CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                      (ADDITIONAL BENCH)

Micron Instruments Pvt. Ltd., 143-B, Industrial Business Park, Chandigarh, through its authorized Signatory, Senior Manager Commercial, Rajat Kapoor.

                                                                        ……Complainant

V E R S U S

1. DSV Air and Sea Pvt. Ltd. through its Managing Director, The Qube, B-201, B-204, M.V.Road, Off International Airport Approach Road, Marol, Andheri East, Mumbai-400059
2. DSV Air & Sea Pvt. Ltd. through its Regional Manager, Building No.10, Tower-A, 3^rd Floor DLF Cyber City, Phase-II, Gurugram-122002, Haryana.
3. DSV Air & Sea Pvt. Ltd  through its Branch Manager, Zikapur Rd. SCO-27, Ist floor, Sub-Tehsil Zirakpur-140603.

                                                               …….Opposite Parties.

      Complaint under Section 47 of the  Consumer Protection

           Act,2019.

BEFORE:     MRS. PADMA PANDEY, PRESIDING MEMBER

                      Mr.RAJESH K.ARYA,MEMBER

For the complainant:         Ms. Geeta Gulati, Advocate

For the Opposite Parties:   Mr.Himanshu Sharma, Advocate

PER  PADMA PANDEY,PRESIDING MEMBER

                     As averred in the complaint, the complainant, a private limited company registered under the Companies Act,2013, is in business of the manufacturing engineering goods for defence, aerospace and healthcare industries.  It supplies goods to domestic industry and also exports to various countries. The complainant, for the manufacturing of the final product, raised purchase order for Aluminum tubes, which is a raw material, one of the components, for manufacturing of the final product, from the supplier, Aviatube, based in France. The dispute between the parties arose when the Aluminium tubes supplied by Aviatube, the supplier, through the logistic partner of the complainant, the opposite party, upon delivery in India, was found to be corroded due to exposure to water during transport via sea from port, at France to India, vide Invoice Nos.83952, 83999 and 84007.  The complainant informed its supplier vide email dated 27.11.2021 for not supplying/forwarding the Tubes for transportation to the logistic partner’s warehouse in France, to be forwarded/delivered against invoice No.84049,as the complainant wished to carry out the investigation to find out the cause of corrosion of the tubes. The complainant informed the Opposite Parties vide email dated 27.11.2021 for not collecting the material from the supplier till further instructions; however, the complainant was informed by the Opposite parties about the receipt of material at their warehouse and sought approval for loading the cargo. The complainant instructed the Opposite Parties to hold the consignment and requested them to open the wooden box and to share the video of the packing material. Opposite Parties shared the photographs and not the video of the package vide email dated 13.12.2021. The complainant after perusing the pictures, raised a query about the storage of the material at the warehouse. Opposite Parties did not share the requisite information, however, informed vide mail dated 14.12.2021 about package being moist from outside and dry from inside. 

2.           The complainant requested its supplier to inspect the warehouse of the opposite parties for getting the information about storage of the material. The supplier informed the complainant about storage in open area with no protection against the bad weather. The communication was shared with the opposite parties and their comments on the same were sought by the complainant.  Opposite Parties vide email dated 11.1.2022 informed that previous consignments were stored inside for 10 and 6 days. The consignment has to be stored temporarily outside during movement of other shipments. Opposite parties shifted the onus of proper storage to the complainant as no specific instructions with regard to material were provided to the opposite parties. The complainant vide mail dated 19.1.2022 raised the issue of storage as per the material nomenclature and raised the concern that the damage is not due to moisture but due to rain water.  Opposite Parties shared the status of storage vide mail dated 20.1.2022 and informed the complainant that the storage space was used as a transit warehouse and not for storing the goods, as the supplier of the complainant did not have the facility for stuffing the container. Opposite parties sought instructions from the complainant for shipping the goods as their team found moisture outside the plastic sheets, by which the tubes were covered and not on the inside of the sheets, by which the tubes were covered and not on inside of the sheets.

3.         As per communication between the parties, the material storage could not be videographed and only pictures could be shared. The OP company raised the issue of storage in open space with their counterpart in France, to which there is admission by the French team about storage in open area vide mail dated 22.12.2021. As the OP company confirmed that the moisture was outside the plastic sheet and not on the inside, the complainant vide mail dated 28.1.2022 instructed the OP company to transport the material to India through sea. On reaching the shipment in India, a joint inspection was carried out by the parties, wherein water was found in the wooden packing of the material. The complainant subsequently undertook the quality testing of the product in its premises to assess the damage to the tubes. The product delivered by the OP company against invoices Nos.83952, 83999, 84007 and 84049 were declared as scrapped. The complainant, in order to mitigate its business risk of procuring goods through sea, had taken Transit Insurance Policy. The complainant, after assessment of the damage, initiated claim for loss with its insurer-Tata AIG, but the insurer rejected the claim (Annexure C-13) on the ground of oxidation/corrosion caused to the goods by rain water.

4.          As the issue of damage to the material and financial/business loss to the complainant was not resolved through official channels, a legal notice was served upon the OP Company. The said legal notice was duly replied by the OP Company denying its liability on the ground of no negligence and absolute denial of any joint inspection at the time of disembarkation of cargo. Hence, alleging deficiency in service on the part of the Opposite Parties, through the present consumer complaint, the complainant has prayed that Opposite parties be directed to pay the amount of INR 1,05,26,177.05, being value of the rejected goods/material, INR 1,00,00,000/- for loss of profit, which the complainant would have earned by delivering the final product to its client in time, besides compensation and costs of Rs.50,000/-.

5.               Pursuant to issuance of notice of the complaint, Opposite Parties entered appearance through their counsel and sought time to file reply/evidence. However, reply to the complaint was not filed within the stipulated period of 45 days. Thereafter, Opposite Parties moved an application bearing No.MA/294/2023 for taking their written statement/reply on record. The said application was opposed by the complainant and vide order dated 3.5.2023, in view of the settled position of law in the cited Judgments of Hon’ble Supreme Court, this Commission did not find any room to allow the opposite parties to file written statement beyond the stipulated  period of 45 days, hence,  the right of the opposite parties to file written statement to the complaint was struck off.

6.         Thereafter, Opposite parties moved an application challenging the maintainability of the complaint for want of pecuniary jurisdiction of this Commission  and  on the ground that the goods in the shipment were meant for commercial purpose and the complainant was involved in a profit generating activities.

7.               Written arguments were filed by the complainant as well as on behalf of the Opposite parties.

8.            We have heard  learned Counsel for the parties and gone through the record with utmost care and circumspection.

9.             Firstly, we deal with the miscellaneous application moved by the Opposite parties wherein they have challenged the maintainability of the complaint in this Commission. The main ground taken therein is regarding pecuniary jurisdiction of this Commission to entertain and adjudicate upon the complaint. It is case of the complainant that it is running business of manufacturing of Engineering goods for defence, aerospace and health care industries and after manufacturing goods supplies the said product to various industries in India and outside India. The complainant hired the services of OP company for delivering goods/raw-material from France to India. The supplier of the complainant delivered the said consignment containing Aluminium tubes at the port of OP company in France and the said consignment was dispatched from France and delivered to the complainant in India. There is no mention in the complaint, how much amount was paid or promised to be paid  as consideration to the Opposite Parties for transporting the material booked. During the Course of arguments, this Commission also enquired from the Counsel for the complainant about the consideration paid for transporting the material to the OP company against above four invoices but she could not disclose about the amount paid as consideration nor she produced any document to that effect. However, the Learned Counsel for the Opposite Parties submitted that the total consideration  to be paid by the complainant against these four invoices is below Rs.15.00 Lakhs, out of which an amount of Rs.4,03,954.40 remains unpaid against invoice No.84049.   He further argued that against Invoice No.83952, the complainant paid Rs.3,86,641.72  on 4.3.22, against invoices No.83999 & 84007, an amount of Rs.6,67,344.65 was paid on 28.3.2022 and against 4^th invoice No.8404 an amount of Rs.4,03,954/- still remains unpaid. Even thereafter, another shipment was delivered vide invoice dated 9.4.2022 against which an amount of Rs.1,05,750/-  is still outstanding.  A detail of invoices and amount paid as consideration is enclosed with the written arguments of the opposite party. He further submitted that in reply to the legal notice (C-14), the opposite parties also  stated that the complainant is liable to pay the  unpaid/outstanding amount of Rs.5,49,336/-.

 10.        The learned Counsel for the opposite parties further  argued that complaint is not maintainable in this Commission as the consideration paid is below the pecuniary jurisdiction of this Commission because  value of consideration paid is required to be taken into consideration while determining pecuniary jurisdiction and not value of goods or service and compensation claimed. He further argued that the complainant  deliberately did not mention the amount paid as consideration.  In support of his contention he referred to a judgment of Hon’ble National Consumer Disputes Redressal Commission titled as M/s Pyaridevi Chabiraj Steels Pvt. Ltd. Vs National Insurance Company Ltd. & 3 ors Consumer Case No.833 of 2020 decided on 28.8.2020. 

11.         As provided in the Consumer Protection Act, 2019, pecuniary jurisdiction of the District Commission, State Commission and National Consumer Disputes Redressal Commission is as under;

Jurisdiction of District Commission.—34(1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:

Jurisdiction of State Commission.—(47)(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction to entertain  complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:

Jurisdiction of National Commission.—(58)(1) Subject to the other provisions of this Act, the National Commission shall have jurisdiction to  entertain  complaints where the value of the goods or services paid as consideration exceeds rupees ten crore.

                 However, on December 30, 2021, the Central Government notified Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 in order to revise the pecuniary jurisdiction of District Commission, the State Commission and the National Commission as under;  

 Jurisdiction of District Commission: The District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed fifty lakh rupees.

Jurisdiction of State Commission: The State Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration exceeds fifty lakhs but does not exceed two crore rupees.

Jurisdiction of National Commission: The National Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration, exceeds two crore rupees....
 12.              From a reading of the aforesaid provisions, it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission, the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/taken.

13.            The complainant has neither mentioned in the complaint about the amount paid as consideration for hiring services of the OP company, nor produced any document about the amount paid as consideration.  Even during the course of arguments, when a query was put to the Counsel, she could not disclose about the amount paid as consideration for hiring services of the OP company, nor produced any document. As per detail given by the Counsel for the opposite parties, the total amount to be paid by the complainant  for four invoices comes to Rs.14,57,940.77 which is not above Rs.50.00 Lakhs, thus, this Commission has no pecuniary jurisdiction to entertain the present consumer complaint and it is accordingly dismissed as not maintainable, however, without prejudice to the right of the complainant to seek remedy before the appropriate Forum/Court, as permitted by law.

14.              Certified copies of this order be sent to the parties, free of charge.

15.              The file be consigned to Record Room, after completion.

Pronounced.

19.09.2023