Punjab

Ludhiana

CC/17/1

M/s Cosmas Pharma - Complainant(s)

Versus

M/s Om Logistics Limited - Opp.Party(s)

Ajay Chawla Adv.

02 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 01 of 02.01.2017

Date of Decision            :  02.01.2017 

M/s Cosmas Pharmacls Limited, having its operations at B-I-1446/10-B, Y-Block Crossing, Humbran Road, Ludhiana through Shri Roger Tandon, its authorized representative.

….. Complainant

Versus

1. M/s Om Logistics Limited, 130, Punjab Bagh (T.C.), Ring Road, New Delhi – 110035, through its Managing Director.

2. M/s Om Logistics Limited, B-24, Phase V, Focal Point, Near Rockman Industries, Ludhiana through its Manager.  

…Opposite parties

                   

                    (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Ajay Chawla, Advocate

For OPs                         :          Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn off unnecessary details, the case of the complainant is that complainant is a public limited company duly constituted and incorporated under the Indian Companies Act and is carrying on the business of manufacturing and sale of medicinal formulations and pharmaceuticals. The Board of Directors vide its resolution dated 15.7.2013 had authorised Shri Rozer Tandon to initiate the legal proceedings against Ops. It was further averred that complainant entrusted Op2 with a consignment of medicinal and pharmaceuticals for taking the same to M/s Invision Medi Sciences Private Limited, 231/3, 12^th Cross Wilson Garden, Bangalore-27 along with invoice No.5087 dated 09.8.2012 for a value of Rs.2,89,476/-. In token of receiving the consignment, Op2 had issued consignment copy of GR No.19010316958 dated 10.8.2012. The consideration for the carriage services was to be paid by the consignee at the time of delivery of the consignment at the destination. However, the consignment was not delivered to the consignee for fairly a long time, despite the fact that the complainant had been pursuing Ops for delivering the goods at the destination. Ops informed the complainant that goods were loaded by them from Ludhiana to destination in vehicle No.HR-38-Q-0131 from their Jamalpur Hub on 13.8.2012. When no intimation was given by Ops, then the complainant served a legal notice dated 1.3.2013 through Sh.Dalip K. Saggi, Advocate, Ludhiana. Ops in order to cover their lapses sent an ante dated letter to the complainant having been posted on 22.8.2012 allegedly intimating the complainant that the consignment in question was destroyed during the transit in fire accident involving the vehicle in which the goods were loaded. However, Ops did not reimburse the loss to the complainant, as a result of which complainant suffered inconvenience and mental tension and harassment on account of deficiency in service on the part of Ops. Hence the complaint with the direction to Ops to pay a sum of Rs.4,89,476/- on account of loss of goods and harassment or any other additional or alternative relief against Ops.

2.                Complaint was contested by Ops, who filed written reply/version taking preliminary objections that the complaint is false, frivolous and is filed just to harass Ops; complainant is not a consumer as defined under the Act; complainant is guilty of concealment of material facts and had suppressed the fact that on 16.8.2012 all the consignments, which were being transported through Truck No.HR38-Q-0131 was set ablaze by the mob along with the truck. The driver of the truck lodged FIR No. 183 of 2012 in the concerned Police Station in District Jaalnaa, State Maharashtra and that no notice as required under Section 10 of the Carriers Act was sent. On merits, it was denied that Mr. Rozer Tandon was competent to file this complaint. Receiving the consignment from the complainant was admitted. However, it is denied that the consignment in question was not delivered at the destination because the complainant was guilty of suppressing the material fact that on 16.8.2012 truck No.HR38-Q-0131 loaded with the goods delivered by the complainant was set ablaze and FIR No.183 of 2012 was recorded in the concerned Police Station, District Jaalnaa, Maharashtra and the complainant was duly informed vide letter dated 22.8.2012. Therefore, there was no deficiency in service on the part of Ops. Each and every other averment of the complaint denied by praying for dismissal of the complaint with costs.

3.                In support of his allegations, the complainant had tendered into evidence affidavit of Sh.Rozer Tandon Ex. CA, Memorandum of Articles of Association of Cosmas Pharmacls Ltd. Ex. C-1, resolutions Ex. C2 and Ex.C3, retail invoice Ex. C-4, freight details bill Ex. C-5, legal notice & Postal receipt Ex.C6 to Ex.C8 and letter of Om Logistics Ltd. as Ex. C-9.

4.                On the other hand, Ops had tendered into evidence affidavit of Rajendra Singh Pachar Ex. RA, crime details form/FIR Ex. R-1, letter of Om Logistics Ltd. Ex. R-2, resolution copy Ex. R-3.

5.                After hearing arguments, complaint was dismissed by this Forum earlier vide orders dated 24.03.2014 by holding that complaint is not    maintainable because the complainant is not a consumer.

6.                Feeling aggrieved against those orders, an appeal was preferred before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, which was allowed vide orders dated 01.04.2016 passed in First Appeal No.702 of 2014 in case titled as M/s Cosmos Pharmacls Limited vs. M/s Om Logistics Limited and others in terms that complaint remanded back to this Forum to decide the complaint on merits in accordance with law.

7.                After remand of this case, none appeared for OP1 and OP2, despite issue of notices and as such, drawing presumption of due service after lapse 30 days from sending of the registered post, both OP1 and Op2 were proceeded against ex-parte. Even counsel for the parties were ordered by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh to appear before this Forum on 4.5.2016, but on that date, only Sh.Ajay Chawla, Advocate appeared for complainant and none appeared for Ops. So, virtually OP1 and OP2 have not appeared even on the date fixed by the Hon’ble State Commission.

8.                Arguments of counsel for the complainant heard and records gone through minutely. 

9.                After going through para no.12 of the orders passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, it is made out that the District Forum has not properly appreciated the point in question for what purposes the services of Ops were availed and as such, dismissal of complaint merely on ground that the complainant is a company is improper. After setting aside the order, it was held that the complainant is a consumer and this Forum was directed to decide the complaint on merits. So, the moot question to be decided on merits is as to for what purposes the services of Ops were availed by the complainant. Merely because the complainant is a company, due to that alone, the complainant does not cease to be a consumer.

10.              After going through para no.1 of the complaint and para no.1 of affidavit Ex.CA of Sh.Rozer Tandon, Accountant of complainant company, it is made out that the complainant is a public limited company duly constituted and incorporated under the Indian Companies Act for carrying on business of manufacturing and sale of medicinal formulations and pharmaceuticals. So, in the plea taken in the complaint and in the supporting affidavit, it is mentioned that the complainant company is carrying on business of manufacturing and sale of medicinal formulations and pharmaceuticals. Even after going through the copy of Memorandum and Articles of Associations of Cosmas Pharmacls Limited Ex.C1, it is made out that the main object of complainant’s company is to carry on the business of manufacturers, traders, marketing, wholesalers, importers, exporters, distributors, dealers, retailers, commission agents of all kinds of pharmaceutical products etc. Further, Article 166 of Memorandum and Articles of         Association (Ex.C1)  provides that the profit of the company liable to be     divisible among the members in proportion to the amount of capital paid-up or credited a paid-up etc. So, object of complainant company is to carry on the business for sharing profits by the members numbering 9 mentioned at page no.13-14   of Ex.C1. Even if such may be the purpose of complainant concern’s constitution despite that company can avail the services of transportation for transporting goods for the purpose of exports or imports or like purposes and as such, it has to be seen as to whether services of Ops as transporters availed by the complainant in connection with commercial transaction or for commercial purposes or not? There is no averment in the complaint or in the affidavit Ex.CA to establish that services of Ops for transporting medicinal and pharmaceuticals articles of worth of Rs.2,89,476/- availed by the complainant for earning livelihood. However, after going through para no.2 of the complaint as well as para no.2 of affidavit Ex.CA itself, it is made out that these articles were entrusted by the complainant to OP2 for taking the same to Invision Medi Sciences Private Limited, 231/3, 12^th Cross Wilson Garden, Bangalore. Even after going through the retail invoice Ex.C4, it is made out that pharmaceutical goods of worth of Rs.2,89,476/- sold by the complainant to Invision Medi Sciences Pvt. Ltd referred above. In retail invoice Ex.C4 itself, it is mentioned that mode of dispatch is OM Logistics, which means that these goods were dispatched through consignment to be carried by Ops i.e. Om Logistics Limited. Freight details and payment terms for such carriage are mentioned in Ex.C5, where the name of consignor is mentioned as Cosmos Pharmacls Limited(complainant), but name of consignee mentioned as Invision Medi Science Pvt Ltd(referred above). So, from these documents, it is made out that pharmaceutical goods sold by the complainant to Invision Medi Science Pvt Ltd through invoice Ex.C4 were transported at the instance of the complainant through Ops, for which, Ops charged freight. In view of sale of goods by the complainant to Invision Medi Science Pvt Ltd and subsequent dispatch through Ops, it is obvious that services of Ops were availed by the complainant in connection with commercial transactions, but without impleading that these services were availed for earning livelihood.

11.              Definition of section 2(d) of the Consumer Protection Act, 1986 stood amended by amendment Act 62 of 2002 w.e.f.15.3.2002 by adding the words “ but does not include a person who avails such services for any commercial purpose” in the definition of consumer. So, in para no.25 of judgment titled as M/s.Economic Transport Organisation vs. M/s.Charan Spinning Mills(P) Limited-2010(1)CPJ-4(S.C.), it has been specifically held by the Hon’ble Supreme Court of India that if after the amendment, services of the carrier availed for any commercial purpose, then the person availing services will not be a consumer and consumer complaint will not be maintainable. However, the amendment will not apply to the complaints filed before amendment is also laid down in para no.25 of the above cited judgment of Hon’ble Supreme Court of India. Law laid down by the Hon’ble Supreme Court of India is the law of land in view of Article 141 of the Constitution of India. Any law contrary to the law laid down by the Hon’ble Supreme Court of India as such will be a bad law. In view of above legal position and in view of the fact that the services of Ops by the complainant availed for transporting the sold pharmaceutical goods for commercial purposes, there is no escape from the conclusion that the complainant is not a consumer. Earlier these aspects of the matter were not taken into consideration by this Forum and that is why case was remanded back by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh with directions to this Forum to appreciate the point in question as to for what purpose the services of Ops were availed. That question has been decided now and as such, relief in this consumer complaint cannot be granted to the complainant.

12.              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 this case is applicable in all respect to the facts of the present case in view of the above discussion and as such, consumer complaint is not maintainable.

13.              Counsel for the complainant has placed reliance on law laid down in case of Raipur Surguja Transport vs. Sahasram Nagwanshi-2016(2)CPJ-102(Chattisgarh State Consumer Disputes Redressal Commission, Raipur) for arguing that consumer complaint against transporter through whom the goods sent for transportation is maintainable. However, after going through para no.2 of the cited case, it is made out that the complainant booked colour television in that case for self for delivery at different station after payment of Rs.70/- towards freight charges. So, virtually the transportation of television for self was not in connection with any commercial transaction or for commercial purpose. Likewise, in case of Associated Road Carriers Limited vs. Tridoss Laboratories Limited and another-2012(1)CPJ-152(N.C.), it was found that services of transportation were availed by getting the consignments insured and on request of the consignor, the insurer to indemnify for the loss to the articles. These are the facts borne from perusal of contents of para no.2 and 3 of the cited case. Later on Letter of Subrogation and Special Power of Attorney from the consignor was obtained and thereafter, joint complaint was filed. Provisions of Section 2(1)(d) of the Consumer Protection Act, 1986 did not came for interpretation in this case and as such, facts of the reported case are quite distinct than those of the facts of the case before us. Even in case of Transportation Corporation of India Limited and another vs. Oriental Insurance Company Limited and another-2011(4)CPJ-582(N.C.), provisions of Section 2(1)(d) of the Consumer Protection Act did not came for interpretation and the consignment was insured. As and when, the services of an insurance company availed in respect of transported goods, then liability remains of the insurer and as such, by keeping in view the contents of para no.3 of the cited case, it is obvious that virtually claim was stacked against the insurer. Insurer provides services for consideration even for commercial purpose and the contract of insurance stand on independent footing than that of commercial transaction and as such, benefit from the ratio of above cited cases cannot be availed by the complainant, particularly when the law laid down by the Hon’ble Supreme Court of India in case titled as Economic Transport Organisation vs.M/s Charan Spinning Mills(Supra) apply to the facts of the case in hand for holding as if due to availing of services of the carrier for commercial purpose, the complainant is not a consumer.

14.              In case of M/s Transportation Corporation of India Limited vs. M/s Veljan Hydrair Limited-2007 AIR (S.C.) 1527, the Hon’ble Supreme Court of India was dealing with case, where the invoice was containing averment of self in the name of consignee. This fact becomes obvious from perusal of para no.2 of this cited case. As and when, the consignment dispatched through transport for self, then question of involvement of the commercial purpose does arise at all. Law laid down in case of Patel Roadways Limited vs. Birla Yamaha Limited-2000(2) ALL MR 599 by the Hon’ble Supreme Court of India pertains to the interpretation of definition of consumer as was in vogue prior to the amendment of 2002 of Section 2(d) of the Act. So, benefit from ratio of that case is not available to the complainant at all. Even after going through para no.5 of case titled as Delhi Rajasthan Transport Co.Ltd and others vs. Rajkumar Agarwal-2015(4)CPR-572(N.C.), it is made out that GRS of the consigned goods were sent by Rupal Engineering Industries and name of the consignee was written as “self”. That is not the position in the case before us as disclosed by contents of Ex.C5 and Ex.C4 as discussed above and as such, benefit from ratio of above cited case is not available to the complainant.

15.              Even in case of Birla Technologies Limited vs. Neutral Glass and Allied Industries Limited-(2011)1-Supreme Court Cases-525, it has been held that in case, deficiency in service is in respect of the goods purchased for commercial purposes, then complaint under the Act is not maintainable because of availing of services for commercial purposes, owing to which, the customer concerned stands excluded from the purview of Consumer Protection Act, 1986.

16.              In case, the services of installation of the lift for commercial purpose got, even then Consumer Fora has no jurisdiction to entertain and try the complaint as per law laid down in case of Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.). Likewise, in case, a car is purchased by the company for the Director not exclusively for the purpose of earning livelihood by means of self employment, but for commercial purposes, then Consumer For a will be having no jurisdiction to entertain the consumer complaint is the proposition of law laid down in case of Pharos Solution Pvt. Ltd. and others vs.  – Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.). If a software is purchased by a private limited company and the said software used by the Managing Director for running business without mentioning that the same was used for earning livelihood, then consumer complaint will not be maintainable. This in fact is the law laid down in case of Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.). So, plethora of precedents leans in favour of holding that if services availed for commercial purpose, then customer concerned will not be a consumer. Even in the case before us, the services of Ops availed by the complainant for transporting the goods sold by the complainant to another firm in connection with promoting business interest, but without impleading that said business carried for earning livelihood and as such, certainly on merits also, complainant cannot be treated as a consumer. Being so, consumer complaint is not maintainable.

17.              Therefore, as a sequel of the above discussion, complaint dismissed ex-parte, but without any order as to costs. Copies of this order be made available to the parties free of costs as per rules.

18.                        File be indexed and consigned to record room.

 

                                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                Member                                      President

Announced in Open Forum

Dated:02.01.2017

Gurpreet Sharma.