DIST.CONSUMER DISPUTES REDRESSAL COMMISSION, KHURDA, BHUBANESWAR:

                                                -ooOoo-

C.D.CASE NO. 07/2019

Dr. Trinath Kar,  Proprietor, The BUG,

aged about 42 years, S/o- Sri Ananta Ram Kar,

At – Plot No.96/293, Sub plot No.8/B,

Mahavir Nagar, Near lane No.10, Samantarapur,

PS_ Lingaraj, Bhubaneswar- 751002, Dist – Khurda                      

….     Complainant

-Vrs.-

1. TCI Express Ltd., represented through

The Managing Director & having its Corporate

Office At – TCI House, 69, Institutional Area, 32,

Gurugram, Haryana – 122001

2. TCI Express Ltd.,

having itsRegistered Office at Flat No.306 & 307, 1-8-201-203,

Telengana – 500003

3. The Branch Head, TCI Express Ltd.,  (TCI XPS XBBD),

Ward No.34 (p), Holding No.12/907,

At – Pratapnagari, PO- Bhanpur, Cuttack – 753011, Odisha

….     Opp. Parties 

For the complainant      :         Sri N.K.Dash  & Associates (Adv.)

For the O.Ps                           :         Sri K.C.Prusty & Associates  (Adv.)

DATE OF FILING         :         07/01/2019

DATE OF ORDER        :         22/08/2023

ORDER

SMT. S. TRIPATHY, MEMBER

1.       The complainant has filed this Consumer Complaint U/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs.

2.       The complainant’s case in brief is that,  the complainant had imported a consignment of medical equipments from China. The consignment, after reaching IG  Airport, New Delhi,  had to be delivered at Bhubaneswar address of the complainant. For this, delivery (from Mahipalpur to Bhubaneswar) the complainant hired the services of the OPs and the date of delivery was scheduled on 24/10/2017. The book value of the goods was 3,43,821/-. Additional expenditure borne by the complainant was Rs.17,602/- towards custom clearance charges by M/s Cargo Movers, New Delhi (OP) and Rs.5,588/- towards transportation cost. The total expenditure incurred by the complainant for the consignment to reach at the destination (Bhubaneswar) was Rs.3,67,011/-. But unfortunately, the consignment was delivered at the address of the complainant in a damaged condition. Some of the cartoons were found torn and the packets inside those cartoons  were badly damaged and broken. Since, the boxes were manifestly damaged, the complaint could not take the risk of receiving the delivery. The delivery people were also not ready to open and verify the cartoons. So, the complainant signed on the delivery slip with a remark ‘damaged’ which infuriated the delivery people and they left from there with the goods. Thereafter,  the complainant immediately informed to the OPs about the incident and about the loss he had already suffered and the loss he would suffer due to delay. He also requested the OPs to appoint an independent interlocutor to make an evaluation of the damage and to compensate the loss proportionately as per the book value. But the OPs did not take any responsibility of the damage. They only kept on insisting to receive the delivery and to get the survey done without their involvement and presence. Having no other alternative, the complainant sent a legal notice to the OPs on 20/07/2018. Upon receiving the notice, the OPs got agreed for a joint survey of the consignment. But such offer was not acceptable to the complainant since the supplier had provided only one year manufacture warranty which was about to expire. That is why the complainant decided to seek relief from this Commission for the loss he had suffered both financially and mentally.  Hence this complaint.

3.       Upon notice, OPs appeared and filed their written versions. Subsequently, hearing was taken up.

4.       OPs have averred in their written version that all the allegations made by the complainant, are false and fabricated and therefore denied. The complainant approached to the OPs for the transportation of his consignments from Mahipalpur to Bhubaneswar. The OPs transported the materials with utmost care and diligence and delivered the same  at the desired location of the complainant on 24/10/2017. But, the complainant refused to receive the consignment by giving lame excuses that the boxes were torn out and the complainant was suspicious about the condition of the materials. As per  the policy of the OP’s  company, only the client can open the delivered items but the complainant was extremely adamant to receive the consignment.  Also, the OPs suggested the complainant to conduct a survey through any professional surveyor after receiving the consignment and can seek for compensation in case of damages. But the complainant refused to follow basic terms and conditions to seek compensation by conducting the survey at the complainant’s own resource.

          The consignments were never accepted by the complainant despite several attempts made by the OPs and still lying at the godown of the OPs in safe and sound condition.  Moreover, the complainant is liable to pay the demurrage charges of Rs.18,000/- for the consignment being left at the godown of the OPs. in spite of everything,  the OPs desired to maintain a healthy relationship with the complainant and therefore, they got agreed to conduct a joint survey of the consignment  between 20^th September 2018 to 29^th September, 2018. It was communicated to the complainant on 28/08/2018. But the complainant did not cooperate. This shows that the intention of the complainant was never to resolve the dispute whereas the OPs did not lack at any stage to provide assistance.  Hence, the complaint bears no consideration and liable to be dismissed with heavy cost.  

5.       Perused the materials  available on record.   It is beyond dispute that the complainant had hired the services of the OPs for transporting his consignment of medical equipments from Mahipalpur to Bhubaneswar. It is also not in dispute that, the consignment reached at the address of the complainant on the scheduled date i.e. on 24/10/2017. Dispute arose between the parties when the complainant refused to receive the delivery as most of the delivered goods were in damaged condition.  OPs also did not agree to open the boxes and verify the condition of the goods and left from the place without delivery. Thereafter, the complainant  made several communication with the OPs for a joint inspection of the goods to assess the damage and to compensate the loss thereof. Instead,  the OPs suggested  to the complainant to conduct  the inspection by any surveyor and send copy to them so that they could issue the certificate of fact for damage. The complainant understood that, the OPs were not going to take any step to resolve the matter. So, at last, he issued a legal notice to the OPs on 20/07/2018 (Annexure-11 [38] ). Only after receiving the legal notice,  the OPs got agreed for a joint inspection and intimated regarding this to the complainant on 28/08/2017 (Annexure-12 [42] ). Taking into consideration, the totality of the facts and circumstances, this Commission is of the opinion that, it was well within the knowledge of the OPs that the consignment of the complainant was carrying medical equipments. For the operational suitability of those medical equipments, the OPs had to despatch the delivery to the complainant as early as possible. The complainant kept on insisting for a joint survey of the consignment and damage assessment but the OPs did not cooperate citing the terms & conditions of the company’s policies.  Instead of taking any responsibility of an effective client delivery  and taking  prompt action to resolve  issues, the OPs shifted the responsibility of the damage assessment onto their client (complainant). The complainant was already going through financial loss and mental trauma due to delay in loss assessment. In this situation, it was obvious not to trust the OPs any more by resorting to unilateral  survey. Moreover, the OPs got agreed  vide letter dated 20/08/2017 to conduct a joint assessment of the consignment those were lying at their godown since 24/10/2017 only after receiving a legal notice from the complainant on 20/07/2018. By that time, the manufacturing warranty of these medical equipments were about to expire and their operational suitability is under question mark. Had the OPs taken a prompt step to assess the damage of the damaged items,  the loss of the complainant would have been less and also his market reputation be protected from being  tarnished.  In this backdrop, the Commission observes serious deficiency of service and gross negligence on the part of the OPs.    It appears that, the complaint bears merit.  Hence it is ordered.

ORDER

The complaint is  allowed on contest against the OPs.  The OPs are  hereby directed to compensate Rs.3,67,011/- towards book value of the medical equipments including custom clearance charges and transport cost.  The OPs are  further directed to pay a sum of Rs.20,000/-   (Rupees twenty  thousand) only towards mental agony suffered by the complainant and a further sum of Rs.5000/-  (Rupees five thousand) only towards litigation expenses.  The order be complied with by the OPs jointly & severally   within a period of  thirty days from the date of communication of this order,   failing which the complainant will be  at liberty to execute the order  against the OPs    in accordance with law.

The order is pronounced on this day the 22^nd August,  2023  under the seal & signature of the President and Member (W) of the Commission.

                                                                            (S.TRIPATHY)

                                                                               MEMBER(W) 

Dictated & corrected by me

           Member ( W) 

                                                                             I agree

                                                                                                                                                 President   

                                                                             (K.C.RATH)

Transcribed by Smt.M.Kanungo, Sr.Steno :