State Consumer Disputes Redressal Commission
The Metal Powder Company Ltd, ... vs First Flight Couriers Limited, Through ... on 5 December, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present
Date of appeal filed: 03.10.2018
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
F.A.No.162/2018
TUESDAY, THE 05th DAY OF DECEMBER 2023
The Metal Powder Company Limited,
Represented by its Managing Director,
Maravankulam, Thirumangalam - 625 706,
Madurai District. Appellant/Complainant
-Vs-
1. First Flight Couriers Limited,
Through its Manager,
Al Amin Complex, Madurai Road,
Thirumangalam - 625 706,
Madurai District.
2. T.N.T.India Private Limited,
Through its Director,
No.1/37 F Butt Road, St.Thomas Mount,
Chennai - 600 016.
3. First Flight International,
Through its Manager,
(Divisional of First Flight Couriers),
No.15/16, National House,
Chandivadi Junction, Saki Vihar Road,
Sakinaka, Andheri East,
Mumbai - 400 072. Respondents/Opposite Parties
Counsel for Appellant/Complainant : Mr.R.Ramadurai, Advocate.
Counsel for Respondents-1&3/Opp.Parties-1&3 : Paper Publication Effected, Absent.
Counsel for Respondent-2/Opposite Party-2 : Mr.S.Suresh, Advocate.
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This appeal has been preferred by the appellant/complainant against the
dismissal order passed by the District Consumer Disputes Redressal Commission,
Madurai in C.C.No.11/2008, dated 21.08.2018. This appeal coming before me for
final hearing on 06.10.2023 and upon perusing the material records, this
Commission made the following:
ORDER
THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The Facts:
The complainant's company intended to participate in the Latin American "Coating Show" at World Trade Centre in Mexico City, Mexico on 11.07.2017 and 12.07.2017. For this purpose the company had to send catalogues brochures and exhibition display materials etc., to its representative Mr.Alfonoso, Corporate office Possehl, Mexico. The display materials were sent in two boxes duly labelled through First Flight Courier at Thirumanglam on 23.06.2007 to the consignee Mr.Alfonso, Possehl, Mexico.
The contents of Box No.1 are
(i) Coated Shield -9 Nos.
(ii) Metal car Panel - 8 Nos.
(iii) Silverspray Empty Container -2 Nos.
(iv) Goldspray Empy container-2 Nos.
(v) Coated Metal Panel Big Size - 8 Nos.
The contents of Box No.2 is
Rollup Banners -3 Nos.
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The two boxes were entrusted to the First Flight Courier arranged with TNT Courier at Chennai to despatch them to Mexico city, Mexico. On 05.07.2007 the complainant's company came to know that one of the two boxes containing publicity material had arrived and the other box containing rollup banners had not arrived. The company's officials contacted the TNT Courier who confirmed that one of the box had not arrived but they promised that TNT will check the location of the missing box, and it would be traced and delivered soon. However only one box containing publicity material had been received on 10.07.2007 by the Agents of complainant company but the second box had not been received even on 10.07.2007. The TNT courier personnel informed that one box got struck up at "Liege Hub"(Belgium). The complainant's company clearly informed the TNT Courier that atleast the second box should be delivered before 2nd day show on 12.07.2007 but second box was not delivered even before the second show on 12.07.2007. The TNT Courier belatedly informed that second box was struck up at "Liege Hub"
(Belgium) due to improper labelling. Due to non-delivery of second box in time the complainant company suffered heavy profit loss. There was also loss of reputation and image of complainant company due to the said deficiency in service of the opposite parties. The second box was not delivered in time due to deficiency in service of opposite parties. Therefore the complainant filed this complaint seeking remedy to direct the opposite parties to pay Rs.19,12,872/- with 18% interest from 12.07.2007 till its realization for business profit loss, reputation loss, mental agony, Air ticket fair, hotel accommodation and other expenses etc., and also cost of the proceedings.4
2. The first and third opposite parties filed their written version stating the complainant approached the first opposite party at Tirumangalam to send the two boxes to Mexico. This opposite parties were not aware of the materials which were kept in two boxes. The first opposite party received the two boxes on 23.06.2007 and it has been dispatched on the same day to the Branch office of first opposite party at Salem. The Branch Office at Salem safely handed over the two boxes to the franchisee namely "International and International" at Salem and the said franchisee at Salem sent the two boxes to the TNT courier at Chennai in order to despatch them to Mexico.
The second opposite party alone had full responsibility to despatch the said boxes to the Mexico and first and third opposite party are not at all responsible for delay in delivery of second box at Mexico. As soon as the message was received from the Agent of complainant that one of the boxes did not reach Mexico, this opposite party contacted the second opposite party and insisted to take immediate action to deliver the same at Mexico. The second opposite party also promised to deliver the said box to Mexico in time. There was no deficiency in service on the part of first and third opposite party. They have duly dispatched the boxes to the Salem Office and the Salem Office duly delivered the boxes to the second opposite party (TNT courier). Thereafter it was the responsibility of second opposite party to hand over the boxes at Mexico in time. Hence there is no deficiency in the service of first and third opposite party. As per the terms and conditions of consignment note the first and third opposite party liability does not exceed US $100. The compensation claimed is unreasonable and highly excessive. The complainant is not a "Consumer"
as defined in the Consumer Protection Act. Therefore the complaint is not 5 maintainable either in law or on fact. Hence the complaint is liable to be dismissed. If it all any compensation is to be paid, the second opposite party alone is liable.
3. The second opposite party filed their written version stating the complainant company availed service of second opposite party for "Commercial purpose", i.e. participating in a trade show. The complainant is not a "Consumer" under Consumer Protection Act as the complainant availed service of second opposite party for "commercial purpose". The complainant has not directly entrusted any consignment with this opposite party and at no the point of time the opposite party has undertaken to deliver the consignment within any specific period. The consignment is accepted by this opposite party subject to the terms and conditions of carriage printed on the reverse of the Airway bill. One of the box was got struck up in "Liege Hub (Belgium)" due to labelling not being done "for one of the pieces". It is duty of the complainant to label box properly. This opposite party is not responsible for improper labelling. There has been no admission of any negligence. As per the contract the opposite party is liable only 20 Euros per Kilo subject to maximum of 100 Euros. The entire claim of the complainant as detailed in para 21 of the complaint falls within the exclusion clause of contract. The second opposite party cannot be held liable for special damage or loss. There is no deficiency in service of the second opposite party. Hence the complaint is liable to be dismissed.
4. The District Commission after considering the pleadings, and production of documents, proof affidavit and both sides documents marked as Exhibits-A1 to A19, and Exhibits-B1 to B3, finally, dismissed the complaint as the service hired by the complainant is of commercial purpose.
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5. Aggrieved with the above dismissal order the complainant preferred the appeal on the following:
Grounds: That, the District Commission failed to see and perused the exhibits in proper manner. The District Commission failed to see that courier service was availed to transport only certain consignment and it involves no profit. Simply the complainant claimed loss of business it did not mean that it is for commercial purpose. Hence they prayed to allow the appeal.
6. In this case both sides filed their written arguments and the oral arguments of second respondent/second opposite party also heard.
7. In this case admittedly some goods as mentioned earlier sent to Mexico availing services of first and third opposite parties. Particularly the first opposite party alone received the two boxes on 23.06.2007 and it has been sent to their Salem Branch and the Salem Branch availed second opposite party service and sent the materials. In this case there is no direct agreement between the complainant and the second opposite party. The complainant availed the services of courier just to send two boxes containing sample materials advertisement Rollup Banners etc., The purpose is to display the above sample materials and the advertisement in the Stall at World Trade Centre.
8. Now the point for consideration is:
Whether the opposite parties/First Flight Couriers Limited, committed any deficiency in service and whether the service was availed for commercial purpose? 7
9. Discussion on the Points: Admittedly from the correspondence it is proved that only one box reached the exhibition in time and another one was unable to be located.
10. The District Commission by referring the Judgement of National Commission in a wrong way found the service was hired for commercial purpose. Particularly the Judgment reported in I (2018) CPJ 380 (NC) has held when the goods sent as export found damaged then it is for commercial purpose. Actually in that case the complainant exported their products/goods sent for earning profit to another business concern.
11. But admittedly in this case the above advertisement materials and other samples were sent only for display. The above articles did not send for sale. The above articles no way earn any profit. As there is no sale and there is no profit. It is the intention of the complainant alone is commercial in nature in attending the above trade centre but the service was hired not for earning any profit.
In this aspect it is relevant to refer the Section 2(1) (d) (ii) of the Consumer Protection Act, 1986 which was amended with effect from 15/03/2003 and the person who avails services for commercial purpose is excluded from the definition of consumer. Parliament intended to restrict the benefits of the Act to the ordinary consumers purchasing goods either for their own consumption or even for use in some small venture which they may have embarked upon in order to make a living as distinct from large scale manufacturing or processing activity carried on for profit. And the Hon'ble National Consumer Disputes Redressal Commission in M/S. Avon Steel Industries Pvt. ... .Vs. Bajrangbali Transport Company. on 5 April, 2017 has held that 8 "Otherwise also, as per the stand of the complainant, services of Op No.1 transport company was hired by him for transportation of the furnace oil for use in his factory, which obviously is a commercial purpose.
Therefore, in view of the definition of consumer as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986, the complainant is not a consumer qua OP No.1 because he admittedly had hired/availed of services of OP No.1 for commercial purpose".
So in the above circumstances it was held that the service of opposite parties were hired by the complainant only for commercial transactions.
12. The opposite parties also contended that their liability is limited. But this Commission found the service of second opposite party was not directly engaged by the complainant in this case eventhough there are correspondence between them. At the same time as per the Exhibits.A1 & A2 the goods were booked only with the first opposite party and in the printed form they admit their liability to compensate the loss to the damaged or misplaced goods.
13. In Civil Appeal No. 9057 of 1996 (Arising out of SLP (C) No. 10001 of 1996 Bharathi Knitting Co. .v. DHL World wide Express Courier Division of Airfreight Ltd., the Apex Court has held that:
"It is true that the limit of damages would depend upon the terms of the contract and facts in each case. In Anson's Laws of Contract, 24th Edn at page 152 on exemption clause with regard to notice of a printed clause, it was stated that a person who signs a document containing contractual terms is normally bound by them even though he has not read them and even though he is ignorant of their precise legal effect".9
The National Consumer Disputes Redressal Commission in M/S. Metco Export International .Vs. Federal Bank Limited. & 2 Ors. on 6 February, 2018. has held The State Commission has dismissed the complaint filed by the appellant herein on the ground that the complainant was not a 'consumer' as he had availed the services of the OPs for commercial purpose. Hence, the basic question to be decided in the present appeal is whether the appellant is a 'consumer' or not as per the definition given in the Consumer Protection Act, 1986. Clearly as per Section 2(1) (o) of the Consumer Protection Act, 1986 the banking services are covered under the Consumer Protection Act. The landmark Judgment of the Hon'ble Supreme Court in Laxmi Engineering Works Vs. PSG industrial Institute, (1995) 3 SCC 583 states that the commercial purpose shall depend on the facts and circumstances of each case. Here the services of the bank related to forwarding of certain documents to a particular destination i.e. the buyer. It is clear that availing of this service is not an activity directly leading to profit.
14. In Harsolia Motors .Vs. National Insurance Co. Ltd. [I (2005) CPJ 27 (NC)], this Commission has observed as follows:-
"Further, what is commercial purpose is discussed by the Apex Court in various decisions. We would refer to few relevant judgments"."In Regional Provident 10 Fund Commissioner .Vs. Shiv Kumar Joshi, (2000) 1 SCC 98, the Court elaborately considered the provisions of Sections 2 (1) (d) and 2 (1) (o) as well as earlier decisions and held that the combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words consumer and service as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2 (1) (o) of the Act.
15. The aforesaid ratio makes it abundantly clear that services may be for any connected commercial activity, yet it would be within the purview of the Act. From the above Judgments, it is clear that for commercial purpose, generation of profit from the goods purchased or services availed would be the main criterion and it should be seen whether the complainant is engaged in regular trading of the goods so purchased or of the services availed. It is clear that dispatch of boxes by the 11 complainant company per se is not going to generate any profit to the complainant as the actual profit will come only from the dispatch and sale of the exported goods. Therefore, by taking a wider view of the matter, it is held that the complainant/appellant is a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act, 1986.
16. The District Commission failed to appreciate these factors and wrongly conclude that the service was hired for commercial purpose and also it is a case of clear deficiency in service. Still now the opposite parties 1 & 3 failed to locate and hand over the booked materials. At one time the opposite parties 1 & 3 claim that they were not paid any booking charges but they themselves admitted in the written version that the booking charges are promised by the company.
17. So in every respect the order passed by the District Commission is not sustainable and to be set aside. So the appeal is to be allowed and the complainant in his complaint clearly mentioned the value of the goods sent by them in the prayer column. The value of booked display materials has been shown as Rs.76,850/- this amount with compensation for mental agony is also liable to be paid by the opposite parties 1 & 3/First Flight Couriers Limited. Considering the long pendency of the case this Commission awarded Rs.1,00,000/- towards compensation for mental agony and also cost of Rs.10,000/- to the complainant and answered the point accordingly.
18. In the result,
1. The appeal is partly allowed.
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2. The order passed by the District Commission, Madurai in C.C.No.11/2008, dated 21.08.2018 is hereby set aside and the complaint is partly allowed.
3. The opposite parties 1 & 3 jointly and severally to pay Rs.76,850/- towards the value of Display materials lost suffered by the complainant and also to pay Rs.1,00,000/- towards compensation for deficiency in service and mental agony to the complainant. Appeal is dismissed against second opposite party.
4. The opposite parties 1 & 3 are directed to pay Rs.10,000/- as costs to the complainant in this appeal.
5. Time for compliance: One month from the date of receipt of copy of this order. Failing which the award amount shall carries interest at the rate of 9% per annum till its realization.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 05th day of December 2023.
Sd/-xxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
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