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Judgment
THE complainants are Fineskin Leathers and Supplies Company Private Limited, which is carrying on business. In the course of their business they imported from India Chamois Leather in four consignments to be carried in ships. THE ships arrived at Cranbourne, Victoria, Australia on 6.1.1994, 10.2.1994 and 22.2.1994. THE cargoes were carried in closed containers. THE goods were insured with the opposite party and they were covered for all risks including risk for damage, shortage, etc. THE cargo after reaching the port of destination were examined and were found to be in mouldy condition and was certified to be a total loss and therefore they were rejected as per local laws. THEreafter the complainant lodged a claim with the opposite party under the terms and conditions of contract of insurance and claimed the insured value of the goods. THE opposite party appointed their Surveyors M/s. Basheer and Associates, who by their report dated 25.8.1994 certified that the damage would have occurred due to the sweating of the product in the cartons and the subject package did not have any evidence of water contact and the surface externally, and the internal surface of the polythene sheets which were used as lining folded over the goods were found with water droplets. In their final conclusion the Surveyors have stated that the cause of damage must have been due to the characteristic quality of the material to absorb moisture as the packaging was found to have been carried out in the high humidity air which would have been trapped between layers of leather and might have condensed during the transit from Madras to Australia and due to the characteristic of the chamois leather moisture would have been absorbed and sustained chromophoric moulds on the surface due to the presence of micro organisms in the air and that has resulted in the damage to the cargo. On the basis of this report the opposite party rejected the claim on the ground of inherent vice. According to the complainant the reasoning given by the Surveyors was untenable as chamois leather has a tendency to absorb moisture. It is further according to the complainant that during the period of transit of the cargo the temperature at Singapore was usually in excess of 32/35 degree Celsius which would mean that the temperature inside the container would have been about 60/ 65 degree Celsius. THE huge rise in temperature 1and the humidity conditions in Singapore might have triggered the combination of humidity and temperature and this humidity and rise in temperature should have caused condensation of the moisture into droplets. Even if chamois leather is stored wet it would dry up without developing any fungus or mould whatsoever. Thus chamois leather does not suffer from inherent vice. THE complainants submit that the loss complained of is clearly covered by the policies issued and the opposite party is liable to make good the loss and has no defence to the claim in question. THE complainants have estimated the loss in the aggregate at US $ 50905.26. According to the complainants they are entitled to claim from the opposite party the said amount and also interest @ 24% p.a. THEy are further entitled for compensation. On these grounds the complaint has been filed.
THE opposite party would contend that the complainant Company is situate in a foreign land and hence this complaint is not competent by them. It is further contended that the shipments were insured by Fine Skin Leathers & Supplies (India) Private Limited, 48, G.S.T. Road, Chromepet, Chennai : 44 and as such there is no privity of contract between the complainant Company and the opposite party. THE complainants had notified the Survey and Claim Settling Agents about the damage who in turn appointed Australian Claim Settling Services Private Limited, Marine Surveyors and Loss Assessors who issued their survey reports dated 11.4.1994 and the opposite parties have also appointed their independent Surveyors M/s. Basheer & Associates, who had also given a report. Both the Surveyors in their reports had stated that the damage was due to the inherent vice on the products in the cartons and on the basis of that under a letter dated 29.3.1995 the opposite party repudiated the complainant''s claim. Thus after due investigation and application of mind the claim was rejected. This being the case it cannot be said that there was any deficiency in service on the part of the opposite party. THE alleged loss squarely falls under the Exclusions 4.4 under the exemptions in the policy. Hence the complaint is liable to be dismissed. The points that arise for consideration are : (1) whether the complaint is maintainable; (2) if the complaint is maintainable whether there was deficiency in service on the part of the opposite party and if so what reliefs can be granted to the complainant.
Point No. 1 : A primary point that arises for consideration is whether the complainant as a Company can maintain a complaint under the Consumer Protection Act. Section 12 of the Act lays down who all can file a complaint. It reads as follows : "Manner in which complaint shall be made.- A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum, by- (a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided; (b) any recognised consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not; (c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so interested; or (d) the Central or the State Government."
If at all a Company can file a complaint it could be only under Clause (a) as a "Consumer". The question arises whether the Company is a "Consumer". "Consumer" is defined under Section 2(1)(d) of the Consumer Protection Act in the following terms : "(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; or (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 service 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 : "
AS per this definition a "Consumer" is a person who buys any goods for consideration or who hires or avails of any services for consideration and it includes the beneficiary of the goods purchased or the services hired or availed of. Now, the point is whether this definition of a 1"consumer" includes a Company. The words "consumer means any person who buys any goods or who hires or avails of any services" clearly indicate that they relate to a natural person and not a corporate person like a Company. If the word "Person" meant a Company also, along with the word "who" there would have been a word "which" also, and alongwith the word "buys" there would have been a word "buy" also and similarly alongwith the word "hires" there would have been a word "hire" and alongwith the word "avails" there would have been a word "avail" also. One of the elementary rule of construction is that the phrases and sentences are to be construed according to the rules of grammer. Thus under stood the words "who", "buys", "hires" and "avails" pertains as stated supra only to a natural person or individual and not a corporate person like the Company or an association of persons. Then it would appear that the Parliament wanted to include certain bodies of natural persons in the above said definition of the "Consumer". Therefore under Section 2(1)(m) of the Consumer Protection Act, they have mentioned thus : (m) "person" includes,- (i) a firm whether registered or not; (ii) a Hindu undivided family; (iii) a Co-operative Society; (iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860), or not; The meaning given to "consumer" in Section 2(1)(d) read alongwith Section 2(1)(m) makes the definition of the consumer complete and exhausted; Thus being the case it cannot at all be said that a Company also can be considered as a "consumer". However, it is argued that under the General Clauses Act, 1897(Central) a person shall include a Company and therefore a Company also must be considered as "Consumer". The relevant provision in the said General Clauses Act, 1897, is Section 3, Clause 42. Clause 42 reads thus : "42. "person" shall include any Company or association or body of individuals, whether incorporated or not;"
But the commencing words in Section 3 are these : "Definitions.-In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant in the subject or contexts- It is therefore plain that Clause 42 will not operate if there is anything repugnant in the subject or context. We are now concerned with the definition of the "consumer" given in the Consumer Protection Act, 1986. The word "consumer" has been defined in Section 2(1)(d) of the Act as a person who buys any goods or who hires or avails of any services and the word "person" has been made to include the above said 3 bodies of persons mentioned in Section 2(1)(m). If the Parliament wanted to include Company also as a "consumer" they would have done that by including a Company also under Section 2(1)(m). Thus the definition given to "consumer" in the Consumer Protection Act is repugnant to Clause 42 in Section 3 of the General Clauses Act, 1897 (Central). At this juncture it is brought to our notice a judgment of the Division Bench of the Delhi High Court in Ravi Kant & Ors. v. National Consumer Disputes Redressal Commission & Ors., I (1997) CPJ 271 (DB)=66 (1997) DLT 13 (DB)=1997 (1) TNCR 280, and pointed out that in that judgment a reference has been made to a judgment of the Supreme Court in M.M. Ipoh v. I.T. Commissioner, AIR 1968 SC 317, according to which when in an enactment inclusive definition is given, then also the inclusive definition given in the General Clauses Act can be taken alongwith that. In that case of the Supreme Court the enactment in question was the Income-tax Act. In that a "person" has been defined as to include Joint Family and a Local Authority whereas in Section 2(1)(m) in the Consumer Protection Act the inclusive definition takes in alongwith a Firm, a Hindu Joint Family, a Co-operative Society also every other associations of persons whether registered under the Societies Registration Act or not. Thus a part of the definition given in the General Clauses Act to "person" has been taken into the definition of "person" in the Consumer Protection Act and the only thing in the definition of the General Clauses Act left is the "Company". This gives the clear indication of the intention of the Parliament to exclude the Company from the definition of the word "consumer" or "person". Therefore referring to Clause 42 in Section 3 of the General Clauses Act, it cannot be said that the definition of "consumer " given in the Consumer Protection Act, should also include the Company. Hence it follows that a Company is not a consumer as defined under the Consumer Protection Act.
IT is then brought to our notice an order of the National Commission in Shri Laxmi Cotton Traders Limited v. Central Warehousing Corporation & Ors., III (1996) CPJ 22 (NC), wherein it has been held that a Company is a "consumer". But on a perusal of this order we find that it has been held so on the basis of the aforesaid Clause 42 in Section 3 of the General Clauses Act, 1897, (Central), but no reference has been made to the said commencing words in Section 3 namely "unless there is any repugnant in the subject or context". Apparently, this commencing words in Section 3 has not been brought to the notice of the National Commission for its consideration. Supra, we have considered these words and we have expressed our view that the definition given in the Consumer Protection Act to "consumer" under Section 2(1)(d) read with Section 2(1)(m) is repugnant to Clause 42 in Section 3 of the General Clauses Act, 1897(Central)and therefore the said Clause 42 in Section 3 of the General Clauses Act, cannot be invoked. Our view that Company is not a consumer as per the definition given in the Act is also in consonance with the purpose and the object of the Act. The object of the Act is to give inexpensive, speedy and simple remedies to the consumers. It is apparently intended for common consumers who are poor and helpless. Certainly inexpensive remedy would not have been intended for Companies. This also shows that the Parliament did not intend the Companies to be consumers. It will further be relevant to note here that in Section 2(1)(d) in the case of buying of goods the goods bought for resale and commercial purpose have been excluded from the purview of the Act with the only exception of the goods bought for commercial purpose or used exclusively for earning one''s livelihood by means of self- employment. It shall not be understood that it is our view that a complaint cannot be filed against a Company as an opposite party. A complaint can always be filed against a Company. In some of the other Sections in the Consumer Protection Act also the word "person" has been used. Some of them have been used in the context of a Company being an opposite party. But just from this it cannot be argued that the word "person" used in Section 2(1)(d) must also be construed as including a Company. In an Act a word may be used in some sections to mean one thing, and in some other sections to mean a different thing or also to include some other thing. It all depends upon the context in which the word is used .This is expressly mentioned in the definition Section 2 of the Consumer Protection Act itself for the Section begins with "2. Definitions-(1) In this Act unless the context otherwise requires-". Here it may be noted that the Supreme Court in S.K. Gupta v. K.P. Jain, (1979) 3 SCC 54=AIR 1979 SC 1734, has pointed out that "wherein a definition section of a Statute, the word is defined to mean certain thing, wherever that word is used in that statute its hall mean what is stated in the definition unless the context otherwise requires". In the Delhi case mentioned supra the point for consideration was whether the word "person" occurring in Section 27 of the Consumer Protection Act includes Company also. In the context in which the word used in that section the finding that the word included Company may be correct. But for that it can not be said that the word "person" in the definition section includes Company. For all the aforesaid reasons we hold that a Company is not a "consumer" and as such the complainant Company cannot maintain the complaint. Nextly, according to the opposite party the goods had been insured by the Fine Skin Learners and Supplies (India) Private Limited, Madras and not by the complainant Company which is at Australia and therefore the complaint is not maintainable. It is not disputed that the goods had been insured by the Fine Skin Leathers & Supplies (India) Private Limited, Madras. This being the case only that Company is the consumer vis--vis the opposite party and not the complainant Company. As regards this contention of the opposite party it is submitted before us that the insurance policy had been assigned to the complainant Company. On a careful perusal of the complaint, we find that therein it has not been stated so. However it is pointed out that in the written version it is mentioned to the effect that the policy had been assigned. But we are afraid that even then the complainant Company is not competent to maintain the complaint. Section 12 of the Consumer Protection Act lays down who all can file a complaint. We have above at Page 4 extracted Section 12, which may be referred to now. It is clear from this section that apart from a Consumer Association and Central or State Government only the consumer who buys/or hires/or avails of services can file a complaint. In the present case admittedly the Fine Skins Leathers & Supplies (India) Private Limited, had subscribed to the policy and not the complainant Company and therefore only the former Company is the consumer and not the latter. Even if it is true that the latter Company had got assignment of the policy, still it does not come within the purview of Section 12. As such the complaint is not maintainable.
POINT No. 2 : Further, it is not in dispute that at the instance of the complainant the Surveyors namely Australian Claim Settling Service Private Limited, were appointed and they had issued a Survey Report dated 11.4.1994, and the opposite party also have appointed their Surveyors M/s. Basheer & Associates who have also issued their report dated 25.8.1994. In both these reports it has been stated that the damage was due to the inherent vice of the products. The complainant would dispute this finding of the Surveyors and would state that the product in question would not have had such inherent vice. However, it may be, it is a fact that the opposite party only after investigation of the matter and applying their mind on the basis of the Surveyors'' reports which are categorical that the damage was due to the inherent vice of the products had repudiated the claim. It is not in dispute that the damage due to inherent vice is not covered by the policy. In these circumstances, it cannot be held that there was deficiency in service on the part of the opposite party. On this ground also the complaint is not sustainable.
IN the result therefore, we dismiss the complaint. However, there will be no order as to costs. Complaint dismissed.