1.                 This is an appeal against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 5.2.2009 passed in complaint case No.763 of 2008 : Post Graduate Institute of Medical Education & Research (PGIMER) Vs. M/s Airport Handling Services and others.

2.                     Briefly stated the case of the complainant is that it entered into an agreement dated 26.8.2005 (C-1) with OP No.1 vide which OP No.1 was appointed as complainant’s clearing agent at Indira Gandhi International Airport, New Delhi (IGI Airport) for getting cleared the consignments of the complainant from the Airport Authority of India at IGI Airport and dispatch them through the goods transport to complainant at Chandigarh. A maximum period of five clear working days was to be allowed for clearance of the consignment and the bills of entry & challan etc. were also to be sent for depositing of custom duty/additional custom duty to the complainant.  It was averred by the complainant that it also entered into an agreement dated 28.3.2006 for supply, installation and maintenance of two numbers Grossing Stations (Model: Gross Lab Senior) with OP No.2. It was next averred that OP No.2 had authorized OP No.3 to bid, negotiate and conclude the contract of Grossing Stations with the complainant, which were required in the Deptt. of Histopathology, PGIMER.  In terms of the agreement dated 28.3.2006 (C-3), the complainant vide its letter of credit (C-4) requested OP No.2 to arrange for the dispatch of the consignment and furnish the particulars as per details.  As per the complainant, vide supply order dated 6.3.2006 (C-6), two grossing stations/consignment were sent by OP No.2, which landed at IGI Airport on 3.6.2006, which was subsequently informed to the complainant by OP No.3 vide letter dated 9.6.2006 (C-7). It was the case of the complainant that as per Histopathology Department, one part of the item at Sr.No.9 was not as per the supply order and this fact was also informed to OP No.3 and a clarification was also sought vide letter dated 15.6.2006 (C-8). As per the complainant, OP No.3 replied vide its letter dated 16.6.2006 (C-9) stating that the tape recorder for standard cassette mentioned in the order had been discontinued and therefore, OP No.2 had supplied a better version available due to which the item code number in the invoice had been changed to C-1003446. The case of the complainant is that when it requested OPs to get the consignment released from the customs, OPs No.2 and 3 failed to give a prior intimation and send the sale invoice to the complainant seven days in advance before dispatching the consignment, which was intimated to the complainant along with sale invoice only after about a week of its landing at the IGI Airport on 3.6.2006.  Further the case of the complainant is that it was obligatory on the part of OP NO.2 or its agent i.e. OP NO.3 to informe the complainant about any change of the consolidator and the consignment was to be sent through the authorized consolidator i.e. M/s. MMI Logistics Inc. but the same had been shipped through M/s Bax Global (I) Pvt. Ltd. Further the case of the complainant is that the consolidator was also not intimated to the complainant either by OP No.2 or OP No.3 and this was done by them at their own level unilaterally in complete violation of the terms of the agreement dated 28.3.2006.  It was next averred that even after submitting Bank Release Order (BRO) by the complainant vide letter dated 29.6.2006 (C-12) as demanded by OP No.1 for the release of  consignment, it failed to get the consignment released as a result, the installation of Grossing Station in the Deptt. of Histopathology was getting unduly delayed.  Further, on the asking of OP No.1, the complainant immediately asked its bankers i.e. P.N.B. to transfer the requisite amount to Customs Account vide ( C-15) on account of custom duty but despite this, OP No.1 did not get the consignment released from concerned authorities at IGI Airport resulting in heavy demurrage charges to the complainant.  Ultimately, the complainant appointed a new clearing agent i.e. M/s Krishan Kumar Sharma w.e.f. 26.8.2006 and OP No.1 was asked to handover all the documents concerning the consignment to M/s Krishan Kumar Sharma vide letter dated 14.9.06 (C-16), which was done by OP No.1 vide its letter dated 20.9.2006 (C-17) but by that time, the consignment had became more than three months old. Lastly, as per the complainant, the consignment was sent for auction to the disposal section from the warehouse by the concerned authorities at IGI Airport. The allegation of the complainant is that OP NO.1 did not act swiftly and ultimately, the consignment was released only on payment of demurrage and other charges amounting to Rs.8,42,560/- by the complainant as per receipt dated 30.9.2006 (C-19). It was averred that   the complainant also paid a sum of Rs.20,524/- to M/s. Krishan Kumar Sharma for transportation and loading/unloading charges vide bill dated 12.1.2007. The complainant then asked the OP No.1 to make good the loss but it took the plea that it was not responsible for any delay or loss. Lastly, the complainant sent a legal notice to OP No.1, which was also not replied to. Alleging deficiency in service on the part of OP No.1, the complainant had filed the present complaint.       

3.                     OP No.1 in its written statement firstly took preliminary objections relating to product being ordered for purely commercial purpose and the Fora not having the territorial jurisdiction to try the complaint. It was pleaded that when the complainant itself was not aware of the landing of the machine at IGI Airport on 3.6.2006, they could not have completed the documents which were required for clearance of the consignment within 5 clear working days.  OPNo.1 further asserted that a pre-alert notice was already sent by it to the complainant well in time and the delay in submitting the necessary documents as required under clause 5 of the agreement by the PGI was primarily because of the fact that the complainant was not satisfied with the machine and it was also not interested in getting the same released and getting the documents completed.   It was further asserted that immediately on coming to know that the willingness of the complainant had to get the consignment released, OP No.1 informed the complainant to send the Bank Release Order but the complainant sent a wrong BRO on 29.6.2006 due to which no further action could be taken by OP No.1. The case of OP No.1 is that in the absence of correct bank release order, neither the dispatch order could be collected nor any examination of the machine could take place. As per this OP, firstly the custom duty was to be paid and only then the PD Account could be debited.  It was pleaded that the PD account was paid after two months of landing of the machine in question.  The stand of OP No.1 is that the delay in getting the clearance occurred primarily because of the fact that there was a dispute between the complainant and the vendors of the machine regarding the quality/model of the machine in question and secondly the correct bank release order for the first time was sent to OP No.1 only on 14.7.2006 by which time, the same had already been sent to the warehouse from where, it could not be released without the payment of demurrage charges. Pleading no deficiency in service on its part, OP No.1 prayed for dismissal of the complaint.

4.                     The version of OPs No.2 and 3 is that Part No.C-1003446 instead of Part No.109473 was supplied to the complainant for the reasons duly informed to the complainant vide letter C-9. It was pleaded by these OPs that the substituted part was better & advanced version/quality. It was asserted by these OPs that they were never been informed or communicated about any contract entered into between the complainant and OP No.1.  It was asserted that the complainant had already recovered a total sum of Rs.1,34,682/- from the OPs No.2 and 3 towards its proportionate share in the alleged losses suffered by it. It was pleaded by OPs No.2 and 3 that there was no delay on their part in getting the equipment installed and its commissioning on 20.10.2006 to the satisfaction of the complainant. Pleading no deficiency in service on their part, these OPs also prayed for dismissal of the complaint.

5.                     The learned District Forum, after hearing the contentions of both the sides, recorded in the impugned order that the delay had occurred because of the fault of complainant as a wrong bank release order was sent by it.  It further held that the custom duty was to be paid in the first instance and only then the PD Account could be debited but the same was paid after two months of landing of the machine in question.  As per the learned District Forum, since the warehouse charges were huge, the PGI authorities wanted other consignment released, which were of the lesser amount and the consignment in question could not be released because of shortage of funds with complainant.  The learned District Forum after going through the statement of account placed on record by OP No.1 as Annexure OP-1/1 was of the clear view that the complainant was not having sufficient funds in its account maintained with Punjab National Bank, Delhi to cover/pay the demurrage charges of Rs.8,42,560/- for the consignment in question to be released. The learned District then recorded that the fact regarding the complainant already having recovered a total sum of Rs.1,34,682/- from OPs No.2 and 3 towards proportionate share in the alleged loss suffered by them and that without loosing any time, they installed & commissioned the equipment on 20.10.2006 to the satisfaction of the complainant, gets proved from Annexure C-27, which is a letter bearing Reference nO.TW/TS/2007-08/948, dated 10.12.2007.

6.                     As regards the maintainability of the complainant, the learned District Forum recorded that the transaction in question between the parties was purely commercial in nature and as per the provisions of Section 2(1)(d)(ii) & 2(1)((o) of the Consumer Protection Act, 1986, the complainant could not be held to be a “consumer” qua OPs. As regards the territorial jurisdiction to try and entertain the complaint, the learned District Forum did not agree with this objection of learned counsel for OP No.1 as Section 3 of the Consumer Protection Act, 1986 clearly provides remedy in addition to and not in derogation of the provisions of any other law for the time being in force.  The learned District Forum held that Clause 18 of Annexure C-1 also clearly stipulates the point of jurisdiction and thus this objection of OPs was rejected by the learned District Forum. In view of its above discussion, finding no merit in the complaint, the learned District Forum dismissed the same with no order as to costs.

7.                     Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal. The appeal having been taken on board, notice were sent to the OPs and record of complaint case was summoned from the District Forum concerned. Sh.Pankaj Mulwani, Advocate appeared on behalf of the appellant/complainant whereas Sh. S. N. Malik, Advocate appeared on behalf of OPs No.2 and 3. Initially, Sh. Rakesh Gupta, Advocate had appeared on behalf of OP No.1 but on the date of final hearing i.e. on 22.2.2010, none appeared on behalf of OP No.1.

8.                     Sh. Pankaj Mulwani, Advocate leaned counsel for the appellant submitted that the learned District Forum had dismissed the complaint primarily on two counts. Firstly, due to lack of territorial jurisdiction and secondly, holding that the purchase was for a commercial purpose and hence, the complainant was not a consumer. In this context, he first referred to Page No.58 of the paper book, which is the final page of the agreement between the parties and in this, at Para 18, he pointed out that it is clearly mentioned that territorial jurisdiction of any dispute between the parties will lye with the Courts at Chandigarh. He therefore submitted that the learned District Forum had erred in this context. He further submitted that PGI, complainant is a government hospital and institute serving the general public and it is not a commercial organization and he emphatically submitted that this is not a profit generating or profit earning outfit and emphatically reiterated that the complainant could not be non suited on the plea that it was a commercial concern and the machine was purchased for a commercial purpose. On merits, he submitted that the consignment, which had landed at the Airport on 3.6.2006 was eventually got released only on 30.9.2006 and all this delay occurred due to deficiency in service on the part of OP No.1 who did not get the consignment released in spite of the agreement to get the same done within a period of five days. Consequently, the complainant was burdened with payment of demurrage charges amounting to Rs.8,42,560/-.

9.                     Sh. S. N. Malik, Advocate learned counsel for OPs No.2 and 3 admitted that due information of dispatch could not be given to the complainant seven days in advance and this information was only given to the complainant six days after the dispatch of the consignment and thus, OPs No.2 and 3 were responsible for only 14 days delay in the release of the consignment and towards this end, a sum of Rs.1,34,000/- had been paid by the OPs to the complainant. The learned counsel further submitted that even though this amount was more than the proportionate share of loss suffered by the complainant to be paid by OPs No.2 and 3, OPs as a good will gesture paid this amount. The learned counsel further submitted that the consignment had been dispatched on 2.6.2006 and it arrived in Delhi on 3.6.2006 but thereafter between OP No.1 and the complainant, there was a delay of four months to get the consignment released and after the release of the consignment, OPs No.2 and 3 were informed of the arrival of the consignment in PGI only on 16.10.2006 and the same was duly installed on 20.10.2006. The learned counsel in the end submitted that OPs No.2 and 3 had also paid Rs.12,000/- as late delivery charges to the PGI and had further paid all other penalties imposed by the PGI. He emphatically submitted that OPs No.2 and 3 could not be fastened with any further liability for the deficiency in service, if any, on the part of OP No.1 or any delay on the part of the complainant in getting the consignment released.

10.                   We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties. The main issues that need to be gone into are as under: -

(a)   Was the complaint maintainable before the District Forum, U.T., Chandigarh as well as before the Consumer Fora?

(b)  If the complaint is maintainable, then, is there any deficiency in service on the part of OPs with regard to the late release of consignment in question from IGI Airport, New Delhi?

11.                   Coming to the first issue with regard to the maintainability  of the complaint, the learned counsel for the complainant has very clearly brought out that as per Para No.18 of the agreement, the Courts at Chandigarh have the jurisdiction to go into all disputes between the parties and therefore, it is quite evident that District Forum, U.T., Chandigarh had the territorial jurisdiction to entertain the complaint. As regards the maintainability of the complaint before the Consumer Fora, only a commercial organization, which is involved in generating profit by sale and purchase of good in question is excluded from the ambit of the Consumer Protection Act, 1986. In this case, admittedly, the PGI is a government institution, which is non commercial organization and is also a non profit generating institute and the machine in question was purchased for the use and treatment of general public and not for generating profit, thus, we are of the clear view that the learned District Forum erred in coming to the conclusion that the transaction in question was purely commercial in nature and therefore, the complainant was not a consumer. In view of the foregoing discussion, we hold that the complainant is a consumer qua OPs and that thus, the complaint was maintainable before the Consumer Fora and furthermore, the District Forum, U.T., Chandigarh had the territorial jurisdiction to deal with the complaint case.

12.                   Now coming to the second issue with regard to deficiency in service on the part of OPs, it has been admitted by OPs No.2 and 3 that they failed to intimate the dispatch of the consignment seven days in advance as stipulated in the agreement and there was a further delay in giving this intimation of six days from the date of consignment landing at the IGI Airport. It is also the case of OPs No.2 and 3 that they have already made good the loss occurring to the complainant due to this delay on their part and furthermore, they have paid all other penalties demanded by the PGI complainant for late delivery of consignment etc. There is also no further allegation against OPs No.2 and 3 by the complainant with regard to the delay in clearance of the consignment. The main allegation with regard to the delay in release of the consignment is qua OP No.1 It is the case of the complainant that this OP who had agreed to get the consignment cleared within a period of five days from the date of its landing at Airport, had failed to discharge its duties, thereby the complainant had to pay a huge amount of Rs.8,42,560/- demurrage for the delay in clearing the consignment, which was more than three months and further it had to hire the services of M/s Krishan Kumar Sharma for getting the consignment released, which also resulted in the complainant having to pay another sum of Rs.20,524/- to M/s Krishan Kumar Sharma for transportation of loading/unloading charges. The learned District Forum even though had held that the complainant was not a consumer and thus, the complaint was not maintainable before the Consumer Fora had yet gone into the merits of the case with regard to the delay in the release of the consignment. It has been recorded by the learned District Forum that for the release of the consignment, first the custom duty had to be paid and only then the P.D. Account could be debited but the complainant paid the custom duty only after two months of the landing of the machine in question. It has also been recorded by the learned District Forum that since the warehouse charges were huge, PGI authorities wanted other consignments released, which were of lesser amount and the consignment in question could not be got released because of shortage of funds with the complainant. Having perused Annexure OP-1/1, the learned District Forum held the clear view that the complainant was having insufficient funds in its account maintained by PNB, Delhi to cover/pay the demurrage charges of Rs.8,42,560/-. Thus, the learned District Forum held the view that the delay in the release of the consignment could not be attributed to any deficiency on the part of OP No.1. It also held the view that OPs No.2 and 3 had adequately compensated the complainant for the delay in the release of the consignment to the extent of their lapse in not giving advance intimation of the dispatch of the consignment and subsequent delay of six days in giving the intimation after arrival of the consignment at New Delhi. The learned counsel for the Appellant in his argument has not addressed this issue with regard to the inability of the PGI (complainant) to clear the custom duties as pointed out by the learned District Forum. No reference has been made to any evidence on record vide which the complainant could prove that it had discharged its duty towards the completion of formalities required for the release of the consignment to OP No.1 by the Airport Authorities. It is specific pleading of OP No.1 that it had given the due pre-alert notice to the complainant for giving it the necessary documents as required under Clause 5 of the agreement but because the complainant was not satisfied with the machine that had been dispatched and was therefore, not interested in getting the same released, it had intentionally did not get the required documents completed. Even thereafter when the complainant decided to get the consignment released, it was informed by OP No.1 to send the Bank Release Order (BRO) but the complainant sent a wrong BRO on 29.6.2006 due to which no further action could be taken. It has been categorically stated by OP No.1 that the P.D. Account was paid only after two months of the landing of the machine in question and thus, all the delay was caused due to the fault of the complainant or OPs No.2 and 3 and there was no deficiency in service on its part. A perusal of the entire record indicates that the complainant has not been able to effectively deny the charges leveled against it by OP No.1 with regard to non provision of required documents for the release of the consignment, hence, we are in consonance with the view held by the learned District Forum that the complainant has failed to prove any deficiency in service on the part of OP No.1 and since OPs No.2 and 3 have already discharged their liability towards the loss incurred by the complainant due to their admitted deficiency in service, no further direction to these OPs was required to be given.

13.                   In view of the foregoing discussion, we are of the considered view that the complainant has failed to prove any deficiency in service on the part of OPs and thus, the complaint filed by the appellant is devoid of merit. Resultantly, the appeal is dismissed as it lacks substance and the impugned order is upheld.

14.           Copies of this order be sent to the parties free of charge.

Pronounced.

12^th March 2010.