PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief present dispute is as under –
That the First Complainants are a Limited Company doing business and Second Complainants are a Limited Company incorporated under the Companies Act, 1956 doing business of General Insurance. The Opposite Party is engaged in the business of Carriage of Goods by Road for hire, rewards and consideration.
2) It is submitted that first Complainants had on or about 30/08/2006 hired the services of Opposite Party for carriage and safe delivery Ex:Kundli(HR) To Dronagiri and entrusted into their charge, care and custody Export Consignment of 1113 card board boxes containing Stainless Steel Utensils. The aforesaid Export Consignment was dispatched by the First Complainants from their factory at Kundli, Haryana, for delivery/export to M/s. Union Bank of California, U.S.A. via Mumbai Port. The said consignment was accepted by Opposite Party from the First Complainants on ‘Door Delivery’ basis and booked the same under their Lorry Receipt Nos.184966 & 184967 both dtd.30/08/06. The Complainant has produced copies of aforesaid two Invoices dtd.30/08/06 at Exh.A1 & A2 to the complaint. The Complainant has also produced copies of Lorry Receipt at Exh.B1 & B2 to the complaint.
3) It is alleged by the Complainant that Opposite Party failed and neglected to deliver the aforesaid consignment to the Consignee at the destination. The Opposite Party confirmed non delivery to the aforesaid consignment vide their letter dtd.01/09/06 addressed to the First Complainants. Copy of the said letter is produced at Exh.‘C’ to the complaint. The Opposite Party acknowledged the non delivery of the aforesaid Export Consignment but failed and neglected to settle the claim of the First Complainants.
4) It is contended that thereafter First Complainants lodged their monitory claim with the Opposite Party vide their letter dtd.02/09/06 as required under Sec.10 of the Carriers Act, 1865. Copy of the said letter is produced at Exh.‘D’. The Opposite Party has acknowledged non delivery of the aforesaid Export Consignment but failed and neglected to settle the claim of the First Complainants.
5) The First Complainants had taken Insurance Policy No.132411-0003-374-05 from the Second Complainants to cover the risk of aforesaid consignment. The Second Complainants have settled the claim of the First Complainants after scrutinizing the claim on the strength of documents. The First Complainants have executed letter of Subrogation & Special Power of Attorney for Rs.6,77,783/- in favour of the Second Complainants. Copy of said letter is produced at Exh.‘E’. The Second Complainants are subrogated to the rights and remedies of the First Complainants in respect of the said loss. The First Complainants are ‘Consumers’ under Consumer Protection Act, 1986 and upon settlement of the claim and based upon the Letter of Subrogation & Special Power of Attorney, the Second Complainants are entitled to be indemnified by the Opposite Party the sum of Rs.6,77,783/-, and as such Second Complainants are ‘Consumers’ alongwith the First Complainants.
6) It is averred that loss of the consignment was caused due to failure on the part of Opposite Party in not exercising due care, caution and diligence. An absolute obligation imposed upon the Opposite Party in their position as common carriers exercising public employment, not only by virtue of statue, but also under the Common Law. The Opposite Party is also liable for deficiency of service therefore, the Complainants have filed this complaint. It is contented that cause of action in this complaint arose on/or about 30/08/06. The Complainants have prayed to direct Opposite Party to pay to the Second Complainants sum of Rs.6,77,783/- and Rs.30,000/- towards cost of this complaint. The Complainants have prayed interest @ 18 % p.a. from the date of loss till realization of entire amount to the Complainants.
7) Alongwith complaint, the Complainant has filed documents as per list of document and affidavit of Claim Manager of the Second Complainants in support of complaint.
8) The Opposite Party has field written statement and thereby resisted claim of the Complainants contending that the claim based under subrogation, is not amenable to the jurisdiction of the Consumer Forum. In support of their contention, they had relied on decision of Hon’ble Supreme Court in Supreme Court in Oberoi Forwarding Agency V/s New India Assurance 2000 II-S.C.C.407.
9) According to the Opposite Party, the Complainants are not ‘Consumers’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. The First Complainants had availed services of the Opposite Party for commercial purpose and therefore, complaint is not maintainable under the provision of Consumer Protection Act. It is further contended that no cause of action took place within territory jurisdiction of this Forum. Therefore, this Forum has no jurisdiction to entertain and try this complaint.
10) The Opposite Party has denied allegations that there is deficiency in their service. It is contended that loss of consignment was due to theft of truck no.HR-38-D-4177 with the goods for which a FIR was duly lodged with the concerned police station. The Opposite Party has produced copy of the FIR alongwith written statement.
11) It is submitted that Complainants No.1 has already received alleged claim from the Complainants No.2, therefore, Complainant No.1 has no cause of action. It is further averred that the Complainants No.2 has filed his complaint exclusively under subrogation provision and claim under subrogation provision cannot be entertained and decided by Consumer Forum therefore, complaint is liable to be dismissed. Opposite Party has denied Complainant’s claim for compensation, interest and cost of this proceedings.
12) The Opposite Party has filed application to decide preliminary point/issue of maintainability of complaint. However, the said application was subsequently not pressed by the Opposite Party. Opposite Party has filed affidavit of proof of evidence and written argument. Opposite Party has also produced copy of Lorry and Challan and copy of FIR alongwith list of documents dtd.16/02/09. The Complainants have not appeared before this Forum from 16/11/09 therefore, on the basis of negligence of parties and documentary evidence adduced by the parties, the complaint was closed for the judgement.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant Nos.1 & 2 are consumers as defined U/s.2(1)(d)(ii) as amended on 15/03/03 of the
C.P.A. ?
Findings : No
Point No.2 : Whether the Complainants are entitled to relief claimed in the complaint from the Opposite Party ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that the First Complainants are a Limited Company doing business of export of goods and Second Complainants are a Limited Company incorporated under the Companies Act, 1956 and doing business of General Insurance. The Opposite Party is a common carriers and doing business of Transport of Goods by Road for hire, rewards and consideration. Admittedly Complainant No.1 on/or about 30/08/06 hired services of Opposite Party for carriage of their Export Consignment from Ex: Kundli(HR) To Dronagiri. Export Consignment was consisting of 1113 card board boxes containing Stainless Steel Utensils. The aforesaid Export Consignment was to be exported to M/s. Union Bank of California, U.S.A. via Mumbai Port. The said consignment was entrusted to Opposite Party on ‘Door Delivery’ basis on 30/08/06. The Opposite Party accepted the consignment vide their Lorry Receipt which is produced at Exh.B1 & B2 to the complaint.
It is alleged by the Complainant that due to the deficiency in service on the part of Opposite Party the consignment was lost. So on 02/09/2006 the Complainants No.1 served Opposite Party with a notice. It is further contended that Opposite Party confirmed non delivery of the aforesaid Export Consignment, however, neglected to settle the claim of the First Complainants. As per Opposite Party, consignment was lost by the theft of the said truck and there is no deficiency in service on their part.
The aforesaid admitted facts clearly discloses that the First Complainants had hired services of Opposite Party on/or about 30/08/06. It is case of Opposite Party that there services were hired by the Complainants for commercial purpose after the amendment in Sec.2(1)(d)(ii) of the CPA, 1986. The Section 2(1)(d)(ii) was amended w.e.f.15/03/2003. By the said amendment the person who avail services for any commercial purpose is excluded from the defination of ‘Consumer’.
Recently the Constitutional Bench of Hon’ble Supreme Court in the matter of Economic Transport Organization V/s. M/s.Charan Spinning Mills (P) Ltd. reported in 2010(2)(C.P.R.)181SC have clearly stated in paragraph no.25 of the delivered judgement that –
“We may also notice that Sec.2(d) of the Act was amended by amendment Act, 62/2002 with effect from 15/03/03 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 services of the carrier had been availed for any commercial purpose, then the person availing the services will not be a “Consumers” and consequently, complaints will not be maintainable in such cases.”
In this case the First Complainants has availed service of Opposite Party. Carrier for commercial purpose on/or about 30/08/06 i.e. after amendment of in Sec.2(1)(d)(ii).
Therefore, in view of the amendment and aforesaid decision of the Hon’ble Supreme Court, the Complainants No.1 is not a ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act.
The Complainant No.2 is Insurance Company. After goods were lost, the Second Complainants settled the claim of the First Complainants and then First Complainants executed Letter of Subrogation and Special Power of Attorney for Rs.6,77,783/- in favour of Second Complainants. On the basis of aforesaid Letter of Subrogation and Power of Attorney executed by the First Complainants, Second Complainants is claiming that he is a ‘Consumer’ under the Consumer Protection Act. As discussed above, the First Complainants is not a ‘Consumer’ as defined under Consumer Protection Act. Therefore, on the basis of Letter of Subrogation and Special Power of Attorney executed by First Complainant, Second Complainants cannot become a consumer. The Second Complainants cannot acquire better rights than the First Complainants. Therefore, we hold that Second Complainants is also not a Consumer. For the reason discussed above, we hold that both the Complainants are not ‘Consumers’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act. Therefore, we answer point no.1 in the negative.
Point No.2 - As both the Complainants are not ‘Consumers’, present complaint is not maintainable before this Forum under the Consumer Protection Act. Therefore, the Complainants are not entitled to claim any reliefs against Opposite Party from this Forum. In the result, we answer point no.2 in the negative.
For the reasons discussed above, the complaint deserves to be dismissed hence, we pass following order -
O R D E R
i.Complaint No.331/2007 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
