PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) The Complainant Texool Limited is a Public Limited Company and doing business of import and export of garments and pre-dominantly supplies garments to European Countries. Opposite Party is a Company incorporated under the Indian Companies Act, 1956 and is carrying on business of running an International Air Lines which pre-dominantly caters to the needs transit of passengers as well as cargo in its normal course of business. Opposite Party is having registered office at World Trade Centre, Cuffe Parade, Mumbai.
2) About in the month of July, 2003, the Complainant received a purchase order from M/s.Samino, a dealer in garments situated at Paris & France. Aforesaid dealer had placed an order of garments which were 80 % Cotton and 20 % Polyester Velvet Stone Wash 270 Grams/Meter and in normal parlance the said garments are known as Ladies Jogging Set. The Complainant has produced xerox copy of the purchase order alongwith complaint at Exhibit-‘A’.
3) It is the case of the Complainant that the Complainant sought the confirmation of appointment of one M/s.ROBINSONS AIR SERVICES to be the agents for the purpose of transshipment by Air of the said consignment. Upon receipt of the confirmation of appointment of M/s.ROBINSONS AIR SERVICES as agents the Complainant placed the said consignment with the agent for the purpose of delivery and transshipment by Air of the said consignment. The said consignment was entrusted with the Opposite Party and it was categorically understood that the said consignment was delivered at Paris. The Complainant has produced photo copy of Airway Bill at Exhibit-‘B’.
4) It is the case of the Complainant that after passing of considerable time no communication whatsoever was received from the Consignee, so the Complainant made enquiry with their agent and with the Opposite Party. The Opposite Party by their letter dtd.18/11/2003 communicated to the agent that aforesaid Shipment was delivered on 13/11/2003 to the Consignee. The Complainant has produced photo copy of the said letters at Exhibit-‘C’ & ‘D’.
5) The Complainant called upon the Consignee to make the payment as the bankers of the Complainant i.e. Punjab National Bank, Overseas Branch had not received any amount towards credit to the account of the Complainant. The Consignee refused of having received consignment which led to the further enquiry with the agents. After repeated enquiries by the agents with the Complainant, the Opposite Party by their letter dtd.08/12/2003 informed the agent that shipment has been forwarded to the French Government House on 13/11/2003 but was not claimed by the Consignee and that shipment would be destined for auction. The entire consignment was aggregated to a sum of Rs.4,78,000/- and in the event of any auction taking place, no amounts whatsoever would be received by the Complainant. Hence, in order to save auction of the consignment the Complainant, with the help of various other retailers in France and after making payment of an amount of Rs.2,32,000/- to M/s.Central Vet for the purpose of release of the said consignment from the French Government House. Thereafter the said consignment was sold to the new Consignee in a distressful condition at an amount of Rs.2,66,000/- causing a loss to an extent of Rs.2,12,000/- to the Complainant.
6) It is alleged by the Complainant that the mandate of the consignment to be delivered was agreed at Paris, France. The Consignee refused to take delivery of the said consignment by terminating the said contract due to the fact that there are huge customers from India and that the European Market works totally on time schedule. It is alleged that Opposite Party has willfully suppressed material information by earlier admitting having delivered the said consignment to the Consignee and thereafter retracting from the earlier statement which has resulted into a delay to protect the said consignment. According to the Complainant, due to the deficiency on the part of Opposite Party or on account of non-delivery of goods as well as supply of wrong information resulted in the breach of contract by the Opposite Party and thereby the Complainant has suffered huge financial loss. In the aforesaid circumstances the Complainant has filed this complaint contending that cause of action has arisen on 13/11/2003.
7) The Complainant has prayed to direct Opposite Party to pay aggregated sum of Rs.5,63,880/- to the Complainant. Particulars of the claim are given at Exhibit-‘K’.
8) The Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is time barred and it is beyond the purview of this Consumer Forum. It is contended that there is no deficiency in service on the part of Opposite Party. The complaint is bad for non-joinder of necessary parties. The Complainant has not stated whether termination of contract by the Consignee was lawful or not. In the event of breach of contract between the Complainant and the Consignee, the Opposite Party cannot be held responsible on mere allegations of delayed delivery. It is submitted that Opposite Party had never undertaken that the goods would be delivered within the stipulated time. In fact, the goods were reached at the business at the reasonable time. However, delivery of the goods was not taken by the Consignee for the reason best known to them.
9) The Opposite Party has admitted that the said consignment was entrusted to the Opposite Party and it was to be delivered at Paris. Terms and conditions printed on the reverse side of the Airway Bill are binding on both the parties. The Opposite Party has denied all the allegations made in the complaint and submitted that Opposite Party cannot be blamed for the alleged loss caused to the Complainant. The Opposite Party has denied its liability to pay the amount claimed by the Complainant. According to the Opposite Party, complaint is devoid of merits and deserves to be dismissed with the cost.
10) Alongwith complaint, the Complainant has produced documents as per list of document. The Complainant ahs filed affidavit of evidence in support of the complaint. Opposite Party has also filed affidavit of evidence in support of written statement. The Complainant had filed application for condonation of delay. The Opposite Party had filed say and opposed the application. This Forum by order dtd.02/12/2006 has held that complaint is filed within limitation of 2 years from the date of cause of action.
11) Ld.Advocate for the Complainant has filed pursis submitting that affidavit of evidence filed by the Complainant be considered as oral argument of the Complainant. The Opposite Party has produced brief Notes of argument. Heard oral submissions of Ld.Advocate Shri.Talegaonkar for the Opposite Party. Ld.Advocate for the Opposite Party has firstly submitted that in this case the Complainant –Texool Ltd. has utilized services of the Opposite Party for commercial purpose and therefore, according to the amended provision of Sec.2(d) of the Consumer Protection Act, 1986 the Complainant is not a ‘Consumer’. Secondly it is submitted that there is no deficiency in service on the part of Opposite Party. Opposite Party completed the work of contract. The consignment was delivered at Paris, France as agreed between the parties. Consignee of the Complainant did not lift-up the goods within the stipulated period and the goods proceeded for auction as such, for the breach of contract by the Consignee, the Opposite Parties cannot be foisted upon the alleged compensation or damages. After delivery of the goods, intimation given by the Opposite Party to notified parities. However, the Consignee did not accept delivery of the goods. It is further submitted that complaint is hopelessly barred by limitation.
12) On the point of limitation this Forum by order dated.02/12/2006 has held that complaint is filed within limitation of 2 years from the date of cause of action. As mentioned above, the first contention raised by the Opposite Party that the Complainant had availed its services for commercial purpose therefore, the Complainant is not a ‘Consumer’. Aforesaid objection raised by Opposite Party goes to the root of the matter. Therefore, following points arises for our consideration and our findings thereon are as under –
Point No.1 : Whether the Complainant is a Consumer under the Consumer Protection Act ?
Findings : No
Point No.2 : Whether the Complainant is entitled to recover Rs.5,63,880/- as claimed from Opposite Party ?
Findings : No
Reasons :
Point No.1 : In the complaint itself the Complainant has stated that Texool Limited is a Public Limited registered under the Companies Act, 1956 and doing business of export and import of garments which were 80 % Cotton and 20 % Polyester Velvet Stone Wash 270 Grams/Meter and in normal parlance the said garments are known as Ladies Jogging Set. For transport of the part of said consignment the Complainant had availed services of the Opposite Party. The said consignment was entrusted with the Opposite Party for its delivery at Paris, France. The Complainant has produced photo copy of Airway Bill at Exhibit-‘B’ to the complaint. It appears from the contents of Airway Bill that the Complainant had sent said consignment to the Consignee by name Banque Themis, Paris, France and the said consignment was entrusted to the Opposite Party for transshipment by Air on/or about 10/10/2003 at Mumbai.
According to the Ld.Advocate for the Opposite Party, after entrustment of the aforesaid consignment for transshipment to the Opposite Party, the Opposite Party safely carried the goods by Air to Paris, France and gave its intimation to the notified person. It is vehemently submitted by the Opposite Party that after amendment in Sec.2(d), the Complainant availed services of the Opposite Party as carriers for transshipment of the goods by Air and therefore, the Complainant is not a ‘Consumer’.
Under the Consumer Protection Act, 1986 u/s.2(1)(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 persons 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.]
By the amended Sec. 2(1)(d)(ii) the person who avails services for commercial purposes is excluded from the definition of ‘Consumer’. Recently Constitutional Bench of the Hon’ble Supreme Court in the matter of Economic Transport Organization - Applicant V/s. M/s.Charan Spinning Mills (P) Ltd. & Anr. - Respondents, reported in 2010(2)(CPR) 181(SC) has observed that -
“We may also notice that Sec.2(1)(d)(ii) 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 the instance case admittedly the Complainant entrusted consignment of garment of aggregate value of about Rs.4,78,000/- to the Opposite Party of its carriage and safe delivery to the Consignee at Paris, France. The consignment was entrusted to the Opposite Party for transshipment by Air on/or about 20/10/2003 i.e. after the commencement of amended provision of Sec. 2(1)(d)(ii) of the Consumer Protection Act, 1986 Therefore, the Complainant is not a ‘Consumer’ as defined under the amended provisions of the Consumer Protection Act, 1986. Hence, we answer point no.1 in the negative.
Point No.2 : As the Complainant is not consumer as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, the complaint is not maintainable before this Forum. Therefore, the Complainants are not entitled to claim any relief against Opposite Party. 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.474/2006 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the party.
