State Consumer Disputes Redressal Commission
Ameera Shipping And Logistics ... vs M/S.Universal Engineering And Trading ... on 5 June, 2018
1 [RP/18/12]
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
REVISION PETITION NO.RP/18/12
(Arisen out of order dated 02/12/2017 passed by Ld. Addl.Thane District
Forum in complaint No.10 of 2017)
Ameera Shipping and Logistics
Pvt. Ltd.
Through its Managing Director
Mr.Amirudeen Mustafa Sayed
Office -209, Gouri Complex,
2nd floor, Sectr-11,
Opp.Bank of India,
C.B.D.Belapur,
Navi Mumbai 400 614. Petitioner/Applicant(s)
Versus
M/s.Universal Engineering and
Trading Company
Through its Proprietor
Shri.Aadil Afzal Shaikh
Office at- Plot No.17,
Firdos Colony,
Behind Shyam Lawn,
Jafar Nagar, Nagpur. Respondent(s)
BEFORE:
Hon'ble Mr.Justice A.P.Bhangale, President
Hon'ble Mr.D.R.Shirasao, Judicial Member
PRESENT:
For the Applicant(s): Advocate Shri.M.Shine K.
For the Respondent(e) : Advocate Shri.R.R.Chougule
ORDER
Per:-Hon'ble Mr.Justice A.P.Bhangale, President
[1] By this revision petition, Order dated 02/12/2017 in consumer complaint No.10 of 2017 passed by Ld.Thane Addl.District Forum, Belapur, Navi Mumbai is questioned. It is the case of Revision Petitioner that they had raised preliminary issue that the complainant in view of averments made in complaint is not a 'consumer' within the meaning of definition 2 [RP/18/12] contained in section 2(1)(d) of Consumer Protection Act, 1986. The averments which are relevant are as under-
[2] The complainant claims that complainant is engaged in export business and does High Sea Sale- purchase from different parts of the world. Complainant had hired services of the opponent for freight forwarding for the purpose of import of goods in container from China and later to be further shipped to its destination. According to the complainant opponent is service provider. Complainant has sought to rely upon communication in the form of e-mail with opponent and also averred that complainant had purchased some material from Shri Ashtavinayak Power Solultion, Bangalore and for the purpose to export the same, loaded in an empty container, which was imported by Yang Ming Line. Complainant engaged opponent to collect the container and to export it to the given destination place i.e.Jeddah in Saudi Arabia. According to the complainant opponent was under obligation to collect the delivery, upon receipt and perusal of documents- Original Bill Invoice, Authority Letter and Import Export Code. But opponent failed to unload the container of Yang Ming Line. Thus it is alleged breach of contract on the part of opponent in an assignment which was of a commercial nature. Complainant nowhere mentions in the complaint that he had entered into transaction with the opponent for to earn livelihood.
[3] In fact the complainant is described as M/s.Universal Engineering and Trading Company, through its Proprietor Shri.Aadil Afzal Shaikh. The Proprietor nowhere contended that export import business or services of the opponent were hired for to earn his livelihood so as to bring the transaction within the meaning of exception as contained in the explanation to section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Section (2)(1)(d)(ii) states that-
"(ii) [hires or avails of] any services 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
3 [RP/18/12] beneficiary of such services 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 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.]"
[4] In absence of averment in the complaint that the transaction of services were hired exclusively for the purpose of earning livelihood by means of self-employment, complaint could not have been entertained by Ld.District Forum when objection was raised regarding very jurisdiction to entertain the complaint. Our attention is invited to the ruling in Lucknow Development Authority v/s,. M.K.Gupta reported in 2012 ALL SCR (O.C.C)1. That case related to the service of housing construction and building activity. Ruling discussed about the definition of 'consumer' prior to the amendment which was introduced in by amendment w.e.f. 15/03/2003. It is therefore contended that the ruling cannot apply to the facts pleaded in the present case particularly in absence of averment as to complainant's earning his livelihood or for self employment. Our attention has also been invited to the ruling of Hon'ble National Consumer Disputes Redressal Commission, New Delhi between Delhi Transport Corporation Employees Provident Fund Trust versus Orissa Small Industries and Anr., decided on 02/08/2005, which considers definition of the term 'consumer' post amendment i.e. after 15/03/2003. Intention of the legislature is clear that service availed of for any commercial purpose cannot come within the meaning of the term 'consumer' when such service is sought to be enforced
4 [RP/18/12] in the Consumer Fora. There has to be specific averment made in the complaint that complainant wants to earn his livelihood by means of self- employment. In absence of such averment the service availed of for any commercial purpose will keep such dispute beyond the power of Consumer Fora. Of course the complainant is not remediless as he can always approach ordinary competent Civil Court for relief in respect of such commercial dispute. We have gone through the rulings sited, considered the facts and circumstances and averments made in the complaint. In our view complainant in this case being proprietor of commercial Firm M/s. Universal Engineering and Trading Company and who failed to aver the necessary ingredients to bring his case within the definition of 'consumer dispute' and definition of 'consumer'. Therefore, impugned order is contrary to law and intention of the legislature to entertain only consumer dispute. That being so, we set aside impugned Order and direct dismissal of the consumer complaint. However, we make it clear that our Order shall not come in the way of the complainant from finding his remedy elsewhere i.e. by suing in competent Civil Court. No order as to costs.
Certified copy of this order be supplied to both the parties. Pronounced on 5th June, 2018.
[JUSTICE A.P.BHANGALE] PRESIDENT [D.R.SHIRASAO] JUDICIAL MEMBER rsc