PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer case 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 a Company doing business of carriage of goods by road as a common/public carriers for hire, reward and consideration.
2) It is averred that First Complainant on/or about 20/02/2007 had hired services of the Opposite Party for carriage, consideration and safe delivery Ex: Dehradun to Calcutta and entrusted into their charge, care and custody consignment of 711 boxes containing products like Hair Oils, Revive, Top Ramen etc. The Consignment was dispatched by the First Complainants’ suppliers under their Stock Transfer Invoice No.8900986690 dtd.20/02/2007, Invoice value being 11,84,736/-. The aforesaid consignment was accepted by the Opposite Party from the First Complainants on “Door Delivery’ basis. The Opposite Party prepared Consignment Note dated 20/02/2007 in receipt of the said consignment.
3) It is submitted by the Complainants that Opposite Party Non delivered the aforesaid consignment entrusted to them by the First Complainants to the consignees at the destination. Complainant’s had appointed Surveyors Er. Vineet Ranjan Srivastava, Surveyor & Loss Assessor to access the loss caused to the consignment. Said surveyor submitted their report on 02/04/2007. Then the First Complainant lodged their monitory claim with the Opposite Party vide their hand letter dtd.24/03/2007 as required under section 10 of the Carriers Act, 1865. Opposite Party did not comply with the said notice.
4) The First Complainant had taken Insurance Policy No.M0-0002463-000-00 from Second Complainants to cover the risk of aforesaid consignment. The Second Complainants have settled the claim of First Complainant after scrutinizing the claim on the strength of documents. The First Complainant have executed Letter of Subrogation cum Special Power of Attorney for Rs.12,11,561/- in favour of Second Complainants. The Second Complainants are subrogated to the rights and remedies of the First Complainants in respect of the said loss. The First Complainants had hired services of Opposite Party as a common carriers for carriage of their goods for consideration for transport of their consignment as such, First Complainants are ‘Consumer’ under ‘Consumer Protection Act, 1986. After settlement of the First Complainant based upon the Letter of Subrogation & Special Power of Attorney, the Second Complainants are entitled to be indemnified by the Opposite Party to the sum of Rs.12,11,561/- as such Second Complainants are also consumer.
5) It is alleged by the Complainants that damage to the consignment was caused due to the failure on the part of Opposite Party in not exercising due care, caution and diligence. Opposite Party is as service provider, so the failure to deliver the goods safely is a breach of duty independent of any contract of carriage. Opposite Party is also liable to for deficiency for services.
6) The Complainant’s have prayed to direct Opposite Party to pay to the Second Complainants a sum of Rs.12,11,561/- with interest @ 18 p.a. from the date of loss until realization of entire amount to the Complainants and Rs.30,000/- as cost of complaint.
7)Alongwith complaint, the Complainants had produced documents as per list of document. Mr.Subhash M. Washinikar, Senior Manager - Claim of the Second Complainants had filed affidavit in support of complaint.
8) Opposite Party has filed written statement and thereby resisted claim of the Complainants contending interalia that present Complainants are not consumers therefore, this complaint is not maintainable as consumer dispute.
9) It is further submitted that Insurance Company cannot file and maintain complaint before Consumer Forum on the basis of Subrogation Letter and Common Assignment Right.
10) According to the Opposite Party, First Complainant had not hired services of the Opposite Party from Mumbai but in fact booking was don by Dehradun Branch and therefore this Forum has no jurisdiction to entertain and try this complaint.
11) It is alleged by the Complainant that there was Non-delivery or damaged but according to the Opposite Party the loss was occurred due to reasons outside the control and ambit of Opposite Party. Opposite Party had denied allegations of negligence or deficiency of services on their part.
12) It is contended that First Complainants have not complied with section 10 of the Carriers Act, 1885, as required under Law. They have not produced insurance policy obtained from the Second Complainant. According to the Opposite Party loss incurred to the consignment was due to unforeseen contingencies. All the four consignments were booked from Dehradun to Calcutta and not from Bombay. Goods forwarding notes were issued by Dehradun factory of Complainant No.1. The alleged claim is totally bogus and therefore, complaint is liable to be dismissed with cost.
13) Mr.Jai Prakash Tripathi has filed affidavit in support of the averment made in the written statement.
14) Though sufficient opportunity was given to both the parties, they have not filed written argument. Opposite Party has not appeared before this Forum from 26/05/2010. On 25/11/2010 we heard oral submissions of Adv.Raksha h/f Adv.S.R.Singh for Complainants and case was closed for order.
15) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainants are consumers as defined under amended clause 2(1)(d)(ii)of the Consumer
Protection Act,1986 ?
Findings : No
Point No.2 : Whether the Complainants are entitled for relief as claimed ?
Findings : No
Reasons
Point No.1 - That the First Complainants -M/s.Marrico Industries Ltd. are a Limited Company incorporated under the Indian Companies Act, 1956 doing business. The Second Complainants are Limited Company doing business of General Insurance. The Opposite Party – M/s.Delhi Assam Roadways Corporation Ltd. is a Fleet Owner and Transport Contractor carrying on business for hire and reward. As per Complainants, on/or about 20/02/2007 the First Complainant had hired services of the Opposite Party for carriage, consideration and safe delivery Ex: Dehradun to Calcutta and entrusted into their charge, care and custody consignment of 711 boxes containing products like Hair Oils, Revive, Top Ramen etc. The Opposite Party accepted the said consignment for carriage. It is alleged by the Complainants that Opposite Party did not delivered aforesaid consignment to the consignees at the destination. Therefore, First Complainants had appointed surveyor to assess loss. After receipt of surveyor report the First Complainants had submitted claim to the Opposite Party vide letter dtd.24/03/2007 but Opposite Party did not comply. First Complainants had taken Insurance Policy from the Second Complainant to cover risk of consignment. The Second Complainants settled the claim of First Complainants after scrutiny of the claim on the strength of documents. Thereafter, First Complainant has executed Letter of Subrogation and Special Power of Attorney for Rs.12,11,561/- in favour of Second Complainant. It is alleged that both the Complainants are Consumers.
It is clear from the averment made in the complaint itself that First Complainant had hired services of the Opposite Party for carriage of their consignment consisting of 711 boxes containing products like Hair Oils, Revive, Top Ramen etc. Ex: Dehradun to Calcutta. Invoice value of the said consignment was Rs.11,84,736/-. It is alleged that the Opposite Party had failed to deliver aforesaid consignment to the Consignee at the destination. The First Complainants had availed services of the Opposite Party for their business purpose on 20/02/2007. Amended provisions of Section 2(1)(d)(ii) came into effect on 15/03/2003 by which words “a person who avails services for commercial purpose is excluded from the definition of the consumer”. Amended provisions of Section 2(1)(d)(ii) 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).”
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 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.”
From the above said facts stated in the complaint it is clear that the First Complainant had hired services of the Opposite Party as common carrier for commercial purpose. The services were hired after amended definition of the Consumer came into effect i.e. after 15/03/2005. As the First Complainant had availed services of Opposite Party on/or about 20/02/2007 for commercial purpose, the First Complainants is not Consumer as per amended definition of Consumer and this position the confirmed by the Hon’ble Supreme Court in the afore cited decision. Therefore, we hold that First Complainants is not a Consumer. Second Complainant is claiming consumer on the basis of Letter of Subrogation executed by the First Complainant. As First Complainant is not a Consumer on the basis of Letter of Subrogation, Second Complainant can not become a Consumer under Consumer Protection Act, 1986. There is no privity of contract between Second Complainant and Opposite Party. The Second Complainant cannot acquire better rights than that of First Complainant. Therefore, we hold that the both the Complainants are not 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 - As the Complainants are not consumers as defined under section 2(1)(d)(ii) of the Consumer Protection Act, present 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 No323/2007 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
