State Consumer Disputes Redressal Commission
Khushdil Roadways vs Amartex Industries Private Limited on 27 July, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH APPEAL NO. 451 OF 2009 Date of Institution : 21.08.2009 Date of Decision : 27.7.2011 Khushdil Roadways, Chandigarh through its Manager, 36, New Timber Market, Sector 26, Chandigarh. .Appellant Vs. 1. Amartex Industries Private Limited, 365, Phase-I, Industrial Area, Panchkula, through its Director, Sh.J.K.Bhardwaj. 2. Indo British (P) Ltd. Plot No.48, Industrial Area, Phase I, 14th Mile Stone, Faridabad, through its authorized signatory. . Respondents BEFORE: JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER
Present:
Sh.S.K.Guleria, Advocate for the appellant.
Respondent No.1 exparte.
Sh.Shiv Kumar, Advocate for respondent No.2.
APPEAL NO. 457 OF 2009 Date of Institution : 24.08.2009 Date of Decision : 27.7.2011 M/s Indo British Garment (P) Ltd. Plot No.48, D.L.F. Industrial Area, Phase I, 14th Mile Stone, Faridabad.
.Appellant Vs.
1. M/s Amartex Industries Private Limited, 365, Phase-I, Industrial Area, Panchkula.
2. M/s Khushdil Roadways, 36, New Timber Market, Sector 26, Chandigarh, through its Manager.
.
Respondents BEFORE:
JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER Present:
Sh.Shiv Kumar, Advocate for the appellant.
Respondent No.1 exparte.
Sh.S.K.Guleria, Advocate for respondent No.2.
MRS. NEENA SANDHU, MEMBER
1. This order shall dispose of the aforesaid two appeals, arising out of the order dated 22.7.2009, passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 483 of 2009, vide which it allowed the complaint and directed the OPs to pay a sum of Rs.1,39,500/- as compensation along with interest @ 8% p.a. since 19.5.2007 till its payments to the complainant. It was further directed to pay Rs.10,000/- as costs of litigation, within 30 days, failing which, the OPs were to be liable to pay the same alongwith penal interest @ 12% p.a. since the date of filing the complaint i.e. 7.4.2009 till its payment to the complainant.
2. Briefly stated, the facts of the case, are that the complainant had a purchase order from OP No.2, for sending 8 cases of Fabric Material worth Rs.1,39,000/- to Faridabad, as self consignee on GR No.351111 dated 19.5.2007. So, the complainant hired the services of OP No.1, and as per terms and conditions, OP No.1, was not to make the delivery to anybody without production of the abovementioned GR/Consignee copy. It was stated that, as agreed between the complainant and OP No.2, the payment in respect of the abovesaid goods was to be made by the latter, OP No.1 without receiving any document/consignee copy from OP No.2, delivered the aforesaid goods to it. It further informed the complainant about the abovesaid delivery. It was further stated that the OP No.2, despite receiving the abovesaid goods, did not make the payment to the complainant. It was further stated that the OP No.1, as per the telephonic conversation, with the complainant, was informed that the payments had been made by OP No.2, but, in fact, it did not make the payment. It was further stated that the OP No.1 deliberately delivered the goods to OP No.2, without the permission of the complainant and, thus, caused it the financial loss to the tune of Rs.1,39,500/-. The complainant sent a legal notice to the Ops, but to no avail. It was further stated that the abovesaid acts of the Ops, amounted to deficiency, in service. Hence, the complaint was filed.
3. Reply was filed by OP No.1, wherein, it was pleaded that the District Forum had got no territorial jurisdiction to decide the complaint. It was further pleaded that the services were availed of for commercial purpose and hence, the complainant did not fall within the definition of consumer. It was further pleaded that the complaint was not maintainable. On merits, it was admitted that as per invoice, OP No.1 booked the consignment for its onward delivery to OP No.2/consignee and OP No.1 delivered the consignment to it against proper acknowledgement. It was stated that there was no privity of contract, between the complainant, and OP No.1 for indemnifying it (complainant). It was further stated that, it was not the duty of OP No.1 to collect the payment, on behalf of the complainant. It was admitted that a legal notice sent by the complainant was received by the OP No.1 and duly replied. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on the part of OP No.1.
4. Reply was filed by OP No.2, wherein, it pleaded that the complaint was not maintainable. It was stated that OP No.2 placed purchase order worth Rs.3,96,375/-. The goods were to be supplied on 2.5.2007 and 12.5.2007 but the first consignment was delivered on 22.5.2007 and the second consignment was never delivered. It was further stated that OP No.2 did not make the payment to the complainant, because it had caused huge loss to it by not delivering the material of 2nd consignment amounting to Rs.2,50,125/-. It was further stated that due to this, the regular bulk order of Delhi Metro Rail Corporation Limited was cancelled, which was deficiency, in service, on the part of the complainant itself. It was further stated that OP No.2 was concerned only with the terms & conditions of the purchase order and not with the conditions, if any, settled between the complainant and OP No.1. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was no deficiency, in service, on its part.
5. The parties led evidence, in support of their case.
6. The learned District Forum allowed the complaint, in the manner, referred to, in the opening para of the judgment.
7. Aggrieved by the order, passed by the learned District Forum, appellant/OP No.1 filed appeal No.451 of 2009, whereas, the OP No.2/appellant, filed appeal No.457 of 2009.
8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. The learned Counsel for the appellant/OP No.1 (Khushdil Roadways) in appeal No. 451 of 2009, submitted that earlier the District Forum, Panchkula came to the conclusion that it had no territorial jurisdiction ; but instead of returning the complaint dismissed the same on merits. He further submitted that remedy available with the complainant was to prefer an appeal before the Honble State Commission, Panchkula, instead of filing a fresh complaint on the same footing, on the same grounds and on the same cause of action in the District Forum, Chandigarh. It was further contended that the consignment was booked from Panchkula for its onwards delivery to the consignee at Faridabad and no cause of action arose at Chandigarh. Even the law was laid down by the Honble Apex Court that even if the registered office of the Company is situated at Chandigarh and no cause of action had arisen at the registered office, the complaint or the suit did not lie there. It was further contended that the complainant is a company and engaged in the business of manufacturing and selling the goods to various parties throughout India and is a big commercial house. It was further contended that the services of OP No.1 were availed of by the complainant for commercial purpose, and, as such, it (complainant) did not fall within the definition of consumer. Reliance was placed on Escorts Limited Vs. Sai Auto and others reported in 1991 civil court cases 363 and AIR 2005 Supreme Court page 2506 in the case of Subh Shanti Services Vs. Manjula S.Aggarwala.
Hence, it was prayed that the impugned order passed by the learned District Forum, be set aside.
10. The learned Counsel for the appellant/OP No.2, in appeal No. 457 of 2009, contended that the order passed by the learned District Forum, Panchkula (Annexure C) clearly showed that the complaint had been finally disposed of on merits on 27.2.2009 and , therefore, for the same cause of action, the second complaint filed by the complainant, was not maintainable. It was further pleaded that only an appeal lay against that order, before the State Commission, Haryana, Panchkula. It was further contended that the complainant did not fall within the definition of consumer, as the goods were supplied to OP No.2, for earning profits. It was further contended that there was deficiency, in service, on the part of the complainant because it had to supply the material only on 2nd and 12th of May, 2007 to the appellant, as per the terms and conditions of the Purchase Order dated 14.4.2007, issued by the appellant, but it supplied the material of first consignment only on 22.5.2007. There was delay of 20 days and by that time, the orders were cancelled and, the appellant had suffered a heavy loss. The appellant had reminded the complainant for supplying the 2nd consignment vide letters dated 24.5.2007 and 26.5.2007, but the complainant did not supply the same due to which, the appellant had suffered loss, since it could not fulfill its commitment, with their buyer, to whom the uniforms had to be supplied. The uniforms were to be supplied to M/s Delhi Metro Rail Corporation Limited from which it was having a regular order but the same was cancelled.
11. The earlier complaint filed by the complainant was dismissed by the learned District Forum, Panchkula on the ground that the said Consumer Forum had no jurisdiction, as no part of cause of action arose within the jurisdiction of that Forum. Since the complaint was dismissed for want of jurisdiction, the filing of subsequent complaint was not barred. The submission of the Counsel for the appellant, being without merit, is rejected.
12. The complainant had filed the complaint without service of a notice regarding the loss occurred to it at the hands of OP No.1. According to Section 10 of the Carriers Act, 1865, it is mandatory to serve a notice to the carrier, before filing a complaint under the Consumer Protection Act, 1986. In Arvind Mills Ltd. Vs. M/s Associated Roadways, 2004 AIR (SC) 5147, it was held that in the absence of service of notice on the Carrier under Section 10 of the Carriers Act, 1865, the complaint could not be entertained, under the Consumer Protection Act, 1986, against a common carrier. We are of the opinion that the complaint was not maintainable, because the complainant, as per the provisions of Section 10 of the Carriers Act, 1865, had failed to serve a notice, on the carriers, before filing this complaint under the Consumer Protection Act, 1986.
13. There is no whisper, in the complaint, that the services of OP No.1, were availed of by the complainant for earning livelihood. The complainant is a public limited company and has a big commercial house, which is manufacturing the fabric at large scale. The abovesaid consignment sent by the complainant to OP No.2 was meant for commercial purposes. Taking these facts into consideration, we are of the considered opinion, that the complainant is not a consumer under Section 2(1)(d) (ii) of the Consumer Protection Act, 1986. Our view is supported by the judgment in case titled as Economic Transport Organisation Vs. M/s Charan Spinning Mills (P) Ltd. & Anr., 2010(2) R.C.R.(Civil) 232, which was decided by a Four Judge Bench of the Honble Supreme Court of India. Since the complainant did not fall within the definition of consumer, the complaint under Section 12 of the Consumer Protection Act, was not maintainable.
14. In view of the above discussion, the appeals filed by OP No.1 i.e. Khushdil Roadways and M/s Indo British Garment (P) Limited are allowed. The order impugned is set aside. The complainant shall be at liberty to avail of any other remedy, which may be available to it, under law.
15. The parties are left to bear their own costs.
16. A copy of the order be placed in appeal file No. 451 of 2009.
17. Certified copies be sent to the parties, free of cost.
Pronounced.
27th July, 2011. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER RB APPEAL NO. 451 OF 2009 Present:
Sh.S.K.Guleria, Advocate for the appellant.
Respondent No.1 exparte.
Sh.Shiv Kumar, Advocate for respondent No.2.
-.-
Vide our separate detailed order of even the date recorded separately, the appeal filed by the OP No.1/appellant is allowed.
27.7.2011 (PRESIDENT) (MEMBER) Rb/-
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH APPEAL NO. 457 OF 2009 Date of Institution : 24.08.2009 Date of Decision : 27.7.2011 M/s Indo British Garment (P) Ltd. Plot No.48, D.L.F. Industrial Area, Phase I, 14th Mile Stone, Faridabad.
.Appellant Vs.
1. M/s Amartex Industries Private Limited, 365, Phase-I, Industrial Area, Panchkula.
2. M/s Khushdil Roadways, 36, New Timber Market, Sector 26, Chandigarh, through its Manager.
.
Respondents BEFORE:
JUSTICE SHAM SUNDER, PRESIDENT MRS. NEENA SANDHU, MEMBER Present:
Sh.Shiv Kumar, Advocate for the appellant.
Respondent No.1 exparte.
Sh.S.K.Guleria, Advocate for respondent No.2.
MRS. NEENA SANDHU, MEMBER This appeal filed by M/s Indo British Garment (P) Ltd, OP No.2/appellant is allowed vide our separate detailed order, recorded in the connected Appeal No. 451 of 2009 titled as Khushdil Roadways Vs. Amartex Industries Pvt. Ltd. & Anr.
2. Certified copy of the detailed order be also placed in this file.
3. Copies of this order be sent to the parties, free of charge.
Pronounced.
27th July, 2011. Sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER rb