State Consumer Disputes Redressal Commission
Aventis Pharma Ltd. vs Mr. Jogender Malik & Anr. on 27 July, 2011
C-63/2005
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
Complaint Case No. CC/05/63
1. Aventis Pharma
Ltd.
Reg. Off at Aventis
House, 54/A,
Sir Mathuradas Vasanji Road, Andheri (East),
Mumbai 400 093,
Maharashtra
2. The National
Insurance Co. Ltd.
Mumbai Divisional
Office No. 16 at Commercial Union House, 9, Wallace Street, Mumbai 400 001, Maharashtra
...........Complainant(s)
Versus
1. Mr. Jogender Malik
Managing Partner of
M/s. Malik Transport Co., Off. at 197, Sheriff Deoji (Chakala) Street,
Mumbai 400 003,
Maharashtra
2. Malik Transport
Company
Mumbai Office at 197,
Sheriff Deoji (Chakala) Street, Mumbai 400 003, Maharashtra
............Opp.Party(s)
BEFORE:
Hon'ble Mr. P.N.
Kashalkar PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale Member Hon'ble Mr. Dhanraj Khamatkar Member PRESENT:
None for the Complainants.
Ms.Kalyani Parmar, Advocate for the Opponent No.1 & 2.
O R D E R Per Shri P.N. Kashalkar Honble Presiding Judicial Member:
Heard Ms.Kalyani Parmar, Advocate for the Opponent.(1)
Advocate for the opponent Ms.Kalyani Parmar, argued specifically before us that this complaint is not tenable in law for the simple reason that the services of the carrier were availed of for commercial purpose and consumer complaint filed against the transporter or carrier, cannot be entertained by this Commission. She has relied upon the judgement of Honble Supreme Court reported in (2010) 4 Supreme Court Cases 114 (Economic Transport Organization, Delhi V/s. Charan Spinning Mills Private Limited and Another.
In this case as per the averment made in the complaint it is found that First Complainant M/s.Aventis Pharma Ltd., is doing business at Mumbai and second Complainant is the Insurance Company.
Opponent No.1 is the Managing Partner of M/s.Malik Transport Company, Opponent No.2 and Opponent No.2 is the firm itself, carrying business of transportation. It so happened that first complainant had hired services of Opponents on 9th January, 2004 for carriage of certain goods from Bhiwandi to Lucknow. They had entrusted consignment of 735 cartons of harmless medicines for human consumption. The said consignment was dispatched by First Complainant from the factory//depot under their Stock Transfer Note No.4421518851 dated 9th January, 2004. Said consignment was accepted by the Opponent from first Complainant on door delivery basis.
They accepted the consignment and booked it under Lorry Receipt Nos.662256 and 662257, both dated 9th January, 2004. According to Complainants, the said consignment was not delivered at all and Opponents confirmed and certified about non-delivery of consignment vide non-delivery certificate bearing No.482 dated 28th January, 2004 issued to First Complainant. The Complainants then lodged monetary claim with the Opponents by sending registered notice under section 10 of the Carriers Act within stipulated period.
The Opponent No.2 Insurance Company had insured the said goods in the said consignment. According to Complainants services of Opponents as road carrier were engaged for carriage of goods by road for hire. As such first Complainants are the consumer within the meaning of Consumer Protection Act, 1986. The First Complainant pleaded that they had taken insurance policy from the second Complainant to cover the risk of consignment and the second Complainant/Insurance Company have settled the claim of first Complainant after securing documents from Complainant. Complainants in turn executed letter of subrogation and special power of attorney for the amount of `42,61,031/- in favour of the second Complainant and second Complainants have been given right of subrogation and all the remedies to proceed against carriers or transporters have been assigned to second Complainant and therefore, both the Complainants, according to Complainants are consumers within the meaning of section 2(1)(d) of the Consumer Protection Act, for there has been deficiency in service on the part of service provider as per section 2(1)(G) of the Consumer Protection Act. Thus, both the Complainants have filed this consumer complaint for recovery of the amount of `42,61,031/- from the Opponents besides they have also claimed cost of `30,000/- and claimed interest @18% per annum from the date of loss till the date of filing of the complaint.(2)
This complaint has been pending since 2005 and it has been placed on board for disposal. Today Ms.Kalyani Parmar, Advocate for the Opponent submitted that the consumer complaint as filed by the Complainants is not tenable in law after amendment carried out to the Provisions contained in Section 2(1)(o) w.e.f. 15.03.2003. To support her contention she relied upon the judgement of the Honble Supreme Court, mentioned supra, before us. In this judgment Honble Supreme Court clearly held that after amendment of Consumer Protection Act, w.e.f. 15.3.2003 deficiency in service of the carrier if availed for any commercial purpose, such complaint is not maintainable under Consumer Protection Act and exactly this has happened in the instant case.
The First Complainant had booked the consignment of goods with Opponent Nos.1 and 2 for transportation from their depot/factory i.e. from Bhiwandi to Lucknow. It was for consideration and as per the non-delivery receipt by Opponents, the consignment was not delivered to the consignor mentioned in the lorry receipt.
So, this fact was admitted by Opponents.
Therefore, insurance claim was lodged by the first Complainant with the second Complainant and claim was ultimately settled by second Complainant in favour of Complainant No.1 and after giving insurance claim under the Policy the First Complainant gave letter of subrogation and executed special power of attorney to proceed against the transporter on behalf of the First Complainant. So, acting upon the letter of subrogation and special power of attorney executed by first Complainant in favour of second Complainant this complaint came to be filed by both of them jointly against the Carriers i.e. Opponent Nos.1 and 2. This, complaint, in our view is not maintainable at all for the simple reason that Complainant No.1 is admittedly doing pharmaceutical business wherein they are manufacturers and suppliers of pharmaceuticals goods and they had booked consignment of 735 cartons for transportation from Bhiwandi to Lucknow.
They had paid necessary charges and this consignment was booked by them for commercial purpose and when this was so the consumer complaint of such nature surely is not covered under the provisions of section 2(1)(d) of the Consumer Protection Act, as amended w.e.f. 15.03.2003. So. Relying on the judgment mentioned supra, we hold that this consumer complaint filed jointly by the Complainants against the Opponent is not tenable in law and as such we pass the following order:
O R D E R
(i) Complaint stands dismissed as not tenable in law.
(ii) No order as to costs. (iii) Inform the parties accordingly. Pronounced on 27th July, 2011 [Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member [Hon'ble Mr. Dhanraj Khamatkar] Member ep