State Consumer Disputes Redressal Commission
Raipur Madras Road Lines vs P.S.Steel Tubes Limited & Anr., on 21 May, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
(A/11/3020)
Appeal No.739/2011
Instituted on 30.11.2011
Raipur Madras Road Lines,
Pro. Ramswarup Jaggi, S/o. Late Shri Satyadev Jaggi,
C-32, New Transport Nagar, Hathkhoj, Bhilai,
Tah. & Dist. DURG (C.G.). Head Office: RAIPUR (C.G.) ... Appellant.
Vs.
1. P.S. Steel Tubes Limited,
Director: Suresh Ahuja, S/o. Late Shri Kundan Lal Ahuja,
R/o: 25, Akash Ganga Complex, Supela Bhilai,
Tah. & Dist. DURG (C.G.)
2. Madhuri Devi Paswan, W/o. Shri Ram Naresh Paswan,
R/o. M.I.G.-II/182, Vaishalinagar, Thana- Supela, Bhilai,
Tah. & Dist. DURG (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri Manoj Mishra, for appellant.
Shri Sanjay Tiwari, for respondent no.1.
None for respondent no.2.
ORDER
Dated : 21/05/2012 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against order dated 31.10.2011, passed by District Consumer Disputes Redressal Forum, Durg (hereinafter called "District Forum" for short) in complaint case No.185/2008, whereby the appellant along with respondent No.2 has been directed to pay Rs.6,25,836/- and also to pay Rs.26,700/-, which was the freight charges for truck, paid by the respondent No.1 / complainant to the appellant along with interest @ 6% p.a. w.e.f. 31.10.2011 i.e. from the // 2 // date of order and also to pay Rs.1,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation.
2. Indisputably, the respondent No.1 / complainant is engaged in manufacture and sale of steel pipes and tubes and used to send the sold steel pipes and tubes to different destinations, through the appellant, as per requirements. It was also not in dispute that the complainant requested the appellant to arrange transport services for sending pipes to Ranipet, Tamilnadu and then the appellant provided services of truck to the complainant.
3. The case of the complainant before District Forum was that on 26.04.07, it received purchase order of steel pipes and tubes from Bharat Heavy Electrical Ltd., Ranipet, Tamilnadu and was required to send steel pipes and tubes, as per the bills to Ranipet, Tamilnadu. The appellant agreed to transport the steel pipes and tubes valuing Rs.6,25,836/- to the destination by a truck and the respondent No.1 / complainant paid charges for transport services, which was agreed between the parties at Rs.31,753/-, out of which Rs.26,700/- was paid in advance by the complainant to the appellant and amount of Rs.4,053/- was to be paid after delivery of goods at the destination. But, later on it was informed to the complainant by the consignee that the goods were not delivered to it at the destination and when // 3 // enquiries were made by the complainant from the appellant, then evasive replies were given. Ultimately, a letter was sent on 18.08.07 by the respondent No.1 / complainant to the appellant, but no reply was given. Then, police report was lodged at the concerning police station against the driver and owner of the vehicle, as well as the appellant, but the truck and the goods, which were loaded in it, could not be recovered. The complainant / respondent suffered a loss of Rs.6,25,836/-. So, consumer complaint was filed before District Forum seeking compensation for the aforesaid amount as well as for other amount of Rs.2,00,000/-, as compensation for mental and financial agony and also for Rs.26,700/- which was paid in advance as freight charges.
4. The appellant in the written version after admitting the fact that it is a transporter and works for respondent No.1 / complainant for providing transport services, has refuted the other allegations and averred that truck No.CG-04-G-7799 was of the ownership of Madhuri Devi Paswan and the appellant was merely her agent and provided that truck to the complainant as an agent of the owner only. No guarantee was given by it with respect to goods loaded in the truck as it was only a booking agent. It has been specifically stated that it was not responsible for leakage and breakage and the goods were booked at the owner's risk. It has also been averred that it was also clarified to // 4 // the complainant to check all necessary papers before loading goods and to insure itself otherwise the appellant will not be responsible for any accident, theft or looting etc. Thus, it was told that before loading goods in the truck, the complainant was required to satisfy itself regarding the papers of the truck and the appellant was not having any responsibility in respect of any accident, theft or looting. It was never informed by the complainant to the appellant that goods of which value were loaded in the truck nor any information was given by the complainant to the appellant. It has been specifically pleaded that the complainant / respondent No.1 was not a 'consumer' of the appellant as per definition given under section 2(1)(d) of the Consumer Protection Act 1986 and no amount was paid by it to the appellant, in availing its services. The appellant was not even the carrier, and was merely a commission agent and therefore the present complaint was not maintainable against agent, in view of the provisions of section 230 of the Contract Act. It has also been averred that the transport services were availed by the complainant for commercial purpose and so also the complainant is not covered under the definition of 'consumer', as per section 2(1)(d) of the Consumer Protection Act 1986. The jurisdiction of the District Forum has also been challenged.
5. Earlier this complaint was decided by the District Forum vide order dated 30.04.09 and it was held that as no notice was given by the // 5 // appellant under Section 10 of the Carriers Act, therefore the complaint is not maintainable. That order was challenged by the complainant before this Commission by way of appeal No.254/2009 and this Commission vide order dated 30.04.2010 held that in view of the pronouncement of Hon'ble Supreme Court in the case of Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd., S.C. { National Commission Consumer Law Cases (2005-2008) 637} the mandate of the Hon'ble Supreme Court as given in the case of Arvind Mills Ltd. Vs. Associated Roadways, II (2007) CPJ 1 (SC), regarding the provisions of Section 10 of the Carriers Act 1865 are not applicable in the facts of the present case, as the said provisions of Section 10 of the Carriers Act is only applicable in the case of loss of or injury to the goods including containers, pallets or similar articles of transport used to the consolidate goods entrusted to the carriage. But this Section does not apply in case of non-delivery of consignment, when the Carrier failed to inform that the goods have been lost. On the basis of this finding, the matter was again remanded back to the District Forum for fresh consideration and to decide the matter afresh on merits. Thereafter, the case was decided by the impugned order.
6. In the meantime Madhuri Devi Paswan, who was said by the appellant to be the owner of the truck, was also made party, but none // 6 // appeared for that party and so the matter was proceeded ex-parte against Madhuri Devi Paswan.
7. We have heard arguments advanced by both parties and perused the record of the District Forum.
8. Learned counsel for the appellant Shri Manoj Mishra has very vehemently argued that the transport services were availed by the complainant for commercial purpose and therefore the complainant does not come in the category of 'consumer' as defined under Section 2(1) (d) of the Consumer Protection Act. In this regard, he has drawn our attention towards pleadings of the complainant itself in paragraph No.2 of the complaint and submitted that it was admitted by the complainant that the complainant is manufacturer and seller of steel pipes and tubes and on the occasion of sending sold goods to outstation, he used to do so through the appellant. It has been submitted that by this admission it is clear that the services were availed for commercial purpose.
9. We do not find much substance in the aforesaid arguments advanced by learned counsel for the appellant. Hon'ble Supreme Court in the case of Laxmi Engineering Works Vs. P.S.G. Industrial Institute 1986-95 Consumer 1553 (NS) : (1995) 3 SCC 583 has considered // 7 // the definition of 'consumer', as per the provisions of Section 2 (d) of the Consumer Protection Act 1986 and it has been observed by two judges Bench of the Hon'ble Apex Court that : -
"Now coming back to the definition of the expression 'consumer' in Section 2 (d), a consume means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression 'resale' is clear enough. Controversy has, however, arisen with respect to meaning of the expression "commercial purpose". It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. 'Commercial' denotes "pertaining to commerce" (Chamber's Twentieth Century Dictionary; it means "connected with, or engaged in commerce; mercantile; having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise, on a large scale" (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a 'consumer' within the meaning of Section 2 (d) (i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion - - the expression "large scale" is not a very precise expression - - Parliament stepped in an added // 8 // the explanation to Section 2 (d) (i) by Ordinance / Amendment Act, 1993. "
Thus, it is clear that the expression "commercial purpose" has not been defined under Consumer Protection Act 1986 anywhere and the dictionary meaning of the word, as considered by the Hon'ble Supreme Court, denotes pertaining to commerce, meaning thereby connected with or engaged in commerce; mercantile; having profit as the main aim and the word 'commerce' means financial transactions especially buying and selling of merchandise on a large scale.
10. From this interpretation of the word 'commercial purpose' by Hon'ble Supreme Court, it is clear that if services of the transporter have been availed or hired by the complainant for the purpose of earning profit and or connected with or engaged in commerce, having profit as the main aim, then only it can be said that transport services have been availed for commercial purpose. It is true that the complainant / respondent No.1 is a manufacturer of steel pipes and tubes and used to sale it to buyers, may be at outstation. But, after the transaction of sale, as averred, if purchase order was placed by someone to the complainant and if the goods were to be sent to some other destination by the transport service by hiring of goods carriage, on payment, then it can, by no stretch of imagination, be said that hiring of transport service or availment of transport service was for // 9 // commercial purpose because by hiring transport service or by availment of transport service, no extra profit was being earned by the complainant, than the price of such goods, which were already sold. Thus, there appears that the sale and purchase of goods was already complete on receiving purchase order and sending goods by transport service is something which has got no connection with the main transaction of sale and purchase of goods. It was the duty and obligation of the seller to provide the goods to the purchaser and to deliver the goods to the purchaser and handover the goods by delivering their possession and if for that purpose transport services are hired or availed then such availment of transport service or hiring of transport service is not hiring or availment of services for any commercial purpose.
11. The word "service" has also been defined under the Consumer Protection Act 1986 under Section 2 (1) (o) as under : -
"(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"
In the aforesaid definition, transport service has been specifically included and if the transport service is made available to // 10 // the potential users on payment then such availment or hiring of transport service has come under this definition and if the goods are transported by using transport service, then it is altogether a separate act from the act of sale and purchase of goods, which was a commercial activity between seller and purchaser. So, we are of the considered view that if after sale of goods, transport services are availed by anyone for the purpose of transporting of sold goods to the buyer or purchaser, then such hiring or availment of transport service does not come in the category of "commercial purpose", under the definition of word 'consumer' under Section 2 (1) (d) of the Act. So we reject the arguments advanced by learned counsel for the appellant in this regard.
12. This Commission earlier in the case of M/s. Narayan Murthy Transport Company Vs. P.S. Steel Tubes Ltd., Appeal No.208/2011, decided vide order dated 10.08.2011, after having considered the pronouncement of Hon'ble Supreme Court in the case of Transport Corporation of India Ltd. (supra) in paragraph No.10 and 11 has held as under : -
"10. Learned counsel for the respondent has drawn our attention towards pronouncement of the Hon'ble Supreme Court in the case of Transport Corporation of India Ltd., vs. Veljan Hydrair Ltd., II (2007) CPJ 35 (SC), and submitted that if the Transporter had failed to deliver the goods at its destination, // 11 // then the cost of the goods as well as freight charges are required to be paid by the Transporter to the owner of the goods. He has also referred the judgment of this Commission in the case of Nazimuddin vs. Rupak Kumar Agrawal, in appeal No.465/2010 , decided on 17/01/2011.
11. After having considered the facts of the case and evidence available, in the light of the law laid down by the Apex Court in the case of Transport Corporation of India Ltd., (Supra) in their totality, we are convinced that District Forum, has not committed any illegality or impropriety in passing the impugned order. The order impugned calls for no interference except with this slight modification that the amount awarded by the District Forum to the respondent/complainant will be payable by the appellant/O.P. only after executing an authority along with Power of Attorney, by the respondent in favour of the appellant to enable him to get the custody of the goods, which are available in the Criminal Court of Chillakaluripeth in connection with Crime No.104/2008. With this slight modification in the impugned order, the appeal is disposed of. No order as to the cost."
In the case of Transport Corporation of India Ltd. (supra) the Hon'ble Apex Court in paragraph No.13 has mandated that : -
"13. In Patel Roadways Ltd. Vs. Birla Yamaha Ltd., III (2000) SLT 554=II (2000) CLT 83 (SC)=I (2000) CPJ 42 (SC)=2000 (4) SCC 91, this Court held that loss of goods or injury to goods or non-delivery of goods, entrusted to a common carrier for carriage, would amount to a deficiency of service and, therefore, a complaint under the Consumer Protection Act, 1986 would be maintainable. When a person entrusts a goods to a common carrier for // 12 // transportation and the carrier accepts the same, there is a contract for 'service', within the meaning of CP Act. Therefore, when the goods are not delivered, there is a deficiency of service. It is no doubt true that 'service' for purposes of CP Act does not include rendering of service free of charge. Where the contract for transportation is for a consideration (freight charge), the mere fact that such consideration is not paid, would not make the service 'free of charge'. There is difference between contract without consideration, and contract for consideration, which is not paid. If there is nonpayment of the freight lawfully due, the carrier may sue for the charges, or withhold the consignment and call upon the owner/consignor/consignee to pay the freight charges and take delivery, or on failure to pay the freight charges, even sell the goods with due notice to recover its dues, where such right is available. But where the common carrier has misplaced or lost the goods and, therefore, not in a position to deliver the goods, it obviously cannot demand the freight charges, nor contend that non-payment of freight charges exonerates it from liability for the loss or non-delivery. When the carrier informs that the consignment is not traced and is under the process of being traced, obviously the owner/consignor/consignee cannot be expected to pay the freight charges. In the circumstances, the third point is also answered against the appellant."
13. This observation of the Hon'ble Supreme Court fully clarifies the position of common carrier, who fails to deliver goods to its destination, even though freight charges are paid in part or the delivery was given and the payment was deferred. Thus, from the view taken in that matter also it is clear that the appellant cannot // 13 // escape from its liability of paying compensation on account of loss of the consignment in transit being a transporter.
14. The next contention of learned counsel for the appellant is that the appellant was not at all a transporter and was merely an agent of owner of the truck. The truck belongs to someone else and as an agent that truck was provided by the appellant to the complainant for transporting goods.
15. The documents which are filed in the record of the District Forum are telling some different story. Document Annexure-A6 is the receipt issued to the complainant. It is a printed receipt in the name of Raipur Madras Road Lines and it has been submitted that Raipur Madras Road Lines is a transport contractor & booking agent. In this receipt it has been shown that the consignor was complainant and the consignee was Manager, Stores BHEL, Ranipet. The articles which were to be sent have also been mentioned in this receipt along with the amount of Rs.2,99,011/- and bill No.950 issued by the complainant in this regard in the name of the purchaser has also been referred and it has been stated that delivery was to be given at the door of the purchaser and this consignment was booked by Raipur Madras Road Lines for sending the same to Ranipet, Tamilnadu. Thus, from this receipt it is clear that it was the appellant who booked the goods for // 14 // delivery at the door step of the consignee of the complainant at Ranipet, Tamilnadu. The bill which has been referred in this document is also available in the record as Annexure-A2. Similarly, another receipt issued by the appellant, Annexure-A12, is in respect of the receipt issued by the appellant in favour of the complainant showing in it as the consignee of the consignment was the same, the BHEL Ranipet. The value of goods loaded was Rs.3,26,825/-, delivery was to be made at the door step and the bill issued by the complainant was having No.949, copy of which is available in the record as document Annexure-A8. Thus, it is clear that the consigned goods were handed over by the complainant to the appellant along with bills, in favour of the purchaser and were accepted by the appellant with responsibility to deliver the same at the door step and receipt was issued accordingly, as a transporter. Annexure-A16 is the receipt, which shows that Rs.12,700/- were paid as freight charges for one consignment and by receipt Annexure-A17, freight charges of second consignment were paid amounting to Rs.14,000/-. These are the payment vouchers, bearing revenue stamps of Re.1/- each with signature of the receiver.
16. Annexure-A18 is a letter written by the appellant to the complainant and in that letter it has been stated that the appellant was sending truck No., as mentioned in the letter for a load from Tedesara // 15 // to Ranipet, TN as required by the complainant. It has been printed in the letter that "please arrange to load the Truck & Check up all necessary papers before loading the goods kindly Insure your goods otherwise we are not responsible for accident, theft, tooting etc. etc." Then again as special instructions, it has been mentioned that the truck freight would be Rs.1,800/- and again Rs.4,000/- has been mentioned and then somebody has signed for Raipur Madras Road Lines. This letter shows that a truck was sent by the appellant to the respondent for loading goods to be sent to Ranipet and freight was also fixed. It was requested that papers be checked before loading.
17. Learned counsel for the appellant submitted that the words "Please arrange to load the Truck & Check up all necessary papers before loading the goods" show that a request was made that papers of the truck be checked, but we find that it has not been mentioned in the letter, in terms that papers of truck be checked. In the document these words "necessary papers" have been used before loading the goods, which denotes that permit, fitness etc. of the truck may be checked and particularly loading papers may be checked, which nowhere suggests that the truck was not belonging to the appellant and that is why he requested to check papers of the truck or the fact that the truck was belonging to the appellant or someone else and on the basis of such // 16 // words used in this letter, no finding or conclusion can be drawn that the truck was belonging to someone else.
18. Then, Annexure-A19 is again a bill of the appellant, issued to the complainant regarding steel pipes and tubes, which shows that how much amount was charged by the appellant from the respondent No.1/complainant for sending steel pipes to some other destination Ranipet. Weight of the consignment has also been shown. It has been stated that total freight charges was Rs.37,290/- out of which Rs.32,000/- has been paid in advance and the balance was Rs.5,290/- only. This paper further shows that the freight charges were paid by the complainant. Annexure-A20 is again a similar bill issued to the complainant and same is the case with Annexure-A21.
19. Thus, from all these papers, we are fully convinced that the appellant was a transporter and he received payment for providing transport services to the complainant and thus became a service provider, on payment, to the complainant and therefore the complainant comes in the category of 'consumer' of the appellant as defined under Section 2(1)(d) of the Act. Admittedly, the goods which were sent in the truck provided by the appellant has never reached to its destination and the complainant / respondent No.1 had to suffer a loss. The appellant was responsible for payment of compensation on // 17 // account of such loss along with the owner of the truck, who has attached her truck in the transport service of the appellant.
20. In view of this, if the District Forum has directed the appellant along with owner of the truck to pay compensation to the complainant / respondent No.1, then there appears no error in such direction. The impugned order, which has been passed by the District Forum calls for no interference and therefore the appeal fails and is dismissed with cost. The cost of the appeal is quantified as Rs.1,000/- and the appellant is directed to pay the cost of this appeal to respondent No.1 / complainant. With these directions, the appeal is disposed of.
(Justice S.C.Vyas) (V.K. Patil)
President Member
/05/2012 /05/2012