ORDER
(Per: Mr. D.K. Tyagi, Member):
This is an appeal under Section 15 of the Consumer Protection Act, 1986, filed by the appellant-complainant against the order dated 31.01.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 71 of 2009. By the impugned order, the District Forum has dismissed the consumer complaint.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant is a registered partnership firm duly constituted under the provisions of the Indian Partnership Act, 1932 having its registered office at 395, Gangapur Barielly (U.P.) and is dealing in business of edible items including Ghee, Sugar, Food Grains, Pulses and edible oils etc. under the name and style “Bankey Lal Mohan Lal” exclusively for the purpose of earning livelihood by means of self-employment. The opposite party No. 1 is a transporter/carrier and stood liable for loss of or damage to such property delivered to them to be carried from Kathmandu, Nepal to Kotdwar, Uttaranchal. The opposite party No. 2 is the owner of vehicle No. RJ14-2G-8015 and opposite party No. 3 is the insurer of the said vehicle and they are liable to indemnify the complainant as third party. The opposite party No. 4 is the driver on the said vehicle, who had lifted the consignment from Nepal for transportation to Bareilly. The opposite party No. 5 is the owner of the vehicle No. UP25-T-6692. The opposite party No. 6 is insurance company and dealt with all sorts of insurance activities in consonance with Rules and Regulations and norms. The opposite party No. 7 is a manufacturer of Hydrogenated vegetable oil and was supposed to discharge their contractual obligations with the complainant and was responsible for the supply of contractual goods at Kotdwar in contemplation with contract held with STC (State Trading Corporation)-opposite party No. 8 on 13.07.2007. The STC was the buyer as against the opposite party No. 3. And after the purchase of consignment, the opposite party No. 4 was under legal obligation to confirm the sale after delivery at Kotdwar. The opposite party No. 8 is seller as against the complainant and has authorized the complainant to make payment to the Nepalese Suppliers for and on its behalf vide agreement dated 30.07.2007. That in terms of agreements dated 13.07.2007 and 30.07.2007 respectively, the complainant had discharged its obligations well in time with opposite party No. 3 on behalf of the opposite party No. 4. The opposite party No. 7 had subscribed a marine insurance policy from opposite party No. 6, wherein the complainant is a beneficiary within meaning and scope of Section-2 of the Consumer Protection Act, 1986. The policy was effective with effect from 10.09.2007 and paid the requisite premium for 1146 tins of 16 Kg. each. The policy so subscribed bears policy number. That the consignment was boarded at truck No. RJ14-2G-8015 on behalf of seller which was to be delivered at complainant’s depot, but it could not reach at its destination and met with an accident at road side. The vehicle was turned down in ditch due to breaking of Patta and the driver sustained injuries. The driver went for his treatment. On his return, the consignment tins were found stolen. That the carrier-opposite party No. 1 has transferred the balance consignment (tin) in another vehicle bearing No. UP25-T-6692 by their own and only 326 tins were delivered to complainant at their Branch Office situated at Udhamsingh Nagar, Uttaranchal, out of which only 126 tins were perfect and rest 200 tins were found damaged. The complainant has immediately informed to Police Station, Kitcha and S.S.P., Udhamsingh Nagar. The complainant has informed to all concern vide its letter dated 16.11.2007 duly acknowledged by the opposite parties. The complainant did not secure any reliefs from the opposite parties and relevant claims are pending before the opposite parties and all the relevant documents were already surrendered to them including notice under Carriers Act. The complainant has also delivered all the requisite documents to opposite party No. 2 for insurance claim and also to the satisfaction of the opposite parties. Several requisitions were made to opposite parties through personal requests, correspondence and telephonic calls regarding repayment. However, nothing concrete done except positive assurances. That the complainant vide its notice called upon the opposite parties to indemnify the losses along with up to date interest to complainant within fifteen days from the date of receipt of notice, but they did not respond in a positive manner. The opposite parties’ acts and conducts are illegal and against the spirit of consumer’s rights protected under consumer protection law. The opposite parties are denying the rights of the complainant and failed to discharge their duties and obligations under law of land. The opposite parties are deficient in rendering services required by law, which had caused great inconvenience to the bonafide consumers. The opposite parties are guilty of unfair trade practices. The complainant has sustained the losses enumerated in the consumer complaint, which is approximately Rs. 8,26,870.70 ps. The cause of action arose at Rudrapur, Uttaranchal within the territorial jurisdiction of the District Forum, Rudrapur (Udhamsingh Nagar). The opposite party Nos. 3, 5, 6 and 8 filed their respective reply before the District Forum and denied their liabilities. The other opposite parties neither appeared nor filed their replies. The opposite party No. 6 has wrongly stated in its reply that the financial risk was covered upto Nepal border and the transporter, i.e., Pashupati Transport had booked the consignment at the buyer’s risks.
3. The opposite party No. 3-insurance company has filed the written statement (Paper Nos. 18/1 to 18/5 on the District Forum’s record) before the District Forum and pleaded that the present consumer complaint is false, frivolous, misconceived in the nature. That the complainant has concealed and suppressed the material facts with the malafide intention to mislead the Forum. No cause of action against the answering opposite party ever arose to file the consumer complaint. It is submitted that the vehicle was only insured for own damage claim and no transit insurance was done by the answering opposite party for the goods loaded in the said truck No. RJ14-2G-8015 and, hence the answering opposite party could not be held liable for the claim as narrated by the complainant The complainant has failed to prove any deficiency in services on the part of the answering opposite party. The complainant had never purchased any insurance cover from the answering opposite party, hence the complainant is not the consumer of the answering opposite party. The complainant has brought a false case against the answering opposite party, as there is no privity of contract between the complainant and the answering opposite party to indemnify for the losses as concerned by the complainant. Moreover, the complainant is not covered by Section-2 of the Consumer Protection Act, 1986, as the complainant is not a consumer of the answering opposite party. As per the narration made in the consumer complaint, the goods had been booked for commercial use by the complainant, hence the present consumer complaint is barred from being heard by the District Forum. The complainant had booked the goods at Nepal and the Marine Insurance Cover had been purchased at Nepal and, hence the District Forum has no territorial jurisdiction to hear and decide the present consumer complaint. The complainant has wrongly impleaded the answering opposite party, as no cause of action has ever arisen against the answering opposite party. The policy had been issued to truck No. RJ14-2G-8015 in the name of Sh. Vishnu Kumar S/o Sh. Ram Bharosey Lal by the Dausa Branch of the answering opposite party and the same was not issued to cover the risk for loss in transit under Marine Insurance. That the insurance cover regarding the loss in transit is said to be given by Siddhartha Insurance Ltd. and hence, if any liability arises, it is that of the said company and not the answering opposite party.
4. The opposite party No. 5-Sh. Sageer Ahmad has filed the written statement (Paper Nos. 20/1 to 20/2 on the District Forum’s record) before the District Forum and pleaded that it is admitted to him that he is a driver of the vehicle No. UP25-T-6692. It is also admitted to him that 326 tins were transported and delivered (perfect as well as damaged) through his vehicle at Kitcha, on the direction of opposite party No. 1.
5. The opposite party No. 6–Siddhartha Insurance Limited has filed its objections/written statement (Paper Nos. 13/1 to 13/2 on the District Forum’s record) before the District Forum and pleaded that this company bears Nepalese legal Nationality having its operations within the territory of Nepal and the said policy (Policy No. BRG/07/08/MR-I00064 dated 14.08.2007) was issued in Nepal. Hence, the jurisdiction in all matters of the said policy falls under jurisdiction of competent authority and courts of Nepal and, therefore, District Forum has no jurisdiction to pass any order against the answering opposite party in India. That Sh. Rajendra Prasad Kedia (answering opposite party’s surveyor) has vigorously investigated this claim and had travelled all through destination to destination, comprising of the place of so called accident. The Police post wherein it’s F.I.R. was lodged and had surveyed with local people and had collected all the documents related to this consignments upto the destination point and have concluded that the total quantity of the consignment had reached to the destination, as evident from the documents of the government offices in route thereof. As per the sale contract of the sellers and buyers, financial risk was covered upto the Nepal Border and the transporter-Pashupati Transport had booked the consignment at the “Buyers Risk”, which is mentioned in the consignment note of the transporter. Hence, this company may not be held liable for any such fabricated so called loss beyond the territory of Nepal. The surveyor Sh. R.P. Kedia had duly facilitated the supplier, the buyer, the transporter etc. to put for their evidences in favour of the claim. But no such comments or documents were produced before him in support of the so called loss, which may establish the damages. At last the surveyor concluded in his report that there is “No Claim” against the answering opposite party.
6. The opposite party No. 8-State Trading Corporation of India Ltd. has filed the written statement (Paper Nos. 9/1 to 9/4 on the District Forum’s record) before the District Forum and pleaded that the complaint filed by the complainant against the answering opposite party may be dismissed, as the complainant has not disclosed any cause of action against the answering opposite party. That the complainant is not a consumer of answering opposite party and there is no allegation against the answering opposite party, with respect to deficiency in service defined in the Consumer Protection Act, 1986. That the complaint is barred by limitation. The entire purpose of the complaint is that the complainant is seeking insurance proceeds from insurance company/transporter/owner of the vehicle/driver of the vehicle. There is no complaint made out against answering opposite party nor answering opposite party is liable to the complaint in any whatsoever. It is submitted that the relationship of the complainant and answering opposite party is defined in agreements dated 13.07.2007 and 30.07.2007, wherein the opposite party No. 7 is the seller, opposite party No. 8 is the buyer and the complainant is the associate of the buyer, who had all mutually agreed that the seller shall sell vegetable oil (Vanaspati) to opposite party No. 8 and the complainant was authorized by opposite party No. 8 to take delivery of goods upon transfer of documents and make payment to the seller, i.e. of opposite party No. 7. By these agreements the complainant had fully indemnified the opposite party No. 8 for any financial risk under the contract. This agreement also stipulated that all disputes arising from and in connection, with the contract shall be settled amicably by arbitration. In view of the Arbitration clause and the Indemnity clause by complainant in favour of opposite party No. 8 mentioned in agreements, no complaint lies by the complainant against the opposite party No. 8. That in terms of under agreements dated 13.07.2007 and 30.07.2007 the obligations under the agreement were to be met by the complainant by handing over receipts of sale tax entry permit duly signed and stamped by SST Authorizes at the check post of the State. The complainant handed over these receipts of sales tax permit under the said agreement and opposite party No. 8 on the production of the same EMD of Rs. 2,26,600/- was refunded to the complainant against the said contracts on 16.05.2008. All the requirements in terms agreements mentioned above were fulfilled by both the parties, i.e. the complainant and opposite party No. 8 and, thus, no payment whatsoever remains due from any of the parties. The consumer complaint against the opposite party No. 8 is misconceived and may be dismissed with heavy cost. There is no deficiency in service as defined under Section 2 (i)(d)(i) and (ii) of the Consumer Protection Act, 1986 besides unfair trade practices, as alleged in para No. 1 of the complaint. It is denied that STC was the buyer as against opposite party No. 3. Each and every averments made in the para Nos. 6 to 11 are wrong and denied. It is denied that the complainant had received any letter dated 16.11.2007 or notice under Carriers Act. It is denied that the complainant is legally entitled to receive any payment of insurance proceeds by opposite party No. 8. It is denied any demand was made to opposite party No. 8 regarding repayment. It is also denied that the opposite party No. 8 has failed to discharge their duties and obligations. It is also denied that the complainant sent any notice to opposite party No. 8 to indemnify the losses alongwith upto date interest to the complaint. It is denied that any insurance proceeds are payable by opposite party No. 8. It is also denied that the opposite party No. 8 is withholding any amount of the complainant. It is denied that the opposite party No. 8 is deficient in rendering service and caused great inconvenience to the consumer or guilty of unfair trade practice. It is also denied that the opposite party No. 8 has rendered defective and under quality service. It is specifically denied that any of the losses mentioned in the para under reply were on account of opposite party No. 8.
7. The District Forum on an appreciation of the material on record, dismissed the consumer complaint No. 71 of 2009 vide order dated 31.01.2011. Aggrieved by the said order, the complainant-appellant has filed the present appeal.
8. We have heard learned counsel for the appellant and respondent No. 3 and have also gone through the record. None has appeared on behalf of the respondent Nos. 1, 2 and 4 to 8.
9. There is no dispute regarding the fact that the opposite party No. 7 is a manufacturer of the goods in question and seller of the goods and opposite party No. 8 is the buyer, who authorize the complainant-appellant to receive the goods on payment.
10. Learned counsel for the appellant has submitted that the respondent No. 1 has issued a Shortage Certificate dated 21.05.2008, which indicates that the appellant had not received complete goods dispatched by respondent No. 1. Learned counsel also submitted that the driver of the truck No. UP25-T-6692 had moved application to police station, Kitcha, District Udhamsingh Nagar indicating that he had delivered 326 nugs of vegetable ghee to the appellant. Learned counsel argued that the claim of the appellant is genuine and the vehicle No. RJ14-2G-8015 was insured with respondent No. 3-insurance company, therefore, the respondent No. 3 is liable to pay the claim amount.
11. Learned counsel for the respondent No. 3-insurance company has submitted that the complainant is not covered by Section-2 of the Consumer Protection Act, 1986, as the complainant-appellant is not a consumer of the respondent No. 3. Learned counsel also argued that as per the narration made in the consumer complaint, the goods had been booked for commercial use by the complainant-appellant, hence, the consumer complaint is barred from being heard by the District Forum. Learned counsel also argued that the respondent No. 3 is the insurance company, which issued the insurance policy for truck No. RJ14-2G-8015. There was no insurance of luggage issued by this insurance company. Learned counsel has submitted that the complainant-appellant had booked the goods at Nepal and the Marine Insurance Cover had been purchased at Nepal. It is a transit loss and the goods were insured with the Siddhartha Insurance Ltd. and not by respondent No. 3.
12. Section 2(d)(i) defines “consumer” as below:-
"consumer" means any person who—
- buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.
13. In consumer complaint, the complainant-appellant has clearly mentioned that the appellant is a partnership firm and is dealing in business of edible items including Ghee, Sugar, Food Grains, Pulses and edible oils etc. The appellant purchased the goods, i.e. 1146 tins of 16Kg each of vegetable ghee from respondent No. 7 through respondent No. 8. This consignment was to be delivered at complainant’s depot. This clearly indicates that a large number of vegetable ghee/tins were ordered to be supplied by respondent No. 7 and this consignment was to be delivered at the appellant’s depot. Therefore, the business of the appellant in dealing sale and purchase of edible items in Ghee, Sugar, Food Grains, Pulses and edible oils cannot be said a business for the purpose of earning livelihood by means of self-employment. Buying and selling a huge quantity of edibles items like Ghee, Sugar, Food Grains, Pulses and edible oils etc. is a commercial transaction. Therefore, the appellant is not a consumer as per the Section 2(d)(i) of Consumer Protection Act, 1986. The vehicle No. RJ14-2G-8015 was insured by the respondent No. 3 from 28.02.2007 to 17.12.2007. There is no evidence on the record to show that there was any insurance for the luggage during transit. Therefore, the respondent No. 3 can be liable only for the damage of insured vehicle and not the goods, which were either damaged or stolen during transit. The respondent No. 3 has not issued any transit claim policy in favour of the appellant. Therefore, there is no deficiency in service on the part of the respondent No. 3. So far, the insurance policy issued by respondent No. 6 is concerned, the respondent No. 6 has categorically stated in its reply (Paper No. 13/1) that this insurance company bears Nepalese Legal Nationality having its operations within the territory of Nepal and the said policy was issued in Nepal. Hence, the jurisdiction in all matters of the said policy falls under the jurisdiction of the competent authority and the courts of Nepal and District Forum has eHence
no territorial jurisdiction to pass any order against this insurance company in India. The respondent No. 6 has also stated in its reply that its surveyor travelled all through destination to destination and collected all the documents related to this consignments upto the destination point and have concluded that the total quantity of this consignment had reached to the destination. Again respondent No. 6 has stated that as per the sale contract of the sellers and buyers, financial risks was covered upto the Nepal Border and the transporter, i.e. Pashupati Transport had booked the consignment at the “Buyers Risk”, which is clearly mentioned in the consignment note of the transporter. Therefore, as the consignment was booked at Nepal and also insured within the limits of Nepal, therefore, the District Forum, Udhamsingh Nagar, India has no jurisdiction to hear and decide the matter, where the cause of action has arisen within the territory of Nepal.
14. Learned District Forum has cited a decision in the case of Rajkumar vs. S.C. Verma; 2001 (1) CPR 437. In this case, it is observed that the persons buying goods either for re-sale or for use in large scale profit making activity will not be consumers entitled to protection under the Act. We are fully agreed with the observations made by the District Forum that the appellant is not a consumer, as defined in Section 2(d)(i) and, therefore, the consumer complaint of the complainant is not maintainable.
15. The District Forum has properly considered all the facts and circumstances of the case and has passed a reasoned order dated 31.01.2011, which does not call for any interference. The appeal lacks merit and is liable to be dismissed.
16. For the reasons aforesaid, the appeal is dismissed. The impugned judgment and order dated 31.01.2011 passed by the District Forum, Udhamsingh Nagar in consumer complaint No. 71 of 2009 is hereby confirmed. No order as to costs.
(D.K. TYAGI) (JUSTICE B.C. KANDPAL)
