MANAGING DIRECTOR, TNT INDIA PVT. LTD., & ORS. vs M/S. LOCHAN TEA LTD.

The present revision petition has been filed against the judgment dated 13.02.2012 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata, (''the State Commission'') in First Appeal no. 657 of 2010.

The facts of the case are that the respondent/ complainant - company came in contact with the opposite party- company through its Regional Manager, i.e., petitioner no. 2/ OP no. 2 and assured the respondent that they would provide its services for carrying tea samples/ tea packages anywhere in the world within a short period of time when required. They also agreed to extend credit facilities in making the payment of carrying charges/ bills as and when the company would raise the bills/ invoices for providing such services. Accordingly, the company used to hand over its tea samples/ tea packages to the petitioner for onward delivery of the same to its different destinations including at United Kingdom, United State of America, Canada, China etc., from time to time.

On 09.10.2009 the respondent had handed over 13 packages of the best qualities of different tea samples for delivery to one M/s Tea Source in USA. The said 13 packages were supposed to be delivered within a reasonable period of seven days. But they have neither delivered the packages of tea samples nor did it return the samples. Thereafter, due to the act and conduct of the petitioner - company in dealing with several consignments, which were either not delivered or mis-delivered or late delivered or delivered in damaged conditions, the respondent was compelled to issue stop payment instructions for its cheques issued to the petitioner.

However, thereafter, on 20.11.2009 the respondent again handed over 12 packages for onward delivery from Siliguri to France, Siliguiri to London and Siliguri to Canada on 27.11.2009 and the same were also not delivered. On an enquiry it was found that the petitioner had kept the samples at its Kolkata office and did not forward the same as the respondent had not cleared the outstanding bills of Rs.6.00 lakh. The respondent, thereafter sent legal notice on 01.02.2010 to the petitioner stating inter alia that in case the consignments were not returned within a period of seven days, it would be presumed that the same have been misappropriated. No reply was received and the said act on the part of the petitioner was unjustified and unreasonable and that the performance of the work and services on the part of the petitioner and its officials was found deficient and negligent and it had caused huge monetary loss to the respondent. The losses and damages had been assessed at Rs.10.00 lakh besides the packages which were not delivered the value of which was to the tune of Rs.6.00 lakh. It was thereafter prayed that the petitioner company be directed to pay the following:

To return the tea samples/ tea packages, which handed over to the OP companies by the complainant company on the basis of three air way bills bearing nos. GD 623 139 335 WW; no. GD 623 135 775 WW and no. GD 623 135 784 WW or alternatively to pay the value of the said tea samples/ tea packages to the tune of Rs.6.00 lakh (12,735.40 US $) to the complainant company;

To make the payment of sum of Rs.10.00 lakh to the complainant company towards the negligence and deficiency in services of the OPs and/ or the damages suffered by the complainant company due to non-delivery of the said team samples/ tea packages to the consignees thereof;

To pay a sum of Rs.1.00 lakh to the complainant company towards the losses and damages as suffered on account of the sufferings of its directions from mental pain and agony;

Interest and pendent-lite interest @ 18% per annum on the aforesaid amount, till payment;

Cost of proceeding and ;

Any other order or orders or relieves to which the Hon''ble Forum may deem just and proper for the ends of justice and for this act of kindness the complainant company as in duty bound shall ever pray.

The District Consumer Disputes Redressal Commission. Siliguri, District Darjeeling (''the District Forum'') vide its ex parte order dated 06.08.2010 while allowing the complaint observed as under:

"Considering all the facts and circumstances, it reveals in spite of receiving the amount as prayed for by the OPs and after receiving notice of the instant case the OPs did not turned up and the challenged the case of the OPs dislodging the claim of the complainant.

Therefore, when the case of the complainant has been established by oral and documentary unchallenged evidence, there is no reason to disbelieve the case of the complainant.

We are further of the view service as provided under section 2 (1) (o) and (g) of the CP Act, 1986 has not been rendered properly, thereby the OPs are negligent and deficiency in service under the law.

The complainant has been harassed on several ways and in spite of receiving money the OPs neither return the free samples/ tea packages to the complainant thereby the complainant suffers business loss for which it causes mental pain and agony and as such the complainant is entitled to get compensation for causing huge loss and mental pain and agony.

Thus the case succeeds in part, hence, it is ordered that:

The consumer case no. 31/S/2010 is allowed ex parte in part with cost of Rs.2,000/- against the OPs.

The complainant is entitled to get back samples/tea packages as handed over to the OP companies by the complainant company on the basis of three air way bills bearing numbers GH 623 139 335 WW, GD 623, 135, 775 WW and GD 623 135 784 WW within 30 days from the date hereof failing which the complainant is further entitled to get a sum of Rs.6,00,000/- alternatively.

The complainant is further entitled to get a sum of Rs.20,000/- towards mental pain, sufferings and loss and damages.

The OPs who are jointly and severally are responsible to pay the awarded sum within the stipulated period as stated above are directed to pay the said booked materials and/ or the awarded sum of Rs.6,00,000/- alternatively within the said period failing which the awarded sum plus the compensation = Rs. 6,20,000/- do carry interest @ 10% from the date of institution of the instant case, i.e., 16.03.2010 till realisation of the awarded sum".

Aggrieved by the order of the District Forum, the petitioners filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:

"We have heard the submission made by the learned Counsel appearing for the parties. In the judgment the District Forum has observed that in spite of receiving the notice of the case, the OPs did not turn up to contest the same. Under the circumstances the District Forum observed that when the case of the complainant was established by the unchallenged oral and documentary evidence, there was no reason to disbelieve the case of the complainant. Such being the position, we find that the contention of the learned Counsel for the appellant that the order was passed ex parte and the appellant herein did not get opportunity to contest the same, cannot be accepted. There is no merit in this appeal and the same stands dismissed. There will be no order as to costs".

Hence, the present revision petition.

I have heard the learned counsel for the parties and have carefully gone through the record. Mr Kunal Chatterji, learned counsel for the petitioner has contended that the District Forum had passed an ex parte order and the ex parte order of the District Forum as also of the State Commission was bad in law. The complaint was not maintainable as the Fora failed to interpret the definition of ''Consumer'' as defined in section 2 (d) (ii) read with explanation thereunder, in the CP Act, 1986 which if applied in the present case clearly suggests that the present respondent was not a consumer and as such the consumer complaint was not maintainable. He contended that the respondent was a company which had availed the services of the petitioner in furtherance of the business and hence, it was for a commercial purpose.

Learned counsel for the respondent has however, stated that it is clear from the air way bill as also from the complaint that the material being sent was only samples and not of any commercial value. He further admitted that the packages and samples were being sent to their clients to expand their business.

It is clear from the complaint that these packages were sent to their clients but at different destinations abroad in furtherance of their commercial activity. As per the complainant non-delivery of the said samples had resulted in a loss of over Rs.10.00 lakh. It is also seen from the airway bills that these packages sent were no doubt samples but were "free trade samples and of no commercial value". From this it is evident that the samples were being sent pursuant to their trade activities i.e., to sell the tea to expand and promote their sale through their clients by sending trade samples to their clients. Though it is stated that they were of no commercial value the respondent has claimed the value of Rs.6.00 lakh for the same. Further, it would also appear from the reading of the complaint that the dispute is a commercial dispute as the consignment of tea samples were not forwarded by the petitioner company as outstanding bills were not paid by the respondents/ company.

Before adverting to the submissions made by the petitioner, it would be useful to have a look on Section 2 (d) (ii) of the Consumer Protection Act, 1986 which deals with the definition of ''consumer''. Section 2 (d) (ii) is reproduced as under:

(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 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 purposes .

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. "

Learned counsel for the respondent could not give any evidence in support of his contention that the transaction as also the contract with the petitioner company was not for commercial purpose.

The State Commission vide its order dated 13.02.2012 while recording the submissions had stated that the counsel appearing for the appellant submits that the complaint is not maintainable, in as much as there was contract of carriage and respondent herein is a company carrying on business for commercial purpose failed to give a speaking order on this point on law and has given a casual order stating that since the "learned District Forum observed that the case of the complainant was established by the unchallenged oral and documentary evidence, there was no reason to disbelieve the case of the complainant and dismissed the appeal".

In view of the foregoing discussion as the impugned order has been passed without jurisdiction, the revision petition is allowed and order of the State Commission is set aside as also the order of the District Forum and the complaint is dismissed.