H.S. Brar, J. (President)

1. All the 23 Appeal Nos. 1120 to 1127, 1225 to 1233, 1372 all of 1999, 24 to 26, 89 and 90 of 2000 shall be disposed of vide a common order as common question of law and facts are involved in all of them. Facts are being taken from Appeal No. 1120 of 1999, Union of India, Northern Railway & Ors. v. M/s. Satish Kumar Rajinder Kumar.

2. Brief facts stated in the complaint are that the complainant firm was the consignee of the consignment booked from Bilaspur to Ludhiana vide RR No. 384679 dated 17.5.1998. Since the original RR was in transit through post, the delivery of the consignment was taken by the complainant from the Chief Parcel Supervisor, Northern Railway, Ludhiana, opposite party No. 3 (appellant No. 3 in appeal) as required under Para 961 of Indian Railway Commercial Manual. The original receipt was lost in postal transit. The complainant (respondent in this appeal) coming to know about the same, deposited a sum of Rs. 3,200/- as cost of the consignment assessed by opposite party No. 3. That the original RR could not be traced, but the complainant arranged its duplicate copy and applied for the refund of the abovementioned amount, which he had deposited as security for the consignment received. A general indemnity bond was also given in favour of the President of India alongwith the refund application. It is then alleged in the complaint that the opposite party No. 3 informed the complainant that the refund was not payable as per verbal instructions of the higher Authorities. Later on Circulars dated 11.8.1998 and 23.8.1998 were issued on the basis of which the claim of the complainant was rejected.

3. The complainant thus filed a complaint before the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called the District Forum) seeking a direction to the opposite parties to refund the amount of Rs. 3,200/- alongwith cost of notice amounting to Rs. 300/-; Counsel fee of Rs. 1,000/-; and special damages of Rs. 1,000/- were also claimed.

4. The opposite parties in their reply took preliminary objections saying that the complaint was not maintainable in the present form; Railway Tribunal was the proper Forum before which the complaint should have been filed; that the complaint was bad for mis-joinder and non-joinder of necessary parties; no notice under Section 80 of CPC was served. Further objection was taken that the complaint was liable to be dismissed as the complainant was not a consumer and thus the District Forum had no jurisdiction to entertain the complaint. After hearing the counsel for the parties and going through the record, District Forum held that the complainant was a consumer; and District Forum had jurisdiction to entertain and decide the complaint and ultimately District Forum allowed the complaint and directed the opposite parties to refund the amount of Rs. 3,200/- alongwith interest @ 12% per annum from the date of filing of the complaint, i.e., 19.3.1999 till the date of payment. The opposite party was further directed to pay Rs. 500/- as costs of the complaint.

5. Learned Counsel for the appellants has confined his argument only on a question of law regarding the maintainability of the complaint before the District Forum. According to the learned Counsel the claim of refund of security deposited to secure the delivery of consignment of goods in the absence of Railways RR is not covered under a consumer dispute and thus the District Forum under the Consumer Protection Act, 1986, as amended (hereinafter called the Consumer Protection Act) has got no jurisdiction to adjudicate upon the same. Learned Counsel has cited P. Kushalraj v. A. Promar Sales Ltd. & Ors., II (1997) CPJ 134, for substantiating his claim.

6. On the other hand, learned Counsel for the respondent submits that deposit of security for release of the consignment forms part of the same transaction and as such it is a consumer dispute under the Consumer Protection Act and the District Forum has got the jurisdiction to decide the same. The learned Counsel has cited 1997 (1) CPC 499, Branch Manager, Steel Authority of India v. Anurag Tubes; 1995 (1) CPC 97, Marketing Manager, Samayam v. Pulla Subrahmanya; II (1998) CPJ 16 (NC), T.C.I. Ltd. v. Davangera Cotton Mills Ltd.; and 1998 (2) CPC 263, Maruti Udyog Ltd. v. Smt. Shanti Sharma & Ors., to substantiate his argument.

7. We have heard the learned Counsel for the parties and have gone through the record with their assistance.

8. Before we proceed further it shall be advisable to reproduce the relevant law with regard to delivery of consignment by the Railways Authorities on surrender or otherwise of a Railway Receipt. Section 2(8) of the Railways Act, 1989 (hereinafter called the Railways Act) defines consignee, consignment, consignor and railway receipt as under:

"2. Definitions.-In this Act, unless the context otherwise, requires,-

(8) "consignee" means the person named as consignee in a railway receipt;

(9) "consignment" means goods entrusted to a railway administration for carriage;

(10) "consignor" means the person, named in a railway receipt as consignor, by whom or on whose behalf goods covered by the railway receipt are entrusted to a railway administration for carriage;

(33) "railway receipt" means the receipt issued under Section 65;"

Section 65 of the Railways Act defines "railway receipt" as under :

"65. Railway receipt.-(1) A railway administration shall,-

(a) in a case where the goods are to be loaded by person entrusting such goods, on the completion of such loading; or

(b) in any other case, on the acceptance of the goods by it,

issue a railway receipt in such form as may be specified by the Central Government.

(2) A railway receipt shall be prima facie evidence of the weight and the number of packages stated therein :

Provided that in the case of a consignment in wagon-load or train-load and the weight or the number of packages is not checked by a railway servant authorised in this behalf, and a statement to that effect is recorded in such railway receipt by him, the burden of proving the weight or, as the case may be, the number of packages stated therein, shall lie on the consignor, the consignee or the endorsee."

9. Section 74 of the Railways Act talks about passing of property in the goods covered by railway receipt and Section 76 talks about the surrender of railway receipt, which read as under:

"74. Passing of property in the goods covered by railway receipt-The property in the consignment covered by a railway receipt shall pass to the consignee or the endorsee, as the case may be, on the delivery of such railway receipt to him and he shall have all the rights and liabilities of the consignor.

76. Surrender of railway receipt.-The railway administration shall deliver the consignment under a railway receipt on the surrender of such railway receipt."

Relevant rules regarding manner of delivery of consignments read as under :

"1. Short title and commencement.-(1) These rules may be called the Railways (Manner of Delivery of Consignments and Sale Proceeds in the Absence of Railways Receipt) Rules, 1990.

(2) They shall come into force on the date of commencement of the Act.

2. Definitions -In these rules, unless the context otherwise requires :

(a) 'Act' means the Railways Act, 1989 (24 of 1989);

(b) 'Consignee' means the person named as consignee in a railway receipt;

(c) 'Consignment' means goods entrusted to railway administration for carriage;

(d) 'Consignments' booked to self means consignments booked by the consignor to self at the destination instead of to a 'consignee', by name;

(e) 'Form' means the Form annexed to these rules;

(f) 'Railway receipt' means the railway receipt issued under Section 65 of the Act;

(g) 'Station Master' means a Railway employee by whatever name called, in overall charge of a Railway Station and includes any other Railway employee authorised by the railway administration to grant delivery of goods;

(h) words and expressions used herein and not defined but defined in the Act shall have the meanings respectively assigned to them in the Act.

2. Delivery of consignments when the railway receipt is not forthcoming.-(1) Where the railway receipt is not forthcoming, the consignment may be delivered to the person, who in the opinion of the railway administration is entitled to receive the goods and who shall receive the same on the execution of an Indemnity Note as specified in Form I :

Provided, however, that if the consignee is a Government official in his official capacity, such delivery may be made on unstamped Indemnity Note.

(2) Where the railway receipt is not forthcoming and the consignment is addressed by the sender to self, delivery shall not be made unless Indemnity Note, duly executed in Forms I-A and I-B are produced by the persons claiming delivery of the consignments.

(3) Where the railway receipt is not forthcoming and the consignment is not addressed to self by the sender, delivery may be made on the basis of an Indemnity Note duly executed in Form II in lieu of Form I, subject to the following conditions, namely :

(a) The General Indemnity Note shall be executed on stamp paper of the appropriate value applicable to the State in which delivery is made;

(b) Consignment if booked to self shall not be granted delivery on the basis of General Indemnity Notes;

(c) Where delivery of a consignment is taken on the basis of a General Indemnity Note, the consignee should surrendered the railway receipt 10 days from the date of taking delivery of such consignment;

(d) Where the consignee has not produced the railway receipt within time limit specified under Clause (c), a separate Indemnity Note in Form I, should be executed by the consignee in respect of such consignment;

(e) If a consignee fails to surrender the original railway receipt or fails to execute a separate Indemnity Note in respect of any consignment taken delivery of, on the basis of the General Indemnity Note, Station Master may refuse to deliver further consignments on the basis of the General Indemnity Note furnished by the consignee;

(f) The railway administration shall have the right to demand the execution of a fresh General Indemnity Note on expiry of three years from the date on which it was executed.

(4) Where the railway receipt is not forthcoming and the consignee is a State Government, delivery may be made at the discretion of the railway administration on the basis of General Indemnity Note specified in Form III.

(5) Where the railway receipt is not forthcoming and the consignee is a Ministry of Department of the Central Government, delivery may be made at the discretion of the railway administration on the basis of General Indemnity Note specified in Form IV.

3. Delivery of consignments when railway receipt is not forthcoming and the consignments or sale proceeds are claimed by two or more persons.-(1) When the railway receipt is not forthcoming and the goods in possession of the Railway Administration are claimed by two or more persons, the railway administration may withhold delivery of such goods unless an Indemnity Note, as specified in Form I, is executed by the person, to whom the goods are delivered or sale proceeds are paid.

4. Delivery of perishable articles when the railway receipt is not forthcoming.-(1) Notwithstanding anything contained in these rules, where the consignment consists of perishable articles and the railway receipt is not forthcoming, such consignment may be delivered to the person who, in the opinion of the railway administration is entitled to receive such consignment, and such person shall take delivery subject to the following conditions, namely:

(a) if the invoice copy of the railway receipt is available at the time of taking delivery and the booking is to a named consignee who is claiming delivery, such person shall, before taking delivery execute an Indemnity Note specified in Form I; and

(b)(i) if the invoice copy of the railway receipt is not available at the time of taking delivery; or

(ii) if such invoice copy is available and the consignment is booked to 'Self', such person shall, deposit an amount equivalent to the cost of consignment by way of security apart from freight and other charges before taking delivery of such consignment.

(2)(1) If any amount has been deposited by way of security under Clause (b) of Sub-rule (1), such amount shall be refunded by the railway administration on production of the original railway receipt within six months from the date of taking such delivery.

(3) In the absence of original railway receipt refund may be granted on execution of an Indemnity Note in Form I or I-A and I-B, and the case may be, provided the invoice copy of the railway receipt is available and the particulars of consignment can be connected with reference to the invoice copy, within six months from the date of taking delivery."

Para No.961 of Indian Railway Commercial Manual Volume I (hereinafter called the Commercial Manual) also deals with delivery of perishables in the absence of Railway Receipts (hereinafter called the RR) and way-bills. Relevant portion of para of the Commercial Manual is reproduced as under :

961. Delivery of perishables in the absence of Railway Receipt and way-bills.-

(a) When consignment is received with P.W. Bill and the merchant is unable to produce the R.R. all the relevant particulars should be recorded in the delivery book from the P.W. Bill and the delivery effected on the execution of Indemnity Note/General Indemnity Note.

(b) In cases where both RRs and P.W. Bills are not available, memo delivery shall not be granted without collection of cost of goods.

(c) The consignees taking delivery of perishable consignment vide para (a) above shall have to surrender the RR within 10 days of the delivery of the consignment.

(d) In the event of the failure of the consignee to surrender the RR within 20 days of the delivery of the consignments, the consignee shall have to deposit the cost of the goods in accordance with the schedule of rates as prescribed and the railway staff will issue a money receipt. Following remarks should be made by the railway staff on the money receipt:

'If refund of the deposit is not claimed within one year from the date of issue of this receipt, the deposit will stand forfeited.'

(e) If there is further delay in surrendering the RR or depositing the cost of the consignment beyond a period of 30 days from the date of delivery of the consignment, all further deliveries on the strength of General Indemnity Note be stopped by the Station Master/CPS. Exceptions, if any, in this regard would only be made with the personal approval of Sr. DCS/DCS of the Divisions concerned.

(f) Station Master can grant refund of the cost of the goods collected for the consignment delivered on General Indemnity Note. Only if the party prefers a claim for refund within six months from the date of delivery of the goods. Any claim made for such refund after the expiry of six months but before the expiry of one year from the date of delivery of the goods is to be dealt with by the Divisions on merits. The amount of deposit will stand forfeited to the railway if claim for refund of the same is not preferred within one year from the date of delivery of the goods. This provision about limitation period of one year should be notified to all the merchants taking delivery of perishable consignments on P.W. Bills."

10. The manner of delivery of consignment of goods by the Railway Authorities to the consignee or consignor as the case may be is provided under Section 76 of the Railway Act. It is also provided therein that in case of the RR is not forthcoming, the consignment may be delivered to the person entitled, in the opinion of the railway administration, to receive the goods in such manner as may be prescribed.

The manner prescribed for delivery of consignment in the absence of RR is mentioned in the Rules as well as in Para 961 of the Commercial Manual.

The delivery of consignment when the RR is not forthcoming is provided under Section 3 of the Rules. Delivery of consignment when RR is not forthcoming and the consignment or sale proceeds is claimed by two or more persons, is provided under Rule 4 whereas the delivery of consignment of perishable goods in the absence of RR is provided under Rule 5 of the Rules.

The method/manner for delivery of consignment consisting of perishable goods is provided under Para 961 of the Commercial Manual.

11. We need not refer to the rules for the purpose of this case as admittedly the delivery of consignment, which consisted of perishable goods, was taken by the complainant-respondent under Para 961 of the Commercial Manual.

Sub-para (d) of Para 961 prescribed that in the event of failure of consignee to surrender the RR within 20 days of delivery of the consignment, the consignee shall have to deposit the cost of the goods in accordance with the schedule of rates as prescribed and the Railway Station shall issue a money receipt.

Sub-para (f) provides the manner in which the refund of cost of goods collected for the consignment delivered on general indemnity bond can be granted.

12. Admittedly, in all these cases, the goods were perishable goods and the consignment was taken by the consignee, i.e. the complainant-respondent under Para 961 of the Commercial Manual by depositing the cost of the goods to the concerned Authority.

13. The main question which needs to be answered in this case is as to whether the refund of the amount of cost of goods deposited in lieu of delivery of consignment of goods can be recovered by the complainant/respondent under the Consumer Protection Act and as to whether for that purpose the complainant can be considered and held to be a consumer under the Consumer Protection Act for invoking the provisions of the Act.

14. A consumer under the Consumer Protection Act has been defined under Section 2(d) of the Act, which reads as under:

"(d) `consumer' means any person who-

(i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person."

Refund of the cost of the goods deposited in lieu of the delivery of the consignment is governed under the Rules/Commercial Manual as mentioned above and in the case in hand the provisions of the Commercial Manual are applicable as admittedly the amount of cost of goods was deposited by the complainant/respondent in lieu of delivery of consignment made under Para 961 of the Commercial Manual.

15. If the terms of any Rule or Commercial Manual are violated then that dispute could not be taken to be related to any deficiency in service or any unfair trade practice committed by the Railway Authorities. If there is any breach of any provision of the Rules or the Commercial Manual then the remedy provided is somewhere else and not before the District Forum. The complainant cannot be regarded as a consumer as he has not hired any service for consideration in relation to the Railways. Whatever service was hired in connection with the goods, the Railways had complied their duty in delivering the goods to the complainant within time and in accordance with the Rules and other relevant provisions of the Railway Law. Since there is no hiring of service for consideration, the complainant cannot acquire the status of a consumer under the Act. At the cost of repetition non-payment of refund of the amount of the cost of the goods deposited in lieu of delivery of consignment by the Railway Authorities is neither deficiency in service nor any unfair trade practice committed by them.

16. The abovesaid view of ours is fortified by Karnataka STATE CONSUMER DISPUTE Redressal Commission, Bangalore in P. Kushalraj v. A. Promar Sales Ltd. & Ors. (supra), which is further based upon an order of the Hon'ble National Commission in F.A. No. 465/1992 decided on 26.7.1993. The Hon'ble National Commission in F.A. No. 465/1992 dated 26.7.1993 has held that where the amount is deposited as a security, the person, who deposited the amount as security is not a consumer.

17. The Tamil Nadu STATE CONSUMER DISPUTE Redressal Commission in The Managing Director M/s. Coromondal Confectioneries Pvt. Ltd. v. G. Sriranjini, I (1996) CPJ 41, while considering the similar facts has held as under:

"The short question which arises for consideration is whether the amount deposited as security is a deposit and the person making the security is a consumer within the meaning of the Act. This point has been considerded directly by the National Commission in appeal from this Commission's judgment in O.P. No. 103/92. The National Commission in F.A. No. 465/92, dated 26.7.1993 has held that, where the amount is deposited as security, the person, who deposited the amount as security is not a consumer. This decision has been followed by this Commission in O.P. No. 454/92, dated 27.4.1994. We, therefore, hold that the complainant is not a consumer and her remedy, if any, is to file a suit in a competent Court of civil jurisdiction."

It is clear from the averments contained in the complaint that the complainant is seeking refund of the amount of cost of goods deposited in lieu of delivery of consignment by the Railway Authorities.

18. The authorities cited by the learned Counsel for the respondents/complainants are not applicable to the facts of the case in hand.

In Branch Manager v. Anurag Tubes (supra), the complainant company had deposited certain amount by way of security with the Steel Authority of India Limited for purchase of raw materials for manufacturing purpose in their industry. The raw material was neither purchased nor supplied by the Steel Authority of India Limited. It was only in that circumstances that the complainant had asked for the refund of the amount.

In The Marketing Manager, "Samayam" v. Pulla Subrahmanya Sastri (supra), the complainant had agreed to the transportation of paper to be started by the opposite party and the deposit was made only as an amount of security for transporting the papers. Since the opposite party did not start the paper and having accepted the deposited amount, was asked to refund the same. It was in those circumstances that the opposite party was asked to give the money back to the complainant.

Transport Corporation of India Ltd. v. Davangera Cotton Mills Ltd. (supra),is not applicable to the facts of the case in hand at all.

In Maruti Udyog Limited v. Smt. Shanti Sharma & Ors. (supra), complainant, Smt. Shanti Sharma purchased one Maruti car from Maruti Udyog Limited at Chandigarh. Since the car was to be used as a taxi, she was entitled to the refund of the Central Excise. A total price of Rs. 1,28,294/ was paid by Smt. Shanti Sharma and refundable amount of Central Excise was specifically mentioned as Rs. 20,540/- in the invoice. This sum did not remain with the Maruti Udyog Limited as that amount stood remitted to the Central Excise as soon as the vehicle was moved out of the factory. It was in those circumstances that an amount of Rs. 20,540/- paid was ordered to be refunded.

19. In any case the order of the Hon'ble National Commission is binding on the State Commission. It has clearly been held by the Hon'ble Commission in F.A. No. 465/1992 decided on 26.7.1993 that where the amount is deposited as a security, the person, who deposited the amount as security, is not a consumer. District Forum has gone beyond the scope of Consumer Protection Act while holding that the complainant was a consumer under the Consumer Protection Act and he was competent to ask for the refund of the amount deposited in lieu of delivery of the consignment of goods. The main reasoning advanced by the District Forum is reproduced hereunder:

"The principles of natural justice require that in such cases the refund should be given. Only question is the satisfaction of the opposite party regarding the identity of the consignee. If the indemnity bond is taken then the risk of the opposite party will not be there. The refund of an amount deposited by a person cannot be denied simply because the original R.R. was lost. It amounts to unjustice if the refund is not given on such a technical ground."

20. District Forum's jurisdiction is only to act strictly in accordance with the specific provisions of the Consumer Protection Act. They have got no jurisdiction to go beyond that District Fora cannot strike down any Act or Rule on the basis of its being unjust or otherwise ultra vires the Constitution. Even if there is some technical flaw in any of the Rules/Regulations of the Railways, it cannot be set-aside by the District Fora as being unnatural, illegal or unjust.

21. In view of our discussion made above, we hold the dispute raised by the complainant in this case, is not a consumer dispute and the complainant is not a consumer for the purpose of invoking the provisions of the Consumer Protection Act. Since the complainant is not a consumer as defined in the Consumer Protection Act, thus the complaint filed by him before the District Forum is not maintainable. The District Forum acted beyond its jurisdiction to allow the complaint of the complainant.

22. In these circumstances, the order dated 15.9.1999 of the District Forum, Ludhiana is set-aside and the appeal is accepted, however, without any order as to costs. The complaint of the complainant also stands dismissed.

23. However, we made it clear that the complainant, if so advised, can approach the Civil Court or any other Court of competent jurisdiction to redress his grievance. Resultantly, all these appeals are allowed in the same terms as in Appeal No. 1120 of 1999.