Punjab

Ludhiana

CC/15/235

Nilpar Intl.Pvt.Ltd. - Complainant(s)

Versus

Mediteraneen Shipping co. - Opp.Party(s)

Hari Om Jindal Adv.

21 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 235 of 08.04.2015

Date of Decision          :   21.10.2016

 

Nilpar International Pvt. Ltd.,E-303, Phase IV-A, Focal Point, Ludhiana, through Mr.Paresh D.Somaiya, Director and Authorized Signatory.  

….. Complainant

Versus 

Mediterranean Shipping Company S.A.through its agents M/s.MSC Agency(India) Pvt. Ltd.,1^st Floor, SCO 17, Sector 32-A, Urban Estate, Chandigarh Road, Ludhiana-141010, through its Managing Director.

..…Opposite party

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Hari Om Jindal, Advocate

For OP                           :       Sh.S.K.Atoria, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant, a private limited company registered under the Companies Act is engaged in the business of exports and deals in various products including bicycles and parts. OP concern is engaged in international transportation of goods by ocean and other modes. Complainant received one order for supply of bicycle spare parts, pit saw blade and other items weighing 27496.800 Kgs and in net25081.800 kgs, packed in 1822 packages, from a buyer M/s. Kishan Enterprises Ltd.,Dar-e-Slaam, Tanzania. The goods to be supplied in 2 x 20’ containers. OP used to deal with the complainant on regular basis and as such, services of Op for transportation of goods in 2 x 20’ containers from Ludhiana to Sea Port of Dar-e-Slaam were availed at a cost of Rs.92,197.26P inclusive of all taxes and besides Rs.2696.64P inclusive of taxes towards the documentation charges. So, total cost of Rs.94,893.90P was to be paid by the complainant to Ops for availing these services. On 26.8.2013, the complainant placed a formal booking with OP to provide the required container for loading of goods for transportation from Ludhiana to Dar-e-Slaam and OP issued a booking release order(delivery order) bearing reference NO.363IN1303490813-1 on the same date. Complainant got the goods out of charge of customs with “Let Export” on 27.8.2013. On 5.9.2013, OP issued two computer generated invoices i.e. one for an amount of Rs.92197.26P and one for Rs.2696.64P. Complainant paid the amount of Rs.94894/- to OP through cheque No.53042 dated 12.9.2013 drawn on Vijaya Bank in full and final settlement of the invoices. OP issued a bill of lading dated 8.9.2013 and also issued receipt of payment dated 12.9.2013. On 14.9.2013, due to inability of the buyer to make the payment of goods in time, the complainant had diverted the goods to another buyer, who was located at Zanzibar, Tanzania. Emails as well as telephonic calls for changing the destination/place of delivery of goods were sent by the complainant to OP by supplying the name of buyer. Complainant asked for the charges from OP and OP informed the procedure of making such change on 16.9.2013. Complainant was called upon to submit the request for change on its letter head, which was done. All other formalities even were complied with as per promise with OP such as change in T/R copies, surrendering of bill of lading issued by the OP etc. On 19.9.2013, Op after completion of formalities, issued two invoices of the same date i.e. one for amount of Rs.1,39,975.32P and second for Rs.9997.80P towards the total and complete charges for change of destination and name of consignee. Payment of both these invoices was made by a single cheque No.53089 drawn on Vijaya Bank. Receipts of payment qua these charges even were issued on 19.9.2013 itself and thereafter, OP issued a fresh bill of lading dated 8.9.2013 showing as if all charges have been received and the destination has been changed. Goods in 2 x 20’ containers were loaded on the vessel from India on 8.9.2013 and were to reach at destination on 26.9.2013, but OP remained negligent in performing their duties. On 22.11.2013, i.e. two months after the date of payment and issuance of fresh bill of lading, complainant contemplated to know the whereabouts of the dispatched goods and got knowledge that shipment has not reached at its destination Zanzibar. OP was having no information about this deficiency, but they claimed that they will check with Dar-e-Slaam and confirm about the same. Even after lapse of more than two months, the goods not delivered to the buyer and further response was not received from the OP. Thereafter, complainant sent a reminder by email to OP on 25.11.2013, but to no effect. On 20.11.2013 and in the morning of 28.11.2013, the complainant again sent reminders through email. Op while admitting the mistake informed that “the containers were discharged as local import; though emc was received”. Op further disclosed that containers will be loaded on the next feeder vessel or any available vessel, which will be available towards the first week of December or as will be advised. OP did not submit the correct information and as such, by pleading deficiency in service on the part of Op, refund of Rs.8,68,860.06P sought with interest @24% per annum from the date of receipt of payment. Even direction sought against OP to refund Rs.1,49,975.32P received by OP through cheque dated 19.9.2013. Even refund of Rs.94894/- paid through two different cheques of 12.9.2013 with interest @24% p.a. claimed. Rs.25,000/- as cost of litigation and besides compensation for mental harassment and loss suffered in business even claimed. Even it is claimed that despite correspondence of dates 6.12.2013, 9.12.2013, 13.12.2013, 3.1.2014, 8.1.2014 and 14.1.2014, Op did not perform their duties properly, resulting in loss on account of not reaching the shipment at destination in time.

2.                In written statement filed by Op, it is pleaded interalia as if complainant is not a consumer; complaint is false, vexatious and frivolous; complainant is estopped by his act and conduct from filing this complaint; complainant himself being defaulting party can’t sue OP. Complainant himself claimed that it is engaged in business of exports, in course of which, it sends items to various overseas countries including Tanzania and as such, in view of commercial activities carried out by the complainant, it does not fall within the definition of consumer under the provisions of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’). In view of this, it is claimed that this Forum has no jurisdiction to entertain and decide this complaint. OP duly discharged its obligation as required by law and as such, there is no deficiency in service on the part of OP. It is claimed that no cause of action has accrued to the complainant against OP. Admittedly, the complainant entered into contract with OP for carriage of goods from Ludhiana to Dar-e-Slaam and thereafter, the vessel/ship was loaded upto Dar-e-Slaam, the original port of discharge. Consignment of the complainant was loaded on the vessel on 8.9.2013 and the same was sailed to the original port of discharge. Complainant abruptly asked for a change of destination on 14.9.2013 and after receipt of request from the complainant in that respect, he was informed about the procedure of change of destination and of extra charge amount. Complainant through letter dated 17.9.2013 agreed to pay all the charges as were mentioned in the email of OP. Complainant agreed to all the terms and conditions regarding change of destination. Those terms and conditions stated in the new set of bill of lading issued to the complainant. OP assisted the complainant in making amendments or changes of the documents. As custom formalities were to be complied with and as such, permission from Custom Department in matter of transshipment to a different port of discharge even was sought. Complainant had refused and even delayed the agreed payment/charges for changes of destination and only after issuance of repeated reminders and giving telephone calls, complainant paid the charges. For this in action on the part of complainant, complaint merits dismissal because the complainant cannot get benefit of its own wrong. As per clause stipulation No.14.6 in the contract of carriage/bill of lading, all duties/taxes/fines/imposts/expenses or losses incurred or suffered by reason of any illegal, incorrect or insufficient declaration etc., to be borne by the complainant. That condition was accepted by the complainant through letter dated 17.9.2013. No fault is there on the part of OP in late delivery of the goods at the mentioned port. Admittedly, as per order dated 26.8.2013, booking release order was issued on 8.9.2013. Allegations regarding booking of the consignment or of sending to ‘original destination and of change of destination and qua payment of charges; admitted, but by claiming that there is no deficiency in service on the part of OP as referred above. Each and every other averment of the complaint denied.

3.                Counsel for the complainant tendered in evidence affidavit Ex.CA of Sh.Paresh D.Somaiya, Director of complainant company along with documents Ex.C1 to Ex.C54 and thereafter, closed the evidence.

4.                On the other hand, counsel for OP tendered in evidence affidavit Ex.RA of Sh.Manoj Kumar, Branch Manager of Op along with documents Ex.R1 to Ex.R4 and thereafter, closed the evidence.

5.                          Written arguments submitted by complainant and not by OP. Oral arguments of both counsel for the parties heard and records gone through minutely. 

6.                Bone of contention remains as to whether the complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. This forum will be having jurisdiction to delve on the merits of the case only, in case, complainant found to be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.

7.                Copy of resolution Ex.C1 produced to show that Mr.Paresh Dayalal Somaiya, Director is authorized to file the complaint. It is pleaded case of the complainant that it engaged in the business of exports and deals in various products including bicycles and parts and in course of the same, complainant had booked consignment in question for shipment to buyer M/s.Kishan Enterprises Ltd., Dar-e-Slaam, Tanzania, but the said buyer failed to pay the price and that is why, the shipment of the goods was diverted to other buyer located at Zanzibar, Tanzania. From these allegations levelled in the complaint, it is made out that the services of OP availed by the complainant in carrying out its business activities of selling the goods to other commercial enterprises.

8.                There is no other allegation levelled in the complaint that shipment of the goods in question ordered by the complainant in course of business transaction for earning livelihood or for self employment only. In view of absence of this allegation, it has to be held that the complainant availed services of OP in connection with business venture or commercial activities for earning profits.

9.                Hon’ble Supreme Court of India in case titled as Birla Technologies Limited vs. Neutral Glass and Allied Industries Limited-(2011)1-Supreme Court Cases-525 held that in case, deficiency in service in respect of the goods purchased for commercial purposes alleged, then complaint is not maintainable because the services availed for commercial purposes, due to which, the customer concerned excluded from the purview of Consumer Protection Act. Even as per law laid down in case titled as The Branch Manager, Punjab National Bank vs. M/s Bhaskar Textile-2015(1)CLT-89(N.C.), if complainant sends the goods sold by them to another firm by transporter and papers sent through OP firm and bankers required to collect the payment before releasing the bilti to the firm, then the services of OPs virtually availed by the complainant in connection with commercial purposes i.e. in course of business transaction, due to which, consumer complaint will not be maintainable. Ratio of  these  cases is applicable in all respect to the facts of the present case because here the services of OP concern availed by the complainant for earning profits by way of sale of transported goods to the buyers. So, complainant certainly is not a consumer within the meaning of Section 2(1)(d) of the Act as per latest law on subject.

10.              Even as per law laid down in case Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.), if software purchased by a private limited company without pleading that same used by the Managing Director for running business for earning livelihood or self employment, then complainant concern will not be a consumer. In case before us, it is also not pleaded that service of OP availed in course of business venture for earning livelihood or for self employment and as such also complainant is not a consumer.

11.              In case of Jagrook Nagrik and others vs. Cargo Motors Pvt. Ltd. and others-III(2015)CPJ-1(N.C.), it has been held that if truck chassis purchased by the complainant for expanding the existing transport business, then the chassis cannot be said to have been purchased exclusively for the purpose of earning livelihood by way of self employment, due to which, the complainant concern will not be a consumer. As and when the element of profit in availing service involved, then complainant concerned will be not a consumer. In the case before us also the element of earning profit in furtherance of export business venture is involved and as such, virtually services of OP were availed for carrying on commercial activities, due to which, complainant, being private company is not a consumer. Submission of counsel for complainant to the contrary has no force.

12.              In the cited case titled as M/s .Transport Corporation of India Limited vs. M/s.Veljan Hydrair Ltd-decided on 22.2.2007 by Supreme Court of India in Appeal (Civil) No.3096 of 2005 on 22.2.2007,  it has been     specifically pleaded that consignments through common carrier was in the name of self. Specific reference to para no.2 of this case decided by Hon’ble Supreme  Court of India can be made. As the consignments by the consignee was in the name of being “self” and as such, it was not in course of business transaction. So,      benefit from ratio of above cited case can’t be gained by the counsel for the complainant.

13.              In case of Karnataka Power Transmission Corp. and another vs. Ashok Iron Works Pvt. Ltd., bearing Civil Appeal No.1879 of 2003 decided on 9.2.2009 by the Hon’ble Supreme Court of India, the matter was remitted back to the District Forum without ascertaining as to whether complainant concern is consumer or not. However, section 2(1)(d) of the Consumer Protection Act amended subsequently to this decision and as such, benefit from ratio of this case can’t be gained by the complainant. In case of Swiss Air Cargo vs. M/s.Century Silk Inc.& others-2012(1)Consumer Protection Cases-220(N.C.), it was found that services of Ops were availed for transportation of goods without     involvement of question of sale or of involvement of commercial transaction. That is not the position in the case before us because here goods booked by the complainant not for self, but for the purpose of earning profits and as such, certainly it is a case, in which, services of OP availed by the complainant for earning profits through shipment of the consignment in question. After going through ratio of case M/s Harsolia Motors vs. M/s National Insurance Co.Ltd.-decided on 3.12.2004 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.159 of 2004 , it is made out that commercial purpose does not include use by a person of goods bought and used by him and the services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. It has been specifically held in this case that definition of consumer exclude from its purview a customer, who obtains the goods for resale or for any commercial purpose and it also exclude a person who avails of services of any description for any commercial purposes. As services in the case before us availed by the complainant for carrying on commercial activities of selling the goods to buyer at destination station and as such, complainant certainly is not a consumer. So, appropriate remedy available with the complainant is to approach the Civil Court of competent jurisdiction for getting compensation as per Section 73 of the Indian Contract Act or like that. So, this complaint is not maintainable at all.

14.              Therefore, as a sequel of the above discussion, the complaint dismissed by leaving the parties to bear their own costs. Copies of order be supplied to the parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

                      (Vinod Bala)                                (G.K.Dhir)

                       Member                                          President

Announced in Open Forum

Dated:21.10.2016

Gurpreet Sharma.