State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs M/S Billa Enterprises, on 9 November, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.410 of 2009.
Date of Institution: 27.03.2009.
Date of Decision: 09 .11.2012.
United India Insurance Company Limited, Regional Office, 136, Feroze
Gandhi Market, Ludhiana through its duly constituted attorney.
.....Appellant.
Versus
1. M/s Billa Enterprises, Banga Road, Phagwara through Sh. Rajan
Trehan, Partner of the Firm.
2. TNT India Pvt. Ltd. through its Managing Director, Ritivik Burman, 32
Okhla Industrial Area, Phase-III, Mochi Mill Compound, New Delhi.
...Respondents.
First Appeal against the order dated
23.01.2009 of the District Consumer
Disputes Redressal Forum, Kapurthala.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
...................................
Present:- Sh. Ved Parkash, Advocate, proxy for Sh. Pardeep Bedi, Advocate, counsel for the appellant.
Sh. Mukand Gupta, Advocate, counsel for respondent no.1. Sh. Parmod Gupta, Advocate, counsel for respondent no.2.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of three appeals i.e. First Appeal No.410 of 2009 (United India Insurance Company Limited Vs M/s Billa Enterprises & Anr. ), First Appeal No. 709 of 2009 (M/s Billa Enterprises Vs United India Insurance Company Limited & Anr.) and F.A. No.579 of 2010 (TNT India Pvt. Ltd. Vs M/s Billa Enterprises & Anr.) as all the appeals are directed against the same order dated 23.01.2009 passed by the learned District Consumer Disputes Redressal Forum, Kapurthala. The facts First Appeal No.410 of 2009 2 are taken from 'First Appeal No.410 of 2009' and the parties would be referred by their status in this appeal.
2. Facts in brief are that M/s Billa Enterprises, respondent no.1/ complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and respondent no.2, pleading that the respondent no.1 is a partnership firm, carrying on its export business and Sh. Rajan Trehan is one of its partners and is well conversant with the facts of the complaint and the present complaint has been filed through him. Respondent no.1 is reputed export enterprises which supplies various suits and dress material to foreign countries. One of such consignment containing different types of lady suit, dress material packed in nine boxes having gross weight of 416 kgs. was consigned to Men Sahib Ltd., U.K. for delivery through courier service of respondent no.2, under Marine Insurance Policy No.110/301/21/7/01 /00000008. The value of the material was Rs.2,81,535-28 as per the invoice. The said boxes did not reach the consignee, although respondent no.1 kept on waiting for a long time and made inquiries from various sources. The consignment was invoiced for onward journey on 21.11.2007, but it did not reach the destination and as a result, major loss was caused to respondent no.1 for non-delivery of articles, as it failed to sell the same in England to earn good profit thereon. Ultimately, respondent no.2 vide certificate dated 18.01.2008 declared that the shipment has been lost in transit from New Delhi to UK and the marine claim was lodged with respondent no.1, but till date no positive response been received.
3. There is no fault on the part of respondent no.1, as the shipment was lost on account of the deficiency in service on the part of respondent no.2 and it was the duty of the appellant to indemnify the same. Respondent no.1 has lost the business of Rs.2.50 lacs which was to be earned by way of profit by the sale of the said material. Respondent no.1 wrote a number of letters to the appellant, but without any result and it is a clear-cut deficiency in service First Appeal No.410 of 2009 3 on the part of the appellant and respondent no.2. Respondent no.1 also suffered harassment, loss in business and mental tension and agony.
4. It was prayed that the appellant and respondent no.2 be directed to pay Rs.2.50 lacs as damages on account of mental tension, harassment and agony and Rs.11,000/- as litigation expenses.
5. In the written reply filed on behalf of the appellant, preliminary objections were raised that the complaint is pre-mature in view of the letter dated 27.02.2008 written by the appellant and is liable to be dismissed. Respondent no.1 failed to supply the required documents to the appellant, demanded vide letter dated 27.02.2008. Respondent no.1 firm is not registered and is not competent to file the complaint. Sh. Rajan Trehan is not competent to file the complaint. Respondent no.1 is estopped by its own act and conduct to file the compliant. No notice under Carriers Act was issued as required under the law and the complaint is not maintainable. It appears to be a case of collusion between respondent no.1 and respondent no.2-TNT India in order to make a wrongful gain to respondent no.1 and wrongful loss to the appellant and detailed evidence is required and the civil court is competent. The complaint is bad for non-joinder of necessary parties. The liability of the appellant, if any, is strictly as per the terms and conditions of the policy.
6. On merits, it was denied for want of knowledge that the respondent no.1 firm is reputed export enterprises. The deficiency, if any, is on the part of respondent no.2. Other similar pleas as raised in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed.
7. In the written reply filed on behalf of respondent no.2, preliminary objections were taken hat the complaint is liable to be dismissed in limine, as being not maintainable. There is no consumer dispute. The consignment booked was for commercial use and the Forum has no jurisdiction to entertain and try the complaint. Even assuming that there has been a deficiency in service in handling the consignment, respondent no.2 is First Appeal No.410 of 2009 4 bound by the terms and conditions of the Carriage printed on the reverse of the Consignment Note as per which the liability for loss or damage is limited to 20 Euros per kilo subject to maximum 100 Euros. Other allegations were denied and dismissal of the complaint was prayed.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the consignment could not reach the quarter concerned, as is apparent after going through the certificate dated 18.01.2008 which on close scrutiny exhibited that the shipment has been lost during transit from New Delhi to U.K. The respondent is a consumer, and allowed the complaint, directing the appellant and respondent no.2 to pay jointly and severally Rs.2,81,535-28 to respondent no.1 as loss suffered by him due to non- delivery of goods, pay Rs.6,000/- as compensation and Rs.4,000/- as litigation expenses.
10. Aggrieved by the impugned order dated 23.01.2009, the appellant-Insurance Company has come up in the present appeal, with a prayer to set aside the impugned order.
11. On the other hand, respondent no.1/complainant has filed cross appeal i.e. First Appeal No. 709 of 2009 (M/s Billa Enterprises Vs United India Insurance Company Limited & Anr.), praying that interest @ 12% be awarded w.e.f. 18.01.2008 on the above amount till realization.
12. Whereas, respondent no.2-TNT India Pvt. Ltd. has also filed appeal i.e. F.A. No.579 of 2010 (TNT India Pvt. Ltd. Vs M/s Billa Enterprises & Anr.), seeking setting aside of the impugned order.
13. We have gone through the pleadings of the parties and have perused the record of the learned District Forum. We have also heard the arguments of the learned counsel for respondent no.1 as well as perused the written arguments filed on behalf of appellant and respondent no.2. First Appeal No.410 of 2009 5
14. The important question raised on behalf of the appellant and respondent no.2 is that respondent no.1 is not a 'consumer' as defined under the Act. Respondent no.1 is doing export business and the present consignment was also sent to England, to earn good profit. There is no mention that respondent no.1 is doing such business for earning its livelihood by way of self-employment.
15. As per the pleadings of respondent no.1, respondent no.1 firm is a partnership firm and reputed export enterprises, which supplies various suits and dress material to foreign countries. The present consignment, containing different types of lady suits, dress material, packed in nine boxes having gross weight of 416 kgs. was consigned to Men Sahib Limited, U.K., for delivery through respondent no.2 under Marine Insurance Policy and the value of the material was Rs.2,81,355-28. The consignment did not reach the destination, as a result thereof, major loss was caused to respondent no.1 for non-delivery of articles, as it failed to sell the same in England to earn good profit thereon.
16. From the above pleadings, it is clear that respondent no.1 is carrying on export business of different types of lady suits, dress material etc. and is sending to Foreign countries, to earn profit.
17. The Consumer Protection Act, 1986 was amended in the year 2002 vide Act No.62 of 2002 and the definition of consumer was further clarified and the person, who hires or avails services for any commercial purpose, was excluded from the definition of consumer after this amendment. Now, the definition of consumer U/s 2 (i) (d) of the Act, after this amendment, is as follows:-
2 (i) (d) : "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred First Appeal No.410 of 2009 6 payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation:-- For the purposes of this clause, "commercial purpose"
does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
18. The word "commercial purpose" has not been defined in the Act and the Hon'ble Supreme Court way back in case "Laxmi Engineering Works Vs P.S.G. Industrial Institute", II (1995) CPJ-1(SC), interpreted the same and observed in Para-10 (relevant portion) as follows:-
"The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment", make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw and ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe First Appeal No.410 of 2009 7 machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words".
19. In a recent judgment in case "Birla Technologies Ltd. Vs Neutral Glass and Allied Industries Ltd.", I (2011) CPJ-1(SC), the Hon'ble Supreme Court observed in Para-9 as follows:-
"In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounts to 'goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 01.08.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1) (d)
(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the explanation which was introduced on the same day i.e. on 15.03.2003 by way of amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto".First Appeal No.410 of 2009 8
20. Similar law has been laid down by the Hon'ble Supreme Court in case "Economic Transport Organization Vs Charan Spinning Mills (P) Ltd. & Anr.", I (2010) CPJ-4 (SC).
21. Hon'ble National Commission in case "S.P. Rajan Vs CSI Diocesan Council & Ors.", III (2012) CPJ-575 (NC), also held the complainant not a consumer, as he indulged in large scale commercial activities.
22. In view of above discussion and applying the above proposition of law to the facts and circumstances of the present case, the respondent no.1, who is doing the export business of different types of lady suits, dress material etc. and is sending to the same foreign countries, to earn profit, is excluded from the term "consumer" under the Act. Thus, respondent no.1 does not fall within the definition of "consumer" as provided U/s 2 (i) (d) of the Act and the services were availed/hired by the respondent for commercial purpose in order to earn profit and, as such, the complaint under the Act is not maintainable. The order of the District Forum is against the facts and law and is not sustainable in the eyes of law.
23. Accordingly, the appeal filed by the appellant-Insurance Company is accepted and the impugned order under appeal dated 23.01.2009 passed by the District Forum is set aside. Consequently, the complaint filed by respondent no.1/complainant is dismissed. No order as to costs.
24. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.709 of 2009:-
25. In view of the reasons and discussion held in First Appeal No.410 of 2009 (United India Insurance Company Limited Vs M/s Billa Enterprises & Anr. ), the First Appeal No. 709 of 2009 (M/s Billa First Appeal No.410 of 2009 9 Enterprises Vs United India Insurance Company Limited & Anr.) is dismissed. No order as to costs.
First Appeal No.579 of 2010:-
26. In view of the reasons and discussion held in First Appeal No.410 of 2009 (United India Insurance Company Limited Vs M/s Billa Enterprises & Anr. ), the F.A. No.579 of 2010 (TNT India Pvt. Ltd. Vs M/s Billa Enterprises & Anr.) is accepted and the impugned order under appeal dated 23.01.2009 passed by the District Forum is set aside. Consequently, the complaint filed by respondent no.1/complainant is dismissed. No order as to costs.
27. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
28. The arguments in all the appeals were heard on 05.11.2002 and the orders were reserved. Now the orders be communicated to the parties.
29. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
30. Copy of the order be placed in First Appeal No. 709 of 2009 (M/s Billa Enterprises Vs United India Insurance Company Limited & Anr.) and F.A. No.579 of 2010 (TNT India Pvt. Ltd. Vs M/s Billa Enterprises & Anr.).
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member November 09, 2012.
(Gurmeet S)