J.D. Kapoor, President (Oral):
1. Vide impugned order dated 28th July 2006 passed by the District Forum the complaint of the appellant claiming cost of one of the packages that was booked in the luggage van of the respondent and was found missing, was dismissed on the ground that the remedy under the Consumer Protection Act is not available particularly when there are provisions of Section 13 of the Railway Claims Tribunal Act and further that it is only in the absence of entrustment of luggage that Railway Claims Tribunal Act has no jurisdiction to try and entertain the dispute but in case the goods are entrusted to the Railway Authority the Consumer Disputes Redressal Forum has no jurisdiction to try and adjudicate upon the matter.
2. Complaint of the appellant, in brief, was that Mr. Umesh Mandal an employee of the appellant-M/s. Symphony Marketing Pvt. Ltd travelled from New Delhi to Patna and he was carrying with him the machine consisting of two packages i.e. two parts and booked the same in the luggage van of the train vide luggage ticket No. 775733. On reaching Patna when Mr. Mandal went to take the delivery of the luggage, one of the packages was found missing and also could not be traced subsequently. It was contended that the value of the machine was Rs. 9,88,000 and this amount the appellant has claimed from the respondent along with interest and compensation.
3. Respondent contested the complaint and has taken the preliminary objections that this Forum has no jurisdiction to try and entertain the present complaint in view of the provisions of Sections 13, 15, and 28 of the Railway Claims Tribunal Act wherein it has been specifically provided that the matter relating to the responsibility of the Railway Administration as carrier under Chapter VII of the Railway Act in respect of the claims for compensation for loss, destruction, damage, deterioration or non-delivery of animals or goods entrusted to the Railway Administration, only the Railway Claims Tribunal has got exclusive jurisdiction to entertain such claims and no other Court or authority has any jurisdiction.
4. The perception of the District Forum is entirely erroneous. There is a catena of authorities of the Supreme Court that the remedy under the provisions of Consumer Protection Act by virtue of Section 3 is an additional remedy and not in derogation of any other law for the time being in force. The Supreme Court has even gone to the extent that even if the remedy is available before any other Forum be it Civil Court still the remedy is available under the Consumer Protection Act for the simple reason that no other statute has ever been enacted to provide compensation to a consumer arising from the charge of deficiency in service, sale of defective goods, FOR mental agony, harassment, physical and mental discomfort, emotional suffering, insult, injury of any kind. So much so the Supreme Court has opined that even if arbitration proceedings are pending before an Arbitrator between the parties still the consumer has a right to approach the Consumer Forum under Section 3 of the Act by filing a complaint under Section 12 of the Act. Supreme Court has even gone to the extent that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon cannot be negated [Ref. Kishori Lal v. E.S.I. Corporation, II (2007) CPJ 25 (SC)=(2007) 4 SCC 579]. On all the aforesaid points the following judgments are referrable:
Scope of Section 3 of Act 1986
(i) Secretary, Thirumurugan Co-Operative Agricultural Credit Society v. M. Lalitha (Dead) through L.Rs. and Ors., I (2004) CPJ 1 (SC)=I (2004) SLT 200=I (2004) CLT 20 (SC)=(1996-2005) Con.C (SC) (NC)=Civil Appeal No. 92 of 1998 decided on 11.12.2003.
10. âIn Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi-judicial Forums are set up at the District, State and National level with wide range of powers vested in them. These quasi-judicial Forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.â
(ii) Fair Air Engineers Pvt. Ltd. and Anr. v. N.K. Modi, III (1996) CPJ 1 (SC)=1996 (6) SCC 385â
âIt would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.
In view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceeding pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the Forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate Forum for adjudication of the disputes would be otherwise those given in the Act.â
(iii) Smt. Kalawati and Others v. M/s. United Vaish Co-operative Thrift and Credit Society Ltd., I (2002) CPJ 71 (NC)=(1986-2005) Con.LC 275 (NC) (SC)=R.P. Nos. 823 to 826 of 2001, wherein the National Commission observed thatâ
â4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a âconsumer under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.â
5. Learned Counsel for the respondent has also contended that the appellant-Company booked the goods for commercial purpose and, therefore, complaint is not maintainable under the Consumer Protection Act. In this regard learned Counsel has relied upon a decision of National Commission in V.K. Vashisht v. New India Assurance Co. Ltd., F.A. 134 of 2004 and Prem Vashisht v. PNB and Anr., F.A. No. 135 of 2004.
6. In this regard we may refer to a recent decision of the National Commission in M/s. Harsolia Motors v. M/s. National Insurance Co. Ltd., F.A. No. 159 of 2004. This decision is by the Bench presided by the Honble President of the National Commission. According to this decision services of insurance are covered under Section 2(1)(o) defining âservices and which are availed may be by any commercial unit or by any industry are not for commercial purpose unless they transmit the same further to earn profit
7. We prefer to agree with the decision of the Bench presided by the Honble President of the National Commission which is based upon the decision of Supreme Court in New Delhi Municipal Council v. Sohan Lal Sachdev (Dead) Represented By Mrs Harinder Sachdev, 83 (2000) DLT 664 (SC)=II (2000) SLT 13=I (2000) CLT 326 (SC)=(2000) 2 SCC 494. It is not the activity of a company or firm which is relevant factor. It is nature of service hired or availed by any person which determines the purpose. Commercial activity is not the same as commercial purpose. Commercial purpose is one when a person hires or avails service like the insurance for trading or selling that service further to earn profit and not for indemnification of loss suffered by him.
8. In the result appeal is allowed, impugned order is set aside and the matter is sent back to the District Forum for deciding it afresh on merits.
9. Parties shall appear before the District Forum on 2.9.2008 for the aforesaid purpose.
10. FDR/Bank Guarantee, if any, furnished by the appellant be returned to the appellant forthwith after completion of due formalities.
11. A copy of the order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Appeal allowed.