National Consumer Disputes Redressal
Sri Kaliswari Fire Works vs M/S Kamal Enterprises & Others on 19 May, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1332 OF 2006
(Against the order dated 20.03.2006 in Appeal No. 507/2004
of the
State Commission, West Bengal)
Sri Kaliswari Fire Works
5A Chairman A.S. Nadar Road
Sivakasi-626 123
Tamil Nadu Petitioner
Versus
1. M/s
Kamal Enterprises
Through
its Prop. Kamal Lochan Mishra
Ram Charan
Babu Street, Purulia
P.O., P.S.
& District Purulia
West
Bengal
2. M/s
Jai Durga Grand Carriers
Sanjana
Complex
55
Chairman A.S. Nadar Road
Sivakasi-626
123
Tamil Nadu
3. Shri
S.B.M. Arumughachamy @ SVMA Swami
1-44, New
Street, Vilampatti 626 124
Sivakasi
Tamil Nadu Respondents
REVISION
PETITION NO. 1333 OF 2006
(Against the order dated 20.03.2006 in Appeal No. 508/2004
of the
State Commission, West Bengal)
Sri Kaliswari Fire Works
5A Chairman A.S. Nadar Road
Sivakasi-626 123
Tamil Nadu Petitioner
Versus
1. M/s
Kamal Enterprises
Through
its Prop. Kamal Lochan Mishra
Ram Charan
Babu Street, Purulia
P.O., P.S.
& District Purulia
West
Bengal
2. M/s
Jai Durga Grand Carriers
Sanjana
Complex
55
Chairman A.S. Nadar Road
Sivakasi-626
123
Tamil Nadu
3. Shri
S.B.M. Arumughachamy @ SVMA Swami
1-44, New
Street, Vilampatti 626 124
Sivakasi
Tamil Nadu Respondents
REVISION PETITION
NO. 1334 OF 2006
(Against the order dated 20.03.2006 in Appeal No. 509/2004
of the
State Commission, West Bengal)
Sri Kaliswari Fire Works
5A Chairman A.S. Nadar Road
Sivakasi-626 123
Tamil Nadu Petitioner
Versus
1. M/s
Kamal Enterprises
Through
its Prop. Kamal Lochan Mishra
Ram Charan
Babu Street, Purulia
P.O., P.S.
& District Purulia
West
Bengal
2. M/s
Jai Durga Grand Carriers
Sanjana
Complex
55
Chairman A.S. Nadar Road
Sivakasi-626
123
Tamil Nadu
3. Shri
S.B.M. Arumughachamy @ SVMA Swami
1-44, New
Street, Vilampatti 626 124
Sivakasi
Tamil Nadu Respondents
REVISION
PETITION NO. 1335 OF 2006
(Against the order dated 20.03.2006 in Appeal No. 510/2004
of the
State Commission, West Bengal)
Sri Kaliswari Fire Works
5A Chairman A.S. Nadar Road
Sivakasi-626 123
Tamil Nadu Petitioner
Versus
1. M/s
Kamal Enterprises
Through
its Prop. Kamal Lochan Mishra
Ram Charan
Babu Street, Purulia
P.O., P.S.
& District Purulia
West
Bengal
2. M/s
Jai Durga Grand Carriers
Sanjana
Complex
55
Chairman A.S. Nadar Road
Sivakasi-626
123
Tamil Nadu
3. Shri
S.B.M. Arumughachamy @ SVMA Swami
1-44, New
Street, Vilampatti 626 124
Sivakasi,
Tamil Nadu Respondents
REVISION
PETITION NO. 1336 OF 2006
(Against the order dated 20.03.2006 in Appeal No. 511/2004
of the
State Commission, West Bengal)
Sri Kaliswari Fire Works
5A Chairman A.S. Nadar Road
Sivakasi-626 123
Tamil Nadu Petitioner
Versus
1. M/s
Ram Mahadeb Mishra
Through
its Prop. Kamal Lochan Mishra
Main Road,
Purulia
P.O., P.S.
& District Purulia
West
Bengal
2. M/s
Jai Durga Grand Carriers
Sanjana
Complex
55
Chairman A.S. Nadar Road
Sivakasi-626
123
Tamil Nadu
3. Shri
S.B.M. Arumughachamy @ SVMA Swami
1-44, New
Street, Vilampatti 626 124
Sivakasi,
Tamil Nadu Respondents
REVISION
PETITION NO. 1337 OF 2006
(Against the order dated 20.03.2006 in Appeal No. 512/2004
of the
State Commission, West Bengal)
Sri Kaliswari Fire Works
5A Chairman A.S. Nadar Road
Sivakasi-626 123
Tamil Nadu Petitioner
Versus
1. M/s
Ram Mahadeb Mishra
Through
its Prop. Kamal Lochan Mishra
Main Road,
Purulia
P.O., P.S.
& District Purulia
West
Bengal
2. M/s
Jai Durga Grand Carriers
Sanjana
Complex
55
Chairman A.S. Nadar Road
Sivakasi-626
123
Tamil Nadu
3. Shri
S.B.M. Arumughachamy @ SVMA Swami
1-44, New
Street, Vilampatti 626 124
Sivakasi,
Tamil Nadu Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK BHAN,
PRESIDENT
HON'BLE MR. S.K. NAIK, MEMBER
For Petitioner : Mr. S. Aravindh, Advocate
For Respondent No.1 : Mr. Sanjoy Kumar Ghosh,
Advocate
For Respondent No. 2 : Mr. B. Pugalendi, Advocate
For Respondent No. 3 : Nemo
Pronounced
on 19th May, 2010
ORDER
Per S.K. Naik, Member This is a bunch of six revision petitions, which have been filed by M/s Kaliswari Fire Works (the manufacturer), who was opposite party no. 3 before the District Consumer Disputes Redressal Forum, Purulia, West Bengal (District Forum for short), against the orders dated 20th of March, 2006 passed by the State Consumer Disputes Redressal Commission, West Bengal (State Commission for short). The State Commission has decided all the six appeals filed by the manufacturer before it by passing identical orders in all the cases, the only variation being the amounts of transactions between the parties. We, therefore, propose to dispose of all the six revision petitions by this common order.
For the facility of easy reference, while facts from Revision Petition No. 1332 of 2006 are being taken up for consideration, we will continue to call the parties as arrayed before the District Forum i.e. M/s Kamal Enterprises / M/s Sree Ram Mahadeb Mishra would continue to be called as the complainant, Jai Durga Grand Carriers (the transporter) as opposite party no.1, Mr. S.B.M. Arumugachamy @ S.V.M.A. Swami (the agent) as opposite party no.2.
At the outset, it may be stated that in all the six complaints, the District Forum, while accepting the complaints, had directed all the opposite parties to refund the value of the goods under consignment, including the cost of transit, and to pay compensation and cost within one month from the date of the order. The opposite party no.2 i.e. the agent despite notice had not appeared and was proceeded ex-parte. This order of the District Forum was challenged in appeal only by the present petitioner i.e. the manufacturer before the State Commission. Thus, the order of the District Forum qua opposite party no.1, the transporter, and the opposite party no.2 i.e. the agent has acquired finality as they have chosen not to challenge the District Forum order.
Now, the only party aggrieved against the order of the fora below is the manufacturer, the present petitioner, who is before us in these six revision petitions.
Facts :-
The complainant, who was a dealer of fireworks, had placed six orders of different values/amounts for purchasing fireworks from the petitioner-manufacturer through their agent/opposite party no.2 during the agents visit to the complainants place at Purulia. The complainant, however, sent the cost for the goods to the petitioner-manufacturer directly. From a perusal of consignment notes/lorry receipts the complainant came to know that fireworks had been handed over to the transporter/opposite party no.1 for being delivered to him at Purulia. The complainant alleged that contrary to his dispatch instructions, according to which the fireworks were to be delivered through Sri Durga Transport, the petitioner-manufacturer chose the present transporter/opposite party no.1 for sending the consignment to him. The complainant further alleged that it was obligatory on the part of the transporter to have called for the waybill/road permit as well as transit insurance policy certificate from him, but neither did he give any intimation in this regard nor delivered the fireworks to him and when he contacted the transporter, he was informed that due to non-availability of the vehicle having national permit the fireworks could not be delivered and would be delivered in September, 1997. Allegedly, despite this, when the complainant could not get delivery of the fireworks, he apprised the whole matter to the petitioner-manufacturer who assured him of all help but even then the fireworks were not delivered and the Deepawali festival, for which the fireworks were ordered to be purchased, was over. The complainant sent various communications to the transporter requesting for delivery of the fireworks at the earliest and even he himself visited the transporters place twice and met his Manager as well as the agent of the petitioner-manufacturer but all in vain. Finally, the complainant lodged a complaint before the petitioner-manufacturer about the conduct of the transporter but he expressed his inability in the matter and stated that he had assigned the fireworks to the transporter as per his instructions. However, the complainant alleged that he had never given any such dispatch instruction to consign the fireworks through the present transporter and the petitioner-manufacturer was raising this contention just to evade his liability. To the dismay of the complainant, even the manufacturer demanded 7% Central Sales Tax from him for the goods which were never delivered to him.
In this background, the complainant filed six complaints before the District Forum, praying for refund of cost of fireworks and transportation charges; interest @ 10% from November, 1997 till realization; compensation for mental agony and harassment; and litigation expenses in each of the complaints. The District Forum, on the basis of material available before it and on appreciation of the evidence produced by the parties, accepted all the complaints and directed the opposite parties to refund the value of the goods under consignment, including the cost of transit and to pay compensation for loss of business and harassment as well as litigation cost for the sums mentioned in each of its orders within a period of one month, failing which the amounts were directed to carry interest @ 8% per annum till realization.
Feeling aggrieved with this order of the District Forum, the petitioner-manufacturer filed appeals before the State Commission, who too upheld the order of the District Forum and dismissed the appeals.
Yet aggrieved with the order of the State Commission, that the manufacturer has filed all these revision petitions.
We have heard Shri S. Aravindh, learned counsel for the petitioner-manufacturer, Shri Sanjoy Kumar Ghosh for the complainant, and Shri B. Pugalendi for the transporter and have carefully perused the records of the case. No one appears for the agent/opposite party no.2, who is proceeded ex-parte.
The case of the complainant is that he placed six orders for the purchase of the fireworks with the petitioner-manufacturer, through his agent/opposite party no.2, and sent the price thereof along with the charges for transportation and also indicated the name of Sri Durga Transport through whom the goods were to be dispatched. The petitioner-manufacturer contrary to his instructions entrusted the goods to Jai Durga Grand Carriers (the transporter), opposite party no.1, who not only did not deliver the goods at his destination i.e. Purulia but admittedly disposed them of at Patna and Nawabganj, U.P. The complainant, therefore, alleges deficiency on the part of petitioner/manufacturer/opposite party no.3, the transporter/opposite party no.1 as well as the agent/opposite party no.2.
The case of the petitioner-manufacturer on the other hand is that Sri Durga Transport and Jai Durga Grand Carriers are one and the same transporter as they are interchangeably known as such in the town of Sivakasi and keeping in view the instructions of the complainant on the purchase order, they entrusted the goods/fireworks to the transporter/opposite party no.1 and also passed on the balance amount after deducting the value of the goods to the said transporter. According to them, their role ceases from this point and any assistance and service rendered thereafter was only a goodwill gesture to continue and maintain the harmonious business relationship of the past.
The case of the transporter/opposite party no.1 is that it received the consignment of fireworks of the complainant from petitioner-manufacturer but the consignments were dispatched to Patna and Nawabganj in U.P. as per the oral instructions of the complainant on the ground that the West Bengal government had imposed certain restrictions with regard to use of fire crackers at that time which was making his business in West Bengal unviable.
In this background, the District Forum was faced with a situation to determine as to whether the goods were duly delivered by the petitioner-manufacturer contrary to the instructions of the complainant-purchaser to Jai Durga Grand Carriers/opposite party no.1 and whether the said transporter delivered the goods at Patna and Nawabganj on the instructions of the complainant or otherwise. The opposite parties were not in a position to convince the District Forum that they had acted in accordance with the instructions of the complainant and, therefore, the District Forum made all the opposite parties liable. This has been upheld by the State Commission.
In the present case, we have to examine as to whether the manufacturer, opposite party no.3, was really responsible and liable for the alleged non-receipt of the consignment at Purulia by the purchaser-complainant? In this regard, it would be relevant to look at the purchase order and the terms and conditions laid therein. The extract of the relevant portion is as under :-
From M/s KAMAL ENTERPRISES, FIREWORKS DEALER, R.S. BABU STREET Place PURULIA Pin 733101 ORDER CONFIRMED Sri Kaliswari Fire Works Post Box No. 133, 5-A, Chairman A. Shunmuga Nadar Road, SIVAKASI-626123 (TAMIL NADU) Phone Fax :
20814, 72825 04562-72063 & 21614 ORIGINAL ORDER NUMBER MA/9/84 DATE 20.5.97 Explosive Licence No. 2/95-96 Quantity 450 (sic) T.N.G.S.T. Regn. No. 1168 A (PR) C C.S.T. DATE 15.2.95 Handling & Forwarding Charges at 3% Mahamai, Insurance Charges, One Bank Commission, Ruling Central Excise duty and Sales Tax at 4% Extra.
All our prices are ex our Magazine.
DESPATCH INSTRUCTION Advance Rs. PERMANENT OCTOBER EACH BILL : 20 (sic) SRI DUGRA TRANSPORT NO INSURANCE Received by cash / Draft On Despatching Station PNC GOODS TRAIN LORRY MAS / MDU / VNR SIVAKASI Documents Through :
Send proforma direct All Prices quoted herein are tentative and approximate; the ruling price as on date of Sale Invoice is final and binding Code No. PRODUCT Office Use only Quantity Price Per Amount Rs.
Ps.
Rs.
Ps.
1. 7
cm GEMINI ELECTRIC SPARKLERS 100 Boxes
2. 7 cm ELECTRIC SPARKLERS 100 Boxes
3.
4.
--
--
--
36X X X X After signature by the indenting Buyers this offer will not constitute (sic) until the rates and terms quoted have been confirmed and it has been (sic) writing by SRI KALISWARI FIREWORKS, Subject to the usual terms & conditions which they do business which are set below.
The companys canvassers have no authority to accept it on behalf of (sic) company.
TEMRS & CONDITIONS
1. The term Sellers refers to Sri Kaliswari Fire Works, Sivakasi.
2. The term Buyers refers to your good-selves.
3. The fireworks licence particulars provided by the buyers are noted only upon their firm assurance and if any dispute arises due to the irregularity of the licence only the buyers are solely responsible for the consequences.
4. DUTY OR TAX INCREASE : It is hereby mutually agreed that if at any one time, before delivery to Buyers of any of the said goods, (a) a new or an increased rate of Excise duty or taxation whether levied by the Central Government of India or by the State Government is imposed upon such goods or any part of them or the existing tariff valuation applying to such goods is increased, Sellers may recover from Buyers as an addition to the contract price, a sum equal to the amount which has been paid by Sellers on account of the new Excise duty or taxation as the case may be.
5. POINT OF DELIVERY : (a) The rates booked overleaf is ex Sellers Magazine. Sellers responsibility shall be at an end when the goods have been placed on rails or transports. Any dispute due to damage or pilferage in transit must be settled between the Buyers and the carriers. Anyhow, if proper Shortage/Damage Certificate is produced, the Sellers shall put claim with Insurance Company on behalf of the Buyer, in case of Insurance Premium recovered from the buyer.
6. The period stipulated for delivery of goods either of the whole order or any part thereof are approximate. The sellers do not accept any responsibility and/or liability whatsoever in respect of any loss or damage caused by any late delivery. Such late delivery shall not afford any ground for refusal to accept further delivery of goods (sic) non payment of the Bills.
(Emphasis added) X X X X Referring to clause 5 & 6 of the terms and conditions of the purchase order on the point of delivery, learned counsel for the petitioner-manufacturer has submitted that his responsibility was over when the goods were handed over to the transporter and he could not be held liable for any damage or pilferage in transit or non-delivery at purchasers destination, which would be a matter of dispute between the buyer and the carrier.
In order to maintain business relationship, the petitioner-manufacturer had dispatched the lorry receipts and the invoices issued by the transporter to the complainant and, therefore, the petitioner-manufacturer had discharged his responsibility to the deal and no blame or deficiency can be apportioned to him. Further, as could be seen from the purchase order, the dispatch instructions given by the complainant state the name of Sri Durga Transport and the destination was PNC, which means Patna City as referred to in the order of the State Commission. Further, the complainant had deliberately not insured the goods by stating NO INSURANCE on the purchase order, which meant that the purchaser was willing to take the risk of such fireworks being damaged or pilfered. It is the contention of the learned counsel for the petitioner-manufacturer that Sri Durga Transport and Jai Durga Grand Carriers are not different entities and the complainant himself was aware of it since the goods were handed over to transporter/opposite party no.1 in the presence of his representative on the 3rd of July, 1997 and the said transporter had issued the necessary consignment notes and lorry receipts to the complainant on 7th of July, 1997.
On this, we find that the petitioner-manufacturer in their written submissions before the District Forum had taken the plea that Sri Durga Transport and Jai Durga Transport Grand Carriers is commonly called in Sivakasi town as Sri Durga Transport, meaning thereby that Sri Durga Transport and Jai Durga Transport Grand Carriers were one and the same carrier. There was no rejoinder rebutting this contention of the petitioner-manufacturer by the complainant. On the contrary, in his cross-examination by the complainant, the petitioner-manufacturer had reiterated his stand that the original name of Sri Durga Transport is Jai Durga Grand Carriers and is known as Sri Durga Transport Company as well. From this explanation, the natural inference would be that Jai Durga Grand Carriers and Sri Durga Transport were one and the same carrier. The complainant has not produced any evidence thereafter to prove that Sri Durga Transport and Jai Durga Grand Carriers were different entities. The State Commission, however, has failed to take note of this piece of evidence and has erroneously held that the petitioner-manufacturer had failed to obtain any confirmation from complainant that Sri Durga Transport and Jai Durga Grand Carriers are same and identical.
That the complainant was aware of this and had accepted Jai Durga Grand Carriers to be the transporter through whom the goods were to be dispatched is evident also from his own complaint, in particular para 5 and 7, in which he refers his contacting the manager of the transport company over telephone inquiring for the reasons not taking any step for delivery of the goods.
Thereafter, he contacted the agent/opposite party no.2 over telephone. He does not appear to have made any attempt to contact the petitioner-manufacturer to apprise him about the non-dispatch of his goods. He wrote a letter to the transporter/opposite party no.1 on 26th of May, 1998 followed by telegram on 3rd of August, 1998. Finally when he visited Sivakasi, he met the manager of the transporter/opposite party no.1 and the agent/opposite party no.2-Mr. Swami but returned to Purulia without even meeting the petitioner-manufacturer. From this, it is abundantly clear that the complainant was from the beginning aware of the arrangement to receive his goods through the present transporter/opposite party no.1 and since the goods had been delivered to the transporter by the petitioner-manufacturer in the presence of the complainants representative keeping in view the terms of the purchase order, the plea of Sri Durga Transport and Jai Durga Grand Carriers being different transport companies appears to be an attempt only to rope in the petitioner-manufacturer albeit without any reason for some other motive.
Therefore, the contention of the petitioner-manufacturer that it had rightly entrusted the consignment to Jai Durga Transport Grand Carriers/opposite party no.1, which was the same as Sri Durga Transport, could not be rejected.
Once we hold that the manufacturer/opposite party no.3 had acted in accordance with the dispatch instructions given by the purchaser and Jai Durga Grand Carriers in their affidavit having admitted that they had received the complainants goods from the petitioner, their liability would cease and the transporter/opposite party no.1 alone will be responsible for the non-delivery/mis-delivery of the goods.
The petitioner in these revision petitions also seeks to challenge the orders of the fora below on the ground that the complaints were barred by limitation and also that the District Forum had no territorial jurisdiction to decide the matter and further that the complainant was not a consumer since he was making the purchases for resale to earn profit. These aspects have been dealt with in extenso by the fora below. On the point of limitation, it has been rightly held that since there was no specific denial of the claim of the complainant that he made repeated calls over the telephone and also visited them in person between 1997 and 1999 and finally wrote a letter dated 19th of July, 1999 to the transporter/opposite party no.1, all the six complaints which were filed on 14th of October, 1999 were within the prescribed period of two years and, therefore, within time. On the point of jurisdiction, it was held that since the agent of the manufacturer/opposite party no.3 had approached the complainant in Purulia where he had placed the purchase orders, a part of the cause of action had arisen at Purulia and the District Forum was within its right to correctly entertain the complaints. On the objection that the complainant was not a consumer, it has been rightly rejected as the rendering of service pertained to the year 1997 and it is only after the amendment made in 2003 that services rendered for commercial purposes have been excluded from the purview of the Consumer Protection Act, 1986. All these grounds, therefore, are not tenable.
In conclusion, it may be held that as per the terms of the purchase order, the liability of the petitioner-manufacturer/opposite party no.3 extended until the delivery of the goods to the transporter/opposite party no.1 as per the dispatch instructions of the purchaser/complainant and in the case in hand, the preponderance of evidence goes to show that the petitioner-manufacturer had delivered the goods to the transporter as per the dispatch instructions of the purchaser-complainant and that too in the presence of his representative. Therefore, the fora below have erroneously held him liable along with the other opposite parties.
The revision petitions under the circumstances deserve to be accepted, leaving the complainant to get the award in his favour satisfied from the other opposite parties who have chosen not to challenge the order of the fora below. However, under the facts and circumstances of the case, there will be no order as to cost.
Sd/-
(ASHOK BHAN, J.) PRESIDENT Sd/-
(S.K. NAIK) MEMBER Mukesh