RAMBAL ENGG. PRODUCTS (P) LTD. vs PATEL ROADWAYS LTD.

THIS is a complaint under Sec.17 read with Sec.12 of the Consumer Protection Act.

THE complainant entrusted to the Opposite Party a consignment of TELCO Front and Rear Shackle Pins of the value of Rs.l,04,872/- to be transported from Madras and delivered in good order and condition to the consignee M/s. Perfect Steels at Bombay, under G.C. Note No. 806949 dated 25.1.92. THE consignment was not delivered to the consignee and the Opposite Party has issued a certificate to that effect on 8.7.92. Hence this claim for the value of the consignment with interest at 18% p.a. The Opposite Party contended that the complainant is not a consumer as it is not a person as defined under Sec. 2(1)(m) of the Consumer Protection Act. It is contended on merits that the Opposite Party is not carrier but only a transport contractor who engages lorry for transport. It engaged the lorry of one Pravin Kumar of Neerala Roadways to transport goods to Bombay to the value of Rs. 19 lakhs including the complainant''s consignments. The said lorry No. was MMK 3447 which subsequently proved to be a bogus number. The consignments did not reach Bombay and a criminal complaint is given to the police with pending enquiry. The complainant cannot claim any compensation at this stage.

Exhs. A1 to A9 and B1 to B7 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE points that arise for consideration are : - (1) Whether the complainant is a consumer within the meaning of the Act? (2) Whether there has been any deficiency of service or negligence on the part of the Opposite Party? (3) To what relief, if any, is the complainant entitled?

Point No. 1 : The complainant Rambal Engineering Products Pvt. Ltd., is a company incorporated under the Indian Companies Act. It is the contention of the learned Counsel for the Opposite Party that a company is not a person within the meaning of Sec. 2(1)(m) of the Consumer Protection Act and it is not, therefore, a-consumer. Sec. 2(1)(m) runs as follows : "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 It is contended by the learned Counsel for the Opposite Party that this definition does not include a company incorporated under the Indian Companies Act. This contention has no substance. Sec. 2(1)(m) of the Consumer Protection Act, defines "person" in an inclusive way. It is not exhaustive. We have, therefore, to find out the definition of ''person'' as defined under the General Clauses Act, 1897. Sec. 3(42) defines "person" shall include any company or association or body of individuals, whether incorporated or not;"

It is, therefore, clear that the term ''person'' includes the company also and hence the complainant which is an incorporated body and which has availed of the services of the Opposite Party for transport of this consignment from. Madras to Bombay is a consumer within the meaning of Sec. 2(1)(d)(ii) of the Act.

POINT No. 2 : Admittedly, the complainant has delivered the consignment of Telco Front and Rear Shackle Pins to the Opposite Party for carriage by road from Madras to Bombay and to be delivered in good order to the consignee M/s. Perfect Steels at Bombay. Exh. A2 is the Roadways Bill under which the freight charges of Rs. 3,318/- has been paid by the complainant. It is also admitted that this Opposite Party has not delivered the consignment to the consignee and Exh. A7 is the certificate issued by the Opposite Party to that effect. There is, therefore, no doubt that the consignment has been lost in transit. The failure on the part of the Opposite Party to deliver the consignment to the consignee amounts to gross deficiency of service or negligence. It is contended by the learned Counsel for the Opposite Party that the Opposite Party itself is not a carrier, that it is a transport agent which avails of the services of other carriers for the carriage of goods and in the instant case it engaged the lorry of Mr. Praveen Kumar of Neerala Roadways for transporting this consignment with other consignments. The fact that the Opposite Party has not directly transported of the consignment is not an excuse for the no delivery of the consignment. It is the responsibility of the Opposite Party to transport the consignment in good order and the Opposite Party alone is liable for the loss sustained by the complainant. The dispute between the Opposite Party and Neerala Roadways which has provided the lorry is a matter with which the complainant is not concerned. In as much as the Opposite Party has accepted the consignment for transport from Madras to Bombay and has failed to do so, it is liable to pay compensation to the complainant. The fact that criminal investigation is pending into the matter is not the concern of the complainant and it is not a bar to seek redress before this Forum. It is then urged by the learned Counsel for the Opposite Party that the consignment has been carried at owners'' risk and hence the Opposite Party is not liable. This contention is also untenable. Owners Risk does not mean that the carrier is absolved of all liabilities for the loss of the consignment. As a matter of fact this contention has not been put forward in the counter statement. We hold, therefore, that the Opposite Party is guilty of deficiency of service and negligence in not delivering the consignment to the consignee. Point No. 3 : Exhs. A1 and A1(a) are the invoice which shows that the value of the consignment was Rs. 1,04,872/-. The Opposite Party which has failed to deliver the consignment is bound to make good the loss to the complainant and pay the said amount of Rs. 1,04,872/-. It is urged by the learned Counsel for the Opposite Party that in the notice issued by the complainant, the complainant has claimed this amount of Rs. 1,04,872/- as compensation for mental pain and agony and hence the complainant is not entitled to claim this amount as loss. Evidently, in the notice issued under Exh. B6 the sum of Rs. 1,04,872/- is mentioned as compensation for pain and agony by mistake. The amount represents only the value of the consignment. The Opposite Party cannot take advantage of this obvious mistake and put forward such an untenable contention. We hold that the complainant is entitled to payment of the sum of Rs. 1,048,72/- being the value of the consignment with interest thereon at 18% p.a.

IN the result, we order the Opposite Party to pay to the complainant the sum of Rs. 1,04,872/- with interest thereon at 18% p.a. from the date of entrustment of the consignment i.e. 25.1.92 till payment. The Opposite Party shall also pay Rs. 2,000/- to the complainant towards costs. Complaint allowed.