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Overnite Express Ltd. & Another v/s M/s. First Serve

Company & Directors' Information:- OVERNITE EXPRESS LIMITED [Active] CIN = U64120DL1986PLC026209

    First Appeal No. 767 of 2013 in Complaint Case No. 126 of 2012

    Decided On, 24 June 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellants: Alok Mukhopadhyay, Souvik Chatterjee, Advocates. For the Respondent: -------.

Judgment Text

Utpal Kumar Bhattacharya, Member

Instant appeal under Section 12 of the Consumer Protection Act, 1986 has been filed by the Appellants/O.Ps challenging the judgment and order dated 18.06.2013 passed by the Ld. District Forum, South 24 Parganas in C.C. Case No. 126 of 2012 allowing the complaint on contest with cost and with directions upon the Appellants/O.Ps as under :-

'That the case being C.C.no. 126 of 2012 be and the same is decreed on contest with cost against the O.Ps.

The O.Ps are directed to pay the value of the goods amounting to Rs.4,92,715/-, a sum of Rs.1,55,000/- for loss of goodwill, a sum of Rs.2,00,000/- towards compensation.

The aforesaid amount along with the cost of Rs.10,000/- shall be paid within one month from this day failing which the said amount shall carry an interest @ 10% p.a. from the date of default till realization'.

The Respondent/Complainant herein is a registered partnership firm and the Appellant Nos. 1 & 2/O.P. Nos. 1 & 2 are branches of a reputed and reliable service provider in the field of courier services having their own offices in Kolkata and New Delhi respectively at addresses mentioned in the complaint.

The facts of the case, in brief, are that the Respondent/Complainant entered into a service contract dated 01.11.2011 with Appellant No. 1/O.P. No. 1for shipment and/or delivery of non-commercial goods of the Respondent/Complainant at various places. On 26th December, 2012, the Respondent/Complainant placed an order with Appellant/O.P. No. 2, consignment No. being 7039252614, for delivering a non-commercial goods to Global Technologies, Silchar. The consignment of a charged weight of 3.75 Kg and valued at about Rs.4,92,715/0, however, did not reach the consignee.

The Appellants/O.Ps claimed that the consignment was duly delivered at the given address of the consignee where a representative of the consignee acknowledged the delivery of the consignment putting his signature on the relevant paper. The Respondent/Complainant, however, denied receipt of any consignment. The signature on the receipt was ultimately verified by them to be of someone not related to the consignee’s establishment. The receipt also was devoid of the seal and stamp of the consignee’s establishment and was not showing the telephone number of the consignee and exact time of receipt of the consignment.

The Respondent/Complainant intimated the Appellants/O.Ps the incident through several correspondences and E-mails without any sign of alacrity on the part of the Appellants/O.Ps to take proper cognizance and proper corrective measures, as alleged.

There being no end to the prevailing impasse as to the ascertaining of the fact regarding delivery of the consignment and no solution could be meted out for detecting the whereabouts of the consignment after a long lapse, the Respondent/Complainant filed the complaint before the Ld. District Forum which the impugned judgment and order relates to.

The Respondent/Complainant being not represented by anybody, the appeal was heard ex-parte against him.

The Ld. Advocate on behalf of the Appellants/O.Ps submitted that the Respondent/Complainant in its evidence at running page 52, para 1, admitted that theirs is a partnership firm. The Ld. Advocate submitted further that the partnership firm is an organization for commercial purpose and it is a settled principle of law that a commercial establishment does not come within the meaning of consumer as envisaged under Section 2(1)(d) of the Consumer Protection Act, 1986.

The Ld. Advocate cited the order of the Hon’ble National Commission reported in IV (2014) CPJ 777 (NC) – Maya Engineering Works – vs. – ICICI Bank Ltd. passed in Revision Petition No. 3678 of 013 wherein it was held that the person availing services for commercial purpose cannot be considered as consumer.

The Ld. Advocate cited further the order of the Hon’ble National Commission reported in 2014 (1) CPR 210 (NC) [M/s. Avery India Limited – vs. – M/s. Kaybee Sulphates Limited, Represented by its Director, Niranjan Aggarwal] in Revision Petition No. 2905 of 2008 wherein it has been held by the Hon’ble National Commission that commercial transaction does not give rise to consumer dispute.

In view of the above, the complaint, as the Ld. Advocate contended, lacks eligibility for being treated as Consumer. The Ld. Advocate prayed for allowing the appeal setting aside the impugned judgment and order with consequent dismissal of the complaint.

Perused the papers on record. It appears that the Respondent/Complainant, in its evidence, has submitted that the Respondent/Complainant is a registered partnership firm. We may, in this respect refer to the order dated 01.08.2013 passed by the Hon’ble National Commission in Consumer Complaint No. 193 of 2013 [M/s. Naba Bharat Press (Raipur) – vs. – M/s. Sahara Prime City Limited & Ors] wherein, while deciding on the key question as to whether M/s. Naba Bharat Press, a registered partnership firm and the Complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, the Hon’ble National Commission was pleased to hold that the Complainant was not a consumer since the activities being transacted by the Complainant were commercial ones. The Hon’ble National Commission dismissed the complaint with punitive cost.

In the instant case too, the Complainant is a registered partnership firm, indicating thereby that the Complainant is engaged with commercial activities. The activities being transacted by the Complainant, prima facie, appears to be commercial ones. Furthermore, none appears on behalf of the Respondent/Complainant to counter the contention of the Ld. Advocate for the Appellants/O.Ps in response of the Respondent/Complainant being engaged with commercial activities.

In view of the circumstances narrated above and also keeping reliance on the orders of the Hon’ble National Commission referred

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to above, we are of the considered view that the Respondent/Complainant is not a consumer. The point challenging the maintainability of the complaint being thus established with our above observation, we abstain ourselves from discussing or deciding on any other point involve in the case on hand. The Ld. District Forum, in the given scenario, was not justified in entertaining the complaint ignoring the settled principle of law in the matter. Hence, ordered that the appeal is allowed ex-parte against the Respondent/Complainant without cost. The impugned judgment and order is set aside and consequently, the petition of complaint stands dismissed.