BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
C.C.NO.22 OF 2007
Between
M/s Nicholas Piramal India Ltd.,
5-9-30, Road No.4, Basheerbagh
Palace Colony, Basheer Bagh,
Hyderabad-063, A.P. India
rep. by its (GPA Holder) Chief Manager
Commercial & Logistics, Sri Abhay Dongre
S/o late Digumber Rao Dongre
Aged about 52 years
Complainant
A N D
1. Alitalia Cargo
Cargo Satellite Building
Opp. Aircargo Complex, ahar
Mumbai-400 099
Ph.022-26828302
2. Alitalia Cargo
GSA: Ajanta Travels Pvt., Ltd.
108, Meridian Plaza, Ameerpet
Hyderabad-500 016
Ph.040-23411398
3. Jet Airways
6-3-1109/1, Raj Bhavan Road
(Nav Bharat Chambers)
Somajiguda, Hyderabad-500 082
Ph.040-23314903
4. Balmer Lawrie & Co., Ltd.,
( A Govt. of India Enterprises
Logistics Service Division,
301, Regency House, 680
Somajiguda, Hyderabad-082
Opposite parties
Counsel for the Complainant Sri S.S.Bhatt
Counsel for the opposite parties No.1 & 2 Mulla & Mulla & Craigie Blunt
& Caroe
Counsel for the opposite party no.4 Ms Shireen Sethna Baria
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER
&
SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER
WEDNESDAY THE EIGTH DAY OF SEPTEMBER
TWO THOUSAND TEN
Oral Order ( As per R.Lakshminarsimha Rao, Member)
***
1. The complaint is filed under section 17(A)(1) of the Consumer Protection Act against Alitalia Cargo and three others seeking direction to them to pay an amount of `one crore along with future interest @ 24% per annum besides the costs of the proceedings.
2. The averments of the complaint are that the complainant is a multinational company dealing in bulk drugs and pharmaceuticals in India and abroad. The turn over of the complainant company is about `2,500/- crores per annum. The complainant company generated two sets of pre-shipment documents such as invoice, packing list, certificate analysis etc., covering export of 200 kgs and 300 kgs of Ketoconazole USP worth of USD14,760 and 22,140/- and they were delivered to the opposite party no.2 for filing shipping bill for export through the opposite party no.4. On 21.1.2006 the consignment placed with the opposite party no.4 were acknowledged on behalf of the opposite parties no.1 and 2. The opposite party no.2 on behalf of the opposite party no.1 carried the cargo from Hyderabad to Mumbai for onward transportation to respective destinations. The opposite party no.4 collected commission at `500/- per shipment in addition to other handling charges including air freight at actuals to carry the cargo to airport of destination. The opposite parties had the knowledge of the value of the material in international market and the timely delivery of the material would fetch good dividends to the complainant company as also the impact on its prospective business in the case of failure to deliver the material.
3. The opposite party no.4 has intimated the complainant company of the delay in dispatch of the cargo as also reschedule for three times of the consignment. On 1.2.2006 the complainant company on phone requested the opposite party no.4 to airlift the material through another airlines preferably through British Airways. The fourth opposite party gave reply through mail on 2.2.2006 intimating the complainant company about the pilferage of the material, with a net weight of 225 kgs pertaining to 9 drums and expressed regret for the loss of the material. The complainant company through mail dated 3.2.2006 asked the fourth opposite party to bring back the balance material from Mumbai to Hyderabad after observing the due procedure and conducting survey to ascertain the actual loss of material.
4. The complainant company demanded the fourth opposite party on 6.2.2006 to secure a certificate for loss of material from the first opposite party in token of loss of material from authorities concerned at Mumbai Airport. The first opposite party has not heeded to the request of the complainant company and the opposite party no.4. The opposite party no.4 informed the complainant company on 15.2.2006 that they received a mail from the opposite party no.1 informing the opposite party no.2 that investigation for loss of cargo was under process and the procedure was time consuming. The first opposite party requested the complainant company to lodge a complaint with Sahar Police Station Mumbai in regard to the loss of material. The first opposite party offered to pay USD20 per kg for the pilfered material. The complainant had not accepted the offer which was a low offer. The Executive (Marketing) of the complainant company addressed a letter dated 9.3.2006 to the opposite party no.1 to send back the balance consignment to Hyderabad. There was no timely action from the side of the opposite parites no.1 and 4.
5. The complainant company lodged complaint on 12.4.2006 with the Inspector of Police, Sahar Police Station Mumbai. The complainant, to maintain good mercantile relationship with the consignee dispatched fresh material through Lufthansa Airlines and the material reached the consignee. The complainant company incurred huge expenditure and loss of material apart from mental tension and proposed for a gentlemen settlement quoting a sum of `20 lakh as compensation and damages from the opposite party no.1. There was no response from the side of the opposite party no.1. The opposite partyno.1 collected through the opposite partyno.4 a sum of `25,065/- from the complainant company towards sector charges to send the balance material back to Hyderabad. The complainant incurred further expenditure of `31,800/- towards demurrage charges and customs clearance imposed by the Air Cargo Authorities at Hyderabad airport and the opposite party no.4. The complainant company noticed that the pilfered goods was not 225 kgs but it was of 275 kgs. The opposite partyno.1 misled the complainant company and cheated it against the mercantile faith and practice. The complainant company got issued legal notice dated 30.9.2006 seeking an amount of `one crore towards damages, compensation, expenditure, advocate fee, mental agony, loss of goodwill, loss of business etc. The opposite parties refused to pay the loss sustained by the complainant company. Hence, the complaint is filed restricting the claim from `1.50 crores to `one crore.
6. The first opposite party resisted the claim contending that this Commission does not have jurisdiction to entertain the complaint on account of lack of territorial jurisdiction and in view of the complainant company not being a consumer within the meaning of the provisions of the C.P.Act. The complainant company has stated in para 16 of the complaint that the cause of action arose on 2.2.2006 when the opposite parties informed the complainant regarding pilferage of the chemical at Mumbai Air Cargo complex Sahar, Mumbai and in the 7th para it was stated that on 12.4.2006 the marketing executive of the complainant company visited Mumbai and lodged a complaint with the police, Sahar, Mumbai. In para 18 of the complaint it was stated that Jet Airways handed over the goods to Alitalia Cargo handling agents, M/s Combata Aviation. Hence, this Commission has no jurisdiction to entertain the complaint. The complainant is a company and a juristic person but not a natural person. Hence, the complaint filed by a juristic person is not maintainable. The complainant company is engaged in commercial activity for profit making on a large scale. The service availed of by the complainant company from the opposite parties was for commercial purpose. Therefore, the complaint is not maintainable.
7. Without prejudice to the objection on jurisdiction and maintainability, the opposite party no.1 submitted that without admitting lialbility it had extended no prejudice offer by its advocate’s letter dated 11.11.2006 to settle their claim in accordance with the provisions of the Carriage by Air Act 1972. In view of the offer, the complainant has no cause of action to invoke the provisions of C.P.Act. The complainant company declined the offer and it had chosen to litigate. The complainant issued letter dated 6.6.2006 for a claim of `20 lakhs only which was mentioned in para 9 of the Advocate’s letter dated 30.9.2006. The complainant company increased its claim five fold in the complaint which is fanciful, excessive and inflated.
8. The cargo was arrived at Mumbai’s Sahar Airport from Hyderabad on 21.1.2006 on the flight of the opposite party no.3 and thereafter it was transferred to Alitalia Cargo through Combata Aviation Pvt. Ltd. Therefore, Combata Aviation Pvt. Ltd., is a necessary party to the proceedings and as such the complaint is bad for non-joinder of necessary party. The complainant company by its own admission that it is a multinational company does not have the status of a consumer. The complainant company has not declared value for carriage. The opposite party no.1 has not carried the cargo from Hyderabad to Mumbai. The opposite party no.3, Jet Airways had carried the cargo from Hyderabad to Mumbai. The opposite party no.1 or its staff was involved in the transfer of the cargo from the opposite party no.3 through and by Combata Aviation Pvt. Ltd., at Mumbai. On 24.1.2006 it was noticed by Combata Aviation loading supervisor that the weight of the consignment was not correct and it was actually 174 kgs instead of 225 kgs. The actual weight of the consignment covered under AWB055 5258 1255 was 110 kgs instead of 338 kgs. In the consignment covered under AWB 055 5258 1244, two drums out of eight drums were found to be empty and in other consignment out of 12 drums seven drums were found to be empty. The opposite party no.1 is not aware of any instructions issued by the complainant to the oppostie party no.4 regarding the delivery of the cargo to the consignee.
9. Combato Aviation Pvt. Ltd., who received the cargo, lodged complaint with the Sahar Police Station regarding the pilferage of cargo besides the complaint lodged on 12.4.2006 by the representative of the complainant. Till the police completed investigation of the case, no certificate of loss of material could be issued to the complainant. The consignment could be sent back through Hyderabad only after the police and customs department completed their investigation and formalities into the case of pilferage of cargo. The police enquiry had not shown up the involvement of any staff/employee of the opposite party no.1 in the theft of the cargo. The cargo was reshipped to Hyderabad on 20.6.2006 after the police Sahar PS issued a certificate of loss. The total weight loss for both the consignments according to the letter dated 8.2.2006 issued by the opposite party no.4, the forwarding agent of the complainant company and addressed to Ajanta Travels Pvt Ltd., is 228 kgs plus 51 kgs = 279 kgs. There was no deficiency of service on the part of the opposite party no.1.
10. The opposite party no.4 has contended that the complaint company is not a consumer and the matter involves complicated question of fact which require detailed evidence which cannot be adduced in a summary enquiry. The matter relate to commercial transaction between commercial organizations and involve commercial gains and profits. The transaction between the complainant and the opposite party is a “carriage paid to” which is a part of internationally prevalent and accepted definition of international chamber of commerce, Paris – INCOTERMS 2000 meaning “ Title, risk and insurance cost pass to buyer when delivered to carried by the seller who pays the transportation cost to destination, used for any mode of transportation”. The complainant company having handed over the consignment to the opposite party no.3 has no locus standi to make any claim in the nature of loss or otherwise for the consignment. The opposite party no.4 has no liability to the pilferage of the cargo. The opposite party no.4 is a clearing and forwarding agent of the complainant for export and forwarding for about two years prior to the date of the complaint. There was no negligence or deficiency of service on the part of the opposite party.
11. Abhay Dongre, Chief Manager, Commercial and Logistics Department of the complainant company has filed his affidavit in support of their claim. Exs.A1 to A45 having been marked on the side of the complainant company. Giorgio Fedeli, the General Manager of the opposite party no.1 company and Usha Srinivasan, Deputy Manager, Logistics Services of the opposite party no.4 have filed their affidavits but no documents.
12. The points for consideration are;
i) Whether this Commission has territorial jurisdiction to entertain the complaint?
ii) Whether the complainant company is a consumer within the meaning of Section 2(i)(d) of the Consumer Protection Act/
iii) Whether the complainant company has locus standi to maintain the complaint?
iv) Whether the complaint is filed within the period of limitation?
v) Whether there was deficiency in service within the meaning of section 2(1)(g) of the Consumer Protection Act?
vi) To what relief?
13. POINT NO1: The opposite party no.1 raised preliminary objection as to the maintainability of the complaint on the premise of lack of territorial jurisdiction of this Commission. It referred to the paragraphs 16 and 18 of the plaint wherein it was stated that the cause of action for filing the complaint arose when the opposite parties informed the complaint company on 2nd February,2006 about the pilferage of the chemical at Mumbai, Air cargo Complex, Sahar, Mumbai and complaint in this regard was lodged with the Police, Sahar, Mumbai as stated in paragraph 7 of the plaint as also that the 3rd opposite party handed over the goods to the Handling Agent of the 1st opposite party, M/s Cambata Aviation.
14. In the 18th paragraph of the complaint it is stated that the complaint company manufactures chemical at Hyderabad and handed over the chemical to the opposite party no.3 through the opposite party no.4 at Hyderabad. The 18th paragraph of the plaint reads as follows:
“The complaint is situated within the jurisdiction of this honourable court. The complaint manufactured chemical within the jurisdiction of honourable court and handed over the same to Jet Airways, Hyderabad through M/s Balmer Lawrie, Hyderabad (Clearing &Forwarding Agent).Jet Airways handed over the goods to Alitalia, Mumbai. As the opposite parties are residing in Hyderabad is(sick this)Honorable Forum has got the territorial jurisdiction to try and dispose of this consumer case”.
15. The first part of the paragraph deals with the residence or location of the complainant to determine the territorial jurisdiction of this Commission. The territorial jurisdiction of a Tribunal or Court is determined by two parameters, where the opposite party or the opposite parties reside and part of or entire cause of action occurs. Thus, the residence or location of the complaint company cannot confer jurisdiction on this Commission to entertain the complaint.
16. The first and second opposite parties’ contention is that they do not have any branch office at Hyderabad. The chemical Ketoconazole and was consigned in packages under AWB 066 5298 1244/08 and AWB 055 5258 1255 from Hyderabad through the opposite party no.3 to Mumbai. The first opposite party sent mail to the opposite party no.4 that two drums pertaining to AWB 059 5258 1244 were received empty, with the package weighing 174 kgs against the reported weight of 225 kgs while the package in respect of AWB 055 5258 1255 weighed 110 kgs against the reported weight of 338 kgs with 7 empty drums i.e., without chemical. In reply, the fourth opposite party through email dated 2.2.2006 requested M/s Ajantha Travels Pvt. Ltd., Hyderabad to treat the message as their provisional claim “for the missing contents weighing total net weight 225 kgs pertaining to both the consignments of total value is USD 16605.00 (USD 73.80X225kgs =USD16605.00) as advised by the shipper. By the email, Ex.A18 it becomes clear that the fourth opposite party is neither branch office nor agent of the opposite parties no.1 and 2 and that the addressee of the email which is described as “ M/s Ajantha Travels Pvt. Ltd., USA: Alitalia Meridian Plaza, Ameerpet Hyderabad-500 016” is the agent of the opposite party no.1.
17. Section 17 of the Consumer Protection Act confers territorial jurisdiction on the State Commission within the limits of whose jurisdiction the opposite parties or any of the opposite parties in case of more than one opposite party, resides and carries on its business. The first opposite party has been carrying on its business through its agent M/s Ajantha Travels Pvt. Ltd. The opposite party no.4 has been carrying its business at Hyderabad. The packages were consigned through the 3rd opposite party in Hyderabad and the first opposite party complained of loss of weight of the consignment by the time packages reached Mumbai indicating missing of the two drums plus seven drums equal to nine drums somewhere in Hyderabad. This Commission, thus has the territorial jurisdiction to entertain the complaint. The point is answered in favour of the complainant.
18. POINT NO.2 The first opposite party has raised objection in regard to the jurisdiction i.e., jurisdiction as to the subject matter contending that the consignment in question is intended for and involved commercial purpose. The first opposite party draws support for its plea from 2nd paragraph of the complaint which reads as under:
“ The respondents know that the material dealt with, is highly valuable in the international market and the timely delivery would fetch good dividends to the complainant and failure to give delivery of which would also have an impact of its prospective business”
19. The complainant company, engaged in business of bulk drugs and pharmaceuticals in India and abroad as well. The drug ketocerazole consigned on 21.01.2006 by the complainant company is intended to generate profits to the complainant whose turn over, according to the complainant in the first paragraph of the complaint is about 2,500 crores per annum. The first paragraph of the complaint is reproduced below:
It is respectfully submitted that the complainant is a multinational company who is dealing in Bulk Drugs & Pharmaceuticals both in India and abroad since 20 years. The complainant has got its Registered Head Office at Mumbai, India. The turnover of the company is about `2500/- crores per annum. While so, M/s Lab Globo Ltd., Brasil & M/s Pharma Science, Brasil has placed an Indent for supply of 200 Kgs. & 300 Kgs. of Ketoconazole USP @ USD 73.80/- per Kg totaling to USD 14,760/- & USD 22,140/-. The above said Indents were secured by my client through a commission agent M/s RBZ Marketing – Brasil to whom my client has to pay 3% commission on Free on Board (FOB) value of goods.
20. The complainant company availed the service of the opposite parties for commercial purpose and as such it will not be a consumer within the meaning of Sec.2(1)(d) of C.P. Act. Sec. 2(1)(d) of the said Act reads as under:
(d) "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 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;
21. The complainant company having availed of the service of the opposite parties for commercial purpose as aforementioned is not a consumer and consequently the complaint is not maintainable. The point is answered against the complainant company.
22. POINTS NO.3 To5 In view of the finding that the complaint is not maintainable these points as corollary would not require any more discussion.
23. POINT NO.6: In the result, the complaint is dismissed. In the circumstances of the case there shall be no order as to costs.
MEMBER
MEMBER
Dt.08.09.2010
KMK*
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
NIL
EXHIBITS MARKED
For the complainant
Ex.A1 Copy of shipping indent dt.4.1.2006
Ex.A2 Copy of invoice dt. 18.1.2006
Ex.A3 Copy of packing list dt.18.1.2006
Ex.A4 Copy of Airway bill dt. 18.1.2006
Ex.A5 Copy of shipping bill dt.20.1.2006
Ex.A6 Copy of Air Export Supplementary bill dt.28.8.2006
Ex.A7 Copy of Shipping indent order dt.10.1.2006
Ex.A8 Copy of invoice dt.18.1.2006
Ex.A9 Copy of packing list dt.18.1.2006
Ex.A10 Copy of airway bill given by Alitalia dt.18.1.2006
Ex.A11 Copy of shipping bill dt.20.1.2006
Ex.A12 Copy of air Export Supplementary bill dt.28.8.2006
Ex.A13 Cheque issued by NIPIL
Ex.A14 email message dt.25.1.2006
Ex.A15 email message received by NIPL dt.1.2.2006
Ex.A16 email message from Brazil dt.2.2.2006
Ex.A17 email message from Balmer Lawrie dt.2.2.2006
Ex.A18 Copy of letter dt.2.2.2006
Ex.A19 email message dt.4.2.2006
Ex.A20 email message dt.20.3.2006
Ex.A21 copy of letter dt.15.2.2006
Ex.A22 Copy of travel expenses statement
Ex.A23 Copy of letter dt.9.3.2006
Ex.A24 Copy of complaint dt.12.4.2006 given to Sahar P.S.Mumbai
Ex.A25 Copy of travel expenses statement dt.12.4.2006
Ex.A26 Copy of invoice shipping bill dt.6.2.2006
Ex.A27 Copy of invoice shipping bill dt. 6.2.2006
Ex.A28 Copy of Air Export service bill dt.8.2.2006
Ex.A29 Copy of Air Export bill dt.8.2.2006
Ex.A30 Copy of letter dt.6.6.2006
Ex.A31 Copy of letter dt.30.6.2006
Ex.A32 Copy of letter dt.14.7.2006
Ex.A33 Copy of letter dt. 14.7.2006
Ex.A34 Copy of letter dt.23.6.2006
Ex.A35 Copy of certificate given police dt.20.6.2006
Ex.A36 Copy of delivery challan dt.25.8.2006
Ex.A37 Copy of acknowledgement dt.25.8.2006
Ex.A38 Copy of cancellation endorsement dt.25.8.2006
Ex.A39 Copy of cancellation endorsement dt.25.8.2006
Ex.A40 Copy of legal notice dt.30.9.2006
Ex.A41 Copy of three postal acknowledgements
Ex.A42 Copy of reply notice dt.11.10.2006
Ex.A43 Copy of reply notice dt.18.10.2006
Ex.A44 Copy of reply notice dt.1.11.2006
Ex.A45 Copy of reply notice dt.11.11.2006
Ex.A46 Copy of endorsement of Khairatabad post office dt.18.11.2006
Ex.A47 Copy of GPA
Ex.A48 Copy of balance Sheet.
For opposite parties
NIL
MEMBER
MEMBER
