JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.         M/s Bajaj Auto Limited, the complainant no.1 herein had entrusted a cargo consignment  consisting of 1344 motorcycles for shipment to their buyers in Lobita Angola. 

2.         M/s. Conware Freight Station ( OP) is engaged in the business of Container Freight Station ( CFS)  for terminal services line container handling and allied activities in relation to ware housing of international cargo. Complainant no.1 entrusted the above noted cargo of motorcycles into the charge, care and custody of the opposite party.  As a custodian of custom authorities under section 45 of the Customs Act, the aforesaid consignment of motorcycle was stored in the custom appointed ware house of the opposite party pending completion of custom authorities.  Due to unfortunate outbreak of fire, the consignment of aforesaid motorcycle was gutted.

3.         It is pertinent to note that aforesaid consignment of motorcycle was insured with complainant no.2 M/s Bajaj Allianz General Insurance Co. Ltd.  Complainant no.1 filed insurance claim for the loss of consignment of motorcycles.  The said claim was settled by complainant no.2 insurance company for Rs. 3,44,00,000/-.  Complainant no.1 executed a letter of subrogation and Power of Attorney in favour of complainant no.2.

4.         Complainants called upon the opposite party to make good the loss suffered because of fire outbreak but the opposite party failed to oblige.  Feeling aggrieved, the complainants filed joint complaint against the opposite party.

5.         The opposite party on being served with the notice of the complaint did not deny that consignment of motorycles were entursted by complainant no.1 to the opposite party as custodian of the custom authorities and that the said consignment was totally damaged because of out-break of fire in the warehouse of the opposite party.

6.         The opposite party took the plea that consumer complaint is not maintainable for the reason that complainants are not the consumers as envisaged under section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.  Even on merits, the allegations of deficiency in service was denied.

7.         Parties have filed affidavit evidence in support of their respective pleas.

8.         We have heard learned counsel for the parties and perused the record.

9.         The first contention of the opposite party which goes to the root of the matter is that complaint itself is not maintainable because the complainants are not covered under the definition of ‘consumer’ as envisaged under section 2 (1) (d) of the Act. Expanding on the argument learned counsel for the opposite party has contended that going by the allegations in the complaint it is obvious that the opposite party had no privity of contract with complainant No.2 insurance company. So far as the complainant no.1 is concerned, they had admittedly availed of services of the opposite party in relation to the cargo meant for export, entrusted and kept in the warehouse of the opposite party. Therefore, the services of the opposite party having been availed for commercial purpose, the complainant No.1 cannot be termed as a consumer and as such he could not have maintained the consumer complaint. It is argued that so far as the insurance company is concerned it has joined the consumer complaint in the capacity of a subrogatee who under law steps into the shoe of the person who has subrogated rights in favour of the insurance company and as such the status of insurance company cannot be better than the complainant No.1.

10.       Learned counsel for the complainants submitted that from the record it is obvious that motor cycles consignment was kept in the custody of the opposite party as a bailee till the clearance of the said export consignment. Therefore, it cannot be said that the goods in question were kept there for commercial purpose or the services of the opposite party were hired or availed for commercial purpose. In support of his contention, learned counsel for the complainants has relied upon the judgment of the Co-Ordinate Bench of this Commission in the matter of M/s Harsolia Motors vs. M/s National Insurance Co. Ltd. (1)/2005 CPJ (NC) and the judgment of Hon’ble Supreme Court in the matter of Economic Transport Organization vs. Charan Shipping Mills Pvt. Ltd. &Anr.  (2010) 4 SCC 114.

11.       We have considered the rival contentions and perused the record. It is not in dispute that the complainant no.1 is the company engaged in commercial activities. It is also not in dispute that consignment of motorcycle entrusted to the opposite party was meant for export to foreign buyer.  It is also not in dispute that the aforesaid cargoes were kept in the warehouse of the opposite party pending completion of formalities for release of cargoes by the custom authorities and the said cargoes got destroyed because of breakout of fire in the warehouse of the opposite party. From the aforesaid circumstances it is clear that the service of the opposite party was availed by complainant no.1 for keeping the export consignment of motor cycles in the warehouse till clearance by the custom authorities.  Thus, it is clear that services of the opposite party were hired / availed for commercial purpose. 

12.       Section 2 (1) (d) of the Act defines the term “consumer qua a service provider as a person who hires or avails of any services for consideration whether paid or promised to be paid but it does not include a person who avails of services for any commercial purpose. In view of the discuss above, it is clear that complainant no.1 had availed of services of the opposite party for keeping the consignment of motor cycles for export, which obviously was for commercial purpose. Therefore, in our considered opinion the exception to definition of ‘consumer’ carved out in Section 2 (1) (d) of the Act comes into play, in view of which the complainant No.1 cannot be termed as consumer. That being the case, the said complainant could not have maintained the consumer complaint under the Consumer Protection Act, 1986.

13.       So far as complainant No.2 insurance company is concerned, admittedly insurance company is a subrogatee of the complainant No.1 who had entered into the service contract pertaining to storage of the goods in the warehouse of the opposite party. The complainant No.2 being a subrogatee steps into the shoe of the subrogater and therefore he would have only those rights which are available to the subrogater as per law.   As already observed that complainantno.1 is  not the consumer qua the opposite party because they had availed of services of the opposite party for commercial purpose,  complainant no.2 being the subrogatee also cannot be termed as consumer. As such, could not have maintained the consumer complaint.

14.       Learned counsel for the complainants has relied upon the judgment of the Co-Ordinate Bench of this Commission in the matter of Harsolia Motors (supra). In our considered opinion, the said judgment is of no avail to the complainants because admittedly insurance claims of the complainant No1 have already been settled and the subject complaints have been filed on the allegations of deficiency in service on the part of the opposite party in respect of contract between the opposite party and complainant No.1

15.       The complainants also relied upon the judgment of Hon’ble Supreme Court in the matter of Economic Transport Organization (supra). The aforesaid judgment is also of no avail to the complainants for the reason that the judgment has been passed in civil appeal No.561/1999.   At the relevant time, exception regarding commercial purpose was not there in the definition of consumer qua a person who hires or avails of service for consideration.  The exception was incorporated in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 on 15.03.2003.  As the judgment of the supreme court in Economic Transport Organization ( supra) relates to pre amendment period, it is not applicable to the facts of the case because admittedly in the instant cases services of the appellant were hired or availed by the complainant no.1 after the amendment of the definition of term ‘consumer’.

16.       In view of the discussion above, it is clear complainant No.1 is not even consumer and since complainant No.1 is not the consumer as envisaged under Section 2 (1) (d) of the Act as such he had no locus standi to maintain the consumer complaint.   Since, we have held that consumer complaint is not maintainable, we are not going into the merits / other pleas.

17.       In view of the discussion above, we dismiss the consumer complaint with the observation that this order will not come in the way of the complainant no.1 to avail of their legal remedy by approaching the appropriate Fora having jurisdiction.