National Consumer Disputes Redressal
R D Goel & Co. Pvt. Ltd. Proprietor Of M/S. ... vs M/S Nitco Roadways Pvt. Ltd. on 3 March, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION No. 3141 of 2005 (Against the order dated 21.09.2005 in Appeal No. 1233 of 2005 of the State Consumer Disputes Redressal Commission, Andhra Pradesh) R D Goel & Co. Pvt. Ltd. Proprietor of M/s. Goel Road Carriers, 3974/2, Roshanara Road, Delhi 110007 ... Petitioner Vs. M/s Nitco Roadways Pvt. Ltd. Through its Commercial Director Mr. Rajan Nanda Plot No.13, Cooperative Industrial Nagar, Hyderabad Mr. Babu Rao C/o Sanjay Lorry Suppliers 23-103, Kothapet, Opp Fruit Market, Hyderabad Respondents BEFORE: HONBLE MR. JUSTICE R K BATTA, PRESIDING MEMBER For the Petitioner Mr S S Sobti, Advocate For the Respondent Mr Anil Nauriya, Advocate With Ms Sumita Hazarika, Advocate Pronounced on March 3, 2010 ORDER
The complainant M/s. Nitco Roadways Pvt. Ltd. is a carrier and deals in transport business and undertakes transportation of all kinds of goods from one place to another throughout India. The complainant had booked and loaded different consignment under 44 goods receipt on 11.3.2000 in the vehicle belonging to opposite party No.1 M/s. Goel Road Carriers. The said vehicle was stolen by some unknown persons at Narsi, Maharashstra State on 12.3.2001, in respect of which a police complaint was filed. The vehicle was traced alongwith the consignment and when the vehicle reached the destination on 27.3.2000, while unloading the consignments on the complainants Delhi Branch Office it was found that many consignments were missing. The complainant after verifying the consignments through goods receipts and unloading report, found that the different consignments belonging to different parties of different GRs were missing and the total cost of missing consignments was to the tune of Rs.3,80,352/-. The opposite parties failed to settle the claim of the complainant on account of which a complaint was filed with the District Forum seeking compensation to the tune of Rs.3,80,352/- which was the value of the lost consignments as also Rs.50,000/- towards mental agony and business loss suffered by the complainant. The complainant sought 24% interest on the total amount of Rs. 3,80,352/- from 11.3.2000.
The complaint was opposed on merits as also on the ground that the complainant is a commercial organization and the alleged transaction being commercial in nature, the complaint was not maintainable since the complainant is not a consumer under the Consumer Protection Act.
The District Forum after analyzing the material on record in greater detail allowed the complaint partly by directing opposite party No.1 to pay Rs.3,80,352/- with compensation of Rs.5,000/- and cost of Rs.2000/-. The plea of the respondent that the complaint was not maintainable since the transaction was commercial in nature was rejected.
The order of the District Forum was challenged before the State Commission. The State Commission came to the conclusion that the District Forum had conducted a detailed enquiry on the admitted facts, pleadings and documents and had rightly allowed the complaint. The appeal was accordingly dismissed.
The opposite party No.1 M/s.
Goel Road Carriers have now come in revision. The revision was heard by a Bench consisting of Honble Mr. Justice B.N.P. Singh, Presiding Member and Honble Member Dr. P.D. Shenoy. Honble Presiding Member Mr. B.N. P. Singh came to the conclusion that respondent No.1, namely, M/s. Nitco Roadways Pvt. Ltd. had availed services of petitioner/opposite party No.1 for consideration by paying freight charges of Rs.17,000/- for transportation from Hyderabad to Delhi and as such respondent No.1/complainant was a consumer and if there is any deficiency on the part of the service provider, namely, opposite party No.1, it will be answerable to the consumer. On merits it was found that the District Forum had conducted a detailed enquiry into the matter, took into consideration documents and affidavits and rightly nailed the petitioner to indemnify the loss. Accordingly, it was held that the finding of the State Commission which had confirmed the order of the District Forum could not be faulted. Honble Mr. Justice B.N.P. Singh dismissed the revision Honble Member Dr. P.D. Shenoy, however, did not agree with the view taken by Honble Presiding Member Mr. Justice B.N.P. Singh. Honble Member Dr. P.D. Shenoy observed as under: -
It is crystal clear that M/s.
Nitco Roadways Pvt. Ltd. having its branches all over India and having filed a complaint through the Commercial Director against other Company or proprietor ship firm who are also in transport business cannot by at any stretch of imagination be construed to be a consumer to avail the benefits under the Consumer Protection Act. Hence, it is very clear that the complainant is not a consumer under the Consumer Protection Act.
Therefore, this revision is allowed and the orders of the fora below are set aside and the complaint is dismissed. However, there shall be no order as to costs.
In view of the differing judgments, the matter has been placed before me in terms of the order passed by Honble President of the Commission. Before me, counsel for the parties have essentially argued on the issue of maintainability of the complaint.
Learned counsel for the petitioner submitted before me that the complainant had booked consignment belonging to different persons under goods receipt for the purpose of transportation; that the complainant is a carrier and deals in transport business and the transaction in question was essentially a commercial transaction on account of which the complainant did not qualify to be a consumer within the meaning of Section 2 (I) (d) of the Consumer Protection Act, 1986 so as to maintain the complaint. He further submitted that, in fact, the judgment of Laxmi Engineering Works vs. P.S.G. Industrial Institute-1995 INDLAW SC 126 upon which reliance has been placed by Honble Mr. Justice B.N.P. Singh, Presiding Member would go to show that the complainant is not a consumer. He further contends that the complaint is liable to be dismissed.
On the other hand learned counsel for complainant-respondent has submitted that the transaction in question was in the year 2000; that the case of the complainant is covered under Section 2 (I)
(d) (ii) of the Consumer Protection Act, 1986 inasmuch it relates to services provided by opposite party No.1 for transportation of goods. He further pointed out that the amendment to Section 2 (I) (d) (ii) came into force w.e.f.
15.3.2003 and the transaction in question, though commercial in nature, would be covered by pre-amendment provisions where services availed for the purpose of commercial transaction were not excluded from the ambit of the expression Consumer. Learned counsel for the complainant relied upon paragraph 24 of the judgment of the Apex Court in Karnataka Power Transmission Corporation and another vs. Ashok Iron Works Pvt. Ltd. III (2009) CPJ (SC) and the expression but does not include a person who avails such services for any commercial purpose inserted in Section 2 (I) (d) (ii) by Act 62 of 2002 is not applicable to the facts of the present case since the controversy relates to the period prior to the amendment.
I have gone through the record as also the rulings upon which reliance has been placed by the counsel for the parties. Admittedly, the case in question does not involve buying of any goods, but it pertains to hiring/availing of services which would fall under Section 2 (I) (d) (ii) of the Consumer Protection Act. Admittedly, the transaction in question took place in the year 2000 and prior to the amendment made in Section 2 (I) (d) (ii) w.e.f. 15.3.2003. Section 2 (I) (d) (ii) as it existed prior to the amendment by Section 62 of 2002 reads as under: -
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 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 From the pre-amended provisions of Section 2 (I) (d) (ii) it is crystal clear that a case pertaining to availing of services for any commercial purpose was not excluded from the scope and ambit of the said provision. In another words under the unamended Section 2 (I) (d) (ii) of the Act hiring or availing of services for commercial purposes had not been excluded. The same were excluded only with the incorporation of amendment to Section 2 (I) (d) (ii) by Act 62 of 2002 w.e.f. 15.3.2003. The judgment in the case of Laxmi Engineering Works (supra) was in relation to purchase of goods which falls under Section 2 (I)
(d) (i). The present case pertains to the year 2000. The discussion and findings in the said judgment are thus confined to Section 2 (I) (d) (i) though the judgment refers to the explanation added to Section 2 (d) (ii) by amendment Act 1993.
In Karnataka Power Transmission Corporation (supra) the Apex Court was dealing with supply of electricity. The contention raised therein that electricity being goods, sale of goods to commercial consumer, for commercial purpose, was outside scope of Act of 1986, was rejected. It was held that expression supply was not synonym for sale and supply of electricity for consumer being service was covered under Section 2 (I) (o) of the Consumer Protection Act, 1986 and deficiency in supply of electricity amounts to deficiency in service under Section 2 (I) (g) of the Act. The Apex Court held that the expression but does not include a person who avails such services for any commercial purpose inserted in Section 2 (I) (d) (ii) by Act 62 of 2002 is not applicable in the facts and circumstances of the case since controversy relates to period prior to amendment.
In the case before the Commission the controversy relates to the period prior to amendment of Section 2 (I) (d) (ii) and as such even a commercial transaction in relation to hiring or availing of services was not excluded from the scope and ambit of Section 2 (I) (d) (ii) of the Consumer Protection Act, 1986. Therefore, the complainant being a consumer, the complaint is maintainable.
In view of the above, I do not agree with the findings of Honble Member Dr. P.D. Shenoy that the complainant is not a consumer and the complaint is not maintainable.
Honbe Mr. Justice B.N.P. Singh, Presiding Member has held that respondent No.2, namely, the complainant had availed the services of the petitioner, namely, opposite party No.1 for consideration and the complainant was a consumer and if there has been any deficiency on the part of the service provider, it will be answerable to the consumer.
On merits, there are concurrent findings of two fora below. The District Forum had examined all the relevant aspects and after taking into consideration documents, affidavits and material on record had rightly held the present petitioner responsible and liable for deficiency in service on account of short delivery of the consignment on account of which compensation of Rs.3,80,352/- was awarded alongwith compensation of 5,000/- and cost of Rs.2,000/-. These findings were confirmed by the State Commission. There is no reason or justification to interfere with the findings of two fora below which are not only well founded but are based upon material on record on account of which revision petition is liable to be dismissed.
Accordingly, the revision petition is dismissed with no order as to costs.
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[R K BATTA, J] PRESIDING MEMBER Raj/