State Consumer Disputes Redressal Commission
M/S.Vaso Meditech Pvt. Limited, Rep. By ... vs M/S.The New India Assurance Co. Ltd., ... on 21 September, 2011
Date of filing : 28.06.2007
Date of order: 21.09.2011
BEFORE THE TAMILNADU
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
(BENCH
II)
Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial
Thiru.S.Sambandam,
B.Sc., Member
C.C.No.32/2007
WEDNESDAY, THE 21th DAY OF SEPTEMBER 2011.
M/s.Vaso Meditech Pvt. Limited, Rep. by its Managing Director, Mr.R.Subramanian, No.1, Parthasarathy Street, M.C.Road, Chennai 600 021. . Complainant Vs. M/s.The New India Assurance Co. Ltd., No.45, V Floor, Moore Street, Chennai 600 001. .. Opposite party.
This complaint coming on before us for hearing finally on 25.08.2011, upon perusing the material documents, and upon hearing the arguments of complainants sdie and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant : M/s.S.Sivakumar & B.Kesavan, Advocates.
Counsel for the Opposite party : Exparte.
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL The complaint filed under Section 17 of the Consumer Protection Act- 1986
1. The details of complaint in brief as follows : The complainant is engaged in the import of medical equipments particularly heart care equipments during the month of June 2006. The complainant imported 2 numbers of Non-Invasive atraumatic Intra-Aortic ballon pump, Enhanced External Counter pulsation system (EECP) with standard accessories. The consignment was transported from U.S. through Dublin; the consignor is M/s.Vaso Medical Inc, USA. The complainant insured the shipment through the opposite party for a value of Rs.23,10,000/- by paying the premium of Rs.7,100/-. For transporting and exporting India the complainant entered into High-Sea sale contract with one M/s.IPC Heart Care Pvt. Ltd however undertaking to supply the goods without any defect or damage. The goods reached India on 12.8.06 and on inspection on 14.8.06, the equipments was found damaged. As the Cargo was a life saving equipment and such damage could cause untoward consequences while being put into use on ailing patients under medical intensive care. The complainant immediately called the opposite party to inspect the goods on 14.8.06 and also on 18.8.06 through letters and in spite of the same they did not care to inspect the goods and as the complainant would compelled to pay the demurrage charges after 5 days has free allowance and subsequently the free allowance ceases and demurrage charges are levied. The complainant stated due to the deficiency of service by the opposite party which caused a loss of Rs.23,10,000/- as the machine could not be put it to use and had to be replaced and expenditure towards custom duty shipment charges etc., for Rs.2,93,381/- and thereby the complainant filed this complaint claiming those amounts apart from Rs.30,000/- as demurrage charges Rs.20,00,000/- each for mental agony and loss of reputation in all claiming Rs.66,33,381/-.
2. The opposite party even though entered in to appearance before this Commission for the proceedings but failed to file written version or proof affidavit and hence the opposite party was set exparte on 21.6.11.
3. The complainant has filed their proof affidavit and documents which are marked as Exhibit A1 to A13. Exhibit A1 is the Xerox copy of Proforma Invoice, dated 29.06.06. Exhibit A2 is the Xerox copy of Commercial Invoice dated 26.07.06. Exhibit A3 is the Xerox copy of Letter of Credit dated 07.07.06. Exhibit A4 is the Xerox copy of Insurance Cover Note dated 06.07.06. Exhibit A6 is the Xerox copy of High Sea Sale Contract dated 08.08.06. Exhibit A7 is the Xerox copy of Information to customs dated 10.08.06. Exhibit A8 is the Xerox copy of Bill of entry dated 01.08.06. Exhibit A9 is the Xerox copy of Letter of opposite part dated 14.08.06. Exhibit A10 is the Xerox copy of Reminder to opposite party dated 18.8.06. Exhibit A11 is the Xerox copy of Fax Report dated 18.8.06. Exhibit A12 is the Xerox copy of Import Duty Receipt dated 22.8.06. Exhibit A13 is the Xerox copy of Lawyers Notice dated 13.9.06.
4. Points for consideration are :-
1) Whether the complaint barred due to alleged commercial transaction ?
2) Whether the opposite party are negligence and deficiency of service for not entertaining the claim of the complainant ?
3) To what relief ?
5. Point No. 1 :- Under the Consumer Protection Act 1986, the consumer can file a complaint against the service provider subject to the provision under Section 2(d) (ii) in which it is stated, any service the consumer means any person who hires or avails any services for consideration which has been failed 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 or partly promised or under any system of deferred payment when such services are availed of with the approval of first mentioned person (But not include a person who avails of such services for any commercial purpose). For this under the explanation it is stated for the purpose of this calls commercial purpose does not include use by a person of goods bought and use by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment.
According to the above provision as far as this case is concerned the complainant has stated that he has purchased the goods of life Heart Care Equipment which is used for medical field regarding the ailments relating to the benefits under the medical intensive care. The complainant in the complaint itself in para 3 as stated that the complainant is engaged in the import of medical equipments particularly heart care equipments and imported such equipments in two numbers he entered in to contract with one M/s.IPC Heart Care Pvt. Limited. However undertaking to supply the goods without any defect or damage as per the averment in para 7 of the complaint. The value of the goods are mentioned as Rs.23,10,000/- and other Rs.2,93,381/- as the expenses towards customs duty and other charges etc., In those circumstances these averments of the complainant and the details relating to the transaction would certainly amounts to commercial transactions which may not be considered as for the purpose of exclusively earning his livelihood by means of self employment and in those circumstances the complainant cannot be considered as consumer under the provision of 2(d)(ii) of the Consumer Protection Act 1986 and thereby the complaint becomes barred under the provision.
6. Point no.2 : Since the complainant claimed the value of the goods as damaged goods as per the insurance cover note Exhibit A4 and on that basis the claims are made.
Regarding the value of claim the complainant filed Proforma Invoice Exhibit A1 commercial Invoice Exhibit A2, Contract Exhibit A6 and relating to the transshipment Exhibit A7, A9 and is also proved but the opposite party was informed about the inspection of goods thorugh the letter Exhibit A9 and A10 and also by way of fax report Exhibit A11. In those circumstances it is not known why the opposite party has not cared in this matter to entertain the request of the complainant and in those circumstances in spite of the lawyer notice Exhibit A13 as the opposite party not responded the complainant was compelled to come forward with this complaint and the claim of the complainant relating to the value of goods is entitled for Rs.23,10,000/- subject to the salvage of goods by the opposite party on surrendering the goods to the opposite party by the complainant for the same. Regarding the other claim also he has claimed charges towards demurrage and customs expenses for Rs.2,93,381/-. The complainant claimed Rs.20,00,000/- each towards mental agony and loss of reputation. The complainant has not produce any document to show that he has loss any reputation as due to non failure of supply of goods and he has not come forward to file any documents from the proposed buyer in this regard. In those circumstances we are of the view that the complainant could be awarded a sum of Rs.5,00,000/- in all in Toto apart from the amount to be payable by the opposite party after assessing the damaged goods and the value relating to the salvage or for replacement of the goods. The complainant also entitled for the costs.
7. Point No.3 : Even though in point No.2, we have answered in favour of the complainant. In view of the answer of point No.1 against the complainant this complaint deserves to be dismissed as not maintainable.
8. In the result, the complaint is dismissed. No costs.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant A1 29.06.06 Proforma Invoice - Xerox copy A2 26.07.06 Commercial Invoice - Xerox copy A3 07.07.06 Letter of Credit - Xerox copy A4 06.07.06 Insurance Cover Note - Xerox copy A5 01.08.06 Airway Bill - Xerox copy A6 08.08.06 High Sea Sale Contract - Xerox copy A7 10.08.06 Information to customs - Xerox copy A8 01.08.06 Bill of entry - Xerox copy A9 14.08.06 Letter of opposite party - Xerox copy A10 18.8.06 Reminder to opposite party - Xerox copy A11 18.8.06 Fax Report - Xerox copy A12 22.8.06 Import Duty Receipt - Xerox copy A13 13.9.06 Lawyers Notice` - Xerox copy Exhibits of the opposite party -
Nil -
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ New Ind.
Ass.