PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief present dispute is as under –
That the Complainant is a Company registered under the Companies Act and it is carrying business as a manufactures and Sellers of ‘Textile’ of various customers all over India. As per the orders of buyers, the Complainant dispatches goods to the Transport Company, Consignee being ‘Central Bank of India’. Opposite Party No.1 is the proprietary concern carrying on business of transport of goods. The Opposite Party No.2 is the Proprietor of Opposite Party No.1.
2) It is submitted that the Complainant had availed the transport services of Opposite Parties as a carrier for dispatching goods worth Rs.22,63,896/- vide Invoice No.7926 to 10178 under total 88 Lorry Receipts from Mumbai to Jaipur, consignee being ‘Central Bank of India’, on all the lorry receipts between 16/05/07 to 07/12/07. Alongwith complaint the Complainant has produced statement of goods alongwith the lorry numbers etc. The Complainant intimated to the drawee (Buyer) from time to time about the dispatched of the goods by sending copy of invoice with Lorry Receipt number as per agreed terms and conditions. The drawee M/s. Khediwal & Sons paid total Rs.8,90,000/- from 02/02/08 to 28/08/08. Accordingly, Complainant send (41) original invoices alongwith (32) original lorry receipts duly authorized by the consignee/consignor to take the delivery from the transport company i.e. from Opposite Party and accordingly, Opposite Party had delivered the goods worth Rs.8,90,000/- to M/s. Khediwal & Sons, after receiving original lorry receipts vide Complainant’s Invoice No.7926 to 8704, total amounting to Rs.8,90,000/-. The Complainant has annexed statement of Rs.8,90,000/- being the amount paid by M/s. Khediwal & Sons for the aforesaid goods at annexure ‘C-2’.
3) It is alleged by the Complainant on the basis of assurance given by the drawee to honour the balance documents, on September, 08 which the drawee refused to remit and Honour further documents. The Complainant directed the Opposite Party to rebook the (56) consignment back to Bombay from Jaipur worth Rs.13,73,896/- by surrendering original consignor or consignee copies of the lorry receipts at their Bombay office as per their normal procedure of rebooking. The Complainant has produced copies of re-booking, letters alongwith complaint at annexure ‘C-3’ colly.
4) It is the grievance of the Complainant that inspite of repeated calls, the Opposite Party assured all the times that they will inform to the Complainant about the arrival of goods. Then the Complainant Company sent a legal notice through its Director - Shri.S.G. Kumar on 19/01/2008. However, Opposite Party all the time only promised to return the goods and prolonged the matter on one or the other pretext.
5) It is alleged by the Complainant that Opposite Parties have committed fraud and cheating so on 10/12/08, the Complainant wrote a letter to Sr. Police Inspector, MIDC Police Station at Andheri (E), Mumbai. Thereafter, on several occasions the Complainant requested the Opposite Parties to return the goods worth Rs.13,73,896/-, but Opposite Parties had not taken any steps to return the goods to the Complainant. When the Complainant realized that Opposite Parties have no intention to return the goods worth Rs.13,73,896/- to the Complainant, the Complainant lodged F.I.R. dtd.28/05/2009 at MIDC Police Station.
6) According to the Complainant, Opposite Parties are grossly liable for not returning the Complainant’s goods inspite of repeated requests of the Complainant and it amounts to deficiency in service and unfair trade practice on the part of Opposite Parties. Therefore, the Complainant has filed this compliant. The Complainant has requested to direct Opposite Parties to return to the Complainant goods consigned with the Opposite Parties bearing batch no.8729 to 11746 worth Rs.13,73,896/-. Further, the Complainant has requested to direct Opposite Parties to return the original documents of consignor handed over to the Opposite Parties of goods bearing batch no.8729 to 11746, alongwith original documents of Consignees. The Complainant has requested to direct Opposite Parties to pay to the Complainant interest @ 21% p.a. on the sum of Rs.13,73,896/- and Rs.5 Lacs as a compensation for mental agony, physical harassment and inconvenience caused to the Complainant. The Complainant has requested to direct Opposite Parties to pay Rs.30,000/- towards legal charges.
7) In support of the complainant the Complainant has filed affidavit of Mr. Dashrath S. Matal and copies of documents as per list of documents.
8) Opposite Parties no.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending that complaint is barred by law of limitation and therefore, complaint is liable to be dismissed. According to the Opposite Parties, they are Fleet Owners and Transport Contractors. It is submitted that present complaint is bad for non-joinder of necessary parties as Consignee – M/s. Khediwal & Sons are not joined as a party. Further, it is contended that present complaint involves complicated question of law and facts and therefore, it is beyond scope of this Consumer Forum to entertain and try this complaint. It is contention of the Opposite Parties that their office has situated at Jaipur and cause of action to this complaint took place at Jaipur office and therefore, this Forum has no jurisdiction to entertain and try this complaint.
9) It is submitted by the Opposite Parties that the goods in question supplied between the period 16/05/07 and 07/12/07 to the consignees at Jaipur. In the present case for rebooking was done much later after the stipulated time period of 60 days of rebooking. The first instructions for rebooking was received on 10/09/2008. Hence, it was not possible as per trade practice of the Opposite Party to rebook the goods at this advanced stage. It is alleged that the Complainant alongwith the consignee i.e. M/s. Khediwal & Sons in collusion of each other played a fraud upon the authorities. According to the Opposite Parties, on all the consignment notes it is clearly stated that the consignee is ‘Central Bank of India’ and therefore, the consignment note should have been delivered to Central Bank of India. However, the Complainant never delivered any of the consignment notes to the Central Bank of India for collection and further more none of the payments were routed through the Central Bank of India. These facts have been confirmed by the Reserve Bank of India, which has been confirmed by the Advocate for M/s. Khediwal & Sons by his letter dtd.12/10/2010.
10) According to the Complainant, payment have been done by M/s. Khediwal & Sons at Jaipur by Demand Drafts of other Banks in favour of the Complainant. The modus operandi was that, the goods were dispatched by the Complainant and the goods were delivered by the Opposite Parties to M/s. Khediwal & Sons, on the issue of settling the accounts between them.
11) According to the Opposite Parties, the entire facts were cleared by the Opposite Parties as per their letter dtd.21/09/2009 addressed to Sr. Police Inspector, MIDC Police Station, Adheri(W), Mumbai. However, the Complainant has lodged false FIR, alleging an amount of Rs.13,73,896/- is due and payable. It is contended that present complaint is false and frivolous and deserves to be dismissed with heavy cost.
12) Opposite Parties have denied each and every allegation made in the complaint and submitted that there is no deficiency in service. They are not guilty of unfair trade practice. On the contrary the Complainant has filed this complaint only with intention to harass the Opposite Parties. Therefore, complaint be dismissed with cost of Rs.10,000/-. Alongwith written statement the Opposite Parties have produced copies of several documents at annexure ‘1’ to ‘5’.
13) The Complainant has filed affidavit of evidence, Opposite Parties have also filed affidavit of evidence. The Complainant has filed written argument, Opposite Parties have also filed written argument. We heard Ld.Advocate Ms. Rashmi Manne for the Complainant and Ld.Advocate B.N. Dubey for the Opposite Parties.
14) It is submitted by the Ld.Advocate for Opposite Parties that even as per the Complainant, the Complainant availed services of the Opposite Parties for commercial transaction i.e. for transport of goods to their customer, during period 16/05/07 to 07/12/2007. As per amended Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986, as the Complainant has availed services of Opposite Party for commercial purpose after 15/03/03, the Complainant is not a ‘Consumer’ and on this ground the complaint is liable to be dismissed. On the contrary, Ld.Advocate Ms. Rashmi Manne, has submitted that the Complainant is a ‘Consumer’ and this Forum has a jurisdiction to entertain and try this complaint.
15) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a ‘Consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act,
1986 ?
Findings : No
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : Does not survive.
Point No.3 : Whether the Complainant is entitled for reliefs as prayed for against the Opposite Parties from this Forum ?
Findings : No
Reasons :-
Point No.1 :- Following facts are admitted facts that the Complainant is a Company registered under the Companies Act and it is carrying on business of Manufacture and Sell of Textile goods to various customer all over India. Opposite Party No.1 is a proprietary concern carrying on business of transportation goods and Opposite Party No.2 is the Proprietor of Opposite Party No.1. It is not dispute that during the period 16/05/07 to 07/12/07 the Complainant availed services of Opposite Parties for transport of their textile goods worth Rs.22,63,896/- to their customer M/s. Khediwal & Sons from Mumbai to Jaipur. The goods were dispatched vide Invoice No.7926 to 10178 under total 88 Lorry Receipts from Mumbai to Jaipur, consignee being ‘Central Bank of India’, on all the lorry receipts. According to the Complainant, out of the aforesaid goods M/s. Khediwal & Sons paid total Rs.8,90,000/- from 02/02/2008 to 28/08/2008. The Complainant waited till August, 08 on the assurance given by the drawee to honour the balance documents, but drawee refused to remit and honour further documents and therefore, the Complainant directed the Opposite Parties to rebook the (56) consignment back to Bombay from Jaipur worth Rs.13,73,896/- by surrendering original consignor or consignee copies of the lorry receipts at their Bombay office as per their normal procedure of re-booking. It is the grievance of the Complainant inspite of repeated demands, the Opposite Parties failed and neglected to send or return the goods consignment bearing Batch No.8729 to 11746 worth Rs.13,73,896/- and original documents of consignors and consignee handed over to the Opposite Parties and therefore, Complainant has filed this complaint.
Ld.Advocate for the Opposite Parties has referred the amended provisions of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, which are as under –
“(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 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 commercialpurpose]
[Explanation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;]”
Provisions of Section 2(1)(d)(ii) were amended by Act of 62 of 2002 and amended provisions of came into force on 15/03/2003. According to the Ld.Advocate for the Opposite Party, from the averment made in the complaint it is clear that Complainant’s Company is carrying on business of manufacture and sells of textile goods. According to the Complainant, on the basis of orders received from their customers they used to deliver goods to their customers at various prices thought out all over India. It is submitted by the Ld.Advocate of the Opposite Parties that the Complainant availed services of the Opposite Parties in 2007 for transport of their goods to their customers. Therefore, Complainant has availed services of Opposite Parties for commercial purpose and therefore, Complainant is not a ‘Consumer’. In support of his contention Ld.Advocate has relied upon decision of Constitutional Bench of the Hon’ble Supreme Court of India in M/s. Economic Transport Organisation V/s. M/s. Charan Spinning Mills (P) Ltd. & Anr., Ld.Advocate also relied upon decision of the Hon’ble National Commission, New Delhi in First Appeal No.107 of 2001 in Delhi Assam Roadways Corporation Ltd. V/s. B.L. Sharma, Decision of Maharashtra State Commission in M/s. Darshan Industrial Roadways, Mumbai V/s. M/s. Tejal Dress, Khed, dtd.20/05/2009.
Ld.Advocate Ms. Rashmi Manne for the Complainant has relied upon decision of the Hon’ble Supreme Court in Karnataka Power Transmission and Ant. V/s. Ashok Iron Works Pvt. Ltd., reported in III (2009) CPJ 5 (SC) in which it is held that the Company is a person within meaning of Section 2(1)(d) r/w Section 2(1)(m) of the Consumer Protection Act. The Hon’ble National Commission, New Delhi in Revision Petition No.450 of 2007 Nagpur Golden Transport Co. V/s. Ghanshyam Poddar & Anr., decided on 06/07/2011. From the reported judgment, it appears that in the said case the Complainant booked a consignment of cloth with the Petitioners/Opposite Party No.1 on 29/11/2000 for being transported and delivered to the Complainant at Manendragarh, Dist. Koria. The value of the consignment was shown as Rs.29,600/- in the bilty. It is alleged that the said consignment was not delivered to the Complainant and hence, a consumer complaint was filed 26/09/2009. In the said case considering facts of the said case the Hon’ble National Commission has held that “the Complainant/Respondent No.1 is a ‘Consumer’ and his complaint in respect of deficiency qua the transportation of carriage of goods in question is very much maintainable under the Consumer Protection Act.” The facts of this case altogether different than the facts stated in the aforesaid judgment. In this case admittedly goods were entrusted to the Opposite Parties in 2007 i.e. after amendment in Sec.2(1)(d)(ii) of 2003, therefore, decision in the Nagpur Golden Transport Co. is not applicable to the present case.
Ld.Advocate Ms. Rashmi Manne has further referred to First Appeal No.481 of 2006 in the matter of M/s. East India Transport Agency V/s. M/s. Voltas Limited, decided by the Hon’ble National Commission, New Delhi in the year 2011. It appears from the reported judgment that the said appeal was preferred against the order dtd.25/04/1996 passed by the State Commission Maharashtra, Mumbai. So it is clear that transaction in question in that case took place much prior to 25/04/96 i.e. prior to amendment of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 amended on 15/03/2003. Therefore, aforesaid decision is also not applicable to the present case. It appears from the another decision of the Hon’ble State Commission, Mumbai, in Appeal No.1267 of 1999 that in the said case of M/s. Skypak Couriers Ltd. V/s. M/s. Wartsila Diesel India Ltd., Mumbai Suburban District Consumer Forum, has decided the matter dtd.17/02/1999. So transaction in questions in said case also taken prior to amendment of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.
As mentioned above, Ld.Advocate for Opposite Party has relied upon decision of the Hon’ble Supreme Court in M/s. Economic Transport Organisation V/s. M/s. Charan Spinning Mills (P) Ltd. & Anr. The aforesaid judgmentwas delivered by the Constitutional Bench of the Hon’ble Supreme Court on 17/02/2010.
In judgment para no.25, the Hon’ble Supreme Court has observed that -
“We may also notice that Sec.2(d) of the Act was amended by amendment Act, 62 of 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. But the said amendment will not apply to Complainants filed before the amendment.”
Decision of the Hon’ble Supreme Court and even Obiter Dictum of the Hon’ble Supreme Court is binding on all the subordinate Courts and Tribunals in India. In the instant case, the Complainant is a registered under the Companies Act, engaged in business of manufacture and sale of textile goods to its customers. As mentioned in the complaint in the year 2007 the Complainant had delivered goods worth Rs.22,63,896/- to the Opposite Parties for its transport to their customer at Jaipur. It is clear from the averment made in the complaint itself that the Complainant had availed services of the Opposite Parties in 2007 for commercial purpose and therefore, in view of the amended provision of Sec.2(1)(d)(ii), Complainant is not a ‘Consumer’. Hence, we answer point no.1 in the negative.
Point No.2 & 3 :- As discussed above, the Complainant is not a consumer as defined under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, therefore, the question of proving any deficiency in service does not arise. Present complaint is not maintainable under the Consumer Protection Act, 1986. So the Complainant is not entitled to seek any reliefs from this Forum against the Opposite Parties. Hence, we answer point no.2 & 3 accordingly.
For the reasons discussed above the complaint deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.24/2010 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
