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M/s. Rain industries Ltd, Rep. by its authorized signatory Sri C.H. Krishna Prasad v/s M/s. Nitin Alloy steels & Another

    FA 39 of 2007 against CD No. 295 of 2006 on the file of the District Forum III, Hyderabad
    Decided On, 19 January 2010
    At, Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad
    Counsel for the Appellant: M/s. P. Kishore Kumar, Counsel for the Respondents: M/s. P. P. Reddy for R1. Mr. S. Harshavardhan Lal for R2.

Judgment Text
Oral order : ( as per Sri Syed Abdullah, Hon?ble Member )

Vide impugned order dated 17th November, 2006 passed by the District Forum III, Hyderabad in CD. No. 295/2006 dismissing the claim filed against the respondents/OPs to direct payment of Rs.2,40,034/- with compensation of Rs.one lakh has been challenged on the ground that 16 Plate carrier frames which were purchased from OP 1 were consigned through OP 2 carrier but at the time of delivery only 15 frames were delivered instead of 16 frames and that two moveable frames were delivered in damaged condition for which Ops 1 and 2 are liable to compensate the loss for its value and also to pay compensation.

The facts of the case are that the complainant had placed a purchase order with OP 1 for supplying Plate carrier frames 16 in number for Rs.4,00,140/- on 10.3.2005 and the said purchase order was acknowledged. The OP 1 had acknowledged the purchase order on 28.1.2005 and the consignment was entrusted to OP 2 for delivery at Hyderabad. At the time of delivering the consignment at Hyderabad OP 2 had delivered only 15 pieces of the material on 19.3.2005. The official of OP 2 by name Mukesh who was present at the time of delivery had addressed a letter to OP 1 informing that there is shortage of one frame at the time of delivery and two moveable frames and one fixed frame were received in damaged condition. The complainant also addressed a letter dated 28.03.2005 to OP 1 with regard to shortage of one frame and damage to other frames. OP 1 in its letter dated 28.3.2005 informed the complainant that damage has to be claimed from the transporter itself, i.e. from OP2. Pursuant there to the complainant addressed a letter dated 13.7.2005 to OP 2 estimating the loss at Rs.2,40,034/-. OP 2 failed to pay the same. Hence Ops 1 and 2 are liable to compensate the loss on account of deficiency in service.

OP 1 remained exparte.

OP 2 in its counter stated that OP 2 is not a party to the transaction and the complainant being a company is not a consumer and the goods were purchased for commercial purpose. The consignment was booked under consignment note ? said to contain? basis without verifying its condition and the same were transported in the same condition entrusting the same by delivering it to the complainant at Hyderabad. OP.2 denied the allegation of short delivery of one item or delivery of other item in damaged condition to fasten any liability.

During the enquiry, the complainant along with evidence affidavit filed Ex. A1 and A11 and in turn the OP 2 filed its evidence affidavit in support of its contentions.

After going through the evidence on record, the District Forum held that the complainant had purchased the goods from OP for commercial purpose as such it is barred from filing a complaint as a consumer U/s. 2 (1)(d) of the C P Act and there by dismissed the complaint.

The appellant/complainant had taken the stand that the District Forum ought to have considered Ex. A5 and A6 issued by OP 2 which clearly establish that the consignment was purchased from OP.1 which is worth Rs.4,00,140/- which were entrusted to OP. 2 transporter for delivery of the same at Hyderabad and the delivery receipt issued by the OP.2 contains the details showing the time of delivery and the number of items i.e. 15 pieces were delivered. It is urged that as per Ex.A9 letter dated 28.3.2005 the complainant had taken necessary action against OP.2 for short delivery and as well for causing damage to the consignment. It is also contended that OP.2 having acknowledged Ex.A10 notice has not denied the allegation of negligence, so it is to be inferred that there was short delivery of one item and other items were damaged. It is therefore urged that as per the provisions of Carriers Act, the transporter is required to take all care and precautions in transporting the consignment as an insurer and in case of damage, the loss is to be indemnified as estimated.

We have gone through factual aspects and evidence on record. Ex. A2 is the copy of the registration certificate issued by the Registrar of the Companies dated 10.5.1999 from which it is clear that the complainant is a company carrying on cement manufacturing business and the consignment was purchased from OP 1 which was booked through OP 2 for transportation. The transaction took place on 10.3.2005 . The purchase order was placed for the supply of goods on 28.1.2005 and the consignment was entrusted to the OP 2 transporter on 10.3.2005 for delivering it to the consignee, i.e., appellant/complainant at Hyderabad.

It is to be seen that Sec 2 (1)(d) of the C. P. Act has been amended by means of amendment Act 62/2002, which came into effect from 15.2.2003 making it clear that when the goods are intended for sale or for commercial purpose, the person will not come under the definition ? consumer?. It is not the case of the complainant herein that the Industry is run to eke out livelihood by means of self employment so as to come under the exception. It may be true that the OP. 2 had short delivered one item and as well that the consignment was damaged for which OP.2 as carrier has liability. But the complainant being an industry is not covered by the definition of Consumer to entertain the cl

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aim for recovery of the loss or compensation from OP.1 and OP2. The District Forum has rightly held that as per section 2 (1) (d) of the C.P. Act, it is not a consumer dispute to entertain the claim. There is no legal infirmity in dismissing the complaint. If advised the appellant/complainant may file a civil suit by invoking section 14 of Limitation Act. In the result, the appeal is dismissed confirming the order of the District Forum dated 17.11.2006 passed in CD 295/2006 on the file of the District Forum III, Hyderabad as justified and consequently the complaint is dismissed.