BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 183/2001

Dated : 29.11.2008

Complainant:

K. Soman, 'Dhanya' Saw Mill, Malayadi, Vinobanikethan P.O, Nedumangadu (via), Thiruvananthapuram Dt.

(By adv. R. Sabu)

Opposite parties:

1. P. Mohan Raj, S/o Ponnu Swami, Thinavila Veedu, Ezhukonam, Vattavila, Chenkal P.O, Parassala, Thiruvananthapuram.

    

2. National Insurance Company Limited, represented by its Divisional Manager, P.B. No. 112, North Car Street, Nagercoil, Tamil Nadu.

(By adv. M. Nizamudeen)

3. Proprietor, M/s St. Joseph Transport, Transport Contractors and Commission Agent, Opp: Telephone Exchange, Factory Road, North Kalamassery, Ernakulam.

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 17.02.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 30.10.2008, the Forum on 29.11.2008 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant purchased 5000 number of tiles and 300 number of Ridges on 27.07.2000 from Malabar Potteries (P) Ltd, for Rs. 18096/- and entrusted the same to the 3^rd respondent to transport them to the complainant's place at Malayadi. As per the

arrangement complainant has promised to give the freight charge as and when the articles are unloaded at Malayadi. The 3^rd opposite party arranged a lorry bearing No. KL-01 F 7099 for transportation. While

the goods were transporting to the station, the said lorry met with an accident on 28.07.2000 during early hours at Sakthikulangara in Kollam District. By the accident, the articles were completely broken and damaged. The complainant suffered not only loss but he could not pave the tiles in time. The accident happened due to the negligence of the driver of the lorry owned by the 1^st respondent. The 2^nd

respondent is the insurer of the vehicle. Hence this complaint claiming Rs. 50500/- towards compensation, value of articles and other incidental expenses from the opposite parties.

1^st and 3^rd opposite parties remain exparte. 2^nd opposite party entered appearance and filed version contending that the averment in para 1 & 2 of the complaint are not known to the 2^nd opposite party.

The said averments are false. Complainant has not taken any policy for covering goods in transit from the 2^nd opposite party and therefore there is no hiring of service whatsoever for consideration between the 2^nd opposite party and complainant. Complaint is not maintainable. This Forum has no jurisdiction to

entertain the complaint as complainant is not a consumer. Complainant has not furnished the policy No., the period or other details of policy alleged to have been issued by this opposite party in respect of the said lorry anywhere in the complaint. Opposite party is constrained to deny the allegation that the said vehicle is insured with the opposite party. Under the provisions of the Motor Vehicles Act and Rules framed thereunder this Forum has no jurisdiction to entertain this complaint. 2^nd opposite party is not a

necessary party to the proceedings as complainant has not taken any insurance policy covering the goods during transit from the opposite party. Hence opposite party prayed for dismissal of the complaint.

The points that would arise for consideration are:-

1. Whether the complainant is a consumer as defined in the Consumer Protection Act?

2. Whether this Forum has jurisdiction to entertain the complaint?

3. Whether there has been deficiency in service on the part of opposite parties?

4. Reliefs and costs.

To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked Exts. P1 to P7. To support the contention in the version 2^nd opposite

party has filed counter affidavit.

Points (i) to (iv):- It has been the case of the complainant that complainant purchased 5000 number of tiles and 300 number of Ridges on 27.07.2000 from M/s Malabar Potteries (P) Ltd, Cheruvalloor for Rs. 18096/- and entrusted 3^rd opposite party to transport the said articles to the complainant's place at Malayadi and that 3^rd opposite party arranged lorry bearing No. KL-01 F 7099 owned by the 1^st

opposite party for transportation and that while the said articles were transporting the said lorry met with an accident on 28.07.2000 during early hours at Sakthikulangara in Kollam District and the said articles were completely broken down and damaged. It has also been the case of the complainant that the aforesaid accident happened due to the negligence of the driver of the lorry owned by the 1^st opposite party. 2^nd respondent is the insurer of the said vehicle. 2^nd opposite party in her affidavit submitted that

this Forum has no jurisdiction to entertain the complaint as the complainant is not a consumer as defined in the Consumer Protection Act and that the complainant has not taken any policy for covering the goods in transit from the 2^nd opposite party and therefore there is no hiring of service whatsoever for consideration between the 2^nd opposite party and the complainant. 2^nd opposite party further

submitted that under the provisions of the Motor Vehicles Act 1988 and Rules framed thereunder this Forum has no jurisdiction to entertain the complaint. 2^nd opposite party made reliance on the decision of

the Hon'ble Supreme Court in Chairman Thiruvalluvar Transport Corporation Vs. Consumer Protection Council reported in AIR 1995 SC 1384, wherein it was held that claim for compensation arising out of motor accident, Motor Vehicles Act, which is a special law, would prevail over the Consumer Protection Act. It is pertinent to note that this complaint is for compensation arising out of a motor vehicle accident. The alleged damage of the said articles is the direct result of the accident. The accident that occurred had nothing to do with service provided to the complainant. This becomes obvious when one reads the provision along with the definition of complaint in Sec. 2(c) and service in Sec. 2(o) of the Consumer Protection Act, 1986. According to Sec. 2(c), complaint means any application in writing in relation to an unfair trade practice or as a restrictive trade practice adopted by any trader or in relation to goods bought by him or agreed to be bought by him. Both these clauses have no application whatsoever. The third clause relates to the services hired or availed or agreed to be hired or availed of by a consumer. Therefore, at best it can be said the complaint in question related to the service hired or availed by the complainant. The complainant in this case cannot be said to be in relation to any service hired or availed of by the consumer because the damage or loss sustained to the consumer had nothing to do with the service provided or availed of by him but the damage to the said articles was the direct result of the accident. For dealing those cases in connection with accident the Motor Vehicles Claims Tribunal constituted under the Motor Vehicles Act, 1988. This case squarely fall within the ambit of Sec. 165 of the said 1988 Act. The provisions of the Motor Vehicles Act, which is a special law, would prevail over the general law such as the Consumer Protection Act. In view of the above, we find complainant is not a consumer as defined in the Consumer Protection Act. At this juncture we do not consider and discuss other points in detail.

In the result, complaint is dismissed as not maintainable. Complainant is at liberty to seek relief from appropriate Forum. There will be no order as to costs in facts and circumstances of the case.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 29^th November 2008.

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 183/2001

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Cash Bill/Credit Bill dated 27.07.2000 of Rs. 18,096/-.

P2 - Receipt dated 27.07.2000 issued by 3^rd opposite party.

P3 - Malayala Manorama daily dated 29.07.2000 showing the

accident.

P4 - GD Abstract of Sakthikulangara Police Station of 28.07.2000

issued by Sub-Inspector of Police Sakthikulangara.

P5 - Agreement issued by the lorry driver of Lorry No. KL-01 F

7099.

P6 - Advocate notice dated 29.08.2000.

P7 - Photocopy of insurance policy.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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