C L CHAWLA Vs. J B BODA

JUDGEMENT

(1.) This appeal is directed against the order of District Forum, Raigad in Complaint No.30/95, in which the complainant has suffered the dismissal of this complaint. The complaint was dismissed by the District Forum, solely on the ground that this is a commercial activity and the complainant does not become the consumer under the Act. The few facts are that the complainant had purchased 100 M/t of HVI spindle oil from Indian Oil Corporation at high seas basis, vide I. O. C. letter No. B. D. O. /p/6 dated 18.4.1994, opposite party No.1, M/s. J. B. Boda Surveyors Private Limited were requisitioned for clearing the consignment from the Ship Torin, which arrived on 26.4.1994 at Mumbai. There were 8 parties to share the consignment. Rs. (sic.) were paid to the respondent No.1 for checking the quantity of oil so imported aboard Torin by I. O. C. The operation involved the discharge of the entire quantity of oil from Ship to Barges and from Barges to the tankers. The Surveyor certified in writing that the quantity received in India was 2517-712 M/t against 2512-863 M/t, approximately 5 M/t of excess material arrived in India and the opposite party J. B. Boda Surveyors certified in writing that entire quantity was pumped into barges and nothing was left in the ship. The barges were brought ashore under the supervision of Surveyor for equitable distribution amongst the 8 consignee parties. The complainant received 3.980 M/t short, which was passed on to the other parties. It has alleged that M/s. Savita Chemicals was given excess material unlawfully and that M/s. Savita Chemicals was refused to return such material. The complainant claims that he has suffered the loss of Rs.80,170/- + interest thereon, on account of the inefficient services rendered by the opposite party No.1.

(2.) It is seen that almost all these facts are not disputed on behalf of the opposite parties. The District Forum clearly came to the conclusion that the complainant was entitled to the above amount for having received less quantity of oil. Only on the question of consumer disputes, the District Forum refused to accept to the request of the complainant that it was not a consumer dispute. In that behalf, the appellant has relied on the Judgment of the National Commission in M/s. Birla Yamaha Limited V/s. M/s. Patel Roadways Limited,1996 2 CPJ 40. In that case, the transporter was held liable for the loss of consignment. It was also a business transaction and one cannot lose sight of the fact that here, the delivery of the oil was to be performed by opposite party No.1. It is a specific service requisitioned by the complainant for delivery of oil at the factory. The shortage is also not in dispute. Now, so far as service is concerned, we find that it comes within the scope of the Consumer Protection Act. It cannot be said to be a commercial transaction, because the oil was to be used for the purpose of manufacture and that it was not directly related to the commercial activities. Under Sec.2 (1) (d) (ii) what is provided is that if the services are hired for consideration, then deficiencies in service would be a consumer dispute. The said section does not provide for obtaining goods for resale for any commercial purpose. In this case, the services of the Surveyor were hired for transporting the oil from Indian Oil Corporation to the factory and that would be clear service, coming within the Consumer disputes. We have, therefore, no hesitation in holding that the complainant is entitled to the price of oil, which has been short delivered. The cost of the material is quantified at Rs.80,170/-. The service was found to be deficient on 26.4.1994. The short delivery is effected on that day and hence the complainant is entitled to 18% interest for that amount from that date till the date of delivery + cost. So far as opposite party No.2 is concerned, Savita Chemicals, there is no privity of contract between the complainant and Savita Chemicals. The deficiencies are alleged against M/s. J. B. Boda, Surveyors. The allegation that M/s. Savita Chemicals received more quantity than the called for, it would not be a dispute between the complainant and Savita Chemicals. It is for opposite party No.1, to recover back the price of excess oil supplied to M/s. Savita Chemicals Limited. The claim against M/s. Savita Chemicals cannot be sustained. We, therefore, pass the following order : order opposite party viz. No. J. B. Boda Surveyors Private Limited shall pay to the complainant Rs.80,170/- with 18% interest thereon from 26.4.1994 till the date of actual payment + cost of Rs.5,000/-. The claim against M/s. Savita Chemicals is dismissed.