BOMBAY DELHI GOODS CARRIER vs MIRA RUBBER CORPORATION

THIS is an appeal filed against order dated 22.12.2000 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-I) in Complaint Case No. 979 of 1995, M/s. Mira Rubber Corporation v. Bombay Delhi Goods Carrier & Ors. The relevant facts which deserve to be noticed, stated briefly, are as under.

M/s. Mira Rubber Corporation, 187-A, Industrial Area, Phase-I, Chandigarh booked a consignment of goods worth Rs. 13,722/- with opposite party No. 1, Bombay Delhi Goods Carrier, 14, Transport Area, Chandigarh for delivery to M/s. Khandelwal Sales Corporation, Bandikui (State of Rajasthan) vide Bill No. 0060 dated 17.10.1994. The documents were not discharged from the concerned Bank and as such the bankers returned the original documents/GR to the complainant vide memo dated 15.12.1994. It is alleged that the complainant requested the opposite party to rebook the goods back to Chandigarh or in the alternative to make payment of the value of the consignment. The said request was not attended to by the opposite party. The complainant sent a reminder and also served a legal notice. Consequently, the complaint case was filed under Section 12 of the Consumer Protection Act, 1986 (for short hereinafter to be referred as the C.P. Act) before the District Forum-I. The opposite parties were served with the notice. Opposite party No. 1 put in appearance and filed reply contending that the goods were transported to the destination well within time but nobody took the delivery of goods. It was after a lapse of time that agent of the complainant took delivery of the goods on behalf of complainant after paying the transportation charges and giving a receipt of having received the goods.

The complainant filed replication wherein the averments made in the written statement were denied and averments made in the complaint were reiterated.

IN evidence, the complainant filed affidavit of Sh. Jagmohan Mahajan, Chief Executive of the complainant. The opposite parties, however, did not adduce any evidence. The District Forum-I held deficiency on the part of the opposite parties and allowed the complaint and directed the opposite parties to pay value of the consignment i.e. Rs. 13,722/- within three months from the date of the receipt of the copy of the order. The opposite parties were held liable jointly or severally. The opposite parties filed this appeal and challenged the impugned order passed by the District Forum-I. Notice of the appeal was served on the complainant/respondent, who put in appearance through Mr. Pankaj Chandgothia, Advocate. Mr. Y.S. Saini, Advocate filed his Vakalatnama on behalf of the appellant. Record of the complaint case was summoned from the District Forum-I. We have heard Mr. Y.S. Saini, Advocate appearing for appellant and Mr. Pankaj Chandgothia, Advocate appearing for the respondent/complainant. We have also perused the order of the District Forum-I and the record of the complaint case.

MR. Pankaj Chandgothia, Advocate for the respondent/complainant submitted that it may be got clarified from MR. Y.S. Saini, Advocate as to whether he is representing all the appellants or only appellant No. 1. MR. Pankaj Chandgothia, Advocate drew our attention to the memo of appearance filed in the appeal by MR. Y.S. Saini, Advocate which is only on behalf of appellant No. 1, i.e. Bombay Delhi Goods Carrier. MR. Pankaj Chandgothia, further referred to the Vakalatnama filed by MR. Y.S. Saini, Advocate filed in the District Forum-I which shows that he had filed Vakalatnama only on behalf of opposite party No. 1. MR. Y.S. Saini, Advocate, at this stage, conceded that he was representing opposite party No. 1 only and had no authority to appear on behalf of the appellant Nos. 2 and 3 who were arrayed as opposite party Nos. 2 and 3 in the complaint case. The learned Counsel Mr. Y.S. Saini, Advocate appearing for the appellant No. 1 - Bombay Delhi Goods Carrier at the very outset stated that he was pressing this appeal only on three legal submissions and the finding on facts recorded by the District Forum is not under challenge in this appeal. The three legal grounds urged by Mr. Y.S. Saini, Advocate are regarding the non-maintainability of the complaint under the C.P. Act. The first submission made by Mr. Y.S. Saini, Advocate is that the complainant being a Company is not a consumer. The second legal submission made by him is that the complainant/respondent is not covered by the definition of consumer as contained in Section 2(1)(d) of the C.P. Act because the business transaction was between the parties for commercial purposes. The third and last legal submission made by Mr. Y.S. Saini, Advocate is that it is a case of breach of contract for which remedy lies in Civil Court and not under the C.P. Act. So far as the first legal submission is concerned, Mr. Pankaj Chandgothia, Advocate for the respondent contended that the complainant, in the first instance, it not a Company incorporated under the Indian Companies Act, 1956 but is a partnership firm and therefore, the complainant cannot be ousted from being a consumer under the C.P. Act. Referring to the judgment relied on by Mr. Y.S. Saini, Advocate which is reported in II (1999) CPJ 167, Fineskin Leathers and Supplies Co. Pvt. Ltd. v. New India Assurance Company Limited, decided by the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai. Mr. Pankaj Chandgothia, Advocate contended that the Tamil Nadu State Commission considered the case of a company incorporated under the Companies Act and excluded the Company from the definition of a consumer. In the alternative Mr. Pankaj Chandgothia, Advocate contended that the Hon''ble National Commission has in the case of Synco Textiles Pvt. Ltd. v. Economic Transport Organisation & Ors., I (1991) CPJ 40 (NC), held a complaint filed by the Company as maintainable in relation to the deficiency in service rendered by the transport organisation. The learned Counsel for the appellant could not controvert the factual submission made by Mr. Pankaj Chandgothia, Advocate regarding the complainant being a partnership firm and not a Company and in this view of the matter, we accept the contention of Mr. Pankaj Chandgothia, Advocate for the respondent and hold that the complainant not being a Company is not excluded from the definition of consumer under the C.P. Act. The first submission made by the learned Counsel for the appellant, has thus, no substance.

MR. Y.S. Saini, Advocate for the appellant No. 1, referred to the definition of the consumer as contained in the Section 2(1)(d)(i) of the C.P. Act in support of his contention that there is exclusion of the case where commercial purpose is imposed. Section 2(1)(d)(i) reads as under : "2(1)(d) "consumer" means any person who,- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;" (Emphasis supplied by us) In support of his submission the learned Counsel for the appellant No. 1, placed reliance on judgment of this Commission in the case of Haryana Tourism Corporation Ltd. v. Hindustan Garage & Anr., II (2000) CPJ 110. It was a case of purchase of Ambassador cars by the State Government undertaking and the cars were to be utilised as taxies. This Commission held that it was a commercial purpose involved in the case and consequently the complainant was not a consumer. The other authority relied on in this connection is the decision of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, Techno Aids and Associates v. Tata Electric Locomotive Co. Ltd., I (1999) CPJ 291, which again relates to a case of goods i.e. car purchased and the same was alleged to be defective. The car was purchased for commercial purpose. While considering the provisions of Section 2(1)(d)(i) of the C.P. Act, the Tamil Nadu State Commission held that the complainant was not a consumer. Repelling the aforesaid submission of MR. Y.S. Saini, Advocate for the appellant No. 1, MR. Pankaj Chandgothia, Advocate for the respondent/complainant contended that these judgments relate to the cases of goods which are covered under Section 2(1)(d)(i) of the C.P. Act and there cannot be any dispute regarding the correctness of the views expressed in these authorities. He, however, submitted that the instant case involves the questions of hiring of service which is provided for in Section 2(1)(d)(ii) of the C.P. Act which has no such exclusion of a case regarding commercial purpose. Section 2(1)(d)(ii) of the C.P. Act reads as under : "2(1)(d) "consumer" means any person who,- (ii) [hires or avails of] any services for a consideration which has been 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, or 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;"

APART from this, the learned Counsel for the respondent referred to the definition of service as defined under Section 2(1)(o) of the C.P. Act which reads as under : "2(1)(d)(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board, or lodging or both [housing constructions] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract or personal service :"

He has contended that it is not the case of the appellant that the service of the appellant was free of charge or under a contract of personal service which are the clauses which exclude the application of the C.P. Act. In the instant case, admittedly, the complainant/respondent hired the service of the appellant for the transportation of the goods and the case is fully covered under the provisions of Section 2(1)(d)(ii) of the C.P. Act. He placed reliance on the judgment of the Delhi Consumer Disputes Redressal Commission, New Delhi in the case of Ultrachem Industries v. M/s. Geeta Roadways, I (1995) CPJ 479. The Delhi State Commission held in para 3 of its judgment as under : "3. The only question that arises for determination is, whether there was any deficiency in service on the part of the opposite party. It is not disputed that the goods were delivered by the opposite party to some persons without getting the goods receipt from them. It has been settled by the National Commission in Synco Textiles Pvt. Ltd. v. Economic Transport Organisation & Ors., I (1991) CPJ 40 (NC), that if it is found there is hiring of service for consideration and that loss has been caused to the complainant on account of negligence and deficiency in service, the aggrieved consumer is entitled to seek his remedy under the Consumer Protection Act. In that case too the goods were delivered by the complainant-appellant to the transporter for carriage of the goods from Shivganj in Rajasthan to Cuttack in Orissa and the documents and goods receipt were sent through the Bank, but the documents were not honoured by the consignee. The goods were not delivered by the carrier to the consignor, when they were asked to do so. The claim of the complainant was allowed by the National Commission."

The Delhi State Commission allowed the complaint. In our considered view, the judgment of the Delhi State Commission and also the judgment of the Hon''ble National Commission in the case of Synco Textiles Pvt. Ltd. (supra), squarely covers the facts involved in the instant complaint case and the complainant case could be legally maintained under the provisions of the C.P. Act. In this view of the matter, the second submission made by the learned Counsel for the appellant No. 1 too is devoid of any merit. Coming to the third and the last legal submission of the learned Counsel for the appellant No. 1, it may be pointed out that the Hon''ble National Commission in the case of Synco Textiles Pvt. Ltd. (supra), held that every transaction of hiring of service may amount to a contract in the eye of law and any deficiency in rendering the service may technically a breach of contract but merely for that reason the consumer cannot be denied the benefit of the protection conferred by the C.P. Act. While, ordinarily, claims arising out of breach of contract will have to be agitated before the regular Civil Courts, grievances relating to loss or injury caused on account of negligence and deficiency in the performance of services which are hired for consideration have been classified for special protection under the Act and in such cases the aggrieved consumer is entitled to invoke the jurisdiction of Redressal Forums constituted under the Act, seeking relief as specified in the Act. In view of this clear and categorical pronouncement of law by the Hon''ble National Commission, we hold that the complaint was maintainable under the provisions of the C.P. Act. The view of the Tamil Nadu State Commission regarding the breach of contract being not a consumer dispute cannot be applied to the facts of the case particularly in view of the judgment of the Hon''ble National Commission. The last submission made on behalf of the appellant No. 1, lacks merit and is repelled. No further point was pressed by the learned Counsel for the appellant No. 1. Consequently, the appeal is devoid of any merit and is dismissed with no order as to costs. Copies of the order be supplied to the parties free of charges. Appeal dismissed.