GATI LIMITED vs Gati Kintetsu Word Express Pvt Ltd

THE complainant/respondent, which is a company trading inter alia in the sale of honey, booked a consignment of 240 packets containing 130 kg. of honey for being delivered to M/s. Afira Traders at Chennai and paid a sum of Rs.1,19,309/ - to the petitioner company as freight, for carrying the aforesaid consignment from Bandrole in District Kullu of Himachal Pradesh to Chennai. Since the purchaser did not make payment to the complainant, it requested the petitioner not to deliver the consignment to Afira Traders and rebooked the same to its place. The petitioner company asked the complainant to deposit a sum of RS.1,19,309/ - for the purpose of rebooking the consignment. The aforesaid request was made on 24 -08 -2012. The case of the complainant is that since their employee at Chennai was not available the payment could not be deposited immediately. The petitioner company thereupon delivered the consignment to M/s. Afira Traders against the cheque of Rs.17,73,535/ -. The aforesaid cheque, when presented to the bank, was dishonored. Being aggrieved from the petitioner company having delivered the goods to M/s. Afira Traders without instructions from it the complainant approached the concerned District Forum by way of a complaint.

THE complaint was opposed by the petitioner inter alia on the ground that the District Forum had no jurisdiction to entertain and try the complaint.

VIDE its order dated 28 -05 -2014 the concerned District Forum passed the following order: "In the light of above discussion, the complaint is allowed and the opposite parties are jointly and severally directed to refund booking charges of Rs.1,19,309/ - to the complainant along with interest at the rate of 9% per annum from the date of institution of the complaint till realization. Opposite parties are further directed to pay to the complainant Rs.1,00,000/ - on account of compensation for mental harassment and Rs.5,000/ - as costs of complaint. The complainant is at liberty to avail remedy of dishonoring of cheque against AFIRA Traders under Negotiable Instruments Act, if so advised and the observations made in this order shall have no bearing in those proceedings."

Being aggrieved from the order passed by the District Forum the petitioner company approached the concerned State Commission by way of an appeal. Vide impugned order dated 26 -09 -2014 the State Commission dismissed the appeal filed by the petitioner company. Being aggrieved the said company is before us by way of this revision petition.

SECTION 2(1)(d) of the Consumer Protection Act to the extent it is relevant for our purpose provides that the term ''consumer'' does not include a person who hires or avails of any service for a commercial purpose. The aforesaid amendment came into force with effect from 15 -03 -2003. The services of the petitioner company were availed by the complainant only on 19 -08 -2012. In our opinion, since the complainant company was engaged in the trading of honey and the consignment booked with the petitioner company was on account of the sale of honey to M/s. Afira Traders, it would be difficult to say that the services of the petitioner company were not availed for a commercial purpose. The complainant company was seeking to make profit by selling honey to M/s. Afira Traders and it was for the purpose of completing the said transaction that the consignment containing honey was booked with the petitioner company. It is not necessary that the hiring of the service should directly generate profit for the service hirer. What is important is whether the activity in connection with which the service was engaged, was an activity aimed at making profit or not. Selling honey was an activity undertaken by the complainant to earn profit and it was in furtherance of the said activity, that the service of the petitioner was hired. Therefore, engagement of the petitioner company was a part of the process of earning profit by selling honey. Therefore, such engagement in our opinion would be for a commercial purpose.

THE following observation made by the Hon''ble Supreme Court in Economic Transport Organization Vs. Charan Spinning Mills (P) Ltd. and Anr., 2010 1 CPJ 4 also supports the view being taken by us. "We may also notice that Section 2(d) of Act was amended by Amendment Act 62 of 2002 with effect from 15 -03 -2003, by adding the words "but does not include a person who avails of such services for any commercial purpose" in the definition of "consumer". After the said amendment, 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. But the said amendment will not apply to complaints filed before the amendment."

FOR the reasons stated herein above we are of the view that the District Forum did not have jurisdiction to entertain the complaint and accordingly the order passed by the said forum and maintained by the State Commission is without jurisdiction. The revision petition is, therefore, allowed and the complaint is dismissed. We, however, make it clear that dismissal of the complaint does not come in the way of the complainant availing such other remedy including approaching a Civil Court for redressal of his grievances as may be available to him in law. It shall also be open to the complainant to avail benefit of provision of Section 14 of the Limitation Act if such a benefit is otherwise available to him in law.