Import account with OP to import raw materials from various countries and hence, OP is fully aware of the criticality of the consignments being done by the Complainant. The Complainant for its business, it had imported consignment from M/s.Combi Blocks and the same was dispatched through the OP.  The consigner sent the shipment from United States of America (USA) on 16.10.17. Though the consignment had arrived at Bengaluru on 18.10.17, the same was not delivered. Thereafter, the Complainant followed up with the OP, but they given reply that the goods were under clearance with the customs authorities. Inspite of repeated reminders since 19.10.17, no updates from the OP. The Complainant escalated the issue to the Vice President of the OP, but went in vain. The Complainant further submits that, on account of non-delivery of the consignment even after a month, the Complainant could not keep-up its commitment with its customer, thereby resulting in loss of face and reputation to the Complainant. Further the Complainant was not in a position to release the payment to the consigner without the receipt of the consignment. Since there was no proper response from OP, the Complainant issued legal notice, but OP not bothered either to reply to the said notice. In pursuant to the continuous follow ups, OP approached the Complainant on 29.11.17 with the damaged consignment which was not accompanied with the mandatory documents. Hence, the Complainant requested the OP to make video graph record while opening the package, but OP refused. Hence, the consignment has not been handed over to the Complainant. The Complainant further submits that, the Complainant had imported similar consignment through other agents viz., DHL and UPS during the same period. Furthermore, the OP also delivered three other shipments in the same period. Hence, within a span of 7 days the consignment was delivered. In view of the above, it is clear that, OP is guilty of gross negligence and also guilty of deficiency in service. Hence this complaint.

3. After issuance of notice, OP did appear and filed version denying the contents of the complaint stating that, the Complainant is not a consumer as per Sec.2(1)(d) of CP Act.  Any how the OP admitted that, the Complainant has import account with it. Further admits that, the Complainant had imported consignment from M/s.Combi Blocks and the same were dispatched through OP, but the same was delayed due to backlog in clearances before the customs authorities, which was beyond the control of the OP. Further the sender of any shipment through OP is bound by its conditions of Carriage or Service guide. The OP further submits that, after the release of the consignment from customs, the Complainant had demanded for an open delivery assuming that the shipment might be damage and this type of facility is beyond the policy and violates the conditions. Further, the Complainant was advised to collect the shipment by paying the duty and was made aware if there were any discrepancy pertaining to the shipment, the Complainant could notify the same to the OP.  But after the clearance from customs, the Complainant refused to take the delivery. The OP further submits that, although there was a slight delay caused on account of the shipment being held in customs clearance, the delivery was attempted, but the said delivery was refused by the Complainant. This states the malafide intention of the Complainant to extract damages from the OP. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. After filing the version, the Complainant has filed re-joinder denying the contents of the version filed by the OP, stating that, the Complainant is a consumer and there is a deficiency in service on the part of OP. The entire contents of the re-joinder is nothing but the contents of the complaint filed by the Complainant.

5. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Leo Christy, Manager of Operations of OP Company submitted evidence by way of affidavit.  Complainant and OP produced certain documents.  Both parties submitted their written arguments.  We have also heard oral arguments.

6. The points that arise for our consideration are:

1. Whether the Complainant is a consumer within the definition of 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?

        6a. 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 as well as the version filed by OP.  The OP by way of filing version contended that, the Complainant is not a consumer since the import of the said consignment is for commercial purpose. In this context, he placed reliance on the following decisions:

(1) Hon'ble National Commission in the case of  M/s.Suzuki Motorcycle India Pvt. Ltd., vs. M/s.Nagana Roadlines, CC.No.185/2009, dtd.12.10.15

(2) Hon'ble Supreme Court in the case of Birla Technologies ltd., vs. Neutral Glass and Allied Industries ltd., Civil Appeal No.10650/2010, dtd.15.12.10

Referring to the said decisions submit that, the complaint is liable to be dismissed as not maintainable with a direction to OP to approach the competent court/forum having jurisdiction to try the same.

          8. Per contra, the Complainant to prove that he is a consumer has taken the contention in his written arguments and referred the following decisions:

 (1) Regional Provident Fund Commissioner vs. Shivkumar Joshi, (2001) SCC 98  

(2) Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225

Referring to the said decisions submit that “Any person who is found to have hired services for consideration shall be deemed to be a consumer nothwithstanding that the services are for any connected commercial activity and may also be related to the services as indicated in Sec.2(1)(o) of the Act.” Hence, submits that, the Complainant is a consumer as defined under CP Act.

          9. We have gone through the respective contention raised by the OP and the Complainant in respect of the issue ‘consumer’. At the first instance, we would like to place reliance on the decisions cited by the learned counsel for the Complainant. These two decisions referred by the Complainant are of the Hon'ble Supreme Court are before amendment to Sec.2(1)(d)(i) of the CP Act. In the instant case, the said consignment was purchased was handed over to the OP for shipment after coming in to force of the amendment to Sec.2 of the CP Act dtd.15.03.2003 which excludes the service obtained for commercial purpose. So the arguments advanced by the learned counsel for the Complainant has no legs to stand.

          10. On going through the decisions cited by the learned counsel for the OP referred by the 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/-.

11. Further this forum also come across with another decision of the constitutional bench of the Hon'ble Supreme Court in the case of Economic Transport Organization vs. Charan Spinning Mills Pvt. Ltd., and anr., reported in (2010) 4 SCC 114, wherein at para 52 reads thus:     

52. 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 adding 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.

12. If the said judgments of the Hon'ble Supreme Court are considered which are delivered after the amendment to Sec.2(1)(d) of the CP Act in respect of goods/service hired or availed for commercial purpose which excluded from the ambit of the Complainant. As to know whether the Complainant has availed the service for the commercial purpose is concerned, we placed reliance on the email correspondence found at inkpage No.73, wherein the Complainant has sent email dtd.27.10.17, reads thus:

I have been told by Saif’s team that the material is under EDI clearance and nothing can be done. We have lost our face, our order from our customer and lost complete credibility – thanks to Fedex and the friendliness exhibited by our team. We have seen receiving other shipments routed through DHL without any hassles and in a timely manner. Perhaps the EDI has been implemented only for Fedex. Sorry, but your team has let us down badly and destroyed our credibility.

13. If the above text is strictly construed, the Complainant having the grievance that, they were lost their face and their order from the customer and lost complete credibility. This itself goes to show that, the service has been availed from the OP for the commercial purpose and nothing more than that. When such being the fact, complaint filed by the complainant is not maintainable before this forum. If the Complainant chooses to file a suit for relief claimed in the complaint, he can do so according to the law and in such a case, he 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.

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

15. 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 20^th day of July 2019)

          MEMBER                                     PRESIDENT

Witnesses examined on behalf of the complainant

dated 02.05.18

Sri.Narendra Kumar.R, Authorized Representative of the Complainant

Copies of Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party

dated 05.07.18

Sri.Leo Christy, Manager of Operations and Authorized Signatory of the OP.   

Copies of Documents produced by Opposite Party

      MEMBER                                               PRESIDENT

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    20^th DAY OF JULY 2019

O R D E R

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 pay Rs.5 lakhs with interest at 18% p.a. towards deficiency in service; to pay Rs.40,000/- towards cost of consignment with interest at 18% p.a. (the Complainant has to pay US $ 603/- to the Op for delivery of the consignment) and to award such other reliefs.

2. The case of the complainant to be stated in brief is that:

The complainant submits that, the Complainant had opened an Import account with OP to import raw materials from various countries and hence, OP is fully aware of the criticality of the consignments being done by the Complainant. The Complainant for its business, it had imported consignment from M/s.Combi Blocks and the same was dispatched through the OP.  The consigner sent the shipment from United States of America (USA) on 16.10.17. Though the consignment had arrived at Bengaluru on 18.10.17, the same was not delivered. Thereafter, the Complainant followed up with the OP, but they given reply that the goods were under clearance with the customs authorities. Inspite of repeated reminders since 19.10.17, no updates from the OP. The Complainant escalated the issue to the Vice President of the OP, but went in vain. The Complainant further submits that, on account of non-delivery of the consignment even after a month, the Complainant could not keep-up its commitment with its customer, thereby resulting in loss of face and reputation to the Complainant. Further the Complainant was not in a position to release the payment to the consigner without the receipt of the consignment. Since there was no proper response from OP, the Complainant issued legal notice, but OP not bothered either to reply to the said notice. In pursuant to the continuous follow ups, OP approached the Complainant on 29.11.17 with the damaged consignment which was not accompanied with the mandatory documents. Hence, the Complainant requested the OP to make video graph record while opening the package, but OP refused. Hence, the consignment has not been handed over to the Complainant. The Complainant further submits that, the Complainant had imported similar consignment through other agents viz., DHL and UPS during the same period. Furthermore, the OP also delivered three other shipments in the same period. Hence, within a span of 7 days the consignment was delivered. In view of the above, it is clear that, OP is guilty of gross negligence and also guilty of deficiency in service. Hence this complaint.

3. After issuance of notice, OP did appear and filed version denying the contents of the complaint stating that, the Complainant is not a consumer as per Sec.2(1)(d) of CP Act.  Any how the OP admitted that, the Complainant has import account with it. Further admits that, the Complainant had imported consignment from M/s.Combi Blocks and the same were dispatched through OP, but the same was delayed due to backlog in clearances before the customs authorities, which was beyond the control of the OP. Further the sender of any shipment through OP is bound by its conditions of Carriage or Service guide. The OP further submits that, after the release of the consignment from customs, the Complainant had demanded for an open delivery assuming that the shipment might be damage and this type of facility is beyond the policy and violates the conditions. Further, the Complainant was advised to collect the shipment by paying the duty and was made aware if there were any discrepancy pertaining to the shipment, the Complainant could notify the same to the OP.  But after the clearance from customs, the Complainant refused to take the delivery. The OP further submits that, although there was a slight delay caused on account of the shipment being held in customs clearance, the delivery was attempted, but the said delivery was refused by the Complainant. This states the malafide intention of the Complainant to extract damages from the OP. Hence on these grounds and other grounds OP prays for dismissal of the complaint.

4. After filing the version, the Complainant has filed re-joinder denying the contents of the version filed by the OP, stating that, the Complainant is a consumer and there is a deficiency in service on the part of OP. The entire contents of the re-joinder is nothing but the contents of the complaint filed by the Complainant.

5. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  One Leo Christy, Manager of Operations of OP Company submitted evidence by way of affidavit.  Complainant and OP produced certain documents.  Both parties submitted their written arguments.  We have also heard oral arguments.

6. The points that arise for our consideration are:

1. Whether the Complainant is a consumer within the definition of 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?

        6a. 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 as well as the version filed by OP.  The OP by way of filing version contended that, the Complainant is not a consumer since the import of the said consignment is for commercial purpose. In this context, he placed reliance on the following decisions:

(1) Hon'ble National Commission in the case of  M/s.Suzuki Motorcycle India Pvt. Ltd., vs. M/s.Nagana Roadlines, CC.No.185/2009, dtd.12.10.15

(2) Hon'ble Supreme Court in the case of Birla Technologies ltd., vs. Neutral Glass and Allied Industries ltd., Civil Appeal No.10650/2010, dtd.15.12.10

Referring to the said decisions submit that, the complaint is liable to be dismissed as not maintainable with a direction to OP to approach the competent court/forum having jurisdiction to try the same.

          8. Per contra, the Complainant to prove that he is a consumer has taken the contention in his written arguments and referred the following decisions:

 (1) Regional Provident Fund Commissioner vs. Shivkumar Joshi, (2001) SCC 98  

(2) Morgan Stanley Mutual Fund vs. Kartick Das, (1994) 4 SCC 225

Referring to the said decisions submit that “Any person who is found to have hired services for consideration shall be deemed to be a consumer nothwithstanding that the services are for any connected commercial activity and may also be related to the services as indicated in Sec.2(1)(o) of the Act.” Hence, submits that, the Complainant is a consumer as defined under CP Act.

          9. We have gone through the respective contention raised by the OP and the Complainant in respect of the issue ‘consumer’. At the first instance, we would like to place reliance on the decisions cited by the learned counsel for the Complainant. These two decisions referred by the Complainant are of the Hon'ble Supreme Court are before amendment to Sec.2(1)(d)(i) of the CP Act. In the instant case, the said consignment was purchased was handed over to the OP for shipment after coming in to force of the amendment to Sec.2 of the CP Act dtd.15.03.2003 which excludes the service obtained for commercial purpose. So the arguments advanced by the learned counsel for the Complainant has no legs to stand.

          10. On going through the decisions cited by the learned counsel for the OP referred by the 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/-.

11. Further this forum also come across with another decision of the constitutional bench of the Hon'ble Supreme Court in the case of Economic Transport Organization vs. Charan Spinning Mills Pvt. Ltd., and anr., reported in (2010) 4 SCC 114, wherein at para 52 reads thus:     

52. 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 adding 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.

12. If the said judgments of the Hon'ble Supreme Court are considered which are delivered after the amendment to Sec.2(1)(d) of the CP Act in respect of goods/service hired or availed for commercial purpose which excluded from the ambit of the Complainant. As to know whether the Complainant has availed the service for the commercial purpose is concerned, we placed reliance on the email correspondence found at inkpage No.73, wherein the Complainant has sent email dtd.27.10.17, reads thus:

I have been told by Saif’s team that the material is under EDI clearance and nothing can be done. We have lost our face, our order from our customer and lost complete credibility – thanks to Fedex and the friendliness exhibited by our team. We have seen receiving other shipments routed through DHL without any hassles and in a timely manner. Perhaps the EDI has been implemented only for Fedex. Sorry, but your team has let us down badly and destroyed our credibility.

13. If the above text is strictly construed, the Complainant having the grievance that, they were lost their face and their order from the customer and lost complete credibility. This itself goes to show that, the service has been availed from the OP for the commercial purpose and nothing more than that. When such being the fact, complaint filed by the complainant is not maintainable before this forum. If the Complainant chooses to file a suit for relief claimed in the complaint, he can do so according to the law and in such a case, he 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.

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

15. 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 20^th day of July 2019)

          MEMBER                                     PRESIDENT

Witnesses examined on behalf of the complainant

dated 02.05.18

Sri.Narendra Kumar.R, Authorized Representative of the Complainant

Copies of Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party

dated 05.07.18

Sri.Leo Christy, Manager of Operations and Authorized Signatory of the OP.   

Copies of Documents produced by Opposite Party

      MEMBER                                               PRESIDENT