WESTERN CARRIERS vs TAMIL NADU INDUSTRIAL ENTERPRISES

THESE four appeals arise out of one common order passed by the District Forum, Madras North in four O.Ps. viz., O.P. Nos. 12/97,13/97,120/97 and 121 /97. In these circumstances, all the appeals can be disposed of in one common order.

IN all the O.Ps. the two complainants as well as the opposite party are the same. IN all the O.Ps. the 1st complainant is the Tamil Nadu INdustrial Enterprises and the 2nd complainant is the New INdia Assurance Company Limited. The opposite party is M/s. Western Carriers. IN all the O.Ps., the case of the complainants is that certain consignments were entrusted to the opposite party by M/s. Bharat Aluminium Company Limited, Korba, Bilaspur, Madhya Pradesh, to be carried and delivered at Madras to the consignee the 1st complainant. There was short delivery in respect of two of the consignments and in other two consignments the goods were damaged. IN respect of short delivery, O.P. Nos. 12/97 and 13/97 were filed and in respect of damaged delivery O.P. Nos. 120/97 and 121/97 were filed. According to the complainants, the short delivery and the damage to the goods were due to the fault of the opposite party and that amounted to deficiency in service on their part. The further case of the complainants is that the opposite party has admitted the short delivery and damage to the goods. The complainants also contended that a Surveyor had assessed the value of the damage and the shortage and the opposite party issued a damage certificate Ex. A4. According to the complainants, the opposite party had not settled the claim made by the 1st complainant the consignee. The 2nd complainant INsurance Company had settled the claim of the 1st complainant and the 1st complainant, in turn, executed a letter of subrogation and special power of attorney in favour of the 2nd complainant. On these grounds the complaints were filed for compensation and costs. The opposite party contended that the short delivery and damage were due to the reasons beyond their control and the delivery certificate was issued to the 1st complainant to facilitate them to claim from the 2nd complainant. It was further contended that no consideration was paid by the 1st complainant to the opposite party. In these circumstances the opposite party was not liable to pay any amount to the complainants.

The District Forum held that there was deficiency in service on the part of the opposite party and the complainants were competent to maintain the complaints. It then ordered the opposite party to pay a sum of Rs. 14,424/- in O.P. 12/97; a sum of Rs. 28,385/- in O.P. 13/97; a sum of Rs. 39,214/- in O.P. 120/97 and a sum of Rs. 47,117/- in O.P. 121/97, with interest @ 12% p.a. from the date of the complaint till payment and a sum of Rs. 500/- as cost in each of the complaints.

NOW in the appeals, the learned Counsel appearing for the appellant /opposite party contends that the complainants are not competent to maintain the complaints since they were not the persons who were entitled to file the complaints under the Consumer Protection Act. It is submitted that the services of the opposite party were admittedly availed of by M/s. Bharat Aluminium Company, Korba, Bilaspur. It is specifically stated in the complaint that the said Company had entrusted the consignments to the opposite party. It is not the case of the 1st complainant that they paid the transport charges to the opposite party. While so, during the arguments before us, they even conceded that the transport charges had been paid by the consignor M/s. Bharat Aluminium Company Limited. The appellant/opposite party has also produced before us a certificate dated 6.8.1998 which is said to be have been issued hy the said consignor M/s. Bharat Aluminium Company. This certificate is in their letter head and is purported to have been signed by the Deputy Manager (F&A). As regards this the respondent/ complainant would not say anything. From these facts it would appear manifest that the services of the opposite party were engaged by the consignor M/s. Bharat Aluminium Company Limited and not by the 1st complainant. Of course, the 1st complainant is the person who was entitled to receive the goods from the opposite party, but that does not mean that they were the consumers of the services of the opposite party. As per Section 2(1)(d) of the Consumer Protection Act, the person who hires or avails of the services and pays consideration or promise to pay consideration only is a consumer. It will show that in the present case, only the consignor viz., M/s. Bharat Aluminium Company Limited were the consumers of the services of the opposite party. Now, Section 12 of the Consumer Protection Act states as to who are the persons who can file a complaint. This section is in the following terms : "12. 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."

Clauses (b), (c) and (d) are not relevant and we have to consider only clause (a). This states to the effect that only the consumer to whom the service is provided or agreed to be provided can file a complaint. Obviously, as we have seen supra, in the present case, the service is provided only to the consignor M/s. Bharat Aluminium Company Limited and not to the 1st complainant. The District Forum seems to think that the 1st complainant was a beneficiary of the services provided to the consignor Company and therefore the complaint filed by the 1st complainant is maintainable. But as we have seen just above, only the person to whom the service is provided or agreed to be provided can file a complaint and not a beneficiary.

NOW, when the 1st complainant has no right to file a complaint against the opposite party to make any claim, it would follow that the 2nd complainant the Insurer also has no right to make a claim against the opposite party. From these, it would appear clear that both the complainants are not competent to file a complaint under the Consumer Protection Act. In this view of the matter, we allow the appeals, set aside the order of the District Forum and dismiss the complaints. There will be no order as to costs. Dissenting Order by Pulavar V.S. Kandasamy, Member-I In A.P. Nos. 161/98 to 164/98 [dated ] The facts of the case in general are given in the majority order.

IN all these four appeals, the primary issue for determination is whether the 1st complainant, which is a Registered Partnership Firm, at Madras, is a consumer and, if so, it is competent to file complaint against the opposite party.

THE 1st complainant had purchased different sizes of aluminium extruded sections from Bharat Aluminium Company Limited (A Government of India Enterprises) at Korba, Madhya Pradesh and made payment for the same. THE consignments were entrusted to the opposite party for transportation by road to Madras, to be delivered to the 1st complainant. THE consignment was intended to be delivered to the 1st complainant at Madras. THE opposite party accepted the consignment for safe carriage and issued their G.C. Note, undertaking to deliver the consignment safely and in sound condition to the 1st complainant who is the consignee entitled for the delivery of the consignment under the G.C. Note. The complainant had alleged that the consignments were delivered in short and in a damaged condition. The opposite party admitted that the consignments were delivered short and conceded that the loss occurred when the consignments were in their custody. The opposite party also issued Short Delivery Certificate, certifying the short delivery. The complainant alleged that the short delivery of the consignment was due to gross negligence and deficiency in service on the part of the opposite party The 1st complainant, therefore, claimed compensation for the loss sustained by it. As the opposite party did not come forward to settle the claim, the 2nd complainant, the Insurers had settled the claim of the 1st complainant and the 1st complainant in turn issued a letter of subrogation and special power of attorney in favour of the 2nd complainant. The 1st complainant, who is the consignee and who had paid for the goods and the 2nd complainant, the Insurer have filed the complaints.

The District Forum, which had conducted enquiry, had come to a categorical conclusion that in view of the short delivery of the consignments, the opposite party had committed deficiency in service and has granted compensation as per the Forum''s common order dated 5.2.1998, against which the opposite party has filed these appeals.

AS stated at the beginning of this order, the main issue for consideration and determination is whether the 1st complainant is a consumer and whether the complaints filed by the complainants are maintainable in law. As stated elsewhere in this order, the 1st complainant purchased the goods from Bharat Aluminium Company Limited and the purchase consideration was paid by it. As per the Invoice issued by the Bharat Aluminium Company Limited, the purchase consideration includes freight charges also. In the course of her arguments, the learned Counsel for the respondents/complainants reiterated this point. In the Invoice issued by the Bharat Aluminium Company, the break up of the total amount payable by the purchaser i.e., the 1st complainant is given under various heads as under : Total of basic and packing as above : Rs. Central Excise duty : Rs.Sub-Total : Rs.Sales Tax : Rs.Freight (Emphasis supplied) : Rs.Total amount payable : Rs.

FROM the break-up of figures given in the Invoice, it is abundantly clear that the freight charges were paid by the consignee i.e., the 1st complainant to the Bharat Aluminium Company Limited who, in turn, passed it on to the opposite party for carrying the consignments. As the purchaser and seller are in different parts of the country, it is only to avoid the unnecessary inconvenience to the purchaser, the seller collects the freight charges in advance from the purchaser and pays it to the transporter for and on behalf of the purchaser for carrying the goods. In such circumstances, as the money representing the freight charges has actually flown from the purchaser, i.e., the 1st complainant, it would amount to payment made by the 1st complainant. It, therefore, goes without saying that the consideration for transporting the consignments has been paid by the 1st complainant (i.e., consignee). In such cases, what is to be ascertained is the source of funds for payment of the freight charges. In the instant case, the Bharat Aluminium Company had acted as an agent of the 1st complainant who is the consignee and who had not only paid for the goods but also for the freight charges. Without prejudice to the findings given above, there is much force in the contention of the respondent/1st complainant that as the consignee who has paid for the goods and to whom the goods are intended, it is the beneficiary and is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act. The 1st complainant has averred that it is the beneficiary of the contract of carriage. They were named consignees who were entitled to the delivery of the consignment. Further, as per Section 8 of the Carriers Act, the common carrier is answerable and liable to the owner of the goods and as per Section 2(1)(d)(ii) of the Consumer Protection Act, read with Section 12 of the said Act, deficiency in service can be complained of by the beneficiary of such services, apart from the person who hired or availed of such service. This contention of the 1st complainant has been upheld by the District Forum. Similar view has been taken by this Commission in the case of R. Desikan, President, S.M.N. Consumer Protection Council on behalf of Mr. and Mrs. Chidambaram v. Y. Prabhakar (opposite party 1) and Zonal Manager, L.I.C. of India, Madras (opposite party No. 2), reported in 1991 (1) MWN (CP). 127.

THE Consumer Protection Act contemplates two categories of consumers under Section 2(1)(d)(ii). THEy are- : (i) the person who hires or avails of any service for consideration; and (ii) the beneficiary of such services other than the person who hires or avails of the services, when such services are availed of with the approval of the person mentioned in (i) above.

It is, therefore, abundantly clear that in the instant case, the 1st complainant, who had availed of the services of the opposite party is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act.

IN the case of D.V. Lakshminarayana v. The Divisional Electrical Engineer & Anr., reported in II (1991) CPJ 303, the Himachal Pradesh State Commission has held that as per Sub-clause (ii) of Clause (d) of Sub-section (1) of Section 2 of the Consumer Protection Act, "consumer" means any person who hires any service for a consideration and includes any beneficiary of such services, when such services are availed of by the beneficiary with the approval of the person who has hired the services for consideration. From the provisions of the Act, it is evident that the Parliament in its wisdom intended to provide protection under the Act not only to the person who had hired the service but also the person who availed the service with the approval of person who had hired the services. The Supreme Court has held in the case of M/s. Spring Meadows Hospital (Noida) & Anr. v. Harjol Ahluwalia Through K.S. Ahluwalia & Anr., reported in I (1998) CPJ 1 (SC)=1998 (1) CPR 1 (SC) that a beneficiary of service, other than the person who had actually hired or availed of the service for consideration, is also a consumer.

The next question for determination is whether the 1st complainant is competent to file this complaint. The answer is in the affirmative. According to Section 12, a complaint may be filed by a consumer. As the 1st complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, as discussed above, it is competent to file the complaint. Therefore, the complaints filed by the complainants are maintainable in law. Section 12 of the Consumer Protection Act should not be read in isolation. It should be read alongwith Section 2(1)(d)(ii) of the Act. Otherwise, the scope and purpose of the Act will be defeated. The provisions of the Act should be interpreted to further the scheme and purpose of the Act.

ADMITTEDLY, in the instant case, there was short delivery of the consignment and the shortage of the consignment, occurred when the consignment was in the custody of the opposite party. Therefore, there was deficiency in service on the part of the opposite party. As a result of the short delivery of the consignment, the 1st complainant who is the consignee, has suffered loss and so it has a right to be compensated for the loss suffered by it. In the circumstances, the District Forum has rightly granted compensation to the complainants in all the four cases. The compensation granted is also based on the report of the Surveyor and the amount of compensation has been fixed taking into account the value of goods lost in transit. The rate of interest and costs awarded are also quite reasonable and not arbitrary. Hence, the order of the District Forum does not call for interference. In the result, the order of the District Forum is confirmed and the appeals filed by the opposite party are dismissed as devoid of merit. No costs. Appeals allowed. _______________