PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the First Complainants are a 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 carrying on as a Transport Contractor.
2) It is submitted that First Complainant on30/12/2003, hired services of the Opposite Party for carriage, consideration and safe delivery Ex: Silvassa to JNPT and entrusted into their charge, care and custody Export Cargo of 20 Boxes containing Poly Laminated Aluminium Foil. The Export Cargo was stuffed into Container No. MSCU 013026 (9) and was dispatched by the First Complainants from their factory to JNPT and thereafter for further journey by sea to Mersin Port, Turkey being the final destination under Invoice No.380 dtd.01/01/2004. Total Invoice value being Rs.24,05,415/-. The Opposite Party accepted the aforesaid Cargo containing 20 Boxes of Poly Laminated Aluminium Foil and booked under their Lorry Receipt No.2265 dtd.30/12/2003. Alongwith complaint, the Complainant has produced copy of Invoice No.380 dtd.01/01/04 at Exhibit-‘A’ and Lorry Receipt dtd.30/12/03 at Exhibit-‘B’.
3) It is submitted by the Complainants that Opposite Party delivered aforesaid Cargo in damaged condition. Opposite Party have confirmed the damage delivery to the aforesaid cargo vide their letter which is produced at Exhibit-‘C’. The said loss/damage caused to the aforesaid consignment has been surveyed by M/s.Cunningham Lindsey International P. Ltd. and submitted their survey report dtd.23/02/2004.
4) Thereafter First Complainants lodged their Monetary Claim with the Opposite Party vide Registered (R.P.A.D.) letter dtd.28/01/2004 as required under section 10 of the Carriers Act, 1865. Opposite Party did not comply with the said notice.
5) The First Complainants availed services of Opposite Party for transport of their consignment as such, First Complainant is a ‘Consumer’ of Opposite Party as defined under Consumer Protection Act, 1986. The First Complainant had taken Insurance Policy No.2002/104324 from Second Complainant to recover risk of Cargo. The Second Complainants have settled the claim of First Complainants after scrutinizing the claim on the strength of documents. The First Complainants have executed Letter of Subrogation and Special Power of Attorney for Rs.13,27,215/- in favour of Second Complainants. A copy of which is annexed to Exhibit-‘E’. The Second Complainants are subrogated to the rights and remedies of the First Complainant in respect of the said loss. The First Complainant are ‘Consumer’ 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.13,27,215/-, and as such Second Complainants are also ‘Consumers’ alongwith the First Complainants.
6) It is alleged by the Complainants that damaged-delivery to the said consignment is caused due to the failure on the part of Opposite Party is not exercising due care, caution and diligence. An absolute obligation is 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 Parties are liable for deficiency of service therefore the Complainants have filed this complaint. It is submitted that cause of action to this complaint arosed on about 05/01/2005 when the cargo was delivered by the Opposite Party in damage condition. The Complainants have prayed to direct Opposite Party to pay to the Second Complainants sum of Rs.13,27,215/- with interest @ 18 % p.a. from the date of loss till realization of the entire amount to the Complainant. The Complainants have also prayed for cost of Rs.30,000/- from the Opposite Party. Alongwith the complaint, the Complainant have produced documents as per list of documents.
7) The Opposite Party have filed written statement and thereby resisted claim of the Complainant contending interalia that allegations made in the complaint are false and complaint is liable to be dismissed with cost.
8) It is submitted that Complainant No.1 has subrogated their rights if any for the recovery of compensation on account alleged damage to the export cargo to the Complainant No.2 under a letter of subrogation. It is contended that the First Complainants have not subrogated its right to the Second Complainants, and on this ground itself complaint is liable to be dismissed with cost.
9) It is submitted by the Opposite Party that First Complainants had hired services of the Opposite Party for delivery of the Export Cargo. Therefore, the Complainant is not a ‘Consumer’ under the provision of Consumer Protection Act, 1986 and as such, complaint is liable to be dismissed.
10) It is the case of the Opposite Party that during the carriage, while the Lorry on its way from Silvassa to JNPT the said Lorry caught with an accident due to things beyond the control of Opposite Party and turned down at Naupada -Thane and consignment was damaged. Aforesaid accident report was lodged to concern Police Station and then Spot Panchanama was prepared. Representative of Opposite Party had hired another Truck and managed to delivery consignment to its destination.
11) Opposite Party No.1 has admitted the fact that First Complainants has hired their services on about 30/12/2003 for transport of delivery of Export Cargo containing 20 Boxes of Poly Laminated Aluminium Foil and the same was booked under Lorry Receipt No.2265 dtd.30/12/2005. Opposite Party has denied the allegations that they confirmed the damage caused to the Cargo. Further they have denied the allegation that the accident took place due to the negligence on the part of Opposite Party. The Second Complainants Insurance Company is not a Consumer under Consumer Protection Act, 1986. According to the Opposite Party, the allegations made by the Complainants are baseless and complaint deserves to be dismissed with cost.
12) In this case Complainants No.1 & 2 have filed their common written statement and relied upon the number of decisions of the Hon’ble Supreme Court and other Courts. Opposite Party has also filed written statement. It is contention of Opposite Party that Complainants are not ‘Consumers’ and therefore, present complaint is not maintainable under provisions of Sec.2(1)(d)(ii) read with (e)(g) & (o) of Consumer Protection Act, 1986. The objection raised by the Complainant goes to the root of the matter.
13) 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 service on the part of Opposite Party ?
Findings : No
Point No.3 : Whether the Complainants are entitled to any relief as claimed ?
Findings : No
Reasons :-
Point No.1 :- It is admitted fact that First Complainant are a Limited Company incorporated under the Indian Companies Act and carrying on business at the address given in the complaint. The Second Complainants are also registered under Indian Companies Act, 1956 and carries business of General Insurance. The Opposite Party is a Transport Contractor. Further it is admitted fact that on 30/12/2003 the First Complainant had hired services of the Opposite Party for carriage, consideration and safe delivery Ex: Silvassa to JNPT and entrusted into their charge, care and custody Export Cargo of 20 Boxes containing Poly Laminated Aluminium Foil. The Export Cargo was dispatched by the First Complainant from their factory to JNPT for further journey by sea to Mersin Port, Turkey. The Opposite Party Exported aforesaid container Cargo containing 20 Boxes of Poly Laminated Aluminium Foil booked under Lorry No.2265 dtd.30/12/2003.
It is alleged by the Complainants that during the course of transit due to the negligence of Opposite Party damage was caused to the aforesaid goods. According to the Opposite Party during the course of transit, the lorry carrying the goods met with an accident which was beyond the control of Opposite Party.
It is not disputed that First Complainants had obtained insurance policy for aforesaid consignment from the Opposite Party and after accident Complainant No.2 after scrutiny of documents settled the claim of the First Complainant and thereafter the First Complainant executed a Letter of Subrogation and Special Power of Attorney for Rs.13,27,215/- in favour of Complainant.
As per the Complainants First Complainant had hired services of the Opposite Party for transport of goods and therefore, the First Complainant is a ‘Consumer’ as defined under section Consumer Protection Act. After the accident the Complainant No.2 settled the claim of damaged of the goods of the First Complainant and the First Complainant has executed Letter of Subrogation and thereby Second Complainant has stepped into the shoes of First Complainant and thereby it has become Consumer under the Consumer Protection Act.
By the amended Act of 62/2002 of the Consumer Protection Act definition of Consumer given in Sec.2(1)(d)(ii) is amended and thereby the person who avails any services for any commercial purpose are excluded from the definition of consumer. Amended provisions of the Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 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).”
In the instant case the Complainant No.1 Company is engaged in business of Export goods. They had hired services of the Opposite Party for their business purpose i.e. for transport of large consignment of 20 Boxes of Poly Laminated Aluminium Foil. The First Complainants had obtained insurance policy for the said goods from Second Complainant. After the accident took place to the Larry carrying the goods, the Second Complainant has settled the claim of the First Complainant and the First Complainant has executed a Letter of Subrogation for Rs.13,27,215/- in favour of Second Complainant. Therefore, it is clear that the First Complainant had hired services of the Opposite Party for commercial purpose on/or about 30/12/2003. In the complaint is it averred that cause of action took place on/or about 30/12/2003. As mentioned above by the Amended Act of 62 definition of Consumer in Sec.2(1)(d)(ii) came into operation w.e.f.15/03/2003. After aforesaid amended came into force the First Complainant had availed services of Opposite Party for commercial purpose therefore, First Complainant is not a consumer as defined under amended Section 2(1)(d)(ii) of Consumer Protection Act.
Recently Constitution 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(d) of the Act was amended by Amendment Act, 62/2002 with effect from 15/03/2003, 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.”
It is submitted on behalf of Opposite Party that constitution bench of the Hon’ble Supreme Court has clearly mentioned that after amendment of the Act 62/02 services of carriers if availed for any commercial person then the person availing services will not be a consumer and consequently complaints will not be maintainable in such cases. It is vehemently submitted that admittedly Complainants No.1 had availed services of Opposite Party on 30/12/2003 i.e. after commencement of the amended provisions of Sec.2(d)(i) of the Consumer Protection Act therefore, Complainants No.1 is not a consumer. It is further submitted that there is no privity of contract between the Complainant No.2 and Opposite Party. The Complainant No.2 has not availed any services from the Opposite Party. Therefore, Complainant No.2 is also not a consumer. According to the Complainants, the Second Complainant has settled claim of damaged goods of First Complainants under the Insurance Policy and in view of execution of Letter of Subrogation by First Complainant in favour of Second Complainant, the Second Complainant has also become a ‘Consumer’ by stepping into the shoe of First Complainant. As discussed above as the First Complainant has availed services of Opposite Party for transport of export goods i.e. for commercial purpose after commencement of amended provisions of Section 2(1)(d)(ii) of the Consumer Protection Act, First Complainant is not a ‘Consumer’. Second Complainant on the basis of principle of subrogation cannot acquire better rights than First Complainant.
Therefore, we hold that Complainant No.1 & 2 are not a consumers as defined under amended provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. In the result we answer point no.1 in the negative.
Point No.2 & 3 : As the Complainants are not consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act, the complaint is not maintainable before this Forum and as such, the Complainants are not entitled to claim any relief against Opposite Party from this Forum. Therefore, we answer point no.2 & 3 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.295/2005 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
