PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief present dispute is as under –
That the First Complainants are a Limited Company, a Govt. of India enterprises doing business at the address stated above and the Second Complainants are a Limited Company incorporated under the Companies Act, 1956 doing business of General Insurance. The First Opposite Party are engaged in the business of carriage goods/passengers by air governed under the Warsaw Convention, 1929 as amended by Hague Protocol, 1955 and the Second Opposite Party are local handling agents of the First Opposite Party.
2) It is submitted that First Complainants had imported the cargo of 20,000 “NICKEL CADIUM CELLS 1.2V” from their overseas sellers M/s. SAFT Batteries Pvt. Ltd. The said Air Cargo was entrusted to the First Opposite Party by the suppliers of the First Complainants for carriage, consideration & safe delivery from France to Mumbai. The said cargo was accepted by the First Opposite Party and/or their Agents and booked under their Airway Bill No.618/LVF/86447594 dtd.09/08/2005. The said cargo arrived at the Mumbai vide flight no.SQ-7881 dtd.14/08/05 of the First Opposite Party. The Complainants has annexed Commercial Invoice of the said cargo for Rs.68,000/- dtd.11/08/08 of SAFT Batteries Pvt. Ltd alongwith the complaint at Exh. ‘A’. Copy of the Airway Bill issued by the First Opposite Party is annexed at Exh.‘B’ to the complaint.
3) The Complainants submit that the First Complainants Clearing Agents approached the Second Opposite Party for delivery of the cargo on 16/08/2005. That time he noticed that the corrugated boxes in which the consignment was packed and placed on wooden pallets, was in a outwardly wet and damaged condition. The spot survey inspection was arranged by the First Complainant’s clearing agent at Mumbai Airport. The spot survey was conducted by R.R. Nayak & Co. Surveyors on 22/08/05 & 24/08/08 and accordingly, submitted their survey report on 16/09/2005. The consignment was thereafter cleared and transported by road for delivery and final survey of the same was conducted at the First Complainant premises at Pune. The survey and assessment was conducted at the First Complainants premises on 27/08/05 by Mr.Dilip B. Kapse, Surveyor who submitted his survey report on 24/11/05. Copy of the survey report is annexed with the complaint at Exh.‘D’.
4) The First Complainant vide their letter dtd.26/08/05 lodged their monetary claim with the Opposite Party No.2. A copy whereof is annexed with complaint at Exh.‘E’. But the Opposite Parties have not settled the claim. The First Complainants had taken a Marine Insurance Policy from Second Complainants to cover risk of the said consignment during its transit. The Second Complainants have accordingly settled the claim of the First Complainant under the said insurance policy for a sum of Rs.10,16,442/-. The First Complainant in pursuance of payment received from the Second Complainants have executed a Letter of Subrogation and Special Power of Attorney for Rs.10,16,442/- in favour of Second Complainant. The First Complainant in pursuance of payment received from the Second Complainants have executed a Letter of Subrogation and Special Power of Attorney for Rs.10,16,442/- in favour of Second Complainants. The Second Complainants are subrogated to all the rights and remedies accruing to the First Complainants against the Opposite Party. For the loss of insurance consignment, the Second Complainants is entitled to claim from the Opposite Party to the extent of an amount paid to him to the First Complainant.
5) It is alleged that the damage to the consignment was caused due to the failure on the part of Opposite Parties in not exercising reasonable care, skill and diligence to protect the cargo. There was an absolute obligation imposed upon the Opposite Parties to jointly and severally take all steps necessary in order to secure the safety of the cargo during the course of transit/storage and whilst in the custody of the Opposite Parties. It is further submitted that the Opposite Parties have committed breach of their statutory obligation as carriers wherein their liability is absolute under the Warsaw Convention, 1979. The Second Complainants are entitled to maintain present complaint alongwith First Complainant to the extent of an amount indemnified.
6) It is contended that cause of action of this complaint arose on 16/08/05 when the cargo arrived at Mumbai Air Port. Therefore, present complaint is within limitation. The Complainants have prayed to direct Opposite Parties jointly and/or severally pay to the Second Complainant sum of Rs.10,16,442/- with interest @ 18 % p.a. They have also prayed for cost of Rs.30,000 from the Opposite Party.
7) Alongwith complaint, the Complainants have filed copies of the documents as per list of document.
8) Opposite Party No.1 dully served with the notice but it has refused to accept the notice. Opposite Party No.2 had appeared through Advocate but failed to file his written statement. Therefore, on 17/10/06 ex-parte order was passed against Opposite Party No.1. Opposite Party No.2 filed their application dtd.09/01/07 for setting aside order of ‘No Written Statement’. The application was opposed by the Complainants. After hearing both the parties this Forum by order dtd.09/01/07 rejected application of the Opposite Party No.2 for setting aside orders of no written statement. The aforesaid order dtd.09/01/07 is remained unchallenged. The Complainants have filed written argument. So the case is closed for order.
9) 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 under amended Sec.2(1)(d)(ii) of the Consumer
Protection Act. ?
Findings : No
Point No.2 : Whether the Complainant Nos.1 & 2 are entitled to reliefs as claimed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that First Complainants are Limited Company, a Govt. of India enterprises and the Second Complainants are a Limited Company incorporated under the Companies Act, 1956 doing business of General Insurance. The First Opposite Party are engaged in the business of carriage goods/passengers by air and governed under the Warsaw Convention, 1929 as amended by Hague Protocol, 1955 and the Second Opposite Party are local handling agents of the First Opposite Party. It is un-disputed fact that the First Complainants had imported the huge cargo of 20,000 (NICKEL CADIUM CELLS 1.2V) from their overseas sellers M/s. SAFT Batteries Pvt. Ltd. The said Air Cargo was entrusted to the First Opposite Party by the suppliers of the First Complainants for carriage, consideration & safe delivery from France to Mumbai. The said cargo was accepted by the First Opposite Party and/or their Agents and booked under their Airway Bill dtd.09/08/2005 which is arrived at the Mumbai on dtd.14/08/05 by flight no.SQ-7881. The Complainants have produced copy of Commercial Invoice of the said cargo dtd.11/08/05 of SAFT Batteries Pvt. Ltd alongwith the copy of the Airway Bill issued by the First Opposite Party which is annexed at Exh.‘A’ & Exh.‘B’ to the complaint.
It is case of the Complainants that the First Complainants Clearing Agents approached the Second Opposite Party for delivery of the cargo on 16/08/05 and that time it was noticed that the corrugated boxes in which the consignment was packed and placed on wooden pallets, was in a outwardly wet and damaged condition. The spot survey inspection was arranged by clearing agent of the First Complainant. Copy of the spot survey report is produced at Exh.‘C’. Thereafter the goods were cleared and transported by road to Pune for delivery and final survey of the same was conducted at the premises of the First Complainants. The survey and assessment of the damaged consignment was conducted on 27/08/05 by Mr.Dilip B. Kapse. Copy of the survey report is annexed with the complaint at Exh.‘D’. According to the Complainants that they have lodged their monetary claim with the Opposite Party No.2 but the Opposite Party did not settled the claim. The aforesaid allegations made by the Complainants remained unchallenged.
It appears form the documentary evidence on record that First Complainants had obtained a Marine Insurance Policy from Second Complainants to cover risk of the said consignment during its transit. After damage to the goods, Second Complainants have accordingly settled the claim of the First Complainant under the said insurance policy for a sum of Rs.10,16,442/- and then the First Complainants have executed a Letter of Subrogation and Special Power of Attorney for Rs.10,16,442/- in favour of Second Complainant. On the basis of Letter of Subrogation and Special Power of Attorney the Second Complainant alongwith the First Complainant have lodged this complaint.
By the Act of 62/2002 Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 was amended. The aforesaid amendment came into effect on 15/03/03. By the aforesaid amendment from the definition of Consumer the person who avails services for commercial purpose is excluded. In the instance case First Complainant are limited company and doing business, Second Complainant is also a company incorporated under the Companies Act and doing business of General Insurance. The First Complainant had availed services of the First Opposite Party on/or about 09/08/05 for transport of their imported cargo of 20,000/- “Nickel Cadium Cells 1.2V” from their overseas sellers M/s.SAFT Batteries Pvt. Ltd. from France to Mumbai. The quantity of cargo itself suggest all the cargo was imported by the First Complainant for their business purpose. In the Marine survey report the loss or damage caused to the consignment is assessed at Rs.10,10,938/-. Therefore, it is clear that First Complainant had availed services of the Opposite Party No.1 for commercial purpose after aforesaid amendment in Sec.2(1)(d)(ii) of the Consumer Protection Act. The Second Opposite Party is a local agent cargo handling of the First Complainant.
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 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.”
Therefore, we hold that the First Complainants are not consumers as defined under amended Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. The Second Complainants is a Company registered under the Companies Act and doing business of General Insurance. It appears that First Complainants had obtained Marine Insurance Policy from the Second Complainant to cover the risk of the said consignment. After damage cost of the said consignment Second Complainants have settled claim of the First Complainant under the Marine Insurance Policy for sum of Rs.10,16,442/-. Thereafter First Complainants have executed Letter of Subrogation and Special Power of Attorney in favour of Second Complainant. It is submitted on behalf of Complainant that in view of the execution of Letter of Subrogation and Special Power of Attorney, the Second Complainants is entitle to file this complaint.
As discussed above, the First Complainants are not consumers as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. On the basis of Letter of Subrogation and Special Power of Attorney executed by the First Complainant in favour of Second Complainant, Second Complainant cannot claim that he is consumer under Consumer Protection Act. As the First Complainants are not consumers under Consumer Protection Act, the Second Complainants cannot acquire better rights than the First Complainant. Therefore, we hold that both the Complainants are not consumers as defined under amended Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Hence we answer point no.1 in the negative.
Point No.2 :- Both the Complainants are not Consumers as defined under amended Section 2(1)(d)(ii) of the Consumer Protection Act and therefore, in view of the aforesaid observation of the Hon’ble Supreme Court, present complaint is not maintainable under Consumer Protection Act. Hence, Complainants are not entitled to claim any relief against Opposite Party from this Consumer Forum. Therefore, 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.240/2006 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
