Mr. Justice S.A. Kader, President—This is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

2. The fifth complainant is the partnership firm of which the complainants 1 to 4 are partners. They are carrying on business as Fleet Owners and Contractors for MRF Limited. The transporters have engaged the services of the opposite party who is a lorry broker for transport of tyres manufactured by MRF Limited from Arakonam to Pune on 10.3.93. The opposite party sent lorry No. MH -14 4194 and 300 tyres were loaded in the lorry for transport to Pune. The hire charge was fixed at Rs. 5,000/- and an advance of Rs. 3,000/- was paid to the opposite party. The consignment did not reach the destination. A police complaint has also been given, but the goods could not be traced. The value of the goods is estimated at Rs. 4,82,355-09. M/s. MRF Limited has debited the amount against the complainant. They have suffered heavy loss. The claim is made for recovery of the amount with interest at 24% p.a., Rs. 1500/- by way of compensation, Rs. 50,000/- as expenses and for costs.

3. The opposite party pleaded that it is only a lorry broker whose duty is only to supply lorries Co the consignors who have to verify the particulars of the lorry, scrutinise the records, loaded the goods and get lorry receipts. On 10.3.93 one telephonic message received from the complainants, the opposite party referred lorry No. MH 14-4194 and the complainants have loaded the goods in the said lorry. The complainant did not pay any commission to the opposite party. The freight charges were paid only to the lorry driver. The opposite party gets a commission only from the lorry driver and this is a paltry sum. The complainant is not, therefore, a consumer as regards the opposite party. The claim against the opposite party is not maintainable. The complainant ought to have been filed against the lorry driver and other persons who transported the consignment.

4. Exhs. A1 to A7 were marked by consent. Proof affidavits are filed. No oral evidence has been let in.

5. The points that arise for consideration are :

(i) Whether the complainant is a consumer so far as the opposite party is concerned ?

(ii) Whether mere has been any deficiency in service or negligence on the part of the opposite party ?

(iii) To what relief, if any, are the complainants entitled ?

6. Point No. 1 : The complainants are carrying on business as Fleet Owners and Contractors for MRF Limited. According to them, they engaged the services of the opposite party to transport 300 tyres from Arakonam to Pune on 10.3.93. The opposite party has sent a lorry bearing registration No. MH 14-4194 and 300 tyres were transported in the lorry. But the consignment did not reach the destination and the fate of the goods are not known. Hence this claim.

7. The case of the opposite party is that it is only a lorry broker who supplies lorries to consignors and it has nothing to do with the transport of the goods through lorry. The opposite party does not receive any consideration from the complainants and the complainants are not, therefore, consumers as regards the opposite party. This contention of the opposite party cannot be accepted. Exh. A3 is the communication from the opposite party to the complainants dated 10.3.93. It runs as follows:

“To M/s. MRF Limited, Arakonam C/o MTC, Madras

As per your telephone instruction, we are sending our truck No. MH 14/4194 for Pune. The lorry hire fix Rs. 5,000/-. As advance Rs. 3,000/-. The balance Rs. 2,000/ payable at... Kindly deliver the goods and necessary challans and relevant documents and oblige.

For any leakage and damage, we are not responsible. Insurance to be covered by the party.”

Sd/-

for GANESH ROADWAYS

The writing of Exh. A3 would show that the opposite party has sent our truck and the complainants have been asked to deliver the goods and necessary challans. It is also stated therein that the opposite party will not be liable for any leakage