BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                             C.C.No.49/2011

Dated this the 29^th day of September 2016

(Date of Institution: 20.09.2011)

M/s Ruchi Packaging Private Limited

Represented by its Authorised Signatory

R.G. Balakrishnan, son of R. Govindan

No.C-11, PIPDIC Industrial Estate

Mettupalayam, Puducherry – 09.

                                                ….     Complainant

Vs.

1.  Murugan, Agent,                    

     M/s Venson Transports (P) Limited

     No.176, ECR Road, Lawspet,   

     Puducherry – 08.

2. Gopalakrishnan, Director

    M/s Venson Transports (P) Limited

    No.33, Cubbon Road, Bangalore  - 001

3. Gopalakrishnan, Director

    M/s Venson Transports (P) Limited

    No.234, Peters Road, Chennai – 014.

4. Gunasekar, Director,

     M/s Venson Transports (P) Limited

    No.33, Cubbon Road, Bangalore – 001.

5. Gunasekar,  Director

    M/s Venson Transports (P) Limited

    No.234, Peters Road, Chennai – 014.

…      Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,  

           MEMBER

FOR THE COMPLAINANT            :  M/s I. Ilankumar and V. Vijay,   

     Advocates

FOR THE OPPOSITE PARTIES     : G. K. Govindasamy, Advocate, 

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite parties to make payment of the losses of Rs.1,28,555/- along with 24% interest per annum;
2. Direct the opposite parties to pay a sum of Rs.5,00,000/- as compensation towards mental agony, pain and sufferings and for the deficiency of service;
3. Direct the opposite parties to pay a sum of Rs.5000/- towards cost of the proceedings.

2.  The case of the complainant is as follows:

          The complainant is the manufacturer of BOPP Self Adhesive Tapes and one of his customers namely M/s Britannia Industries, Chennai had placed orders of 50 Boxes of BOPP Tapes printed Britannia and dispatched to M/s Paramount Nutrition's India Pvt. Ltd., Bangalore.  The said tapes has a life span of six months only after that it will expire and will not useful.  Accordingly, the complainant booked 50 boxes of BOPP Tapes worth Rs.1,25,861/- with the first opposite vide Way Bill No. 1273221 dated 11.08.2009 and paid freight charges of Rs.2,694/- by way of cheque No. 335878 dated 21.09.2009 of ICICI Bank presuming that the goods would be delivered promptly.  After ten days the staff of complainant followed for the proof of delivery through phone and in person to the office of the first opposite party, but, they have not received any response.  The Britannia Industries, Chennai also complained that the goods are not delivery to M/s Paramount Nutrition's India Pvt Ltd., Bangaore.  The complainant contracted the office of second to fifth opposite parties alleging that the goods will be expired in six months and asked to deliver the same immediately, but it was ended in vein.  Finally, the complainant had written a letter to the first opposite party on 22.01.2010 stating to deliver the material immediately or else to return it back to them.  The said letter was acknowledged by the first opposite party, but did not give any reply.   The activities of the opposite parties caused loss to the business of the complainant and also lost his reputation, goodwill and lost his customers apart from causing damages, loses, mental agony, pain and sufferings.  Due to the deficiency of service of the opposite parties, the goods got expired and thereby sustained loss of Rs.1,28,555/-.  The complainant issued a legal notice to the opposite parties on 4.3.2011, the same was received by all the opposite parties, but had not replied for the same.  Hence, this complaint. 

3.       The following are the averments narrated in the reply version filed by the first opposite party and adopted by Opposite parties 2 to 5.

           The complaint filed by the complainant is not maintainable either in law or on facts.  It is stated by the opposite parties that since it is a commercial transaction, it is outside scope of Consumer Protection Act.  It is also stated by the opposite parties that the complaint is bad for non-joinder of necessary parties as M/s Britannia Industries, Chennai or M/s Paramount Nutrition's India Pvt Ltd., Bangalore have not been made as parties.  The complainant is said to be a manufacturer of BOPP Adhesive Tapes and that under instructions of their customers M/s Britannia Industries, Chennai, they have dispatched the  consignment to M/s Paramount Nutrition's India Pvt Ltd., Bangalore.  Thus, as per the complaint, the complainant has acted on behalf of M/s Britannia Industries, Chennai.  However, the complainant has not produced any authorization letter to act on behalf of M/s Britannia Industries, Chennai to file the complaint.  Hence, there has been no loss to the compolainant even assuming that there was deficiency of service on the part of the opposite parties.  The opposite parties also stated that the consignment has been taken at owner's risk and terms and conditions also state that the company is not liable to pay for any loss or damage that may be caused inter-alia, due to inherent ices of the consignment and further there was no mention of the inherent vices at the time of booking the consignment.   Further, in the complaint, the complainant stated that the contents of the consignment become self-destructive aftr six months from the date of manufactor.  It is not known when the tapes were manufactured.  The complainant is attempting to take advantage of these proceedings to recover the loss which he had lost due to inherent vices.  Further stated that under the provisions of Carriage by Road Act, 2007, which repealed earlier Carriers Act, 1865, the Carrier has no liability unless a special Contract has been entered into with regard to the liability on the full value of the consignment.  The opposite parties further stated that M/s Paramount Nutrition's India Pvt Ltd.. Bangalore refused to accept the consignment and therefore, the consignment has to be kept in the Warehouse of the Opposite Parties at Bangalore, at the consignor's risk for considerable time and the consignor has also telephonically informed about the refusal to the consignee to accept the consignment.  The opposite parties have attempted to deliver the consignment to the consignee on 14.08.2009 and 24.11.2009 and on both occasions, it was refused.  The same was also confirmed by two E-mails sent on 19.12.2009 and 12.03.2010 to the opposie partys' office at Puducherry.  The opposite parties also stated that any relief based on the submission of the complkainant in the complaint would amount to alteration both in the Contract as evidenced in the Way Bill as well as the provisions of law, which is beyond the scope of the jurisdciton of this Forum.  Further stated that the first opposite party is not a necessary party.  Hence, prayed for dismissal of the complaint with costs.

4.       On the side of the complainant,  the authorised signatory R.G. Balakrishnan was examined as CW1 and Exs.C1 to C10 were marked.   On the side of the opposite party, one R.K. Murali, Manager has been examined as RW.1 and marked Exs.R1 to R3.

5.       Points for determination are:

1. Whether the complainant is the Consumer?
2. Whether any deficiency in service attributed by the opposite party?
3. To what relief the complainant is entitled for?

6.       Point No.1:

          The contention of the complainant is that they are manufacturing BOPP Self Adhesive Tapes and supplying to various companies.  Accordingly, he had booked 50 Boxes of BOPP Tapes on 11.08.2009 with the first opposite party on door delivery basis and had paid freight charges of Rs.2,694/- to be delivered to Paramount Nutrition's India Pvt Ltd., Bangalore.  It is the further contention of the complainant that the said tapes has a life span of six months and then it will expire.  It is also contended by the complainant that the goods were not delivered to the above said Paramount Nutrition's India Pvt Ltd., Bangalore even after lapse of 10 days from the date of booking.  Though the complainant requested the opposite parties to deliver the goods to the said Paramount Nutrition's India Pvt Ltd., Bangalore and also by way of letter and legal notices, the opposite parties had not delivered the same.      

          7. On the otherhand, the opposite parties contended that the complaint is not maintainable as it is a commercial transaction and hence, it is outside the scope of Consumer Protection Act.

           8. The first point which arises for consideration in this complaint is regarding the maintainability of the consumer complaint itself. 

9. On perusal of the record, it is clear that the  complainant is running a company and manufacturing BOPP Tapes and supplying it to various companies for making profit.    This Forum has seen the Section 2(1)(d)(ii) of Consumer Protection Act, which reads as follows.

"Consumer means- any person who hires or avails of any services for a consideration which has been or paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, 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 person who avails of such services for any commercial purpose

Explanation: For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self  employment.

10.     On reading the above definition, it is clear that the consumer is a person who hires or avails of any service for consideration.  However, by amendment dated 15.03.2003 definition does not include a person who avails of services for any commercial purpose. Even though the complainant sent his materials through opposite parties transport, the service availed for commercial purpose which is not come under the purview of the Consumer Protection Act by amendment dated 15.03.2003.   Further the complainant has to be plead and proved that the services availed by him from the opposite parties were for the purpose of earning livelihood by way of self-employment.  On reading the complaint, this Forum observes that there is no such allegation or evidence to prove that the complainant availed the service of the opposite parties for earning his livelihood by way of self-employment. 

11.     As rightly contended by the opposite parties,  the complainant herein had availed service from them for his business purpose only.  Therefore the complainant is not a consumer as per Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. 

          12. The learned Counsel appearing for the opposite parties cited a judgment reported in F.A. No. 99/2012 in [NAVATA ROAD TRANSPORT AND ANOTHER vs M/S FORTUNE HYBRID SEEDS LIMITED] by the Hon'ble Andra Pradesh State Consumer Disputes Redressal Commission.  The above citation speaks about question of fact in regard to issuing the consignment receipt by the Transporter.  The disputed questions of facts cannot be adjudicated in summary proceedings before Consumer Forum.  Hence, this authority is not relevant to the present case.

13. However, to fortify the above decision, this Forum has relied on the judgment of the Hon'ble State Consumer Disputes Redressal Commission, Chattisgarh in Appeal No. 31/2011 [Manager Bagai Golden Transport vs Sanjay Readymade Stores], wherein, it relied on the Hon'ble Supreme Court decision in the case of Economic Transport Organization Vs. M/s Charan Spinning Mills (P) Ltd., and another, I (2010) CPJ 4 (SC) that

"……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."

In view of the above discussion,  this Forum observed that the complainant is not a consumer as per provision of Consumer Protection Act, 1986 and this point is answered accordingly. 

14.  Point Nos.2 and 3:

          In view of the decision arrived in point No.1 that the complainant is not a consumer, the Point Nos. 2 and 3 are not answered.

          In the result, the complaint is dismissed. No cost. 

Dated this the 29^th day of September 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANT'S WITNESS:  

CW.1          29.06.2012           R.G. Balakrishnan

OPPOSITE PARTY'S WITNESS: 

RW.1          09.04.2015           R.K. Murali

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER