EXECUTIVE DIRECTOR SHRI DIGVIJAY CEMENT CO.LTD vs BADRI PRASAD BHATIA

THIS appeal has been filed by opposite party No. 1 against the order of the District Forum, Jaisalmer dated 11.5.1992 awarding a sum of Rs. 99,475/- as remuneration to the complainant.

FACTS giving rise to the appeal are that the complainant Badri Prasad Bhatia filed a complaint before the District Forum against the appellant and its Branch Manager alleging that the opposite parties had given to the complainant an authority letter on its behalf for the purpose of forwarding the cement coming to Jaisalmer and to get receipt of the same delivered to the driver and to send the payments made by the consignees. It was alleged that although this authority had been given to the complainant by an authority letter, but nothing was mentioned therein as regards the remuneration. This omission in the authority letter, according to the complainant, was accidental. The complainant asked for his remuneration from the opposite parties and also sent a notice for the purpose on 8.5.1990. The complainant, therefore, prayed that he should be awarded remuneration as against the opposite parties @ Rs. 25/- per tonne of the cement forwarded through him to the consignees. The opposite parties sent a reply by post to the District Forum. In their reply, the opposite parties pleaded that the complaint was not maintainable and the Consumer Forum does not have jurisdiction to entertain the complaint. It was also denied that the complainant had ever been appointed as a Liason Officer of the opposite party or any authority letter had been given to him.

As already stated, the opposite parties had sent reply to the complaint by post and after sending the reply personal appearance was not put by them before the District Forum. The District Forum proceeded ex-parte against the opposite parties on account of their non-appearance in person. It accepted the affidavit filed by the complainant and awarded to the complainant his remuneration for 3987 tons of cement forwarded through him @ Rs. 25/- per ton. Aggrieved by this order, opposite party No. 1 has filed this appeal.

IT may be mentioned that notice of the appeal was issued to the respondent and appearance was made on behalf of the respondent by Mr. T.B. Mathur, Advocate on various dates. However, no one appeared on behalf of the respondent on 29.7.94, 26.10.94 and also today. We, therefore, heard the learned Counsel for the appellants and have gone through the record. The learned Counsel for the appellants urged that the complainant was not a consumer within the meaning of the Consumer Protection Act, 1986 and, therefore, his complaint claiming remuneration was not maintainable under the Act.

IT is clear from the various documents produced by the complainant before the District Forum that the opposite parties had authorised the complainant to act on their behalf as a Forwarding Agent of the cement sent by the opposite parties in Jaisalmer for acting as their Laison Representative and for collection of payments made by the consignees. Thus the complainant was a duly authorised Forwarding Agent of the opposite parties. The only question for consideration is whether a claim by a Forwarding Agent of the manufacturers of cement is covered by Consumer Protection Act, 1986 and whether the complainant was a consumer under the Act. It is very clear that it is the opposite parties who had engaged the complainant as Forwarding Agent. The complainant had not hired the services of opposite parties and had not availed services for any consideration. A Forwarding Agent cannot be said to be a consumer under the Act. We may refer in this connection to certain decisions of the State Commissions, viz. in the cases of Regional Director, National Savings, Haryana v. Pushpa Jain & Others, reported in III (1992) CPJ 124 (Haryana State Commission), in R.B. Sharma v. Virender Lamba, decided on 20.11.1990 (Delhi State Commission), P.R. Suresh v. The Managing Director, Karnataka Co-op. Milk Producers Federation Ltd. & Another, reported in III (1992) CPJ 487 (Karnataka State Commission) and S.P. Padmanabhan v. S. Gurubthlam, reported in II (1992) CPJ 751 (Tamil Nadu State Commission). The Haryana State Commission had held that an Authorised Agent of National Savings Organisation was not performing or rendering any service and no question of hiring any service by him from the Organisation would arise. It was held that the relationship of the appellant in that case was that principal and the complainant-respondent as their Authorised Agent would not come within the ambit of the definition of consumer. Delhi State Commission in .R.B. Sharma''s case held that the complainant was Salesman of the opposite party and who claimed commission amount payable to him was not a consumer. The Karnataka State Commission has held that clearing and forwarding agent of the respondent had not hired any services of the respondent for consideration and was, therefore, not a consumer. To the same effect is the order of the Tamil Nadu State Commission. It is quite clear that the complainant had not hired any services of the opposite parties and not availed of the same for consideration and he was not a consumer under the Act. The District Forum could not, therefore, entertain and decide the complaint made by the complainant.

WE therefore, allow this appeal, set aside the order of the District Forum, Jaisalmer dated 11.5.1992 and dismiss the complaint filed by the complainant-respondent. In the circumstances of the case, the parties shall bear their own costs. The amount, if any, deposited by the appellants with the District Forum, Jaisalmer in pursuance of the order of the District Forum or of the interim order of this State Commission dated 23.2.1993, the same may be refunded to the appellants. Complaint dismissed.