A.S. PAI vs DELUXE ROADLINES

THIS appeal is directed against the order dated 16.7.93 of the State Commission, Tamil Nadu at Madras allowing the complaint and directing the Opposite Party, Appellant herein to pay to the Complainant the sum of Rs. 1,61,725/- towards the value of the consignment lost with interest thereon at 18% w.e.f. 29.1.92 till payment and a sum of Rs. 25,000/- as compensation besides Rs. 1000/- as costs.

THE facts alleged in the complaint are these. THE Complainant is carrying on business as transport contractors for M/s. Tata Oil Mills Company for loading their goods and transporting them to various places. THE Opposite Party is the Proprietor of M/s. Ganesh Roadways who is a commission agent and truck supplier. On the request of the Complainant, the Opposite Party supplied one lorry bearing registration No. MH-06-7475 to the Complainant for transporting goods of M/s. Tata Oil Mills Company from their factory at Madras to their factory at Sangli, Bombay. THE Complainant made a part payment of Rs. 2,000/- towards freight and the balance of Rs. 2,000/- was payable at Sangli, Bombay. According to the Complainant he made this payment to the Opposite Party as consideration for hiring its services in the supply of the truck for the transport of the goods. A consignment of 450 cardboard boxes of O.K. Washing Soap valued at Rs. 1,61,725/- had been loaded on the said lorry for transport. THE consignment, however, did not reach its destination and nothing is known about the consignment. THE Complainant claimed that the value of the goods Rs. 1,61,725/- have been recovered from him by M/s. Tata Oil Mills Company and thus he has suffered loss of the said amount. THE Complainant claimed the refund of the value of the goods of Rs. 1,61,725 /- with interest at the rate of 24% and compensation of Rs. 5.00 lakhs and costs. The Opposite Party being noticed filed its version alleging that he is only a commission agent and truck supplier, arranges as and when any third party require his help for fixing a vehicle to transport things, that he has maintained a list of lorry owners who are informed of the offer for hire to transport and that he has only acted as and in between to introduce the two parties. The submission further is that thereafter it is the party who is hiring to verify and satisfy about the genuineness of the vehicle and its owners, drivers, R.C. Book, insurance etc. and then to engage for hire for loading and transport of the goods by a contract with the owner. It is, however, admitted that the Opposite Party fixed the lorry bearing Registration No. MH-06-7475 and gave the name of the lorry owner and driver to the Complainant for which Opposite Party was paid his commission of Rs. 135/- by the owner of the vehicle. The stand is that the Complainant has not hired the services of the Opposite Party for any consideration and thus the Opposite Party is not liable for any loss or compensation within the scope and ambit of the Consumer Protection Act, 1986. The loss and its quantum is also denied.

The State Commission on the appreciation of Exhibits A1 and A4 came to the conclusion that the Complainant has hired the services of the Opposite Party for the supply of the lorry for carrying the consignment and advance has been paid only to the Opposite Party and he is, therefore, not entitled to deny his liability. The State Commission granted the relief noticed above.

WE were taken through the records of the appeal and also heard the Counsel for the parties. Consumer means any person who hires or avails of any service for consideration. The hiring of services and consideration are two essential ingredients of the definition contained in Section 2(1)(d)(ii) of the Act. Letter dated 29.1.92 Exhibit A1 relied upon by the State Commission is written by Ganesh Roadways addressed to the Complainant stating that "as per your telephonic message, we are sending our truck No. MH-06-7475 for Sangli.......For any leakage and damage we are not responsible. Insurance to be covered by the party". The rest of the printed matters as to hire charges or delivery of goods or necessary challan and relevant documents have been scored out. The particulars of the owner, chassis number, engine number of the vehicle together with name of the driver and his licence number are separately given in a chit. This is the only document executed under the signature of the Appellant. It does not record that any consideration was paid by the Complainant or agreed to be paid or received by the Appellant. There is no hiring of the services of the Appellant for consideration by virtue of this document Exhibit A1. The next document is Exhibit A4 which is a payment order dated 29.1.92 drawn by the Complainant and addressed to the consignee recording the freight payable and the advance paid and the balance payable at Sangli, Bombay and this document was delivered to the driver of the vehicle MH-06-7475 as an authority to receive the balance of the lorry hire. Exhibit A-4 is a document drawn and executed by the Complainant wherein it is mentioned against name and address of owner as "Ganesh Roadways". Exhibit A-4 does not say that Rs. 2,000/- were paid to the Appellant as part of the hiring charges. The mere mentioning of the name as Ganesh Roadways is a creation of evidence by the Complainant in his own favour and this is not admissible into evidence against the Appellant. There is no other material on the record relevant to the question of hiring of services of the Appellant for consideration. Thus the finding of the State Commission that the Complainant hired services of the Opposite Party for the supply of the lorry for carrying the consignment and advance has been paid only to the Opposite Party is not borne from the record and this finding is hereby set aside. The Appellant has not charged from the Complainant any commission or service charges. The Appellant is only a broker who introduced the owner/driver of the truck to the Complainant and acted only as a connecting link between the two. The appellant did not come into picture at all after the introduction by letter Exhibit A-1. The Complainant is thus not a consumer within the meaning of Section 2(1)(d)(ii) of the Act and thus the complaint is not maintainable against the Appellant. In the result the appeal is allowed, the impugned order dated 16.7.93 of the State Commission, Tamil Nadu at Madras is set aside and the complaint is dismissed leaving the parties to bear their own costs throughout. The dismissal of the complaint will not stand in the way of the Complainant to seek his remedy, if any, against the owner/driver of the said vehicle. Appeal allowed.