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Judgment
Dinesh Singh, J
Heard learned counsel for the revision petitioner - partnership firm. Perused the material on record.
The case of the complainant, in brief, as stated in para 1 of the District Forum's Order dated 11.01.2018, is as below:
The complainant is a partnership firm involved in the business of inter-alia, export of sea-food to various destinations which is the only source of livelihood for its partners. On 01.11.2016 the complainant had booked for air shipment of a consignment of live lobster weighing 279 kgs from Cochin to Hong Kong via Kuala Lumpur. The consignment was to be air lifted from Cochin on 01.01.2016 to Kuala Lumpur and from there to Hong Kong on 02.11.2016. The value of the consignment was INR 4,08,202/-. After clearance of Indian customs the consignment was airlifted on 01.11.2016. But the consignment which was highly perishable was not airlifted to Hong Kong on 02.11.2016 and therefore the live lobsters were perished causing a loss of Rs. 5,57,741/- to the complainant. The complainant therefore seeks a direction to the opposite party to reimburse the value of the consignment which works out to Rs. 5,60,000/- and also to pay compensation of Rs. 10,00,000/- and costs.
(para 1 of the District Forum's Order)
(as per the translated copy furnished by the revision petitioner)
[The (correct) date of booking of consignment flowing from succeeding paras of the District Forum's Order is 01.11.2016. Evidently, therefore, 01.01.2016 in para 1 quoted above is a typographical error.]
The District Forum vide its Order dated 11.01.2018 dismissed the complaint, holding that the complainant firm was not a 'consumer' under the Act 1986:
The documents produced by the complainant would support the case of the complainant that the complainant had sent a consignment through the opposite party to Hong Kong with a halt at Kuala Lumpur for shipment in a different flight. However, due to the failure of the Air Asia Cargo System from 5 a.m. the cargo team had difficulty in locating the shipment manually on time, and therefore the consignment could not be airlifted from Kualal Lumpur to Hong Kong on 02.11.2016. The complainant raised a claim on 08.11.2016 against the opposite parties and as per Exbt. A8 demanded compensation therefore.
As the opposite party did not appear to contest the matter the learned counsel for the complainant pressed for an order allowing the complaint in the absence of any challenge. Ongoing through the documents marked in evidence, it is clear that the complainant had based a claim on a commercial transaction and, to us, it appear that the complainant will not come within the purview of a consumer as defined u/s 2(1)(d) of the Consumer Protection Act. The learned counsel for the complainant brought to our notice that the decision reported in 2009 KHC 4189 State Commission. Would support the case of the complainant in as much as the inclusive definition of person U/s 2(1)(m) calls for an extensive and enlarged meaning and therefore a company is also to be treated as a person.
In this case, leaving apart the question as to whether the complainant would be a person or not, it is very clear that the complainant is not a 'consumer' within the definition of Section 2(1)(d)(i) of the Consumer Protection Act 1986. Since the air shipment was in connection with a commercial transaction the complainant cannot raise a consumer dispute through the complaint. It is true that the complainant had made an averment that the income derived from the export business is used for the livelihood of partners of the complainant firm. There is evidence to substantiate such a contention raised in the complaint. There is nothing in evidence to show that the only income of the partners of the complainant firm is from this partnership business and that they have no other means for their livelihood. Therefore we find that the subject matter of the complaint is commercial in nature and the complainant failed to establish their case that the partnership business was the only means of their livelihood. Therefore the complaint is liable to be dismissed and is accordingly dismissed.
(paras 3, 4 and 5 of the District Forum's Order)
(as per the translated copy furnished by the revision petitioner)
(emphasis supplied)
The State Commission vide its Order dated 06.04.2018 dismissed the appeal in limine:
JUDGMENT
Complainant in CC.145/17 on the file of CDRF, Ernakulam has filed this appeal, challenging the order of the Forum dismissing its complaint is not maintainable.
Complainant is a partnership firm and the Forum below held that it is a case of eking out its livelihood by self-employment cannot be accepted. Complainant was therefore held not to be a consumer under section 2(1)(d) of the Consumer Protection Act, and complaint was dismissed.
We heard the counsel for appellant to consider whether the appeal involves any question for consideration by this Commission after being admitted. Explanation provided under section 2(1)(d) of the Consumer Protection Act enabling the person eking out his livelihood by self-employment to have the status of consumer under the Act cannot be canvassed by a company or partnership firm which has a distinct identity from persons who constitute them. Though company and firm are treated as 'person' for the purpose of suing or be sued, that would enable them to claim the benefit of the explanation referred to above.
We do not find any impropriety or illegality in the Order of the Forum, holding that the complaint is not maintainable. Appeal is dismissed as not admitted.
(extract of the State Commission's Order)
(emphasis supplied)
This revision has been filed under section 21(b) of the Act 1986 against the said Order dated 06.04.2018 of the State Commission. The delay of 17 days in filing this revision petition was overlooked.
This bench finds the Order of the State Commission to be well-appraised and well-reasoned. The State Commission concurred with the findings of the District Forum, that the complaint was not maintainable (as the complainant firm was not a 'consumer' under the Act 1986). This bench notes in particular the extracts of the respective appraisals / observations made by the two fora, quoted, verbatim, in paras 3 and 4 above.
This bench would want to refer to section 2(1)(d)(i) & (ii) and section 3 of the Act 1986.
Section 2(1)(d)(i) & (ii):
Consumer means any person who, -
(i) buys any goods 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 user of such goods other than the person who buys such goods for 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, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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 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.
Section 3 :
Act not in derogation of any other law.-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
The Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes.
Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. That is, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force; the provisions of the Act give the consumers an additional remedy besides those that may be available under other existing laws.
Section 2(1)(d)(i) & (ii) specifically stipulates "but does not include a person who obtain such goods for resale or for any commercial purpose" and "but does not include a person who avails of such services for any commercial purpose".
The Explanation to section 2(1)(d) stipulates that " "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."
"exclusively for the purposes of earning his livelihood by means of self - employment" in the Explanation to section 2(1)(d) has to be adjudged rationally and logically with the due understanding and significance of "exclusively" and "livelihood" and "self-employment." Reasonable and logical interpretation does not imply an approach of anyhow allowing any complainant into the meaning of 'consumer' under the Act 1986.
The Explanation to section 2(1)(d) is clear. "exclusively for earning his livelihood by means of self-employment" has to be read with the due understanding and significance of "exclusively" and "earning his livelihood" and "by means of self-employment". Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothised towards anyhow allowing anyone in.
This bench notes that the dispute is between a partnership firm and an airlines co. in connection with a commercial transaction. The dispute relates to (claimed) losses incurred by the partnership firm due to (alleged) delay in delivery of goods of perishable nature booked through the airlines co. The partnership firm has made an averment that it "is a partnership firm involved in business - - - which is the only source of livelihood for its partners". The complainant firm, M/s Coast Line Fisheries, is a partnership firm, an export house involved in the business of export of sea food to "various destinations". Mere averment, in the language of the Explanation to section 2(1)(d), is no ground for holding it as 'consumer'. The transaction between the partnership firm and the airlines co. was for "commercial purpose", explicitly excluded in the Act 1986. Treating this complainant firm as a 'consumer' within the meaning of section 2(1)(d), on such mere averment in the language of the Explanation to section 2(1)(d), would, ex facie, be erroneous.
This bench finds that the State Commission in its impugned Order dated 06.04.2018 has rightly determined that the complainant is not a 'consumer' within the meaning of section 2(1)(d) of the Act 1986. This bench finds no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
This bench also makes it clear, in the present context, that section 2(1)(d) (meaning of 'consumer') and section 3 (additional remedy to consumers) have to be understood in conjunction and perspective. It has to be noted that denial to avail additional remedy in consumer protection fora to a person who is not a 'consumer' does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. (Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a 'consumer' to agitate his case in any other appropriate forum / court.)
This bench but explicitly clarifies that it has not gone into the merits of the dispute between the opposing sides. The complainant firm is, thus, free to agitate its case in any appropriate forum / court as per the law (but consumer protection fora are not for it).
The revision petition, being misconceived and devoid of merit, is dismissed.
A copy of this Order be sent to the respondent - airlines co. (Air Asia) by the Registry within ten days.