State Consumer Disputes Redressal Commission
M/S Cosmas Pharmacls Ltd. vs M/S Om Logistics Ltd. on 17 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No. 207 of 2017
Date of institution: 22.03.2017
Date of Decision: 17.11.2017
M/s Cosmas Pharmacls Limited, having its operations at B-I-1446/10-B,
Y-Block Crossing, Hambran Road, Ludhiana through Punit Jain,
Director of the Company.
Appellant/Complainant
Versus
1. M/s Om Logistics Limited, 130, Punjab Bagh (T.C.), Ring Road,
New Delhi - 110035, through its Managing Director.
2. M/s Om Logistics Limited, B-24, Phase V, Focal Point, Near
Rockman Industries, Ludhiana through its Manager.
Respondents/Ops
First Appeal against the order dated
02.01.2017 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellant : Sh. Parvez Chugh, Advocate For the respondents : Sh. Rajneesh Malhotra, Advocate JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The appellant/complainant(hereinafter referred as "complainant") has filed the present appeal against the order dated
02.01.2017 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred as the District Forum) in Consumer Complaint No.01 dated 02.01.2017 vide which the First Appeal No. 207 of 2017 2 complaint filed by complainant was dismissed being not maintainable as the complainant does not fall within the definition of the consumer as defined under the Act.
2. It would be apposite to mention that hereinafter the parties will be referred to, as have been arrayed before the District Forum. Facts of the Complaint
3. Brief facts as averred in the complaint, are that complainant is a public limited company is carrying on the business of manufacturing and sale of medicinal formulations and pharmaceuticals. The Board of Directors, vide its resolution dated 15.07.2013, had authorised Shri Rozer Tandon to initiate the legal proceedings against OPs. It was further averred that complainant entrusted OP No. 2 with a consignment of medicinal formulations and pharmaceuticals for taking the same to Bangalore for delivery to M/s Invision Medi Sciences Private Limited, 231/3, 12th Cross Wilson Garden, Bangalore-27. The consignment was handed over to OP No.2 along with Invoice No.5087 dated 09.08.2012 for the value of a sum of Rs. 2,89,476/- and in token of having received the consignment from the complainant, OP No.2 issued a consignee copy of GR No. 19010316958 dated 10.08.2012. The consideration for the carriage services was to be paid by the consignee at the time of delivery of the consignment at the destination. However, the consignment was not delivered to the consignee for fairly long time despite the fact that the complainant had been pursuing OPs for delivering the goods at the destination. First Appeal No. 207 of 2017 3 OP No.2 informed the complainant that goods were loaded by them from Ludhiana to destination in vehicle No. HR-38-Q-0131 on 13.8.2012. When no intimation was given by OP then the complainant served a legal notice dated 01.03.2013. The OPs in order to cover their lapses sent an ante-dated letter to the complainant having been posted on 22.8.2012 allegedly intimating the complainant that the consignment in question was destroyed during the transit in fire accident involving the vehicle in which the goods were loaded. However, OPs did not reimburse the loss to the complainant as a result of that complainant suffered inconvenience and mental tension and harassment on account of deficiency in service on the part of OPs. Hence the complaint for a direction to OPs to pay a sum of Rs. 4,89,476/- on account of loss of goods and harassment besides litigation expenses or any other additional or alternative relief against OPs was filed before the District Forum.
Defence of the Opposite Parties
4. Upon notice, opposite parties appeared before District Forum and filed their written reply raising certain preliminary objections that the complaint was false, frivolous and was filed just to harass OPs; complainant is not a consumer as defined under the Act; complainant was guilty of concealment of material facts and had suppressed the fact that on 16.8.2012 all the consignments, which were being transported through Truck No. HR38-Q-0131 were set ablaze by the mob alongwith the truck. First Appeal No. 207 of 2017 4 The driver of the truck lodged FIR No. 183/2012 in concerned Police Station in District Jaalnaa, State Maharastra and that no notice as required under Section 10 of the Carriers Act was sent. On merits, it was denied that Mr. Rozer Tandon was competent to file this complaint. Receiving the consignment from the complainant was admitted. Similar pleas as taken in the preliminary objection were taken on merits. It was pleaded that there was no deficiency in service on the part of OPs. Complaint was without merit, so it be dismissed.
Findings of the District Forum
5. Both the sides produced evidence in support of their respective averments before the District Forum. However, the District Forum dismissed the complaint being not maintainable.
6. We have heard the learned counsel for the parties and has gone through the record minutely.
7. The only contention raised by the learned counsel for the complainant/appellant is that once a specific finding has been recorded by this Commission in its order dated 01.04.2016 in F.A. No.702 of 2014 which was filed against the order dated 24.03.2014 passed by the District Forum, Ludhiana in C.C. No. 579 of 07.08.2013(now re-registered as CC No.01 of 02.01.2017 to the same complaint on remand), whereas it was required to be restored at its original number) that the complainant is a consumer. The relevant part of the order of this Commission reads as under:-
First Appeal No. 207 of 2017 5
"13. In view of the above, we accept the appeal. Impugned order is set-aside. It is held that the complainant is consumer. Complaint was not decided on merits by the District Forum and it was dismissed on account of non-maintainability of the complaint. Accordingly, complaint is remanded back to the District Forum to decide the complaint on merits in accordance with law".
8. When the complainant is held to be a consumer and direction was issued to decide the complaint on merit, it is apparent that the District Forum has not gone through the judgement. It is relevant to mention that it is admitted by the counsel for the parties that no revision was filed against the order dated 01.04.2016 of this Commission nor any order to this effect has been shown or placed on the record. As such the order dated 01.04.2016 passed by this Commission has become final meaning thereby complainant has been held to be a consumer. The District Forum was required to decide the complaint on merit instead of dismissing the same only on the ground that the complainant is not a consumer. The finding recorded by this Commission in para No.12 reads as under:-
"Now we have to determine whether availing the transport facility is covered under the commercial aspect as defined under the Act. The counsel for the appellant has relied upon the judgment 2012(2) CLT 118 "Swiss Air Cargo versus Century Silk Inc and Ors.". In that case, Op had raised objection that complainant M/s Century Silk Inc. is not a consumer as defined under the Act. However, State Commission observed that the complainant availed the services of the Op only for transportation of goods from Bangalore to Athens and it did not involve any sale, therefore, question of commercial purpose did not arise and these findings were upheld by the Hon'ble National Commission in its judgment after relying upon First Appeal No. 207 of 2017 6 judgment in "Southern Petrochemical Industries Corpn. Ltd. & Anr. Vs. British Airways World Cargo", I (2007) CPJ 74 (NC). An other judgment referred by him was II(2014) CPJ 24A (CN) (Del.) "M.M. Knitwears Pvt. Ltd. versus Bajaj Allianz General Insurance Company Ltd. & Anr." wherein Hon'ble State Commission, Delhi observed that availing of insurance services by a firm or Company is not hiring services for commercial purpose because insurance is indemnification of future loss whenever it is caused and insurance policy is not taken for making profits. Whereas the counsel for the respondent has relied upon III (2015) CPJ 1 (NC) "Jagrut Nagrik & Anr. Versus Cargo Motors Pvt. Ltd. & Anr." In that case, truck chassis was purchased by complainant No. 2 to expand existing transport business and it was not purchased exclusively to earn his livelihood. It was held that complainant is not a consumer. Whereas the District Forum has relied upon the judgment II(2011) CPJ 133 (NC) "Krishna Laser and Cosmetic Pvt. Ltd. versus Lumenis India Pvt. Ltd.". In that case, Laser machine was purchased by complainant for commercial purpose and also relied upon the judgment of Hon'ble Supreme Court in "Birla Technologies Ltd. versus Neutral Glass and Allied Industries Ltd." In that case, complainant had placed the order with Op for developing certain Computer Software at a cost of Rs. 36 lacs on 11.2.1998. Since the order was for the benefit of the business of the complainant, it was held that the complainant is not a consumer as defined under Section 2(1)(d)(ii) of the Act. Since no sale purchase was done by the complainant and only transportation services were taken by the complainant from Ops, out of which no profits were to be generated by the complainant as held in "Swiss Air Cargo versus Century Silk Inc and Ors."(supra) and "M.M. Knitwears Pvt. Ltd. versus Bajaj Allianz General Insurance Company Ltd. & Anr.", in that situation, complainant is covered under the definition of the consumer, therefore, we are of the opinion that the District Forum has not properly appreciated the point in question for what purposes the services of Ops were availed and merely the complainant is a Company, it was held that complainant does not fall within the definition of the consumer without discussing the nature of services availed by the complainant. Therefore, the order so passed by the District Forum is not legally sustainable and is liable to be set-aside and we hold that the First Appeal No. 207 of 2017 7 complainant comes within the definition of the consumer".
9. In view of the specific finding recorded by this Commission in F.A. No. 702 of 2014, the appeal is allowed. Impugned order is set-aside. The case is remanded back to the District Forum to decide the case afresh on merits in accordance with law.
10. Parties through their counsel are directed to appear before the District Forum for 14.12.2017.
11. Record be sent back immediately.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (KIRAN SIBAL) MEMBER November 17, 2017 SK/-