PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the First Complainants are a Private Limited Company incorporated under the Indian Companies Act, doing business. The Second Complainants are Limited Company doing business of General Insurance. The Opposite Party is Private Limited Company doing business of carriage of Goods by Road.
2) It is submitted that First Complainant on/or about 30/10/2007, 30/05/2005 19/06/2005 and 25/07/2005 engaged and/or hired services of the Opposite Party for carriage, consideration and safe delivery of the four consignments as described in complaint para no.3. First consignment of 787 cartons containing Jam, Soya Sauce, Red and Green Chilly Sauce to their Delhi depot. vide Invoice No.8900677596, dtd.30/10/2004 of Invoice value of Rs.4,40,319.60/- Ex: Pune to Delhi vide Lorry Receipt No.PNA/8c.00, dtd.30/10/04. Second consignment of 465 cartons containing Coconut Oil Ex.Poundichery to Kanpur. Third consignment 733 cases containing Edible Oil, Ex: Jalgon to Ranchi and Fourth consignment of 490 cartons containing Parachute Coconut Oil, Ex: Coimbatore to Vijawada. The consignment were entrusted to the Opposite Party for its delivery at the nominated places. However, Opposite Party short-delivered all the aforesaid four consignments details of which are given in the complaint para no.3. The Complainant had appointed Four Surveyors namely, M/s.J.B.Boad Surveyors Pvt.Ltd., M/s.Deshpande Associates, R.K.Rathi, Surveyors & Loss Assessors and Ln.C.Damodaran to assess the loss. The Complainant has produced surveyors report alongwith complaint at Exhibit-‘C1’ to ‘C4’.
3) The Complainants submitted that First Complaints have lodged their monetary claim vide their letters dtd.05/03/05, 17/06/05, 23/06/05 and 23/09/05 in respect to the aforesaid four consignments as required under section 10 of the “Carriers Act, 1865”. Copies of the aforesaid letters are annexed to the complaint and marked as Exhibit-‘D1’ to ‘D4’. However, the Opposite Party failed to settle the claims of the Complainants till date. The Opposite Party have confirmed and certified the short/damage delivery to the aforesaid four consignment vide their letter produced alongwith complaint at Exhibit- ‘E1’ to ‘E4’.
4) The First Complainants had taken Marine Open Policy in respect of above consignments bearing No.MO00002351000100 from the Second Complainants to cover the risk of said consignment in transit, etc. The Second Complainants have settled the claim of First Complainants for Rs.4,82,864/- after scrutinizing of the claim on the strength of documents. The First Complainants after receipt of the payment from the Second Complainant have executed four separate Letter of Subrogation & Special Power of Attorney which are produced alongwith complaint at Exhibit-‘F1’ to ‘F4’ for total sum of Rs.4,84,864/- in favour of Second Complainants. The Second Complainants are subrogated to the rights of remedies of the First Complainants in respect of said loss.
5) The First Complainants are ‘Consumer’ under Consumer Protection Act, 1986 and upon settlement of the claim and based upon the letter of Subrogation and Special Power of Attorney, the Second Complainants are entitled to the indemnified by the Opposite Party the sum of Rs.4,82,864/-, and as such Second Complainants are Consumers alongwith First Complainants.
6)It is submitted by the Complainant that the damaged delivery to the said consignment was caused due to gross negligence as well as the failure on the part of Opposite Party is not exercising due care, caution and diligence. The absolute obligation is imposed upon the Opposite Party in their position as common carriers exercising public employment, not only by virtue of state but also under common law. Moreover, position of the Opposite Party as common carriers. Common carrier is that of Insurers of goods consigned to them against every extraneous risk. Failure to deliver the goods safely is a breach of duty independent of any contract of carriage. The Opposite Party is also liable for deficiency in service, negligence as bailees of the consignment. There is a liability imposed upon Opposite Party as common carriers and under the provisions of Consumer Protection Act, 1986 Section 2(1)(d) and Section 2(1)(o) the Complainants are Consumers since they had hired services of Opposite Party for consideration and such services my be for any connected commercial activity and would be related to services indicated in Section 2(1)(o) of the Consumer Protection Act.
7) It is submitted that cause of action of this complaint arose on or about 30/10/2004 when the consignment was entrusted to the Opposite Party for carriage and safe delivery. It is submitted that this Forum has jurisdiction to entertain and try this complaint.
8) The Complainants have prayed to direct Opposite Party to pay to the Second Complainants a sum of Rs.4,82,864/-. The Complainants have prayed for Rs.25,000/- towards cost of complaint. The Complainants have claimed interest @ 18 % p.a. from the date of loss until realization of entire amount.
9) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending that complaint is not maintainable before the Consumer Forum. Insurance Company cannot file and maintain a complaint before the Consumer Forum on the basis of letter of any subrogation and/or assignment.
10) It is the contention of the Opposite Party that the Complainant had availed services of the Opposite Parties for commercial purpose and therefore, present complaint is not maintainable under the provisions of Consumer Protection Act, 1986. In the instance case, there was no damaged delivery of goods but only Non-delivery of goods at Consignee destination due to Robbery committed by Anti-Social elements.
11) Opposite Party has admitted that it had entered into agreement of transportation of goods. According to the Opposite Parties, terms and conditions of contract are binding on both the party. Present claim falls under clause (a) of the condition no.5 hence, complaint is not maintainable. Opposite Party had denied allegations regarding short-delivery certificate or damaged delivery certificate. Opposite Party has further denied allegation made in the complaint and submitted that as per provisions of Section 2(1)(d)(ii) of the Consumer Protection Act the Complainant is not a Consumer and therefore the complaint is not maintainable. It is submitted by the Opposite Party that there is no negligence or deficiency in service on the part of Opposite Party therefore, Opposite Party is not liable to pay to the Complainant an amount of Rs.4,82,864/- or any other sum mentioned in the complaint.
12) Alongwith complaint, Complainant has produced documents as per list of document. The Complainant has filed application for the condonation of delay. Application for condonation of delay was allowed by the Forum by order dtd.05/01/2007.
13) The Complainant has filed written argument. It appears from the Roznama that from 26/08/2008 both the parties have not appeared before this Forum therefore, case was closed for order. As mentioned above in the written statement that the Opposite Party has raised the contention that the Complainants have availed services of the Opposite Parties for commercial purpose and therefore, as per the provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act, the Complainants are not a Consumers and therefore, present complaint is not maintainable. The aforesaid point raised by the Opposite Party goes to the root of the matter.
14) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainants are consumers as defined U/s.2(1)(d)(ii) of the Consumer Protection Act. ?
Findings : No
Point No.2 : Whether the Complainants have proved deficiency in the service on the part of Opposite Party ?
Findings : No
Point No.3 : Whether the Complainants are entitled to recover Rs.4,82,864/- with interest from the Opposite Party alongwith
cost of this proceeding ?
Findings : No
Reasons :-
Point No.1 :- According to the Complainants that the Complainant No.1 is a Limited Company doing business. Complainant No.2 is also a Limited Company incorporated under Indian Companies Act and doing business of General Insurance. Opposite Party Delhi Assam Roadways Corporation Ltd., is in the business of carriage of Goods by Road for hire reward and consideration. In the written argument it is submitted by the Complainant that they had hired services of the First Opposite Party on/or about 30/10/2004, 30/05/2005, 19/06/2005 and 25/07/2005 respectively for carriage of four consignments in well packed and sound condition for delivery at nominated places as specified in the Lorry Receipt. The aforesaid 4 consignments were entrusted to the Opposite Party for its delivery at respective final destinations. It is alleged that Opposite Party delivered aforesaid 4 consignments to the Consignees in short/damaged condition. The Complainant has produced report of the Surveyor appointed to assess the loss.
In the written statement, Opposite Party has specifically raised contention that the Complainant No.1 had hired services of the Opposite Party for commercial purpose and therefore, the Complainants are not Consumers as defined under Section 2(1)(d)(ii) of the Consumer Protection Act and therefore, present complaint in not maintainable.
Sec.2(d) of the Consumer Protection Act, which defines consumer was amended by the amendment Act of 62 of 2002 and the amended provisions came into force w.e.f.15/03/2003. The amended provisions of Sec.2(1)(d)(ii) are as under –
“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).”
Admittedly in this case Complainant had hired services of the Opposite Party for commercial purpose i.e. transport of goods in connection with their business after 15/03/2003 i.e. after the commencement of the amended provisions of the aforesaid Sec.2(1)(d)(ii) of the Consumer Protection Act. By the aforesaid amendment a person who avails the services for commercial purpose is excluded from the definition of consumer. In this case, Complainant No.1 is a Limited Company carrying on business and it had obtained insurance of the goods entrusted to the Opposite Party for carriage from Complainant No.2- M/s.Royal Sundaram Alliance Insurance Company Ltd. It is averred in the complaint that after damage caused to the consignment was assessed by the surveyor. The First Complainant had lodged claim with Complainant No.2 under Marine Open Policy and Second Complainant settled the claim of First Complainant for Rs.4,82,864/-. Thereafter First Complainant has executed four letters of subrogation and special power of attorney in favour of Second Complainant and therefore, present complaint is filed by both the Complainants.
As discussed above, as First Complainant had hired services for transport of goods for commercial purpose during the period from 30/10/2004 to 25/07/2005 i.e. after amendment to Sec.2(1)(d)(ii) of the Consumer Protection Act, the First Complainant is not a Consumer as defined under the Consumer Protection Act. Second Complainant is joined in this complaint on the strength of letters of subrogation and special power attorney executed by First Complainant. On the basis of principal of subrogation it can be said that the Second Complainant has stepped into the shoes of First Complainant. However, Second Complainant cannot acquire better/hire rights than that of First Complainant. There is no privity of contract between Second Complainant and the Opposite Party.
Recently Hon’ble Supreme Court in Economic Transport Organization V/s. M/s.Charan Spinning Mills (P) Ltd. has observed 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. But the said amendment will not apply to Complainants filed before the amendment.”
In view of aforesaid facts and aforecited decision of the Hon’ble Supreme Court we hold that both the Complainants are not consumers as defined under amended Sec.2(1)(d)(ii) of the Consumer Protection Act. Hence, we answer point no.1 in the negative.
Point Nos.2 & 3 : As both the Complainants are not Consumers as defined under the Consumer Protection Act, 1986 present complaint is not maintainable before this Forum, therefore, the Complainants are not entitle to claim any relief from this Forum against Opposite Party. Therefore, point nos.2 & 3 are answered in the negative.
For the reason discussed above, complaint deserves to be dismissed therefore, we pass following order -
O R D E R
i.Complaint No.05/2007 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
