BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUCHERRY
Thursday, the 25th day of January 2018
First Appeal No.23/2016 in C.C.49/2011
M/s Ruchi Packaging Private Limited
Represented by its Authorised Signatory
R.G. Balakrishnan, son of R. Govindan
No.C-11, PIPDIC Industrial Estate
Mettupalayam, Puducherry – 09.
… Appellant/Complainant
Vs.
1. Murugan, Agent,
M/s Venson Transports (P) Limited
No.176, ECR Road, Lawspet,
Puducherry – 08.
2. Gopalakrishnan, Director
M/s Venson Transports (P) Limited
No.33, Cubbon Road, Bangalore - 001
3. Gopalakrishnan, Director
M/s Venson Transports (P) Limited
No.234, Peters Road, Chennai – 014.
4. Gunasekar, Director,
M/s Venson Transports (P) Limited
No.33, Cubbon Road, Bangalore – 001.
5. Gunasekar, Director
M/s Venson Transports (P) Limited
No.234, Peters Road, Chennai – 014.
… Respondents / Opposite Parties
BEFORE:
HON’BLE JUSTICE THIRU K. VENKATARAMAN
PRESIDENT
Thiru S. TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT:
Thiru I. Ilankumar, Advocate
FOR THE RESPONDENTS:
Thiru G.K. Govindasamy, Advocate
O R D E R
(By Justice Thiru K. Venkataraman, President)
This appeal is directed against the order of the District Consumer Disputes Redressal Forum, Puducherry dated 29.09.2016 made in
C.C. 49 / 2011.
2. The Complainant before the District Forum is the appellant herein and the Opposite Parties are the respondents in this appeal.
3. The parties are referred in the same position as they had been referred before the District Forum, Puducherry for the sake of convenience.
4. The gist of the complaint before the District Forum is set out hereunder :
The complainant is the manufacturer of BOPP Self Adhesive Tapes and one of his customers, namely, M/s Britannia Industries, Chennai has placed orders of 50 Boxes of BOPP Tapes printed Britannia with instructions to despatch them to M/s Paramount Nutrition's India Pvt. Ltd., Bangalore. The life span of the said BOPP Self Adhesive Tapes could be only six months and thereafter, it will not be useful. The complainant booked 50 boxes of the said Tapes worth about Rs.1,25,861/- with the first opposite party vide bill dated 11.08.2009 and paid freight charges by way of cheque dated 21.09.2009 drawn on ICICI Bank. The Britannia Industries, Chennai complained that the goods have not been delivered. The non-delivery was intimated to the first Opposite Party, but there was no response. Thereafter, finally, the complainant had written a letter to the first opposite party on 22.01.2010 to deliver the materials immediately to M/s Paramount Nutrition's India Pvt. Ltd., Bangalore or else return the materials to the complainant. Though the first opposite party acknowledged the said letter, he did not give any reply. The activities of the first opposite party caused loss to the business of the complainant and also it lost its reputation and goodwill. The complainant has sustained a loss of Rs.1,28,555/-. The complainant, after issuing legal notice to the Opposite Parties dated 04.03.2011, laid the complaint, since they had not received reply from the opposite parties.
5. The reply version has been filed by the first opposite party which was adopted by the OPs 2 to 5.
6. The sum and substance of the Reply Version is set out hereunder:
The complaint is not maintainable. Since it is a commercial transaction, it is outside the scope of the Consumer Protection Act. Further, the complaint is bad for non-joinder of necessary parties, namely, M/s Britannia Industries, Chennai or M/s Paramount Nutrition's India Pvt Ltd., Bangalore. As per the complaint, the complainant has acted on behalf of the M/s Britannia Industries, Chennai. Therefore, the complainant ought to have produced authorization letter from M/s Britannia Industries, Chennai to act on its behalf and file the complaint. Even assuming that there is deficiency in service, there is no loss to the complainant. The carrier has no liability unless a special contract has been entered into with regard to the liability on the full value of the consignment. Further, M/s Paramount Nutrition's India Pvt Ltd.. Bangalore refused to accept the consignment and therefore, the consignment has been kept in the warehouse of the opposite parties at Bangalore, at the consignor's risk and the consignor was also telephonically informed about the refusal by the consignee to accept the consignment. That apart, the opposite parties have attempted to deliver the consignment to the consignee on 14.08.2009 and on 24.11.2009, but on both the occasions, the same was refused. Further, two E-mails have been sent by the opposite parties, but of no effect. Therefore, the reply version sought for dismissal of the complaint.
7. On the side of the complainant, the Authorised Signatory,
R.G. Balakrishnan was examined as CW1 and 10 documents were marked as Exs.C1 to C10. On the side of the opposite parties, one Mr. R.K. Murali, Manager has been examined as RW1 and three documents were marked as Exs.R1 to R3.
8. The District Forum framed three points for determination, namely;
- Whether the complainant is the Consumer?
- Whether any deficiency in service attributed by the opposite parties?
- To what relief the complainant is entitled for?
9. The District Forum on point No.1 found that the complainant is not a Consumer as per the provisions of the Consumer Protection Act 1986. In view the said findings rendered on point No.1, the District Forum chose to hold that the complaint is liable to be dismissed and accordingly was dismissed.
10. As stated already, the present appeal is filed against the said decision taken by the District Forum.
11. The learned Counsel appearing for the appellant strenuously contended that the complaint is maintainable before the District Forum and relied on the following decisions.
1) The judgment rendered in 2007 STPL (LE) 37853 SC in the case of M/s Transport Corporation of India Ltd., vs. M.s Veljan Hydrair Ltd.
2) The judgment rendered in 2014 CJ (NCDRC) 383 in the case of Prem Parkash Goel and Others vs Green Carriers and Contractors (Delhi) Pvt. Ltd., and another
3) The judgment rendered in 2014 CJ )NCDRC) 471 in the case of Shahid M/s. Asia Art Printers vs K.P. Dharmaian
4) The judgment rendered in 2000 STPL (LE) 27862 SC in the case of M/s Economic Transport Organisation Etc. vs Dharwad Distt. Khadi Gramudyog Sangh Etc.
5) The judgment rendered in 2000 STPL (LD) 27723 SC in the case of Patel Roadways Ltd., vs Birla Yamaha Ltd.,
12. As far as the first judgment cited by the learned Counsel appearing for the Appellant is concerned, it dealt with Sec. 2(1) (g) of Consumer Protection Act 1986 and Sec. 10 of the Carriers Act. The point for consideration that was dealt with therein as set out in paragraph 3 is stated hereunder.
- The respondent did not issue a notice under Section 10 of the Act, about the loss of the consignment, within six months of the time when the loss first came to its knowledge. Therefore, the complaint was barred under Section 10 of the Act.
- The cause of action arose on 08.11.1996 when the respondent instructed the appellant to re-book the consignment and on 22.1.1997, when the consignment was re-booked. The complaint, filed beyond two years from that date, was barred by limitation under section 24A of Consumer Protection Act,
1986 ('CA Act' for short)
- The respondent did not pay the freight charges and that therefore, there was no 'consideration' for the contract for 'service'. Therefore, the appellant was not liable to pay any amount, either towards loss of the consignment or as damages, on the ground of deficiency of service.
The point that was decided by the National Commission as set out in paragraph 5 is set out hereunder.
- Whether the complaint was barred by the provisions of Section 10 of the Carriers Act, 1865?
- Whether the complaint was barred by limitation under Section 24A of the Consumer Protection Act, 1986?
- Whether there was no contract for service, as the respondent had refused to pay the freight charges?
Thus, the said points alone came in for consideration before the Hon'ble Supreme Court of India in the first decision cited by the learned Counsel appearing for the appellant. Nowhere in the said decision, it has been canvassed or decided about the maintainability of proceedings before the Consumer Protection Act and the decision whether the respondent was a consumer or not. Hence, the said decision may not come to the rescue of the appellant.
13. In the second decision also, it has not been decided at length whether the party booked the consignment is a consumer or not. Paragraph 5 of the said judgment does not deal with the said aspect elaborately, so the said decision also will not come to the rescue of the appellant.
14. The third decision was pertaining to the following facts:
The respondent therein, a single man, has placed orders with the appellant therein for supply of note books. It was not supplied in time and the respondent laid a claim before the District Forum claiming compensation. It has been held in the said judgment that
"….the Respondent / Complainant was a single person engaged in obtaining orders for his livelihood, he was obviously not engaged in commercial activities. Further the nature of the consumer dispute involved services availed by the Respondent / Complainant and was not merely a question of outright sale. We agree with these findings of the State Commission. As has already come in evidence, the notebooks were not purchased "off the shelf" by the Respondent/Complainant from the Petitioner / Opposite Party but had been manufactured/fabricated by the Petitioner / Opposite Party on the basis of particular specifications indicted by the respondent / Complainant. It was, thus, not a "sale" and consequently not a "resale" as defined under the exclusionary clause of Section 2 (1) (d) of the Act but was in the nature of services which the Respondent / Complainant availed of from the Petitioner / Opposite Party. We also agree with the finding of the State Commission that this is not a case to non-suit the Respondent/Complainant on the ground that the transaction was a commercial nature. No doubt Respondent/Complainant was a registered merchant exporter under the Export Promotion Council for Handicrafts but, as has been observed by the State Commission, he was a single individual involved in earning his livelihood by placing and procuring orders for the purpose of export and is, therefore, very much a 'consumer' as upheld by the Hon'ble Supreme Court in Laxmi Engineering Works Vs P.S.G. Industrial Institute [(1995) 3 SCC 583]……"
Therefore the said judgment also will not come to the rescue of the appellant.
15. The 4th judgment dealt with Sec.9 of the Carriers Act coupled with Section 14 of the Consumer Protection Act (68 of 1986) before the amendment was introduced to Section 2 (1) (d) (ii) on 15.03.2003. So, the said judgment also will not come to the rescue of the appellant.
16. The 5th judgment that has been cited by the Appellant also will not come to the rescue of the Appellant since the judgment was rendered before amendment introduced to Section 2 (1) (d) (ii) of the Consumer Protection Act.
17. Section 2 (1) (d) (ii) of the Consumer Protection Act as amended is set out hereunder.
"Consumer means- any person who hires or avails of any services for a consideration which has been or 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, 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 but does not include person who avails of such services for any commercial purpose
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.
The said provision makes it very clear that it would not include a person who availed of the services for any commercial purpose.
18. In the present case on hand, it is very clear that the complainant, the manufacturer of BOPP Self Adhesive Tapes, on instruction from one of its customer, namely, M/s Britannia Industries, Chennai which placed orders for supply and despatch of 50 boxes of BOPP Self Adhesive Tapes to M/s Paramount Nutrition's India Pvt. Ltd., Bangalore booked the consignment with opposite parties. Thus, the facts as set out by the complainant itself would disclose that it is only for commercial transaction. Therefore, the complaint filed before the District Forum, Puducherry is not maintainable and as rightly held by the District Forum, it has no jurisdiction to decide the issue.
19. In view of the said decision taken by us, we are constrained to uphold the decision taken by the District Forum, Puducherry and accordingly, we dismiss the appeal preferred by the Appellant.
20. In fine, the appeal stands dismissed. However, there is no order as to costs.
Dated this the 25th day of January 2018.
(Justice K. VENKATARAMAN)
PRESIDENT
(S. TIROUGNANASSAMBANDANE)
MEMBER
