EXPRESS GOODS SERVICE vs STANDARD TEXTILE MILLS

THIS First Appeal arises out of the decision of the State Commission, Punjab, dated December 15, 1992.

THE Complainant firm entrusted to the Opposite Party eight consignments of goods of textile and knitted fabrics for carriage from Amritsar to Delhi and for onward delivery to the consignees. The particulars of the goods receipts, date of entrustment, bill number and price of the goods are given in the complaint. In the corresponding para of the written statement, it is admitted that the goods were consigned with the Opposite Party. The plea of the complainant is that he had hired the services of the Opposite Party - Transport Company - for onward transmission of the goods to its customers in Delhi, but, due to utter negligence of the Opposite Party, the goods were never delivered to the customers of the Complainant and the Opposite Party unnecessarily kept the goods in their godown with oblique motive and later on in the garb of fire has misappropriated the goods which could fetch them very high price. Not only this, none of the customers was even informed to take delivery of the consignment though the Opposite Party had undertaken to deliver the same to the customers of the complainant at their destination. The Complainant prayed for return of the goods or payment of the price of the goods at market price beside claiming the compensation of Rs. 2 lakhs, expenses of Rs. 10,000/- and interest at the rate of 18% per annum as also the costs of the proceedings. The Opposite Party in the written statement took two preliminary objections, namely, that the Complainant is not a consumer within the meaning of Section 2(l)(d)(ii) of the Consumer Protection Act, 1986 and that the goods in question were booked with the Opposite Party for commercial purposes and thus the Complaint under the Act is not maintainable. On merits, it is pleaded that on 28.9.1991 a fire broke out in the premises of the adjacent transport company and as strong wind was blowing on that day fire reached the godown of the Opposite Party and ultimately burnt the goods lying in the godown including the goods of the Complainant and that this fire was sudden and an Act of God which started without any negligence on the part of Opposite Party and thus the Complainants are not entitled to any compensation or other amounts as claimed.

THE State Commission, Punjab, which tried the case held that having regard to the facts and circumstances of the case, there can be no dispute that the Complainant hired the services of the transport company in connection with the transporting of the goods for consideration and thus the Complainant is a consumer within the meaning of the Act. It repelled the other objection holding that the consumer of service for commercial purpose is not barred from claiming protection under the Act. On merits, it was found that there was not an iota of documentary evidence to support the some what curious plea of sudden fire having broken out in the godown of the Opposite Party. An adverse inference was drawn against the Opposite Party for not placing all relevant material in their custody for consideration and for withholding the real facts. The State Commission directed the Opposite Parties to jointly and severally pay to the Complainant Rs. 1,46,971.37 together with interest at 18% p.a. on that amount w.e.f. 28th October, 1991 till the date of the payment. The Opposite Parties were also directed to pay Rs. 5,000/- as compensation for the loss and injury suffered by the Complainant. The complaint was thus allowed with costs assessed at Rs.1,000/-.

SHRI S.P. Pandey, learned Counsel for the appellant-Opposite Party has questioned, the findings of the State Commission and urge that the Complainant is not a consumer within the meaning of Section 2(1)(d)(ii) of the Act It is argued that the goods in question were booked with the appellant for commercial purpose and therefore, the complaint under the Act is not maintainable. A consumer of service for commercial purposes, according to the Counsel, is just like a consumer of goods for commercial purposes and accordingly a consumer of services for commercial purpose also deserves exclusion from the purview of the Act. The Act defines ''consumer'' in Section 2(l)(d)(ii) split into two distinct and separate parts governing specified eventualities. The first part - Clause (i) deals with the person who buys any goods for consideration. In order to v the requirements of Clause (i), there must have been a transaction of buying of the is for consideration. The ambit of the person is further enlarged by the use of inclusive definition of any user of such goods other than the person who buys the goods for such purpose. Vet thus aims to protect the economic inter-a consumer as understood in commercial sense as a purchaser of goods. He should be a person who buys any goods for consideration to consume. The Legislature in its wisdom has restricted the benefits of the Act to the persons other than those who obtain such goods for resale or for any commercial purpose by use of the exclusive words: "but, does not include a in who obtains such goods for resale or for any commercial purpose". The explanation added to Section 2(1)(d) says that for the I purpose of Sub-clause (i) "commercial purpose" does not include use by customer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment. The Act, thus, excludes such persons who purchase goods with a view of using of such goods for carrying any activity on a large scale with the end view of earning profits.

THE second part defines ''consumer'' meaning any person who hires or avails any services for consideration and includes any beneficiaries of such services. ''Service'' means service of any description which is made available to potential users and includes the provision of facilities in connection with the banking, financing, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, housing construction, entertainment or amusement or the performing of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. (Clause (o) of Sub-section (1) of Section 2). A combined reading of the definition of consumer as contained in Section 2(l)(d)(ii) read with ''service, as defined in Section 2(1)(o) persuades us to hold that it comprehends consumers of services of commercial and trade oriented nature such as banking, financing, insurance, transport etc. The services include within its scope the provision of facilities in connection with transport. The only service categories that have been excluded by the Legislature from the definition are those rendered either free of charge or under a contract of personal services. No other exclusion can be inferred, if the Legislature has not intended it either specifically or by implication.

IN this case the services of the appellant were hired by the Complainant to carry eight consignments form Amritsar to Delhi for ultimate delivery to the consignees. The appellant accepted the eight consignments, received a sum of Rs. 287/- towards transportation charges and issued eight consignment goods receipts. They even carried the goods from Amritsar to Delhi. Section 2(l)(d)(ii) of the Act says that a person claiming himself to be a consumer has to satisfy (i) the services should have been hired by him; (ii) the services should have been rendered to him; and (iii) he should have paid consideration for the services hired. These preconditions have been duly satisfied. As already stated the expression ''service'' contained in Section 2(l)(o) of the Act specifically includes within its scope the services of any other description which is made available to potential users and includes provision of facilities in connection with transport. Hence, the Complainant is a consumer as defined in the Act. The appellants have failed to carry the eight consignments safely and to deliver it to the consignees. Hence there has been deficiency in rendering of the service by the transporter. The last submission of the learned Counsel is that the Stare Commission did not give any opportunity to the appellants to lead evidence in support of their defence of Act of God duly supported by F.I.R. and certificate by the Delhi Fire Service. The State Commission has specifically recorded in its order under appeal that both the parties were afforded opportunity to adduce evidence in support of their respective cases but they did not avail. Besides, the Counsel for the parties expressly stated before the State Commission, when the arguments commenced, that they did not wish to lead any evidence apart from the affidavits and documents already filed.

THE purported photocopies of the alleged F.I.R. and report of the Delhi Fire Service are rejected by the State Commission as not worth the paper, they are written. No attempt is made even in this appeal to establish the cause of non-delivery of the goods of the Complainant to the consignees by unimpeachable documentary evidence. We uphold the conclusion that there is deficiency in service rendered by the appellants.

IN the result, the appeal fails and is dismissed with costs assessed at Rs. 2,000/-.