State Consumer Disputes Redressal Commission
Nitco Logistics Pvt. Ltd. vs M/S Maa Bhagwati Enterprises on 27 May, 2013
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1438 of 2011
Date of institution: 22.9.2011
Date of decision : 27.5.2013
Nitco Logistics Pvt. Ltd. (Erstwhile known as Nitco Roadways Pvt. Ltd.)
Nitco House, Talab Tillo, Jammu, through its Area Manager/Attorney Sh.
Naresh Kumar Kaushik Plot No. 25, Sector 26, Transport Area,
Chandigarh through its Area Manager Sh. Naresh Kumar Kaushik.
.....Appellant
Versus
M/s Maa Bhagwati Enterprises through its authorized signatory Mr. Kapil
Midha, SCF No. 52, Phase-III, B-2, Mohali.
.....Respondent
First Appeal against the order dated 23.8.2011
passed by the District Consumer Disputes
Redressal Forum, SAS Nagar (Mohali).
Before:-
Shri Piare Lal Garg, Presiding Member
Shri Jasbir Singh Gill, Member Present:-
For the appellant : Sh. Deepak Sabharwal, Advocate
For the respondent : Sh. S.K. Arya, Advocate and
Sh. H.C. Kaushal, Advocate
PIARE LAL GARG, PRESIDING MEMBER
This is an appeal filed by the appellant/opposite party-Nitco Logistics Pvt. Ltd.(hereinafter called 'the appellant') against the order dated 23.8.2011 of the District Consumer Disputes Redressal Forum, SAS Nagar(Mohali) (hereinafter called the 'District Forum') vide which the complaint of the respondent/complainant(hereinafter called 'the respondent') was allowed by the District Forum.
2. Brief facts of the case are that the respondent booked a consignment of two boxes of chemicals in good condition on 24.7.2009 First Appeal No. 1438 of 2011 2 with opposite party No. 1 (not impleaded as party in the appeal) for the delivery of the same to M/s Maret Properties Pvt. Ltd. No. 1, 2nd Floor, Dinnur Road, R.T. Nagar, Bangalore-5600032 vide consignment note No. 037005. The said two boxes consisting of 20 bottles of chemicals containing 5 Nos. of bottles of Posi Grip-I, 10 Nos. Bottles of Posi Grip-2 and 5 Nos. Bottles of Posi Grip-3. The total value of the bottles was Rs. 1,23,425/- including VAT as per bill dated 24.7.2009. At the time of delivery, it was found by the consignee on 11.8.2009 that 17 bottles were completely damaged, which were damaged due to negligence on the part of the appellant while transporting the boxes from Mohali to Bangalore. This fact was also noted by Sh. Shriniwas, representative of the appellant in whose presence the boxes were opened. It was also told to the representative that 17 damaged bottles were unfit to use. The consignee filed a claim for damage against the appellant on 12.8.2009 at the time of delivery of the goods. A copy of the claim letter dated 11.8.2009 was also delivered by Mr. Alok Chouraria, Director of the Consignee to Mr. Shrinivas, representative of the appellant and his signature was obtained in token of receipt on 12.8.2009. The appellant was under obligation to deliver the goods in the same condition in which the same were booked with opposite party No. 1 at Mohali. The claim of the damaged bottles was not paid by the appellant despite the respondent contacted the appellant several times on telephone. Legal notice dated 10.5.2010 was also served but the appellant failed to compensate the respondent. The value of the 17 damaged bottles was Rs. 98,656/-. The complaint was filed with the prayer that the appellant as well as opposite party No. 1 may be directed to pay Rs. 98,656/- i.e. value of the 17 bottles alongwith interest @ 18% p.a. as well as Rs. 50,000/- as compensation for physical and mental harassment and Rs. 11,000/- as litigation expenses.
First Appeal No. 1438 of 2011 3
3. Upon notice, reply was filed by the appellant & opposite party No. 1 taking preliminary objections that the services of the appellant as well as opposite party No. 1 were availed for commercial purposes, as such, the District Forum had no jurisdiction to try and decide the complaint, the complaint was also not maintainable as it was clearly mentioned on the G.R. that there will be "no responsibility for leakage", complicated and intricate questions of law and facts were involved, as such, the same could not be adjudicated in a summary manner, the complaint was time barred. On merits, it was admitted that two boxes of the value of Rs. 1,23,425/- were booked by the respondent with opposite party No. 1. It was denied that 17 bottles were completely damaged. It was further pleaded that the boxes were not in a damaged condition and if there was any leakage it was not the responsibility of the appellant as well as opposite party No. 1. Remaining paras of the complaint were denied being incorrect and dismissal of the complaint was prayed.
4. After hearing the learned counsel for the parties and going through the record, the complaint was allowed and the appellant as well as opposite party No. 1 were directed to pay Rs. 98,656/- i.e. price of the damaged bottles with interest @ 9% per annum from 12.8.2009 till the date of actual payment and also pay Rs. 4,000/- as costs of litigation.
5. Aggrieved against the order of the District Forum, the present appeal is filed by the appellant on the grounds that the District Forum ignored the law of the land while passing the impugned order as the services of the appellant and opposite party No. 1 were availed by the respondent for "commercial purpose", as such, the District Forum was not having the jurisdiction to try and decide the complaint, the District Forum wrongly held that there was negligence on the part of the appellant as well as opposite party No. 1, the order of the District Forum is against the First Appeal No. 1438 of 2011 4 evidence and facts on file and the same is illegal, arbitrary and law laid by the Hon'ble Supreme Court, as such, the same is liable to be set-aside.
6. It is admitted case of both the parties that two boxes consisting of 20 bottles of chemicals were booked by the respondent with the appellant and opposite party No.1. The version of the appellant is that the services were availed by the respondent for the commercial purpose as the chemical was not meant for personal use of the respondent or the consignee. As per amendment of the definition of 'consumer' by amendment Act No. 62 of 2002 from 15.3.2002, if the services were/are availed for 'commercial purpose' then the person, who avails the services not comes under the definition of 'consumer'. The appellant also cited a full bench decision of the Hon'ble Supreme Court passed in Civil Appeal No. 5611 of 1999 titled as "Economic Transport Organization Vs. M/s Charan Spinning Mills (P) Ltd. & Anr.", decided on 17.2.2010.
7. We have gone through the above citation. In the above case, following questions arise for consideration:-
"(a) Where the letter of subrogation executed by an assured in favour of the insurer contains, in addition to words referring to subrogation, terms which may amount to an assignment, whether the document ceases to be a subrogation and becomes an assignment?
(b) Where the insurer pays the amount of loss to the assured, whether the insurer as subrogree, can lodge a complaint under the Act, either in the name of the assured, or in the joint names of the insurer and assured as co-complainants?
(c) Where the rights of the assured in regard to the claim against the carrier/service provider are assigned in favour of the insurer under a letter of subrogation-cum-assignment, whether the insurer as the assignee can file a complaint either in its own name, or in the name of the assured, or by joining the assured as a co-complainant.
(d) Whether relief could be granted in a complaint against the carrier/service provider, in the absence of any proof of negligence?First Appeal No. 1438 of 2011 5
8. In the above complaint, there was no dispute regarding the definition of 'consumer', so the facts of the above citation are not applicable to the present dispute. However, Mr. Kapil Midha, Attorney of the complainant/respondent's-Proprietor in his affidavit submitted on Oath that the deponent is self employed person and the services of the appellant were hired only for the purpose of transportation of the goods and not for any commercial purpose or for any profit.
9. As per amendment in the definition of 'consumer' by Amendment Act 62 of 2002 w.e.f. 15.3.2002, as per its explanation "commercial purpose" mentioned in Section 2(1)(d) of the Act does not include inter-alia "services" availed by the consumer exclusively for the purpose of earning his livelihood by means of self-employment.
10. The respondent also cited the judgment of Hon'ble National Commission titled as "Swiss Air Cargo versus Century Silk Inc. and ors.", 2012(2) CLT 118. The relevant portion of the same is reproduced:-
"....The Ops also took the plea that the goods were being transported to Athens for a commercial purpose and therefore, the complainant is not a consumer. The plea of commercial purpose was not accepted by the State Commission on the ground that the services of the Ops were availed only for transportation of goods from Bangalore to Athens. As this did not involve any sale, the question of commercial purpose did not arise....
9. On his plea of commercial transaction the appellant has cited the ruling of this Commission in Southern Petrochemical Industries Corpn. Ltd. & Anr. Vs. British Airways World Cargo, 1 (2007) CPJ 74 (NC). In this case a consignment of electronic equipment was sent by M/s Siemens, Germany to Southern Petrochemical Industries in Chennai. The consignment was damaged while in the custody of the carrier i.e. British Air Ways World Cargo. Eventually, the appeal and a complaint both were dismissed by the National Commission for different reasons. However, the Commission clearly held that the appellant was a consumer. Therefore, facts of this case as well as the decision are of no help to the appellant. We find ourselves in agreement with the interpretation given by the State Commission and with consequent rejection of this plea."First Appeal No. 1438 of 2011 6
11. Hon'ble State Consumer Disputes Redressal Commission, Union Territory, Chandigarh in case "Bombay Delhi Goods Carrier & Ors. Versus M/s Mira Rubber Corporation", 2002 (1) CPC 33 also discussed this point in para No. 11 and observed as follows:-
"11. Coming to the third and the last legal submission of the learned counsel for the appellant No. 1, it may be pointed out that the Hon'ble National Commission in the case of Synco Textiles Pvt. Ltd. (supra) held that every transaction of hiring of service may amount to a contract in the eye of law and any deficiency in rendering the service may technically a breach of contract but merely for that reason the consumer can not be denied the benefit of the protection conferred by the C.P. Act. While, ordinarily, claims arising out of breach of contract will have to be agitated before the regular civil courts, grievances relating to loss or injury caused on account of negligence and deficiency in the performance of services which are hired for consideration have been classified for special protection under the Act and in such cases the aggrieved consumer is entitled to invoke the jurisdiction of Redressal forums constituted under the Act, seeking relief as specified in the Act. In view of this clear and categorical pronouncement of law by the Hon'ble National Commission, we hold that the complaint was maintainable under the provisions of the C.P. Act. The view of the Tamil Nadu State Commission regarding the breach of contract being not a consumer dispute can not be applied to the facts of the case particularly in view of the judgement of the Hon'ble National Commission. The last submission made on behalf of the appellant No. 1, lacks merit and is repelled."
12. We have also perused the bill Ex. C-3. In the said bill, it is mentioned "stock return". So from the above bill, it is also proved that the goods were not purchased by the respondent from the consignee rather the same were returned by the respondent to the consignee. As such, the version of the appellant that the services of the appellant were availed for "commercial purpose" is not correct.
13. In view of the above discussion, we are of the view that the services of the appellant were availed by the respondent only to transport the boxes from Mohali to Bangalore and not for any commercial purpose or for any profit. The findings of the District Forum that the respondent falls First Appeal No. 1438 of 2011 7 under the definition of 'consumer' as defined under Section 2(1)(d) of the Act are correct.
14. There is also dispute between the parties whether the 17 bottles were delivered in damaged condition or not?
15. We have perused Ex. R-2 which is Photostat copy of builty which was handed over to the driver of the vehicle vide which the boxes were sent from Mohali to Bangalore. There is a clear note given by Mr. Alok Chauraria, Director of the Consignee firm on the reverse of the said copy of the consignment to the following effect:-
"Posi Grip 1 = Full damage Posi Grip 2 = 7 damage Posi Grip 3 = Full damage Total : Only 3 bottles in good condition.
Sd/- Alok Churaria".
16. So from the note, it is proved that the goods were not handed over to the consignee in intact condition rather in damaged condition. The consignee also filed claim on 11.8.2009 vide Ex. C-4 to the Nitco Transport Roads Pvt. Ltd., Siddhaiya Road, 8th Cross, Sudam Nagar and the same was received by Mr. Srinivas representative of the appellant on 12.8.2009. The respondent neither examined Mr. Srinivas nor his affidavit tendered into evidence to rebut the version of the consignee as well as of the respondent that the goods were not damaged but the same were in leaking condition.
17. As per the endorsement on the bill, the following goods of the value of Rs. 98656/- were delivered in damaged condition. The details of the same are as below:-
"5 bottles of Posi Grip-1 were completely damaged Rs. 2790 x 3 = Rs. 13,950/- 7 bottles of Posi Grip-2 damaged Rs. 7058 x 7 = Rs. 49,406/- 5 bottles of Posi Grip-3 were completely damaged Rs. 7060 x 5 = Rs. 35,300/-
===========
TOTAL LOSS = Rs. 98656/-
First Appeal No. 1438 of 2011 8
18. The version of the appellant is that the above goods were not damaged but only there was leakage from the above goods and as per the condition printed on the driver copy of the G.R. "no responsibility for leakage", the appellant and opposite party No. 1 were not responsible to pay any amount if the goods were damaged due to leakage. But the appellant neither examined the driver of the vehicle nor tendered into evidence his affidavit to prove that the damage of the goods was not due to any negligence on the part of the driver of the vehicle. No reason is also given by the appellant regarding the cause of leakage of the goods. It was onus upon the appellant to prove that the loss or damage of the goods during the transit was not caused due to the negligence of the carrier, his agent or any other employee of the appellant or employee of carrier.
19. In view of the above discussion, the appeal of the appellant is without any merit. The order of the District Forum is legal, valid and speaking one. There is no infirmity in the impugned order, as such, the order of the District Forum is affirmed and upheld. The appeal of the appellant being without any merit is dismissed with costs of Rs. 5,000/- to be paid to the respondent by the appellant within one month from the receipt of copy of the order.
20. The arguments in this appeal were heard on 14.5.2013 and the order was reserved. Now the order be communicated to the parties.
21. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs.
25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.First Appeal No. 1438 of 2011 9
22. Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
May 27, 2013. (Jasbir Singh Gill)
as Member