Cochin Port Trust & Anr. vs M.B. Satpute & Ors.

Appellants Chairman, Cochin Port Trust and the Traffic Manager, Cochin Port Trust, have challenged the order dated 30.11.2006 of the Kerala State Consumer Disputes Redressal Commission, (in short "the State Commission") passed in Complaint No. 92 of 2001, M.B. Satpute v. Chairman, Cochin, Port Trust & Ors. by way of this First Appeal No. 752 of 2007. 2. Brief facts of the case are that partner of M/s. Millenium Enterprises, a Partnership Firm registered under the Indian Partnership Act, carrying on business at Gala No. 142, Parmar Industrial Complex, Survey No. 142/1, Chinchved, Pune 411019, Maharashtra State filed a complaint before the State Commission alleging that the complainant imported one used numerical control (N.C) lathe machine from M/s. HVW Volz GMBH Germany, which arrived at Cochin Port on 29.11.2000. De-stuffing was done by the employees of opposite party Nos. 1 and 2 i.e. the appellants in the instant appeal. While de-stuffing, (removing the machine from the container), the imported machine slipped and fell down on the floor resulting in severe damage to the machine. 3. The State Commission vide its order dated 30.11.2006 allowed the complaint against opposite party Nos. 1 and 2 with following order: "33. The value of the damaged machine as per invoice shown in the complaint is Rs. 2,32,000. Ext B5 shows that the assessed value of the imported machine is Rs. 269140. There is evidence to show that the machine was damaged completely and from the evidence of PW2 it is clear that the machine cannot be repaired and used economically. So the complainant is entitled to the value of the imported machine. We may point out here that if the machinery was insured insurer is only liable for the actual damage sustained by the property (see Vania Silk milk (Pvt) Ltd. v. CIT, (1991) (4) SCC 22 ) and if that principle is adopted by us the complainant is only entitled to the invoice value shown in the complaint i.e. Rs. 2,32,000. 34. It is clear from the material on record that there was negligence on the part of "expert and well experienced staff of the 1st opposite party" Negligence is absence of reasonable or prudent care which a reasonable person is expected to observe in a given set of circumstances. Here the fact that damage was sustained by the imported machine prima facie proved negligence on the part of staff of the 1st opposite party (no explanation is given for sustaining damage by the imported machine while destuffing). Mere proof of negligence alone is not sufficient to claim compensation and for claiming compensation it should be proved that negligence caused some loss or injury to the complainant. Loss is a generic term. It signifies some detriment or deprivation or damage. Injury too means any damages or wrong, it means invasion of any protected interest of another. 35. For importing a machinery from a foreign country incidental expenses are to be incurred. If the machinery was not damaged no loss would have been suffered by the complainant in connection with import of the machinery. The expenses incurred by him in connection with import of the machine would not have been a loss if the machine was not damaged while destuffing. Despite the fact that machine was damaged while destuffing the complainant was bound to take delivery of the machine, otherwise he would be made liable for keeping the machinery in the port. So we are of the view that the compensation awardable to the complainant cannot be limited to the compensation payable by an insurer to the insured i.e. liable for the actual damage sustained by the machinery. 36. Freight charges paid is Rs. 44,747. Complainant is entitled to that amount. Charges of destuffing, CFS Lift on and lift off, container shifting from CFS and charge to clearing agent claimed is Rs. 32,836. As there is evidence to show that freight charges and destuffing charges etc. were paid that amount claimed is to be allowed to be realised from the opposite parties 1 and 2. Charges for import licence claimed is Rs. 6,300 and the complainant had obtained import licence for importing the machine in question. Complainant is entitled to realise that amount from the Port Authority. By way of transport charges for taking the machine from Cochin to Pune amount claimed is Rs. 10,500. There is evidence to prove transportation of damaged machine from Cochin to Pune and Ext.A18 proved that fact. In Ext.A18 it is not stated the total charges payable and it is only stated that balance charge payable is Rs. 4,000. Rs. 6,000 (it is only guess work) is to be awarded by way of transport charges. Octroi and unloading charges at pune claimed is Rs. 5,200. No documentary evidence has been produced to prove payment of octroy and unloading charges and therefore we are not inclined to award Rs. 5,200 claimed under that head. There is evidence to show that complainant paid customs duty and therefore he is to be awarded customs duty paid (Rs. 57,936). Complainant claimed Rs. 10,000 as expenses incurred for to and fro journey from Pune to Cochin and back and other expenses. The bills dated 12.4.2001, 9.2.2001 and 13.11.2001 of Matha Tourist Home are produced and the bills proved the payment towards room rent etc. Rs. 436.20, 540.50 and 155.40 respectively. There is no evidence to prove the travelling expenses incurred by the complainant (ticket charges) etc. So we are inclined to award only Rs. 2,500. No evidence is produced by the complainant to prove that partnership firm had taken a bank loan for purchasing the machinery in question and Rs. 14,000 was paid by way of interest. Therefore that claim made by the complainant cannot be allowed. No evidence is also adduced by the complainant to prove the rent paid by him for keeping the machinery in the Godown from 10th February, till the date of filing of the complaint. In the absence of any documentary evidence we are also not inclined to award the amount claimed by way of rent paid for keeping the machine in the godown (Rs. 9,000 is claimed). No evidence is produced by the complainant to prove what was the monthly income or yearly income derived by him from the business carried on by him, before importing the machine. No doubt the machine was imported by him for business purposes. No evidence is produced to prove the compensation claimed based on loss in business suffered; (Rs. 1,00,000) is claimed. In the absence of evidence we are not awarding any sum by way of damage on account of loss alleged to be suffered in the business. Thus, the total compensation entitled to the complainant is Rs. 3,82,319 (amount awarded as compensation is corrected as per order passed on I.A. 546/07). 37. In the result complaint is allowed, awarding to the complainant in his capacity as the partner of partnership firm Millenium Enterprises by way of compensation under different heads Rs. 3,82,319. The 1st opposite party is directed to pay to the complainant the compensation awarded within one month from the date of receiving the copy of the order and in case it fails to make the payment within the stipulated period it is liable to pay interest from the date of commission of default at the rate of 6% per annum till payment. Complainant is also awarded cost of Rs. 1,500 and cost is also realisable from the 1st opposite party." 4. Hence the present appeal. 5. Heard learned Counsel for the appellants and respondent No. 1. Respondent Nos. 2 and 3 were proceeded ex parte vide order dated 21.7.2014 of this Commission. 6. Learned Counsel for the appellants argued that first of all, the complaint was not maintainable as the complainant was not a consumer within the ambit of the Consumer Protection Act, 1986 because the machine was imported by the partnership firm namely M/s. Millenium Enterprises for commercial use. Though, the complainant has mentioned in the complaint that the complainant had imported the machine for undertaking job works for earning his livelihood as small scale industry, yet the fact is that even if it is considered that it was for earning the livelihood, there is no assertion in the complaint that this was by-means of self-employment, which is a necessary condition for the complainant to become a Consumer under the Consumer Protection Act, 1986. Otherwise also, the machine has been imported by a partnership firm which cannot be self-employed. 7. Learned Counsel further mentioned that for redressal of such claims, there is already a provision m the Port Trusts-Major Port Trusts Act, 1963 and the limitation period for filing the suit is only six months with a notice period of one month. In the present case, the complaint has been filed on 17.11.2001 whereas, the cause of action has arisen on 25.1.2001. Thus, there is a delay of about 10 months in filing the complaint and that too, without a notice to the appellants. Section 3 of the Consumer Protection Act clearly states that the provisions of the Consumer Protection Act will not be in derogation of any other law. In this case, the delay of a period of 10 months is clearly in derogation of the provision of limitation provided in the relevant Act i.e. Port Trusts-Major Port Trusts Act. Hence, the complaint should be treated as time barred even in the Consumer Protection Act and is not maintainable. In support of his arguments, learned Counsel for the appellants cited foil owing judgment: "(i) V.M. Salgaocar & Bros. v. Board of Trustees of Port of Mormugao & Anr., IV (2005) SLT 410=(2005) 4 SCC 613 . It has been held that: (a) Port Trusts-Major Port Trusts Act, 1963-Section 120- Limitation-Two requirements under, viz. service of one month''s notice and filing of suits within six months thereafter-Two requirements to be read conjunctively-"Or" occurring between the two requirements, if read alternatively, would defeat the very object of the provision-Interpretation of Statutes-Subsidiary rules-Conjunctive or disjunctive. (b) Port Trusts-Major Port Trusts Act, 1963-Section 120-Notice-It is mandatory precondition for filing suit-No formal notice given-Deemed notice-Maintainability of suit-Bar of limitation-Respondent Board informed appellant that he was entitled to a partial rebate-In reply thereto, by letter dated 12.4.1984 appellant set out various arguments to justify the ground of full rebate-Respondent by letter dated 16.6.1984 declined appellant''s request for full rebate-Suit filed by appellant on 11.9.1986-Appellant in its plaint stated that illegal levy/refusal of rebate was made on 16.6.1984-Held, cause of action arose to appellant for the first time on 16.6.1984 and therefore, letter dated 12.4.1984 cannot be treated as a notice under Section 120-Since suit was filed without giving notice, same was not maintainable-Cause of action having arisen on 16.6.1984 and suit having been filed on 11.9.1986 which was much beyond the prescribed period of six months, suit was also barred by limitation (para 28) (c) Port Trusts-Major Port Trusts Act, 1963-Section 120-Special provision prescribing shorter period of limitation than that provided under Limitation Act-Held, Section 120 not rendered violative of Articles 14 and 19(1)(f) thereby, having regard to object of the provision-Constitution of India, 1950 Articles 14 and 19 (1)(f)." 8. Learned Counsel for the appellants also assailed the order of the State Commission for awarding the full price of the machine treating it as total loss. It was argued that the complainant had taken the delivery of the machine after paying Rs. 57936 as custom duty and the machine was transported to Pune. Had the machine been rendered totally unusable, it would not have been taken by the complainant after spending extra money in the form of custom duty and transport charges. The State Commission has not only allowed the full price value of the machine, but has also allowed various charges like transport charges, agent handling charges and custom duty charges etc. for which there is no justification. 9. It has also been alleged by the learned Counsel that the State Commission erred in fastening liability on the opposite party on the basis of a survey report which was prepared at the back of the opposite party. Admittedly notice of the survey was not served on the opposite party and it is a settled position of law that survey conducted without notice cannot create any liability. The learned Counsel cited the foil owing case law in support of his assertions. (i) Priyanka Overseas Ltd. v. Kandla Port Trust, I (2011) CPJ 186(NC) : It has been held that-Consumer Protection Act, 1986 - Sections 2(1)(g), 21(a)(i) - Major Port Trust Act, 1963 - Sections 42, 48, 54, 59, 61- Port Trust-Rice laying in OP port damaged as a result of leakage of rain water into transit shed - Surveyors appointed - Auction of sale of rice bags by OP challenged under writ jurisdiction -Matter remitted to Chairman of OP No. 2 - Chairman passed order dated 2.2.2000 that allegation of negligence on part of Port Trust leading to infestation of cargo is not acceptable-Complainant not challenged said order - Validity of this order cannot be assailed in these proceedings - Complainant not brought to knowledge of OP alleged damage immediately after it occurred - No explanation by complainant that why he waited for months to brought Surveyor reports to knowledge of OP - Sufficient force in defence taken by OP that said reports being collusive - OP not negligent in service." 10. Learned Counsel for the respondent stated that the complaint has been filed under the Consumer Protection Act, 1986 where the limitation is two years and accordingly the complaint is well within the limitation period. Section 3 of the Consumer Protection Act clearly states that the provisions of the Consumer Protection Act, 1986 are in addition to the provisions of any other law for the time being in force. 11. Coming to the question of complainant being a consumer, learned Counsel mentioned that the complainant is a partner of the partnership firm M/s. Millenium Enterprises and was competent to file the consumer complaint. The machine was not purchased for commercial use rather, it was imported for the use of the complainant to earn his livelihood as clearly mentioned in the complaint itself. Hence, under the explanation provided below the definition of Consumer under Section 2(i)(d) of the Consumer Protection Act, 1986, the present case is clearly covered under the Consumer Protection Act, 1986. 12. It was also argued by the learned Counsel for the respondent that it was wrong to say that no notice of survey was given to the appellants because proper passes were issued to the surveyor to visit the premises inside the port to inspect the machine. Nobody can enter into the port without the permission of the appellants. An employee of the appellants was also present during the time of inspection by the surveyor as has been stated by RW-2. 13. Learned Counsel also stated that after taking clearance of Custom duty respondent No. 1 took deliver) of the machine on 7.2.2001 and immediately on 9.2.2001, the respondent No. 1 had handed over the letter dated 7.2.2001 to the appellants claiming compensation towards the damage caused to the machine due to mishandling and negligence of the subordinate staff of the appellants while destuffing the machine at the port. That even after several reminders and personal visits of respondent No. 1, the appellants had not replied anything about the compensation for the damage to the machine. Hence, the respondent No. 1 was constrained to send a legal notice dated 16.7.2001 through Advocate to the appellants and asked them to pay the amount of Rs. 5,13,519 as compensation for damages to respondent No. 1 and failing which the respondent No. 1 will opt the option of approaching Court of Law to recover the damages. Hence it was wrong to say that no notice was given and that no representation was submitted to the appellants. 14. Learned Counsel for the respondents referred to the judgment in the case of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=1993 (SLT Soft) 657=(1994) 1 SCC 243 to assert that the Consumer Protection Act, was equally applicable to all the service providers irrespective of whether the same is a private body or a statutory or public authority. Hence the appellants cannot claim any immunity from the Consumer Protection Act. 15. Further the learned Counsel argued that remedy under the Consumer Protection Act, 1986 is in addition to and not in derogation of any other law for the time being in force. Hence, the assertion of the appellants that the complainant should have proceeded under the Port Trusts-Major Port Trusts Act, for his remedy is not valid as the Consumer Protection Act, 1986 allows such remedial measures in addition to the other existing laws. In support of his argument, learned Counsel cited the judgment of Trans Mediterranean Airways v. Universal Exports & Anr., IV (2011) CPJ 13 (SC) = VII (2011) SLT 339 = (2011) 10 SCC 316, wherein following has been held by the Hon''ble Supreme Court: "A. Consumer Protection-Consumer Forums-Jurisdiction and Powers of Consumer Forum-Concurrent Jurisdiction-Jurisdiction of Consumer Forums vis-a-vis specific remedies under other statues-Proceedings before Consumer Forum for compensation for deficiency of service by international air carrier-Maintainability-Held, protection provided under 1986 Act is in addition to remedies available under other statues and is not in derogation of any other remedy available under any other law-Hence, Carriage by Air Act, 1972 (CA Act) and related international conventions (Warsaw Convention as amended at Hague in 1955 and Montreal Convention of 1999), though exclusively governing liabilities of air carrier towards passengers and goods by air, do not exclude applicability of CP Act, 1986 - National Commission allowed complaint claiming compensation for deficiency of service against appellant international air carrier and its agent for not delivering consignment-Contention that National Commission not being "Court", had no jurisdiction to decide matter and exercise its jurisdiction was contravention of international law and that action for damages can be brought only at places mentioned in Sch. II Rule 29, CA Act, 1972 (at Bombay, where contract was made and Beirut, principal place of business and Madrid, place of destination) but not at Delhi - Held, 1986 Act provides additional or alternative remedy to consumers - Further, under CA Act and Warsaw Convention, Consumer forums fall within meaning of expression "Court" - Hence, there was no legal infirmity in National Commission exercising its jurisdiction, since same can be considered as "Court" within territory of a High Contracting Party under CA Act, 1972- Carriage by Air Act, 1972 - Section 7, Sch. I Rule 28, Sch.II Rule 29 and Sch. Ill Rule 33 - "Court - Held, Consumer Forums are "Courts" under 1972 Act-Consumer Protection Act, 1986 Sections 3, 11, 17, 21 and 23 " 16. Learned Counsel also mentioned the following additional judgments in support of his above argument: (i) Fair Air Engineers Pvt. Ltd. & Anr. v. N.K. Modi, III (1996) CPJ 1 (SC)=1996 (SLT Soft) 1386=(1996) 6 SCC 385 . (ii) State of Karnataka v. Vishwabharati House Building Coop. Society & Ors., I (2013) SLT 435 = (2003) 2 SCC 412 . (iii) Secretary, Thirunturugan Cooperative Agricultural Credit Society v. M. Lalitha (dead) through LRs. & Ors., I (2004) CPJ 1 (SC)=I (2004) SLT 200=(2004) 1 SCC 305 . (iv) National Seeds Corporation Limited v. M. Madhusudhan Reddy & Anr., I (2012) CPI 1 (SC)= I (2012) SLT 51 = (2012) 2 SCC 506 17. I have carefully considered the arguments advanced by both the parties and have examined the record. There is no denying the fact that the machine was imported by the firm, M/s. Millenium Enterprises and the same was destroyed during destuffing from the container as it fell down from the crane on the ground. Destuffing was being carried out by the staff of the appellants. The first question relates to the objection raised by the appellants that the complainant is not a consumer as the machine was imported for commercial purpose. This issue has to be examined first, whether the complainant MB. Satpute, was entitled to hie a consumer complaint on behalf of the firm M/s. Millenium Enterprises. In this regard Section 18 of the Indian Partnership Act, 1932 says that a partner is the agent of the firm. Section 19 of the India Partnership Act, 1932 defines the implied authority of partner as under: 19. (1) Subject to the provisions of Section 22, the act of a partner which is done to carry on, in the usual way, business of the kind carried on by the firm, binds the firm. The authority of a partner to bind the firm conferred by this section is called his "implied authority". (2) In the absence of any usage or custom of trade to the contrary, the implied authority of a partner does not empower him to- (a) submit a dispute relating to the business of the firm to arbitration, (b) open a banking account on behalf of the firm in his oven name, (c) compromise or relinquish any claim or portion of a claim by the firm, (d) withdraw a suit or proceeding filed on behalf of the firm, (e) admit any liability in a suit or proceeding against the firm, (f) acquire immovable property on behalf of the firm, (g) transfer immovable property belonging to the firm, or (h) enter into partnership on behalf of the firm. 18. From Section 19 of the Partnership Act, 1932, it is clear that a partner may have the implied authority to file a civil suit and a complaint in the present case as it is not specifically barred under this section. The word ''person'' occurring in the definition of ''consumer'' under Section 2(l)(d) of the Consumer Protection Act, 1986, includes partnership firm registered or unregistered under Section 2(1)(m) of the Consumer Protection Act. However, in the present case, firm M/s. Millenium Enterprises has not filed the complaint rather, it has been filed by a partner of the firm. As the firm is not a legal entity and its partner is an agent of the firm and by way of implied authority he can file the consumer complaint, therefore, we reach to the conclusion that partner was authorised to file this consumer complaint. 19. Now coming to the question of commercial purpose, it is seen that the complainant has stated in his complaint that the machine was imported to perform the ordered jobs by the complainant for earning his livelihood. The details of the firm are not on record and it is not clear how many partners are involved in this firm. The number of partners can range from 2 to 50, but the complaint has been filed by only one partner. As firm is not a legal entity, the question of livelihood and self-employment shall be seen in the context of its partners. As the machine in question is a lathe machine costing only Rs. 2.5 lakh and it was used by the firm and impliedly by its partners, we would be inclined to treat it a case of earning livelihood through self-employment because no contrary evidence has been produced by the appellants. No other profession, business or any commercial activity on the part of the firm or partners has been alleged or proved by the appellants. Thus, we hold that in the present case, the complainant is a consumer. 20. We find no force in the arguments of the appellants that the survey was done without knowledge of the appellants because port is a protected area where permission is required from the appellants to enter into the premises of the port for surveying the damaged machine. It was the duty of the appellants to have associated actively with the survey work. However, even if appellants were not associated, it does not make any difference as the appellants have not denied the damage to the machine or they have not submitted any other survey report, which contradicts the survey report submitted by the complainant. 21. Now, coming to the question of order dated 30.11.2006 of the State Commission, we find that the State Commission has allowed all the costs incurred by the complainant towards import of the machine including cost of its clearing from the Customs viz. Rs. 57,936 and other allied expenses like freight charges of Rs. 44,747, destuffing and clearing agent charges of Rs. 32,836 charges for import licence as Rs. 6,300, transport charges as Rs. 6,000 and travelling expenses of Rs. 2,500. Once the complainant has paid the custom duty to claim the machine and to transport it to his place, it cannot be presumed that the machine would have been of no use to the complainant. Had he not taken the machine from the Customs after paying the custom duty, the authorities would, have auctioned or disposed it of in any other manner. Thus, based on the fact that machine has been taken by the complainant, we find no reason to believe that the machine has been claimed by the complainant even though it was totally damaged having no use. Once we take this view, the order of the State Commission regarding reimbursement of incidental expenses as mentioned above cannot be considered as justified. The appellant is only vicariously responsible for action of its employees who damaged the machine during destuffing and appellants can be held responsible only for the price of the machine and not for any incidental expenses, which the complainant incurred in importing the machine. 22. Section 3 of the Consumer Protection Act, allows for additional remedy apart from the remedy available under any other law for the time being in force. Relying on the citations submitted by the respondent and in accordance with Section 3 of the Consumer Protection Act, we agree that the consumer Fora have jurisdiction to decide this complaint and in this respect, the complaint is not barred by limitation under the Consumer Protection Act, 1986. 23. Based on the above discussion, we partly allow the appeal filed by the appellants and direct the appellant No. 1 to pray Rs. 2,32,000 which is the invoice value of the machine to the firm, M/s. Millenium Enterprises, that had actually imported the machine. The complaint would be deemed to have been decided as filed by the complainant as partner of the partnership firm and not in his personal capacity. Thus, the order dated 30.11.2006 of the State Commissions stands modified to the extent that the payment of Rs. 2,32,000 (Rupees two lakh thirty two thousand only) shall be made by the appellant No. 1 to the firm, Millenium Enterprises instead of Rs. 3,82,319 to the complainant as ordered by the State commission. Rest of the order of the State Commission remains unchanged. No order as to costs. Appeal Partly Allowed.