State Consumer Disputes Redressal Commission
M.Venugopal S/O Venkataramappa vs Anl Parcel Service And Another on 28 February, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.585 OF 2012 AGAINST C.C.NO.04 OF 2012 DISTRICT FORUM ANANTHAPUR Between: M.Venugopal S/o Venkataramappa Handloom Pure Lace Silk Sarees Manufacturers rep. by its Proprietor, D.No.30/332, Kothapeta Dharmavaram Town, Anantapur District Appellant/complainant A N D 1. ANL Parcel Service R/p by its Agent Naidu ANL Agent, APSRTC Bus Stand Dharmavaram, Anantapur Dist. 2. APSRTC R/p by its Managing Director RTC Cross Roads, Hyderabad Respondents/opposite parties Counsel for the Appellants M/s K.Parandhama Chary Counsel for the Respondents M/s P.Rajasripathi Rao (R1) M/s Arun Kumar Lathkar QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER THURSDAY THE TWENTY EIGTH DAY OF FEBRUARY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant.
2. The brief facts of the case as seen from the complaint are that the complainant is engaged in the business in Silk Sarees and running a shop in the name and style of M.Venugopal, Handloom Pure Lace Silk Sarees Manufacturers to eke out his livelihood. In pursuance of the order placed by Putchaala Silks, Guntur the complainant had sent 29 Silk Sarees worth `74,300/- vide invoice No.78 dt.12.11.2011 and 21 Silk Sarees worth `78,550/- vide Invoice No.80 dated 12.11.2011 in total 51 Silk Sarees in three parcels through the opposite party no.1 by paying `442/-. The total value of the consignment is `1,52,850/-. The value of the consignment was noticed on the goods consignment note. The consignment is properly addressed and the telephone number of the consignee is also noted on the consignment note which also reflects in the goods consignment note. The complainant received a letter addressed by the consignee stating that the opposite party has not delivered the parcels. On enquiry, the opposite party informed that one parcel out of three has reached to Guntur and whereabouts of other two parcels was not known. The Area Manager of the 1st opposite party, Kurnool addressed a letter dt.22.11.2011 admitting the shortage of consignment out of booked parcels and returned the available parcel with them containing 5 Sarees to the complainant. The 1st opposite party has also collected an amount of `630/- towards returning charges for the available parcel from the complainant. Due to the careless and negligent act of the opposite parties, the complainant lost goods worth of `1,26,300/-. Hence the complaint.
3. The 1st opposite party resisted the case contending that the complainant was doing business for profit purpose. The complaint is not maintainable as the complainant is not a consumer. Under one receipt the complainant booked three boxes and out of them one box was delivered. The complainant did not enclose invoice. The person who had signed on the consignment note has to abide by the terms and conditions of the company. As per terms and conditions the liability of this opposite party is `5/- per Kg. The Consumer Forum has no jurisdiction to decide the matter since the dispute subject to Hyderabad Jurisdiction only. The Forum has no jurisdiction to entertain the complaint. The complainant has not paid an amount of `442/- towards transport charges because as per the goods consignment note the consignment was booked under taking to pay with pass basis the transport charges shall be paid by the party at the destination. If the consignment value is on higher side the complainant ought to have insured parcel. As a normal procedure 3 parcels dispatched from Dharmavaram through APSRTC Bus only one parcel have been delivered and other two boxes are not delivered and the same had been searching.
4. The 2nd opposite party resisted the case contending that the complainant is doing business and the said Handloom Pure Lace Silk Sarees manufacturer is a commercial establishment. The Consumer Forum has no jurisdiction to entertain the complaint. The opposite party No.1 business and the 2nd opposite party business both are totally different. The second opposite party is no way concern to the opposite party No.1, hence this complaint is liable to be dismissed against the second opposite party. The complainant is book parcel with opposite party No.1 and if the consignment is not delivered, the 1st opposite party alone liable to pay compensation to the complainant. The agreement made between complainant and the 1st opposite party is nothing but a by-party agreement not tripartite agreement. There is no specific agreement between complainant and the second opposite party. The complaint may be dismissed for misjoinder of necessary parties. There is no deficiency of service on the part of the second opposite party.
5. The Proprietor of the complainant firm filed his affidavit and the documents Exs.A1 to A6. On behalf of the opposite party no.1, its Manager and on behalf of the opposite party no.2, the Depot Manager filed his affidavit and no documents have been marked.
6. The District Forum dismissed the complaint on the premise of the appellant not fitting into the definition of consumer as provided u/s 2(1)(d) of the C.P.Act. The District Forum has opined that the appellant, proprietor of firm engaged in the business dealing with sale of sarees and he cannot be considered as consumer with the provisions of C.P.Act.
7. Feeling aggrieved by the order of the District Forum, the complainant has filed appeal contending that the District Forum has not considered the provisions of Consumer Protection Act and evidence placed on record in proper perspective and that the appellant manufacturer of handloom sarees and lace silk sarees has been doing the business for the purpose eking out his livelihood. It is contended that the appellant mentioned about the sarees in the consignment note and noted value of the consignment, `1,52,850/-.
8. The point for consideration is whether the order of the District Forum suffers from mis-appreciation of fact or law?
9. The appellant is proprietor of handloom pure lace silk sarees and manufactures the sarees at Dharmavaram as also supplies the sarees to various parts of the State. He had sent three consignments to Puchala Silks, Guntur, 29 silk sarees worth `79,300/-, 21 silk sarees worth `78,550/- through the first respondent by paying `442/-. Of the three consignments two consignments had reached destination at Guntur and one consignment reportedly not delivered to the consignee. The appellant claims for return of the consignment or value thereof on the premise that the consignment contained sarees worth `1,26,300/- whereas the respondents contend that the contents of missing consignments were not disclosed nor the value of the contents.
10. The District Forum has dismissed the complaint on the ground that the appellant is engaged in manufacture and sale of sarees and as such he is not a consumer. The learned counsel for the appellant has contended that in the complaint the appellant has specifically mentioned that he has been doing business in the business of manufacturing and sale of handloom pure lace silk sarees for the purpose of earning his livelihood and that of his family.
11. The District Forum has observed that the appellant engaged about 20 workers and he is paying salary to them which would establish that the business of the appellant is not only for his livelihood and also for earning profit which amounts to commercial purpose. The District Forum has relied on the decisions of the Honble Supreme Court in Kalpavruksha Charitable Trust Vs Toshniwal Brothers Pvt Ltd., AIR 1999 SC 3356, Chema Engineering Works Vs Rajan Singh and Others, 1995 3 SCC 583 and Laxmi Engineering Works Vs PGI Industrial Institute to hold that self-employment is not defined in Consumer Protection Act.
12. In the aforementioned decision the Supreme Court held that each case has to be considered on its merits taking into consideration of evidence.
13. In Kalpavruksha Charitable Trust (supra) the commercial purpose had been considered at length in the following words:
In the instant case, what is to be considered is whether the appellant was a "consumer" within the meaning of the Consumer Protection Act, 1986, and whether the goods in question were obtained by him for "re-sale" or for any "commercial purpose". It is the case of the appellant that every patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan etc. has to pay for it and the service rendered by the appellant is not free. It is also the case of the appellant that only ten per cent of the patients are provided free service. That being so, the "goods" (machinery) which were obtained by the appellant were being used for "commercial purpose".
14. In Cheema Engineering works is a case where the principle laid in was considered in Kalpavruksha Charitable Trust and commercial purpose was considered on the foot of self-employment. Thus, the Apex Court observed:
4. If any goods are purchased for consideration, paid or promised or partly paid or under any system of deferred payment including any user of such goods other than the person who by such goods for the 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 the purchaser is the 'consumer' within the meaning of the Act.
But the Act provides for certain exceptions, namely, "does not include a person who obtains such goods for resale or any commercial purpose; or...
5. The Explanation to the definition of 'consumer' has been added by way of an amendment in 1993 which reads as under:
Explanation--for the purposes of Sub-clause (i) "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.
6. In other words, the Explanation excludes from the ambit of commercial purpose in Sub-clause (i) of Section 2(1)(d) , any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is: whether the respondent has been using the aforesaid machine for self-employment? The word 'self-employment' is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside.
15. In Lakshmi Engineering Works, the Supreme Court has elaborately dealt with the concept of self-employment as follows:
The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion the expression "large-scale" is not a very precise expression the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition o expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing 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 several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate with himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.
16. The appellant has specifically stated that he is the proprietor of a firm engaged in manufacture and sale of silk sarees for the purpose of earning his livelihood. There is no evidence on record to show that the appellant engaged 20 workers to run the business. Even if it is presumed that he has engaged 20 workers, the employment of the works by itself does not amount to commercial purpose as the size of a proprietary concern is not material more particularly so the transaction of either manufacture or sale of the sarees is not directly has nexus with the appellant sending the consignment. On application of the ratio laid in Cheema Engineering Works and Lakshmi Engineering Works to the facts of the case on hand, we are of the considered opinion that the appellant can be considered as consumer within the meaning of sec.2(1)(d) of C.P.Act.
17. The learned counsel for the respondent no.1 has contended that the first respondent has taken specific objection as to the territorial jurisdiction of the District forum Ananthapur and despite the objection raised by the respondent no.1, the District forum has not considered the document, consignment note restricting jurisdiction to the courts and tribunals in Hyderabad. A perusal of the consignment would show that the jurisdiction of the disputes are confined to the Courts and Tribunals at Hyderabad.
18. The District Forum ought not to have entertained the complaint and it should have returned the complaint to the appellant to present it before the District Forum having jurisdiction.
19. In the result the appeal is allowed setting aside the order of the District forum. Consequently the complaint is remitted back to the District forum to be returned to the appellant. There shall be no order as to costs.
MEMBER MEMBER Dt.28.02.2013 కె.ఎం.కె.*