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, 1956 doing business and 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 about12/04/2004, hired services of the Opposite Party for carriage, consideration and safe delivery Ex: Mumbai to Takwe, Pune and entrusted into their charge, care and custody for safe delivery at the final destination. The said consignments were consisting of 20 Roles of Aluminium Foils 6.30 my 952 mm/1302 mm. The consignments were imported by the First Complainant from their overseas sellers M/s.Lamitrade SA (Switzerland) under their Invoice bearing Ref. Nos.1210075675, 1210075678 & 1210075679, dtd.06/04/2005, valued at USD. 86,938.64/- Opposite Party accepted the aforesaid consignments of 20 Roles of Aluminium Foils 6.30 my 952 mm/1302 mm. and the same were booked under their Lorry Receipt No.66809, 66810, 66811, 66812 & 668136 dtd.12/04/2005.
3) It is alleged by the Complainant that the Opposite Party delivered damage consignments at the final destination. The First Complainant further submits that they have requested the Opposite Party by their letter dtd.13/07/2005 to issue damage delivery certificate but the Opposite Party haven’t issued the same till date. The First Complainant further submits that the Opposite Party has delivered aforesaid consignment to their Factory on 18/04/05 in damaged condition, while accepting the aforesaid consignment from the Opposite Party the representative of the First Complainant’s made remark on the Lorry Receipt of the aforesaid fact. The First Complainant further submit that they appointed the Surveyor M/s.Cunningham Lindsey International Pvt. Ltd. to asses the loss sustained by the consignment due to damage. Accordingly the Surveyor submitted their report, a copy whereof is annexed to the complaint and marked as Exhibit-‘D’
4) Thereafter First Complainants lodged their Monetary Claim with the Opposite Party vide Registered (R.P.A.D.) letter dtd.30/05/2005 seeking reimbursement to the extent of the value of their consignment which was damage delivered by the Opposite Party. The Complainants submit that they are the Owner/Isnured/Consignor as well as the owners of the aforesaid consignments and as such they are entitled in law to sue the Opposite Party for recovery of the said loss as ‘Consumer’.
5) The First Complainants had taken Marine Open Policy in respect of above consignment bearing No.MO 00002566 from the Second Complainants to cover the risk of transit, etc. The Second Complainants have settled the claim of First Complainants for Rs.10,77,835/- after scrutinizing of the claim on the strength of documents. The First Complainants after receipted of the payment from the Second Complainant have executed Letter of Subrogation & Special Power of Attorney for Rs.10,77,835/- in favour of Second Complainants. The Second Complainants are subrogated to the rights of remedies of the First Complainants in respect of said loss.
6) 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.10,77,835/-, and as such Second Complainants are Consumers alongwith First Complainants.
7)It is submitted by the Complainant that the damaged delivery to the said consignment was caused due to 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.
8) It is submitted that cause of action of this complaint arose on or about 18/04/2005 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.
9) The Complainants have prayed to direct Opposite Party to pay to the Second Complainants a sum of Rs.10,77,835/-. The Complainants have prayed for Rs.30,000/- towards cost of complaint. The Complainants have claimed interest @ 18 % p.a. from the date of loss until realization of entire amount.
10) Opposite Party was duly served with notice of this complaint. However, inspite of service of notice Opposite Party has failed to appear before this Forum son on 06/02/2007 ex-parte order was passed against the Opposite Party.
11) The Complainant has filed written argument and alongwith written argument the Complainant has produced Xerox copies of decisions, the Hon’ble National Commission and Hon’ble State Commission and Hon’ble Supreme Court.
12) Provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 were amended by amendment Act, 16/2002 w.e.f.15/03/2003. Amended provisions of Sec.2(1)(d)(ii) of 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 First Complainant had hired services of Opposite Party for transport of their consignment for commercial purpose. The Complainant No.1 is a Pvt. Ltd. Company. In view of facts stated in the complaint following points arises for our consideration and our findings thereon are as under –
Point No.1 : Whether the Complainants Nos.1 & 2 are consumers as defined U/s.2(1)(d)(ii) of the Consumer Protection Act. ?
Findings : No
Point No.2 : Whether the Complainants are entitled to recover Rs.10,77,835/- with interest from the Opposite Party alongwith
cost of this proceeding ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that Complainants No.1 is a Pvt. Ltd. Co. incorporated under Indian Company’s Act. Complainant’s No.2 is National Insurance Co. is also a Ltd. Co. & Opposite Party is also a Pvt. Ltd. Co. doing business as a Road Carriers. It is averred that First Complainant on/or about12/04/2004, hired services of the Opposite Party for carriage, consideration and safe delivery Ex: Mumbai to Takwe, Pune and entrusted into their charge, care and custody for safe delivery at the final destination. The said consignments were consisting of 20 Roles of Aluminium Foils 6.30 my 952 mm/1302 mm. The consignments were imported by the First Complainant from their overseas sellers M/s.Lamitrade SA (Switzerland) under their Invoice bearing Ref. Nos.1210075675, 1210075678 & 1210075679, dtd.06/04/2005, valued at USD. 86,938.64/- Opposite Party accepted the aforesaid consignments of 20 Roles of Aluminium Foils 6.30 my 952 mm/1302 mm. and the same were booked under their Lorry Receipt No.66809, 66810, 66811, 66812 & 668136 dtd.12/04/2005. It is alleged by the Complainant that the aforesaid consignment were damaged delivered by the Opposite Party and surveyor appointed by them has assessed damaged. Surveyor’s reported is produced at Exhibit-‘D’.
It is submitted that the First Complainant had taken Marine Open Policy in respect of the consignment as mentioned in complaint para No.7 to cover the risk of transit, etc. After damage delivery Second Complainant had settled the claim of First Complainant for Rs.10,77,835/-.
In the common written argument filed by the Complainants Nos.1 & 2 they have claimed that they are consumers under Consumer Protection Act, 1986 and submitting that First Complainant had hired services of Opposite Party for consideration. In support of their contention Complainants have relied upon decisions of Hon’ble National Commission in M/s.Harsolia Motors V/s M/s. National Insurance Co. & Ors. Reported in [2005 (1) CPR1(NC)]. In the aforesaid case Hon’ble National Commission has held that -
“Insurance Policy taken by Commercial units cannot be held to be hiring of services for commercial purposes so as to exclude it from purview of Consumer Protection Act”.
Fact of present case are different than the facts of M/s.Harsolia Motors V/s. M/s.National Insurance Co. Ltd. It appears that in Harsolia Motors case complaint was filed against National Insurance Co. for reimbursement of loss on the basis of Insurance Policy. In the instant case after amendment of Provisions of Sec.2(1)(d)(ii) of Consumer Protection Act, 1986, the Complainants have filed this complaint against Opposite Party who is common carriers alleging deficiency in service. Nowhere in the complaint it is alleged by the Complainant that services of the Opposite Party were availed exclusively for the purpose of earning their livelihood by means of self employment. On the contrary it is clear from the averments made in the complaint that the First Complainant is Private Limited is having huge business. The Consignee in question was imported by the First Complainant from Switzerland. It was valued at USD. 86,938.64. Therefore, it is clear that the First Complainant had hired services of Opposite Party for commercial purpose.
In Economic Transport Organization V/s. M/s.Charan Spinning Mills (P) Ltd. reported in 210(2)(C.P.R.)181SC Constitution Bench of the Hon’ble Supreme Court has held 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 the facts stated in the complaint and in view of aforecited decision of the Hon’ble Supreme Court the First Complainant is not consumer as defined under Consumer Protection Act, as has availed services of Opposite Party on 12/05/2005 i.e. after commencement of the amended provisions of Sec.2(1)(d)(ii) which came into effect from 15/03/2003. There is privity of contract between Complainant No.2 and Opposite Party. The Complainant No.2 has not availed services of Opposite Party No.2. It is averred in the complaint that on the basis of doctrine of subrogation Second Complainant is also a complainant. As discussed above, First Complainant is not a Complainant therefore, on the basis of principle of subrogation Second Complainant cannot claim better rights than that of First Complainant. Therefore, both the Complainants are not consumers as defined under amended provisions of Consumer Protection Act, 1986. Hence we answer point no.1 in the negative.
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. 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.384/2006 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
