Haryana

Karnal

CC/353/2021

Khanna Agro Industries - Complainant(s)

Versus

Garima Enterprises (DTDC Courier Services) - Opp.Party(s)

Vikramjit Singh

15 Oct 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.353 of 2021

                                                        Date of instt.26.07.2021

                                                        Date of Decision:15.10.2024

 

Khanna Agro Industries, Mughal Mazra Road, Village Kunjpura Karnal, 132001, through its proprietor Rakesh Khanna (M), 92155-32455.

 

                                               …….Complainant.

                                              Versus

 

1.     Garima Enterprises (DTDC Courier Services) Shop no.84, Jarnaily Colony, Near Randhir Theater, Opposite Neera Nursing Home, Karnal 132001.

2.     DTDC Registered office at DTDC House No.3, Victoria Road, Bengaluru-560047, Karnataka through its authorized representative.

3.     Fedex Express Transportation and Supply Chain Services (India) Private Limited, Boomerang, Unit No.801, Wings A & B1, 8^th Floor, Chandivali Farm Road, Andheri (E) Mumbai-400072 through its authorized representative.

 

                                                                         …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Mrs.Neeru Agarwal.…….Member

      Mrs.Sarvjeet Kaur..….….Member

          

 Argued by: Shri Akash Chawla, counsel for complainant.

                    OP No.1 ex-parte VOD 20.07.2023

                    Shri Rahul Bali, counsel for OP No.2.

                    Shri Charanjit Wadhwa, counsel for OP No.3.

 

                    (Sarvjeet Kaur Member)

ORDER:                    

 

                  The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the Complainant is running a business of Agricultural Implements in the name of Khanna Agro Industries Situated at Mughal Mazra Road, Village Kunjpura, Kamal- 132001. The complainant exported the Agricultural Implements amounting Rs.23,36.431.02 from Mundra Port, Gujarat to the Importer Destination Port i.e. Odessa Port, Ukraine and the complainant received the consideration against the goods and on the other hand the goods have also reached to the Importer Destination Port i.e. Odessa Port, Ukraine. Importer needs all the particular documents i.e Bill of Lading, Shipping Bill, Invoice, Certificate of Insurance etc. for the release of goods from the Odessa Port, Ukraine. OP No.1 provides the courier services as they are the franchisee holder of DTDC Courier Services which is OP No. 2 who also deals in all kinds of courier services and the OP No. 3 is a well-known Courier Service Company which deals in Domestic as well as International Courier services. Complainant always sends all the necessary documents through OP No.1 only. Similarly, on dated 02.06.2021, the complainant took the services from OP No.1 to courier the documents to the importer in Ukraine. Further OP No. 2 sends the Courier through the OP No. 3 for the purpose of International Courier. It is utterly shocking to the complainant when he comes to know that the said courier reached empty and torn to the importer's address i.e. ZEMMASH- TECHNIKA LLC, TSYRKUNY VILLAGE, 72/74 SOBORNA STR. KHARKIV DISTT KHARKIV REGION, KHARKIV-61000, UKRAINE. Above said documents which were in the courier were obligatory to release the goods from the Port in Ukraine and without those documents the importer would not be able to release the said goods from Odessa Port, Ukraine. Furthermore, by delaying of the releasing the goods by the importer, the Port imposes the penalty on daily basis which eventually complainant has to bear that loss which is approximately amounting Rs. 1,50,000/-. The Importer pressurized the complainant to provide the Bank Guarantee to the Shipping Services so that the importer can release the goods from Odessa Port. Ukraine as the Importer had already taken the order for the goods from buyers in his own country. So, in order to release the goods, the complainant given 150% of the Invoice amount as Bank Guarantee amounting Rs.35,04,647/- through his Banker i.e HDFC to M/s ZIM Integrated Shipping Services Ltd. The complainant has faced a huge loss due to the negligence act by the OPs. OPs had fraudulent and dishonest intention as the Importer has received the courier but empty handed. So, it is crystal clear that OPs have manipulated the same. Moreover, the receiver of documents can also misused the documents and could also release the goods from the Destination Port as whoever has the possession of those documents, can release the goods from the Destination Port. Due to the recklessness and irresponsibility on the part of all the respondents, the complainant has suffered mental pain and agony apart from the financial loss due to the deficient service and unfair trade practice on the part of the all the OPs for which the complainant is entitled for the compensation, though not countable in terms of money but restricted to the tune of Rs. 10,00,000/- only, apart from his right for the Criminal prosecution against the opposite parties for the commission of offences under the various heads of law. Hence this complaint.

2.             Despite service of notice, none has appeared on behalf of OP No.1, and it was proceeded against ex-parte vide order dated 20.7.2023.  

3.             On notice, OPs No.2 & 3 appeared and their separate written version. OP No.2 in its written version has raised preliminary objections with maintainability; suppression of true and material facts, cause of action, etc. On merits, it is pleaded that the complainant is a large business organization, involved in large scale of manufacturing, trading and export of agricultural implements and admittedly the subject transaction was associated with the export of said implements, hence a large commercial organization. Further admittedly besides manufacturing complainant has been doing export of goods on large scale regularly, having branches and units, therefore complainant is not a consumer and the disputes/ allegations made by the complainant is not the consumer dispute as prescribed under the Consumer Protection Act, 2019. Moreover, the allegations made by complainant in present complaint under reply are in the nature of mix of complex civil disputes and same cannot be decided under summary process.  There exist an Arbitration Agreement' between the parties as a part of the agreed booking terms and conditions mentioned in the Docket/Consignment Note/ Bilty having No. N21706664, filled alongwith the Complaint by complainant, which is binding upon the parties. The Consignment was booked in sealed and packed conditions and on 'Said To Contain Basis', hence OP had no opportunity to verify internal content of the packages. Consignment was further handed over to the Opposite Party No. 3 for further delivery to its foreign destination in same condition in which it was received from complainant. OP promptly supported complainant and requested them to provide 'waiver letter' so that 'Certificate of Loss' could be issued in time, by the Opposite Party No. 3, in favour of complainant. Upon issue of certificate of loss, duplicate documents could have been issued, but despite repeated request and reminder by OP to the Complainant and its officials, they grossly neglected and miserably failed to provide waiver letter. It clearly shows malafide intention of the complainant as well as default of complainant himself. Complainant himself is liable and responsible for the loss, if any incurred by them, though denied that they have incurred any loss of damages. Complainant also not insured their consignment for transit loss or damages.  The bank guarantee is a general practice in trade and moreover in international trade. Complainant is attempting to relate trival issues to make a false case. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             OP No.3 in its written version has raised raising preliminary objections with maintainability; suppression of true and material facts, cause of action, etc. On merits, it is pleaded that the complainant has itself admitted the fact that it is being a manufacturer and exporter of agricultural implements on 14.05.2021 for commercial purposes of gaining profits therefrom. Opposite Party No.2 being the freight forwarder booked the said consignment with the answering opposite party. At the time of booking, the terms were duly agreed and accepted by the freight forwarder i.e., opposite party no.2. The OP has duly cooperated with the freight forwarder i.e., the opposite party no.2 to resolve the concerns raised by the complainant with the opposite party no.2 in respect of the consignment in question. The aforementioned consignment was to be delivered to an overseas destination, the said consignment was consigned to the answering opposite party by the Opposite Party No. 2. The consignment in question was successfully air shipped from India by the answering opposite party, which at a later stage was untraceable. However, pursuant to the request of the complainant, an investigation into the issue was initiated by the answering opposite party. The findings of the investigation conducted by the answering opposite party suggested that the consignment was untraceable and subsequently, the same was informed to the officials of DTDC, i.e., Opposite Party No. 2. The answering opposite party thereby also communicated to file a claim regarding the said consignment in accordance with the International Conditions of Carriage that was duly agreed to at the time of tendering the consignment to the answering opposite party. The answering opposite party furthermore, agreed upon to issue a lost certificate qua the consignment in question, and accordingly requested the freight forwarder to provide the requisite documents for an issuance of the lost certificate. However, a revert on the same from the freight forwarder is awaited till date. Consignment of the complainant was eventually traced and was successfully delivered to the desired destination on 15.09.2021 as per our records. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of bill Ex.C1, copy of invoice Ex.C2, copy of shipping bill Ex.C3, copy of courier receipt Ex.C4, copy of courier receipt from FedEx Ex.C5, copy of bank guarantee Ex.C6, copy of photo of empty courier Ex.C7 and closed the evidence on 16.09.2022 by suffering separate statement.

7.             On the other hand, learned counsel for the OP No.2 has tendered into evidence affidavit of Neeraj Kumar Manager, Legal Ex.OP2/A, copy of authority letter Ex.OP2/1, copy of affidavit Ex.OP2/2 copy of resolution Ex.OP2/3 and closed the evidence on 20.07.2023 by suffering separate statement.

8.             On the other hand, learned counsel for the OP No.3 has tendered into evidence affidavit of Rajat Dixit, Manager Operations, Ex.OP3/A, authority letter Ex.OP3/1, Annexure Ex.OP3/2 and closed the evidence on 20.07.2023 by suffering separate statement.

9.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant exported the Agricultural Implements amounting Rs.23,36.431.02 from Mundra Port, Gujarat to the Importer Destination Port i.e. Odessa Port, Ukraine. As the Importer needs documents of the implements, the complainant sent the same through courier service of OPs. The complainant shocked to see when he came to know that the said courier reached empty and torn to the importer's address. Due to this act of the OPs, complainant had to bear the loss to the tune of Rs.1,50,000/-. Furthermore, to release the goods, the complainant had to given 150% of the Invoice amount as Bank Guarantee amounting Rs.35,04,647/- through his Banker. The complainant has faced a huge loss due to the negligence act by the OPs and lastly prayed for allowing the complaint.

11.           Per contra, learned counsel for the OPs No.2 & 3, while reiterating the contents of written version, have vehemently argued that the complainant is doing his business on the large scale and the company of the complainant, is a large commercial organization, therefore complainant is not a consumer and the disputes/ allegations made by the complainant is not the consumer dispute as prescribed under the Consumer Protection Act, 2019. They further argued that there exist an Arbitration Agreement' between the parties, thus, the present complaint is not maintainable before this Commission. They further argued that upon issue of certificate of loss, duplicate documents could have been issued, but despite repeated request and reminder by OPs to the Complainant and its officials, they grossly neglected and miserably failed to provide waiver letter, thus, the complainant himself is liable and responsible for the loss, if any incurred by him. Hence, there is no deficiency in service on the part of the OPs and lastly prayed for dismissal of complaint.  

12.           Before going into the merits of the case firstly we decide whether the complainant firm falls under the definition of consumer as described under Section 2 (7) of Consumer Protection Act, 2019.

To resolve this issue, we deem it appropriate to refer to Section 2 (7) (1) of Consumer Protection Act, 2019:

"Section 2(7)(1) Consumer" means any person who-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;

or

(ii)        hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

13.           As per the aforesaid provision of the Consumer Protection Act, 2019, it is clear that "commercial purpose" does not include services availed exclusively for the purposes of earning livelihood by means of self-employment. However, in the present case, it is the contention of the Opposite Parties that the complainant is doing the business of manufacturing and is also an exporter of agricultural tools at a large scale, thus, the complainant is gaining profits and falls under the definition of commercial activities. Moreover, in his complaint, the complainant has specifically mentioned that he is running the business of agricultural implants and is an exporter of agricultural implants. From the said facts, it is proved that the complainant is doing his business at a large scale.  Furthermore, the complainant has not placed on file any documentary evidence that he is doing the said business only in order to earn his livelihood. In this regard, we place reliance on the CC.No.1489/2018 titled as M/S S.B.A. SERVICES VS ICICI BANK LTD. & ANR. D.O.D. 10.04.2023 and Engineering Works Vs. P.S.G. Industrial Institute reported as AIR 1995 SC 1428 wherein the Apex Court observed:

"The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition of expression "consumer". If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to"

The Hon'ble Apex Court further observed :

"We are also of the opinion that the definition of the expression "person" in Section 2(39) as including a firm (whether registered or not), a Hindu undivided family, a co-operative society or any other association of persons (whether registered under the Societies Registration Act, 1860 or not) makes no difference to the above interpretation. If a firm purchases the goods, the members of the firm should themselves ply, operate or use the goods purchased. Same would be the case of purchase by Hindu Undivided Family, cooperative society or any other association of persons."

14.           While explaining the term 'commercial purpose' in context of goods, Hon'ble Apex Court stated that it is a question of fact that is to be decided on the basis of the facts and circumstances of each case. Thus, for the determination of commercial purpose, each and every transaction relating to a particular case alleging deficiency shall be examined by viewing its direct effect on the profitability of a complainant.

15.           Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the present complaint, we are of the considered view that the complainant firm is doing the business for commercial purpose and does not fall under the definition of consumer as prescribed under Consumer Protection Act, 2019.  

16.           In view of the above discussion, the present complaint is not maintainable before this Commission and deserves to be dismissed and same is hereby dismissed. However, the complainant is at liberty to file fresh complaint on the same cause of action before the competent court of law, if so desired. In view of the law laid down by Hon’ble Supreme Court of India in case titled as Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583, the complainant would be entitled to get the benefit of provisions of Section 14 of the Limitation Act, to exclude the period spent in prosecuting the present complaint, while computing the period of limitation prescribed for filing complaint/case before the competent court of law. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 15.10.2024   

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Neeru Agarwal)         (Sarvjeet Kaur)

    Member                          Member