State Consumer Disputes Redressal Commission
M/S The Amritsar Transport Company Pvt. ... vs M/S White Eagle Laboratories on 3 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1323 of 2009
Date of institution : 16.09.2009
Date of decision : 03.06.2013
1. M/s The Amritsar Transport Company Pvt. Ltd., Lakkar Mandi,
Patiala through its authorized signatory, Shri M.S. Tanwar,
AGM (Operation).
2. M/s The Amritsar Transport Company Pvt. Ltd., Naya Bazar,
Delhi, through its authorized signatory
Shri M.S. Tanwar, AGM (Operation).
.......Appellants- OP No.1&2
Versus
1. M/s White Eagle Laboratories, D-28, Focal Point, Patiala
through its Sole Proprietor, Shri Gurdeep Singh.
......Respondent/Complainant
2. M/s N.R. Goods Transport Company, G.T. Road, Numaish
Camp, Muzaffernagar (UP) through its
Manager/Partner/Proprietor.
........Respondent/OP No.3
First Appeal against the order dated
24.02.2009 of the District Consumer
Disputes Redressal Forum, Patiala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Shri Ankur Bali, Advocate. For respondent No.1: Shri R.S. Dhiman, Advocate. For respondent No.2 : Ex parte.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellants/opposite parties No.1 and 2 have preferred the present appeal against the order dated 24.2.2009 passed by the District Consumer Disputes Redressal Forum, Patiala (in short "District Forum"), vide which the complaint filed by respondent First Appeal No.1323 of 2009. 2 No.1/complainant, M/s White Eagle Laboratories, was allowed and these opposite parties were directed to pay Rs.54,743/-, being the cost of six cartons, along with interest at the rate of 10% per annum from the date of booking of the goods till the date of payment or the return of those cartons and Rs.5,000/- as compensation, inclusive of the costs.
2. Briefly stated, the facts are that the complainant is dealing in the business of manufacture of pharmaceutical products. It booked 9 cartons of H.L. Medicine, vide invoice dated 15.3.2008, through opposite party No.1 for delivery to M/s Mukesh Medicine Agency, Sadar Bazar, Near Court Gate, Muzaffarnagar, after filling up Form No.31 for the value of Rs.73,143/-. Opposite party No.1 sent those goods to its Head Office, opposite party No.2 and thereafter that opposite party sent the goods through opposite party No.3 for the delivery thereof to the consignee. Out of these 9 cartons only 3 cartons were delivered to the consignee. The complainant averred in the complaint that it approached opposite parties No.1 and 2 to return the remaining undelivered 6 cartons of medicine or to pay the price thereof, which comes to Rs.54,773/-, but to no effect. Thereafter a legal notice was served upon all the opposite parties but neither those cartons were returned nor the price of the goods contained therein was paid. In the complaint the complainant prayed for the issuance of directions to the opposite parties to pay Rs.54,773/-, along with interest at the rate of 18% per annum as the cost of 6 cartons, Rs.50,000/- as damages and Rs.5,000/- as costs of the complaint. First Appeal No.1323 of 2009. 3
3. Opposite parties No.1 and 2 appeared before the District Forum after the notice of the complaint was given to them and they filed written reply to the complaint. They averred therein that they have no knowledge of the contents of the cartons as the same were not packed in their presence. The goods were never got insured by the complainant nor the value thereof was specified on the cartons. The same were booked at the risk and responsibility of the complainant as is clear from the contents of the goods receipt, which was handed over to the complainant. All these 9 cartons were sent by them to the consignee and they have no knowledge if 6 of those cartons were not delivered to him. The legal notice sent to them by the complainant was duly replied through their counsel, vide reply dated 21.7.2008. It was clearly mentioned in that reply that they were enquiring into the matter from their associate and that the copies of relevant documents be furnished. Without waiting for the outcome of that enquiry, the complainant filed the complaint, which is premature. On account of non-delivery of the goods, it cannot be said that they were deficient in service or are guilty of unfair trade practice. As the goods were booked at owner's risk and responsibility, were not insured and the value thereof was never disclosed, so there is no question of making the payment of any such amount to the complainant. No notice as required by the Carriers Act, 1865 was served upon them before filing the complaint. The same is not maintainable and is premature. It is only the consignee, who can file the complaint and the complainant First Appeal No.1323 of 2009. 4 cannot maintain the same and the same is bad for non-joinder of the necessary parties. They prayed for dismissal thereof; being false and frivolous to the knowledge of the complainant.
4. The parties produced their evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for opposite parties No.1 and 2 that the complainant is carrying on the business of manufacturing of medicine, which is a commercial transaction. In the alleged consignment those medicines were sent by it and, as such, it cannot be said that the complainant falls under the definition of 'consumer' as contained in the Consumer Protection Act, 1986 (in short "the Act"). The complaint is liable to be dismissed on that score alone. He also argued that the goods so sent through opposite parties No.1 and 2 were never got insured nor the value thereof was disclosed by the complainant at the time of consignment and, as such, the District Forum could not have directed them to pay the value of the medicines contained in the cartons, which were not so delivered to the consignee. The liabilities of the opposite parties are limited to the extent mentioned in the conditions contained in the goods receipt, which was proved on the record as Ex.R-5. He also tried to submit First Appeal No.1323 of 2009. 5 that the complaint is premature as the complainant was duly informed that the matter was being enquired into and the complaint could not have been filed without waiting for the outcome of the enquiry. He supported his arguments by M/s Sunsu Garments Pvt. Limited v. M/s Zeus Air Services Pvt. Limited and another decided by the State Consumer Disputes Redressal Commission, Karnataka reported in 2005(1) CPC 274 and Madhur Courier Services and another v. Raghvendra Singh Tomar decided by Madhya Pradesh State Consumer Disputes Redressal Commission reported in 2008(2) CPC
379.
7. On the other hand, it was submitted by the learned counsel for the complainant that it cannot be said that the goods were booked with opposite parties No.1 and 2 for delivery to the consignee for a commercial purpose. The complainant is doing the business of manufacturing of medicines as self-employment for earning his livelihood. Therefore, it cannot be said that the complainant is not a consumer. It is an admitted fact that 6 cartons out of 9 were not delivered to the consignee by opposite parties No.1 and 2. The value of the contents of the cartons was duly disclosed to the opposite parties at the time of consignment as the invoice of all those medicines Ex.C- 1 was submitted by the complainant at the time of booking of the goods. Therefore, it cannot be said that the District Forum could not have made an order for the payment of the value of the goods, which were not so delivered. The notice was sent to the opposite parties on First Appeal No.1323 of 2009. 6 4.7.2006 and the complaint was filed after waiting for a long time. The opposite parties cannot just sleep over the matter and come with the plea that the complaint is premature on account of the pending enquiry as to the non-delivery of the goods.
8. No doubt, the complainant in his complaint averred that he is a consumer under the Act but at the same time, he also averred that he deals in the business of manufacture of quality pharmaceutical products. There is no averment in the complaint that he is carrying this business exclusively for the purpose of earning his livelihood by means of self-employment. It can well be made out that the manufacture of quality pharmaceutical products is a commercial transaction. As per the averments made in the complaint, the medicines so manufactured by the complainant were sent to M/s Mukesh Medical Agencies, Muzaffarnagar. That itself shows that these medicines were sent to the consignee in the due course of the business of the complainant. The facts were similar in M/s Sunsu Garments Pvt. Limited' s case (supra). In that case the complainant was carrying on the business of manufacturing and dealing in the garments and other wearing apparels, which were being exported by him. He had sent the consignment of those products through air after availing the services of the opposite party. The main question arose in that case regarding the status of the complainant as a consumer. It was held that the complainant was engaged in commercial transactions and, as such, he was not covered under the definition of consumer First Appeal No.1323 of 2009. 7 under Section 2(1)(d)(ii) of the Act. Similar question cropped up before the Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in Raghvendra Singh Tomar's case (supra). In that case a draft of Rs.8,50,000/- was handed over by the complainant to the opposite party for transmission from Guna to Mumbai, which remained undelivered for 15 days. The complaint was filed for directing the opposite party to pay compensation for deficiency in service. It was held that the complainant hired the services for commercial purpose.
9. In view of the fact that the complainant is carrying out commercial transaction and it was in pursuance of that transaction that the medicines were sent by him to one of his customers through opposite parties No.1 and 2 as couriers and that he nowhere alleged in the complaint nor produced any evidence that the services of the opposite parties were availed of by him exclusively for the purpose of earning his livelihood by means of self-employment it is to be concluded that it does not fall under the definition of consumer as contained in the Act. Therefore, the complaint itself was not maintainable before the District Forum and no such order could have been passed in favour of the complainant.
10. In the result, this appeal is accepted, the order of the District Forum is set aside and the complaint of the complainant is dismissed.
11. The appellants had deposited the sum of Rs.25,000/- at the time of filing of the appeal on 16.9.2009. They had also deposited the sum First Appeal No.1323 of 2009. 8 of Rs.43,440/- on 28.10.2009 in pursuance of the order dated 7.10.2009. Both these sums along with interest which has accrued thereon, if any, shall be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
12. The arguments in this case were heard on 23.5.2013 and the order was reserved. Now, the order be communicated to the parties.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
June 03, 2013 (BALDEV SINGH SEKHON)
Bansal MEMBER