National Consumer Disputes Redressal
Shree Vaidyanath Ayurved Bhawan Ltd. vs Vishal Goods Transport Company on 5 May, 2008
ORDER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI Revision Petition No. 2417 of 2005 (From the order dated 16th June 2005 of the Uttarakhand (Uttaranchal) State Consumer Disputes Redressal Commission, Dehradun in Appeal No. 438 of 2004) Shree Vaidyanath Ayurved Bhawan Ltd. Petitioner Jhansi Versus
1. Vishal Goods Transport Company, Haldwani, Respondents District Nainital
2. Vishal Goods Transport Company Through Wariam Singh, Proprietor/Partner BEFORE HONBLE MR. JUSTICE R. C. JAIN PRESIDING MEMBER HONBLE MR. ANUPAM DASGUPTA MEMBER For the Petitioner Ms Shally Maheshwari, Advocate For the Respondents Mr. S. K. Sharma, Advocate 5TH May 2008 ANUPAM DASGUPTA ORDER This revision petition challenges the order dated 16th June 2005 of the Uttarakhand (Uttaranchal) State Consumer Disputes Redressal Commission, Dehradun (State Commission) in appeal no. 438 of 2004. By this order, the State Commission upheld the majority order of the District Forum, Nainital (dated 5th January 2004 by one Member and 17th July 2004 by the other, against the order dated 20.12.2003 of the President of the said Forum), dismissing the complaint dated 11.08.1999 of the complainant (petitioner in these proceedings).
2. The undisputed facts of the case are that the petitioner, a limited company engaged for long in the manufacture and sale of aayurvedic medicines, despatched by road several consignments of its medicines from its depot-cum-office at Haldwani, District Nainital to that at Bareilly, through respondent no 1, Vishal Goods Transport Company, Haldwani (respondent no. 2 being the owner of the former), during August 1997 and June 1998. The corresponding Goods Receipts (GRs) issued by Vishal Goods Transport Company were dated 20.08.1997, 24.08.1997, 01.04.1998 (two GRs), 17.02.1998 (two GRs) and 02.06.1998, each GR marking the petitioner as the consignor, self as the consignee and bearing the name of Navrang Transport Corporation under the heading Delivery. It may, however, be noted at this stage itself that in these GRs, some written in Hindi and others in English, Navrang Transport is described in varying details but in none of the GRs is it written as Navrang Transport Corporation, Bareilly to clearly show that Navrang had any office/depot/godowns at Bareilly from where the delivery of the goods was to be taken. All the GRs were endorsed to the Punjab National Bank, Bareilly. The total value of the medicines so despatched was Rs. 2, 44,217.
3. It is the contention of the petitioner that none of these consignments was ever delivered at its Bareilly office. It is also contended that the petitioner was continuously in touch with the respondents but without any avail, despites the latters assurances that they would get back to the petitioner after making necessary enquiries. This led the petitioner to issuing letters to the respondents, the last being a letter dated 28.06.1999 sent by registered post. As there was no response to the registered letter either, the petitioner filed a consumer complaint with the District Forum, with the results already noted.
4. Affirming the majority order of the District Forum, the State Commission dismissed the petitioners appeal on three main counts. First, it noted the rather unusual business conduct that the petitioner continued to despatch several consignments of its medicines, over a period of more than nine months, through the (same) respondent - transporter (hereafter, Vishal) despite its own contention that even the first consignment did not reach its agent at Bareilly within a reasonable period of time. Secondly, the petitioner did not make any attempt to implead the intermediate transporter, viz., Navrang Transport Corporation (hereafter, Navrang) though the latter was named in each GR under the heading, Delivery; thereby the State Commission implicitly held that the consignee, viz., the petitioner itself or its agent at Bareilly, was expected to take the delivery of the consignments from Navrang at Bareilly after getting the GRs discharged through the Bank. The State Commission also noted that despite this position, the petitioner objected to impleading Navrang on the ground that it had neither any privity of contract with Navrang nor any dispute with it, having booked all the consignments in question only through Vishal an argument that the State Commission did not find persuasive. Thirdly, and most important, the State Commission held that (i) section 10 of the Carriers Act, 1865 would apply to this case and, (ii) accordingly, the petitioner was enjoined to give a written notice to Vishal (i.e., not only send a written notice to but also ensure service of the said notice on Vishal), within six months of the peril to its consignments first coming to its knowledge and (iii) the petitioner could not be held to have given the said 6-month notice to Vishal, even if it was assumed that its registered letter dated 28.06.1999 was sent to Vishal. In holding that section 10 of the Carriers Act applied to the petitioners case, the State Commission relied on the order of the Apex Court in the case of Arvind Mills Ltd. versus Associated Roadways [(2004) 11 SCC 545].
5. We have heard the learned counsel of both the parties and gone carefully through the records before the State Commission and the District Forum, as well as the pleadings and submissions placed before us. The parties have also submitted their written submissions and copies of the orders of the Apex Court that they wish to rely on.
6 (a) In the proceedings before us, Ms Shally Maheshwari, learned counsel for the petitioner has based her case, first, on the recent order of the Apex Court in the case of Transport Corporation of India Ltd. versus Veljan Hydrair Ltd. [(2007) 3 SCC 142] to demonstrate that the finding of the State Commission, which relied on the Apex Courts order in the case of Arvind Mills Ltd.
versus Associated Roadways (supra), with regard to applicability of section 10 of the Carriers Act to this case and thus held the petitioner liable to give a 6-month notice to the respondent(s) under that section, was erroneous.
(b) In the Transport Corporation of India case, the Apex Court held, inter alia, as under
[SCC 148, supra]:
7. ... ... Section 10 requires a notice in the manner set out therein, for initiation of a proceeding against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under section 10 of the Carriers Act, 1865. It is sufficient if the notice fulfils the requirement of section 10, that is, to inform the carrier about the loss or injury to the goods. Such a notice under section 10 will certainly be required where the common carrier delivers the goods in a damaged condition, or where the common carrier loses the goods entrusted for carriage and informs about such loss to the consignor/consignee/owner. The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously section 10 will not apply. Similarly, where the common carrier informs the person entitled to delivery (consignor / consignee/ owner) that the consignment is being traced and process of tracing it is still going on and requests him to wait for the consignment to be traced and delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor / consignee will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in section 10 will not apply to a claim based on such non-delivery. In fact section 10 does not use the word non-delivery of goods, but uses the words loss of, or injury to, goods. A case of non-delivery will become a case of loss of consignment, only when the common carrier informs the consignor/ consignee about the loss of the consignment.
8. In Arvind Mills, relied on by the appellant, this Court held that the word suit used in section 10 will include a complaint under the Consumer Protection Act, 1986 and that in the absence of a notice under section 10 of the Carriers Act, a complaint against a common carrier for compensation for loss suffered by the complainant cannot be entertained. But that decision did not relate to a claim regarding non-delivery of the consignment, where the carrier failed to inform that the goods have been lost. The said decision does not, therefore, help the appellant.
[Emphasis in italics supplied].
(c) Ms Maheshwari has further argued that in this case, the respondents did not claim that the consignments of the petitioner were either lost or delivered in damaged condition at the business premises of the petitioner or its agent at Bareilly. In fact, if the averments and submissions of the respondent(s) and the contents of the documents produced by them, including the unloading reports of Navrang and its letter dated 17.06.2003 (purportedly sent by Navrang to Vishal with a copy to the petitioner) were to be accepted at face value, the petitioners consignments were all along lying with Navrang at Bareilly and it was the petitioner which failed to take delivery from Navrang.
(d) Ms Maheshwari emphasises that this letter of 17.06.2003 is a fabrication by the respondent(s), in collusion with Navrang, for (i) neither before the date (17.06.2003) of the purported letter nor at any time thereafter did Navrang send any other written communication / reminder to the respondent(s) or the petitioner about the petitioners consignments having been received by and lying undelivered with it; (ii) Navrangs said letter was never produced before the District Forum though there was ample time and opportunity to do so ‑ because the lady Member of the Forum pronounced her order on 17.07.2004, agreeing with the dissenting order dated 05.01.2004 of one Member against the order dated 20.12.2003 of the President of the Forum each of these orders was thus passed much after the date of the said letter of Navrang; (iii) although a copy of this letter was claimed to have been endorsed to the petitioner, it was never received by the latter; (iv) though a copy of this letter was filed by the respondents during the appeal proceedings before the State Commission to which the petitioner protested strongly, the State Commission neither ruled against its being taken on record; nor in favour and (v) the petitioner became aware of the existence of this letter only when the respondent(s) filed a copy before this Commission.
7 (a) As against this, Mr. S. K. Sharma, learned counsel for the respondents has argued that the affidavits, documents and written submissions in the proceedings before the Fora below fully establish the following points: (i) the petitioners goods were sent (by Vishal) from Haldwani to Bareilly on GRs in which the consignee was self; (ii) according to the GRs, the goods were to be delivered to Navrang at Bareilly and collected by the petitioners representative from Navrangs office there; (iii) the tallying details of the GRs and those in the unloading reports (including the petitioners goods dispatched by Vishal from Haldwani and their unloading by Navrang at Bareilly) show that the (petitioners) goods had been delivered to Navrang at Bareilly;
(iv) the letter of 17.06.2003 written by Navrang to the respondents with copy to the petitioner further strengthens the case of the respondents and (v) it was the petitioner which failed to take delivery of its goods from Navrang was also unable to produce any proof to demonstrate that either itself or its agent at Bareilly was unable to take the delivery of the goods in question from Navrang on account of some deficiency on the part of the respondents. Mr. Sharma also stresses the point that the petitioner was fully aware of this practice (of Vishal sending the goods to Navrangs premises at Bareilly and the petitioner having to take delivery therefrom) but the petitioner did not take the delivery for reasons best known to it.
(b) In support of his case, Mr. Sharma has also relied on the order of the Apex Court in the case of Patel Roadways Ltd. versus Birla Yamaha Ltd. [(2000) 4 SCC 91] and the order of this Commission in the case of Delhi Assam Roadways Corporation Ltd. versus B. L. Sharma [I (2003) CPJ 280 (NC)].
(c) In the Patel Roadways case (supra), the Apex Court held, inter alia, that (i) the word suit in section 9 of the Carriers Act also included the consumer complaints under the Consumer Protection Act, 1986 (and the Redressal Fora under the Consumer Protection Act were fully competent, despite the summary nature of proceedings before them, to consider and adjudicate upon complaints relating to deficiencies on the part of common carriers); (ii) the liability of a common carrier under the Carriers Act was that of an insurer; (iii) the general principle of law in cases of tortious liability (that the responsibility of proving negligence lay with the party so alleging) had no application to a case covered by the Carriers Act, even a case where a special contract (to the contrary) existed between the parties; and (iv) the absolute liability of a common carrier was, however, subject to the (only) exception where the loss or damage arose from an act of God. We are, however, unable to see the relevance of this order of the Apex Court to the case of the respondents in this revision petition. It is not the case of Mr. Sharma that this Commission and the Fora below have overstepped their respective jurisdictions in dealing with this case. What is, of course, challenged by the respondents is the contention of the petitioner here that section 9 and not section 10 of the Carriers Act would be applicable to this case. This issue we shall deal with presently.
(d) In the Delhi Assam Roadways Corporation case, the facts were totally different. That case was undisputedly one of loss of as well as damage to the personal goods of the complainant, which occurred in the course of transportation of the goods from Mumbai to Vishakhapattanam. This Commission held that section 10 of the Carriers Act was, therefore, applicable and hence it was mandatory for the complainant to give a notice to the carrier before the expiry of six months from the date of the loss of and damage to his goods first coming to his notice. The revision petition of the carrier was allowed only on this ground. Thus this order of the Commission would also not come to the aid of the respondents here unless the question of applicability of section 10 (vis a vis section 9) of the Carriers Act is first settled on the basis of the facts and circumstances of this case.
FINDINGS 8 (a) In view of these divergent claims and versions, it is necessary to refer to the records before the Fora below.
(b) Throughout the proceedings before the District Forum, the stand of the complainant (petitioner) was that the consignments were booked by its Haldwani office with Vishal to be sent to Bareilly and the consignee was self, i.e., the complainants representative/agent at Bareilly. The complainant averred that at the relevant time opposite parties (OPs)/Vishal had orally represented to the complainant that transportation of the petitioners goods of from Haldwani to Bareilly was an internal arrangement of theirs with Navrang, as the latter had its office at Bareilly. The complainant thus contended that this being the respondents own arrangement, it was entirely the responsibility of the respondents/Vishal to ensure delivery of the consignments to the complainants representative/agent at Bareilly. That the consignee in each case was marked self is evident from each GR issued by Vishal.
(d) However, on the strength of the entry of Navrang under the heading Delivery in these GRs, the OPs/respondents repeatedly contended before the Forum that (i) Navrang and not the OPs/respondents were the common carrier in this case; (ii) the consignments were received by Navrang at Bareilly; (iii) it was, therefore, for the complainant to take delivery from Navrang; and (iv) the complainant has not averred nor produced any evidence to show that Navrang Transport at Bareilly has failed to deliver these consignments to the consignee. In their affidavit on oath (dated 06.10.2003), the OPs contended that the complainant had not made compliance of the provisions of section 10 read with other relevant provisions of the Carriers Act, 1865 and went to the extent of alleging (in their next affidavit dated 01.12.2003) that possibly the consignee was trading in black money either in collusion with or duping the Navrang Transport of Bareilly... In their written submissions dated 16.12.2003, the OPs also dwelt at length on the complainant not being a consumer under the Consumer Protection Act, 1986 (the Act) and made several other points, including application of section 10 of the Carriers Act to this case. We observe, however, that in none of the above-mentioned averments and submissions of the OPs was there even a whisper of their being in possession of the letter dated 17.06.2003 written by Navrang to the OPs, explicitly acknowledging receipt of the complainants consignments in question and intimating that these were still lying with them because no one on behalf of the petitioner/consignee had come forward to take delivery.
(e) In filing a copy of Navrangs letter 17.06.2003 before the State Commission as late as on 31.01.2005, the OPs sought to explain this delay by stating that this letter of Navrangs had been misplaced in their office and it was located much letter. The complainant/appellant/petitioner had strongly objected to the filing of this letter. While the State Commission steered clear of the issue of allowing or disallowing the filing of this letter in its proceedings or in the impugned order dated 16.06.2005, the questions that remained unanswered in the process are not trivial.
(f) Vishal claimed that these consignments were delivered by it at the premises of Navrang at Bareilly as early as in 1997 98. If that were so, the first question is:
what prevented Navrang from sending a similar written intimation to Vishal some time soon after the arrival of the last consignment in June 1998 that the said consignment(s) were lying undelivered with Navrang since mid-1997 for want of necessary action by the consignee? Further, if Navrang were indeed the common carrier and OPs/Vishal only a supplier of transporting trucks by virtue of the internal arrangement of theirs (as repeatedly averred by the OPs before the District Forum), was this claimed arrangement with Navrang with the explicit concurrence of Navrang and demonstrably brought to the notice of the complainant? If so, why then, as the common carrier, did Navrang not inform the petitioner directly about the arrival of the consignments by a letter sent by registered post with acknowledgement due to ensure its receipt by the complainant/petitioner? If the OPs/respondents, as mere supplier of trucks to Navrang, were so keenly aware of the definition and full import of being a common carrier under the Carriers Act, surely so would be Navrang.
(g) In the proceedings before the District Forum, the OPs/respondents relied on the unloading reports of Navrang, purporting to show that the consignments of the complainant/petitioner had been received from the OPs/respondents by Navrang at Bareilly. These reports were on printed letterhead paper of Navrang, showing it as a registered Transporter with its Head Office at Lucknow and bearing a rubber stamped addition BAREILLY. The letter dated 17.06.2003 was, however, on a more detailed printed letterhead titled Navrang transport Corporation, FLEET OWNERS AND TRANSPORT CONTRACTORS, with Admn. Office at Aishabagh Road, LUCKNOW and Branch Office at TRANSPORT NAGAR, LUCKNOW but once again a rubber stamped addition, Phul Bagh, Bareilly. The common element in Navrangs unloading reports and the letter of 17.06.2003 on its corporate letterhead was thus the rubber stamped addition of Bareilly. Why did Navrang not have a printed letterhead for its office at Bareilly? Why did a self-proclaimed Fleet Owner and Transporter have to have a business arrangement with Vishal only for providing trucks? Was this business arrangement restricted only to transporting the consignments of the petitioner or generally for all its transportation operations to and from Haldwani and Bareilly and some more?
(h) The short point, therefore, is that if the OPs/respondents, as mere supplier of trucks, had to rely so heavily on Navrang, the common carrier according to their own claim before the District Forum, should the OPs/respondents not have applied for examination of Navrangs representative at Bareilly in defending their stance? Why, instead, did the OPs/respondents repeatedly plead that the complainant/petitioner be called upon to implead Navrang with which the complainant/petitioner could have been held to have had, at best, a distant, secondary relationship that too, as per the claim of the OP/respondent?
(i) Finally, why did the respondents find it necessary to discover and seek to file Navrangs letter of 17.06.2003 in at the appellate stage when all through the proceedings before the District Forum they were content with emphasizing that the unloading reports of Navrang (which the respondents had filed before the District Forum on oath as being true) were conclusive proof of the petitioners goods having been delivered in time to Navrang at Bareilly and the failure of the latter alone to take delivery thereof after getting the GRs duly discharged from the Bank was it because the respondents were aware that the unloading reports were not really sufficient to prove that either the respondents or the common carrier Navrang (as claimed by the respondents) had taken adequate steps to inform the petitioner of the arrival of its goods at Navrangs premises at Bareilly?
(j) It is easy to see that these unanswered questions have a direct bearing on the validity, in terms of facts as well as in law, of the finding of the lower Fora on the issue of the petitioners liability (vis a vis that of the respondents) to implead Navrang in its complaint (vis a vis that of the respondents to seek examination of Navrang) before the District Forum the first alternative having been highlighted by the two Members of the Forum and, later, by the State Commission in the impugned order, in dismissing the complaint/appeal.
(k) Equally, in dismissing the complaint/appeal of the petitioner, it is contradictory to hold it against the petitioner, on the one hand, that the petitioner failed to implead Navrang and, on the other that it failed to issue notice under section 10 of the Carriers Act to the respondents. If, as per the respondents claim, it is accepted that Navrang was the common carrier, the petitioner should have been answerable for not giving the section 10 notice to Navrang and not Vishal/respondents - assuming of course that the findings on the applicability of section 10 of the Carriers Act to this case and fastening the responsibility therefor on the petitioner are legally tenable. Conversely, if the respondents were taken as the common carrier in this case, it would have been necessary for the Fora below to be satisfied that the respondents, as the common carrier, had proved conclusively that they had intimated the petitioner, in writing, about the arrival of the petitioners consignments at the premises of Navrang at Bareilly and yet the petitioner or its representative at Bareilly had failed to take effective steps to get the goods released after complying with the Banks requirements regarding due discharge of the GRs concerned. Neither the District Forum nor the State Commission had anything to say on these crucial issues.
(l) Regarding the question of the legal necessity for the petitioner to implead, in its complaint, Navrang as a necessary party, Ms Maheshwari has drawn our attention to the order of the Apex Court in the case of Savita Garg versus Director, National Heart Institute [(2004) 8 SCC 56]. Before we go into the ratio of this order in relation to the matter on hand, a preliminary question needs to be answered. This petition clearly and squarely relates to deficiency in service, as defined in the Act. At the time (1999) when the relevant complaint was filed, the definition of service in section 2(1) (o) (after the 1993 amendments by Act 50 of 1993) of the Act stood as:
(o) service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, ... ... ... ... ... ..., housing construction, entertainment, ... ... ... ... ... ..., but does not include the rendering of any service free of charge or under a contract of personal service (emphasis supplied).
(m) The case on hand is in respect of alleged deficiency in rendering transport service. On the basis of the material before the lower Fora, it is also clear that the transport services provided by the respondents (and/or, by Navrang, according to the claim of the respondents) to the respondents were under a contract for service professional service at that with the petitioner.
(n) The Savita Garg case (SCC 56-70, supra) before the Apex Court was a case of alleged medical negligence. The complainant had brought up a complaint of deficiency in medical service rendered by a hospital in the treatment and care of the patient, her husband, who ultimately died. In its order of 06.02.2003, this Commission held that the complaint was not maintainable because the treating doctors had not been impleaded by the complainant. The complainant appealed to the Apex Court against the said order of this Commission. Allowing the appeal and remitting the matter back to this Commission by its order of 12.10.2004, the Apex Court held:
The Consumer Forum is primarily meant for better protection in the interest of consumers and not to short-circuit the matter or to defeat the claim on technical grounds.
As far as the Commission is concerned, the provisions of CPC are applicable to a limited extent and not all provisions of CPC are made applicable thereto. According to the procedure laid down by the Consumer Protection Rules, 1987 (the Rules), by Rule 14 thereof a complainant has to give the name, description and address of the opposite party or parties so far as they can be ascertained (Emphasis supplied).
(Paragraphs 7 to 9) So far as the law with regard to the non-joinder of a necessary party under Order 1 Rule 9 and Order 1 Rule 10 CPC is concerned, there also even no suit shall fail because of misjoinder or non-joinder of parties. It can proceed against the persons who are parties before the court. Even the court has the power under Order 1 Rule 10 (4) to give direction to implead a person who is a necessary party. Therefore, even if after the direction given by the Commission the doctor concerned and the nursing staff, who were looking after the deceased A, had not been impleaded as opposite parties it cannot result in dismissal of the original petition as a whole.
(Emphasis supplied) (Para. 9) Once a claim petition is filed and the claimant has successfully discharged the initial burden that the hospital was negligent, and that as a result of such negligence the patient died, then in that case the burden lies on the hospital and the doctor concerned who treated that patient, to show that there was no negligence involved in the treatment. Since the burden is on the hospital, they can discharge the same by producing the doctor who treated the patient in defence to substantiate their allegation that there was no negligence. It is the hospital which engages the treating doctor;, thereafter it is their responsibility. The burden is greater on the institution/ hospital than that on the claimant. In any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The institution is a private body and it is responsible to provide efficient service and if in discharge of its efficient service there are a couple of weak links which have caused damage to the patient, then it is the hospital which is to justify the same and it is not possible for the claimant to implead all of them as parties.
(Para.10) Therefore, the expression used in Rule 14 (1) (b), so far as they can be ascertained, makes it clear that the farmers of the Rules realized that it will be very difficult, especially in the case of the medical profession, to pinpoint who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint, and especially in a case like the one in hand.
(Para. 10) Even otherwise also given that, as held above, the burden to absolve itself shifts on to the hospital/ doctor; the Institute has to produce the treating physician concerned and has to produce evidence that all care and caution was taken by it or its staff to justify that there was no negligence involved in the matter. Therefore, nothing turns on not impleading the treating doctor as a party.
(Para. 16) The hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the distinction between contract of service and contract for service which is sought to be pressed into service cannot absolve the hospital or the Institute as it is responsible for the acts of its treating doctors and nursing staff who are on the panel/ staff of the hospital and whose services are requisitioned from time to time, temporarily, by the hospital for treatment of patients. For both, the hospital, as the controlling authority, is responsible and it cannot take shelter under the plea that as the treating physician is not impleaded as a party the claim petition should be dismissed.
(Para. 15)
(o) In this case, there was a written contract for (transport) service between the petitioner and the respondents in the shape of several GRs. It might be also inferred, as per the say of the respondents, that there was perhaps a contract of sorts for further transport-related service between the respondents and Navrang. the terms of the latter contract were, however, never disclosed before either the District Forum or the State Commission. In any case, it is amply clear from the explicit rulings of the Apex Court cited above that if, as claimed by the respondents, Navrang was the key service provider in the complaint, it was for the respondents to bring in Navrang before the lower Fora and prove their say in support of the respondents claim, in the presence of and subject to cross-examination of Navrang by the petitioner. It was also the duty of the District Forum to ensure this and not (for the two learned Members) to go off at a tangent altogether on this issue. Even more unfortunate was the approach adopted by the appellate body, viz., the State Commission. The only thing that could perhaps be said in favour of the stance of the District Forum and the State Commission is that neither could have been aware of the clear rulings of the Apex Court in the two cases (particularly the Transport Corporation of India case supra) now cited by the petitioner. However, the fact remains that (as observed so succinctly and conclusively by the Apex Court in para. 7 to 9 of its order in the Savita Garg case) a proper application of Order I Rule 10 of the CPC (of which the Fora below were surely aware) would also have sufficed in coming to the right decision. Be that as it may.
(p) It is thus clear that in this case (i) the respondents were the common carrier and not Navrang; (ii) the petitioners complaint was not of loss of or damage to their goods upon actual delivery of the goods after transportation but of non-delivery, making it a case covered by section 9 of the Carriers Act (and not section 10) and thus fully casting the responsibility to prove the absence of any negligence on the carrier itself and (iii) no conclusive evidence was produced by the respondents to show that they (or, even Navrang) ever informed the petitioner about the arrival of the petitioners consignments from Haldwani to Bareilly to enable the latter to take delivery thereof. As already observed, the production by the respondents of the letter of 17.06.2003 purportedly written by Navrang during the appeal before the State commission rightly deserved the treatment meted out to this letter by the State Commission, namely, completely ignoring the said letter as an admissible piece of evidence.
(q) On the other hand, we cannot also lose sight of the perplexing business conduct of the petitioner in this case. The petitioner continued to send several consignments of its goods through the respondents over a fairly long period of time. But it did not bring on record, in its complaint or in the affidavits/documents filed before the District Forum, to convincingly explain why it chose to do so if the intimation of arrival of even the first consignment at Bareilly had not been given by the respondents or Navrang in time. This weakens the petitioners claim for recovery of the cost of the goods and any further compensation because of non-delivery.
(r) Before we part with our findings, it would be desirable to set at rest the confusion on the definition of consumer under section 2(1) (d) of the Act. As a plain reading of the definition would show, sub-clause (i) of clause, defining a consumer in the context of goods, excluded, ab initio, a person who obtains such goods for resale or for any commercial purpose (emphasis supplied). On the other hand, the analogous clause in the definition of a consumer of service, viz., but does not include a person who avails of such service for any commercial purpose (emphasis supplied) was first introduced in sub-clause (ii) of clause (d) of section 2(1) only by the Amending Act of 2002 (Act 62 of 2002, which came into effect from 15th March 2003). The amendments to the Act brought about in either 1993 or 2003 did not have retrospective effect, at least in the context of services other than housing construction (for interpretation in respect of housing construction, reference to the ruling of the Apex Court in the case of Lucknow Development Authority versus M. K. Gupta [(1994) 1 SCC 243] would be necessary). In other words, a consumer of service (including the service of transport) was not excluded, upto the amendments to the Act by Act 62 of 2002, from the definition of consumer under the Act merely because the consumer availed of the service in question for any commercial purpose. Thus, the petitioner in this case was very much a consumer under the Act when it filed the complaint in 1999.
9. On the basis of the discussion above, we set aside the impugned order of the State Commission as well as that of the District Forum and direct the respondents to pay, jointly / severally, to the petitioner the sum of Rs. 2,44,000/- (Rs. two lakh forty four thousand only), being the cost (rounded off) of the petitioners undelivered goods, within four weeks from the date of this order. We refrain from ordering payment of any interest on this amount or any other compensation because the business conduct of the petitioner (in sending several consignments of its goods over a fairly long period of time through the respondents without making any proven efforts to check on their delivery at Bareilly) does not show the petitioner up as a prudent or diligent consumer. There shall also be no order as to costs, for the same reason.
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[R. C. JAIN, J] ...................................................
[ANUPAM DASGUPTA]