Madhya Pradesh

StateCommission

A/17/2083

CUTS AND COLORS - Complainant(s)

Versus

POST OFFICE - Opp.Party(s)

SH.A.K.JAIN

05 Jul 2021

ORDER

M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL

PLOT NO.76, ARERA HILLS, BHOPAL

                              

                                    FIRST APPEAL NO. 2083 OF 2017

(Arising out of order dated 01.09.2017 passed in C.C.No.373/2016 by the District Commission, Jabalpur-2)

 

CUTS & COLOURS,

THROUGH PROPRIETOR HARSH RAJ VAIDYA (M.P.)

S/O LATE SHRI PRAKASH CHANDRA VAIDYA

1177/4, PREM NAGAR, GUPTESHWAR WARD,

JABALPUR (M.P.).                                                                                             …          APPELLANT.

 

Versus

                 

INDIAN POSTAL DEPARTMENT

THROUGH PRAVAR ADHIKSHAK,

POST OFFICE, JABALPUR DIVISION,

JABALPUR (M.P.)                                                                                              …         RESPONDENT.

                                     

                                                                    

BEFORE:

 

                  HON’BLE DR. (MRS) MONIKA MALIK      :      PRESIDING MEMBER

                  HON’BLE SHRI S. S. BANSAL                  :      MEMBER   

 

                                      O R D E R

05.07.2021

 

          Shri Arun Jain, learned counsel for the appellant.

            Shri Rajeev Jain, learned counsel for the respondent.

 

As per Dr. Monika Malik : 

                         This appeal by the complainant/appellant is directed against the order dated 01.09.2017 passed by the District Consumer Disputes Redressal Commission, Jabalpur-2 (for short ‘District Commission’) in C.C.No.373/2016, whereby the the complainant’s complaint has been dismissed as not being maintainable under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

2.                     Challenging the aforesaid order, learned counsel for the complainant/appellant made a submission that the complainant runs his shop in the name ‘Cuts & Colours’ where he sells the dress materials. He runs the shop for the purpose of earning his livelihood by means of self-employment. The complainant had sent designer dress material worth Rs.37,425/- on 31.05.2016 through Indian Postal

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Department but the aforesaid consignment was not delivered to its destination. Alleging deficiency in service on part of the opposite party/respondent, he filed a complaint before the District Commission, seeking relief.

3.                     The District Commission however dismissed the complaint on the ground of maintainability stating that the complainant is running his business and therefore the consignment which was sent, was for commercial purpose.  Thus the complaint, seeking relief on account of deficiency in service against the opposite party is not maintainable.

4.                     Heard.

5.                     Learned counsel for the complainant/appellant argued that the complainant/appellant has categorically stated in his complaint before the District Commission that he runs his shop only for earning his livelihood by way of self-employment. The aforesaid submission of the complainant was not even challenged by the opposite party before the District Commission. He argued that the District Commission has wrongly interpreted that the pleadings and the impugned order, based on presumption that the complainant/appellant has sought relief for commercial purpose, deserves to be dismissed.  

6.                     Learned counsel for the opposite party/respondent supported the impugned order and stated that the complainant has nowhere been able to adduce evidence to the effect that the complainant runs his shop for earning his livelihood by way of self-employment. This has not been proven that his shop is the only means of earning for the complainant/appellant. Thus the District Commission has rightly proceeded in dismissing the complaint.

7.                     After hearing learned counsel for both the parties and having gone through the record of the District Commission, we observe that there are categorical pleadings by the complainant in his complaint before the District Commission, that he runs his shop

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for earning his livelihood by way of self-employment. The pleadings of the complainant were supported by evidence, by way of affidavit dated 15.09.2016.  When there is categorical submission of the complainant supported with an affidavit, we find that the District Commission has erred in dismissing the complaint on the account of maintainability under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, more so, when no contradictory evidence is available in the record of the District Commission.

8.                     It is noteworthy, that the opposite party has not raised any objection to the above effect before the District Commission.  Therefore, in the light of the aforesaid discussion we are of considered view that the complaint deserves to be decided on merits. The complaint is therefore remanded back to the District Commission for decision afresh on merits of the case.

9.                     Parties are directed to appear before the District Commission on 06.08.2021.

10.                   Record of the District Commission be sent at the earliest. The District Commission is directed to proceed in the matter in accordance with law and decide the complaint on its merits.

11.                   With the aforesaid observations and directions, the appeal stands allowed. No order as to costs.

 

                   (Dr. Monika Malik)                              (S. S. Bansal)           

                    Presiding Member                                  Member