PER JUSTICE ASHOK BHAN, PRESIDENT        

                 Petitioners who were  the opposite parties before the District Forum have filed this revision petition aggrieved against the order passed by the State Consumer Disputes Redressal Commission, Tamil Nadu in AP No. 485/2003 whereby the State Commission reversed the order of the District Forum which had allowed the complaint and directed the petitioner to pay sum of Rs. 92,882/- to the respondent/complainant along with interest @ 9% p.a. from 02.10.1997, till realization, along with cost of Rs. 2,000/-.      

               Shortly stated, the facts are that the respondent/complainant is a registered partnership firm running transport business with several branches all over Tamil Nadu and other cities and major towns in India.  Respondent/Complainant used to receive goods from various locations from North India and transported to Bangalore from where it used to despatch to various places in South India.  On 02.08.1997, the respondent/complainant received 130 articles, of which six were intended to be despatched to Tiruchirapalli.  All these goods were loaded into the petitioner’s truck under Lorry hire contract No. 14805, dated 02.08.1997 and the goods despatch memo was prepared detailing the memo of goods sent and signed by the second petitioner. It was agreed that the respondent/complainant would pay Rs. 2,900/- as hire charges and paid Rs. 1,000/- in advance to the petitioners.  When the truck reached Salem on 08.08.1997, it was found that six articles bearing CN No. 236255 booked at Ahmedabad on 29.07.1997, CN No. 706519 booked at Pali on 28.07.1997, CN No.  743041 booked at Bhilwara on 26.07.1997, CN No. 743098 and  CN No. 743099 were found missing.  Without issuing notice to the petitioners, respondent/complainant filed complaint against the petitioners before the District Forum alleging deficiency of service, claiming a sum of Rs. 92,882/-  for the loss of goods booked, with interest @ 18% p.a. w.e.f. 02.08.1997 till realisation, Rs. 1,00,000/- towards compensation for deficiency in service and Rs. 5,000/- towards cost of  proceedings.

               Petitioner on being served, entered appearance and filed reply inter alia, taking a preliminary objection that respondent was not a “consumer”  as he did not fall within the definition of the word “consumer” as defined in section 2 (1) (d) of the Consumer Protection Act, 1986 (for short, ‘the act’). That the respondent was running commercial transport activity and hence the complaint filed by it was not maintainable as a person carrying on commercial activity was specifically excluded from the definition of the word “consumer” given in Section 2(1)(d) of the Act.

               On merits, it was admitted that the goods were loaded in the truck for which part payment was made out of the agreed contractual hire charges of Rs. 2,900/-.  It was admitted that there was a short delivery of six articles at the respondent’s yard.  It was explained that on the night of 2/3.08.1997, while the transport was on its way from Bangalore to Salem near Thoppur Motel on the Salem-Dharmapuri Highway, the tyre of the truck burst and on the petitioner No. 2 alighting from the lorry and changing the tyre, he found that the tarpaulin cover, etc., was cut and few cloth bales were missing.  On coming to know, the petitioner lodged a complaint with the concerned Police Station that there was no deficiency of service on the part of the petitioner.

                Respondent did not file affidavit of evidence in support of the allegations made in the complaint but only tendered documents at Exhibits  A1 to A9, before the District Forum.  

                District Forum, after taking into consideration the pleadings as well as evidence led by the parties, came to the conclusion that the respondent was not a ‘consumer’ within the definition of the word “consumer” and accordingly, dismissed the complaint as ‘not maintainable’.    

                Observations in Para 9 of the order of the District Forum reads

as under :-

“It is evident from the evidence adduced by both the parties that the complainant is a transport company running transport business all over India and the goods which were lost are not belonging to the complainant.  Further Exhibits A 3 to A7 would clearly go to show that the complainant is not the owner of the goods in question and it is also clear from the said documents that the consignments are insured with the National Insurance Company, Bhilwara.  But it is not known if any sum has been paid by the insurance company towards the value of the consignment to the owner of the goods.  The learned counsel for the opposite party argued that the goods which were lost in transit are not belonged to complainant and as per the section 14(1) (d) of CP Act, only the consumer is entitled to the loss or injury suffered by the consumer due to negligence of the opposite parties.  But in this case, the complainant being only a transport company to whom the consignment was entrusted for transportation, he is not the owner and thus he has not suffered actual loss.  In support of his argument he submitted a judgment of National Consumer Disputes Redressal Commission reported in 1998 NCJ (NC) page 193 and in 1995 (2) CPR 229  and the judgment of the National Consumer Disputes Redressal Commission reported in 1995 (1) CPR 833.  In the above said judgments, the National Consumer Disputes Redressal Commission has laid down the following principles “The compensation is only for the loss actually suffered and such compensation is not to be given for any equitable indulgence or for any remote or indirect loss”   and  “Compensation can be awarded to a consumer only in respect of any loss or injury found to have been suffered by him due to negligence of the opposite party”.  In the light of the observations laid down by the National Consumer Disputes Redressal Commission in the above said judgments, we find great force in the arguments advanced by the learned counsels for the opposite parties.  It is also not known if any amount has been paid by the insurance company for the goods lost in transit as it were insured with the National Insurance Company.  Considering the facts, evidence and circumstances of this case, we hold that the complainant is not a consumer as he is not the real owner of the goods and that he is not entitled to any compensation as no loss actually caused to him.  Point No. 1 is decided accordingly”. 

         Respondent, being aggrieved, filed appeal before the State Commission.  State Commission reversed the order of the District Forum and came to the conclusion that the respondent was a ‘consumer’ and, therefore, complaint filed by it was maintainable.  Accordingly, State Commission allowed the complaint and set aside the order of the District Forum and directed the petitioner to pay the sum of Rs. 92,882/- along with interest @ 9% p.a. w.ef. 02.08.1997, till realization.

               We have heard learned counsel for the petitioners.  Learned counsel for the respondent is not present.  Respondent is ordered to be proceeded ex-parte.

              Respondent is admittedly, not the ‘owner’ of the goods.  As per averments made in the complaint, respondent is a registered partnership firm running transport business with several branches all over Tamil Nadu and in other cities and towns in India.   Respondent used to book goods from various locations of North India for transport to Bangalore, from where it used to despatch to various places in South India.  Admittedly the respondent, on 02.08.1997, had received 130 articles of which, six were intended to be despatched to Tiruchirapalli.  For this, the respondent engaged the services of the petitioner.  From the aforesaid facts, it is amply clear that the respondent is running a commercial activity. Respondent after receiving the goods from various parts of the country, on receipt of hire charges, used to despatch them to various cities in Tamil Nadu. The respondent had despatched somebody else’s goods through the transport agency of the petitioner – transporter, which shows that the respondent was carrying on commercial activity.   Section 2 (1) (d) of the Act clearly states that a person carrying on a commercial activity is specifically excluded from the definition of the word “consumer”.  Since respondent was carrying on commercial activity, the complaint filed by the respondent was not maintainable. 

                For the reasons stated above, revision petition is accepted, order of the State Commission is set aside and that of the District Forum is restored.  Complaint is ordered to be dismissed.

               Petitioners are, however, given liberty to seek redressal of their grievance(s)  by approaching  any other Forum, including  Civil  court,   along with application for condonation of delay, in terms of the decision of  the  Supreme Court of  India  in the matter of Lakshmi Engineering Works Vs. PSG Industrial Institute – (1995) 3 SCC 583.