BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE    

Dated this the 16^th June 2017

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : HON’BLE MEMBER

ORDER IN

C.C.No.93/2014

(Admitted on 15.3.2014)

Suresh G,

S/o Sundara Gouda,

Aged about 45 years,

Proprietor, M/s Preethi Dress,

Bank Road, Roopakala Building,

Uppinangady, Puttur Taluk, D.K.

                                                                   ….. COMPLAINANT

(Advocate for the Complainant: Sri SD)

VERSUS

1. Proprietor,

Ideal Travels,

H.O.Shop No.8,1^st main road,

Ganghinagar, Bangalore 9.

2. Pratik Creation,

No.118 to 121, 1^st floor,

Devatha Market,

Chickpet, Bangalore 53.

                                                          ….OPPOSITE PARTIES

 (Advocate for Opposite Party No.1: Sri KSS)

(Advocate for Opposite Party No.2: Sri ANN)

ORDER DELIVERED BY HON’BLE MEMBER

T.C. RAJASHEKAR:

I.   1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to refund Rs.48,320/ with 12% interest from 9.4.2013 till payment to the complainant, to pay Rs.30,000/ towards compensation, to pay Rs.10,000/ towards expense  and such other reliefs.

2. In support of the above complaint Mr. Suresh G, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents Ex.C1 to Ex.C5 as detailed in the annexure here below. On behalf of the opposite party K. Moideen, (RW1) Prop.M/s Ideal Travels, also filed affidavit evidence and answered the interrogatories served on him and produced documents Ex.R1 to R3.

 The brief facts of the case are as under:

We perused the complaint and the version of the parties. This dispute is with regard to non-delivery of the parcel booked through opposite party. The complainant alleges that he has purchased goods from the opposite party No 2 and the opposite party no 2 booked the goods as parcel through the opposite party No 1 on behalf of the complainant. The parcel booked from Bangalore to Uppinangadi through the opposite party No 1 but the opposite party No 1 did not delivered the parcel to the complainant at its destination at Uppinangadi. On enquiry the opposite party No 1 not responded properly and not delivered the parcel too at Uppinangadi. Hence alleges the deficiency in service on the part of the opposite parties. The opposite party No 1 is the transporter and contended that the parcel was even though booked from Bangalore to Uppinangadi but taking delivery is the complainant’s responsibility to collect the goods from the opposite party no 1. The parcel is still ready for delivery at their Mangalore office. The opposite party also contended that they have no branch or delivery office at Uppinangadi and hence the complainant has to collect the parcel from the Mangalore office. The opposite party also alleged that in spite of numerous phone calls the complainant has not come to collect the parcel. The opposite party no 2 contended that, the complainant had purchased the goods from him and the same was booked through the opposite party No 1 which is to be delivered to the complainant. The opposite party no 1 is bound to deliver the parcel to the complainant and this opposite party is not liable to the complainant for deficiency in service. These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION

On close examination of the evidence adduced and the documents produced, the material admitted facts are, the booking of the parcel with the opposite party No 1by the opposite party No 2 on behalf of the complainant after paying the consideration and the parcel to be delivered to the complainant. It is also admitted that parcel is not delivered to the complainant and the parcel is still laying with the opposite party no 1. It is denied by the opposite party No 1 that the complainant had enquired with the opposite party No 1regarding the parcel and the opposite party No 1 not responded properly. The opposite party denied the value of the goods booked and the payment made for the goods purchased. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986?
2. Whether the complainant proves the opposite party is liable for deficiency in service?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

On scrutiny of the documents produced and on considering the evidence on record, taken note of the notes of arguments and heard the party counsels and answered the above points as under

1. In the affirmative.
2. In the affirmative against the opposite party No 1
3. In the affirmative with modification.
4. As per delivered order.

REASON

POINT NO 1: The case of the complainant is he had purchased the materials from the opposite party No 2 and the opposite party No 2 on his behalf had booked the materials through parcel service of the opposite party No 1to be delivered to the complainant. The complainant produced the EX C 2 as the evidence for the parcel booked by the opposite party No 2 to be delivered to the Preethi dresses the shop claims to be owned by the complainant. The opposite party no 1 admits in his version Para 2 as The Para no 2 of the complainant is totally denied as false, and it is submitted that, the complainant had booked a consignment of textile goods from Bangalore to Mangalore and it is true that the complainant has paid a sum of Rs. 200/ to the first opposite party towards transportation charges. Even though the opposite party No 1 disputes the proprietorship of the Preethi dresses but admits booking of the consignment by the complainant and the payment of consideration. Hence the opposite party No 1 has become the service provider and the complainant had become the consumer. Hence we answered the point no 1 in the affirmative.

POINT NO 2: The complainant allegation is he has booked the consignment from Bangalore to Uppinangadi and the opposite party No 1 not delivered the consignment at Uppinangadi. The complainant produced the EX C 2 to support his contention. On referring to the EX C 2 the parcel receipt it shows the consignment is booked from P.C. (denoting Pratik Creations the opposite party No 2) and delivery to Preethi dresses Uppinangadi. There is no room for doubt to hold the consignment is booked to be delivered to the complainant at Uppinangadi. The opposite party no 1 contention that the consignment is to be delivered at Mangalore since the opposite party no 1 has no branch in Uppinangadi is not acceptable in any angle. In our considered opinion the opposite party No 1 is bound to deliver the consignment at Uppinangadi once it is booked to be delivered at Uppinangadi to Preethi dresses. As it is an admitted fact that the opposite party No 1 not yet delivered the consignment to the complainant, there is deficiency in service on the part of the opposite party No 1 and the complainant succeeded in proving his case. Hence we answered the point no 2 in the affirmative against opposite party No 1.

POINT NO 3:  As per above discussion we hold the opposite party No 1 is liable for deficiency in service in not delivering the consignment booked to the complainant at Uppanangadi. The complainant prayed for the relief of refund of the goods value paid by him. We do not find any reason for praying for the value of the goods consigned instead of praying for the delivery of the consignment or we do not find any logic for awarding the value of the goods consigned. The opposite party No 1 admitted that the goods is with him and he is ready to deliver it, but the opposite party No 1 contention is he is ready to delivery it at Mangalore office. Also on having a glance at the complaint averment, in Para 4 of the complaint it is stated that the opposite party No 1 is duty bound to deliver the parcel to the complainant or else refund the price of the goods. There is no point in ordering for the refund of the value when Opposite Party no.1 is willing to deliver the goods. Also the value is not accepted or admitted at the time of booking the parcel. Hence in our view the complainant is entitled to get delivery of the consignment at Uppanangadi by the opposite party No 1.

2.     As for as the compensation is concern, the facts of the case reveal a contributory negligence on the part of the complainant. The noteworthy facts are, the consignment was booked on 09.04.2013 to be delivered on 10.04.2013 at Uppanangadi. There is no record to show that the complainant made an effort to collect the consignment, also the consignment is not booked as door delivery. We also observed from the record that the opposite party No 1 is the bus service operators basically, but not the goods transporter. Hence in our view door delivery does not arise and the initiative to collect the parcel should be from the complainants end. The effort by the complainant is not established. The complainant stated that he has made an effort by enquiring at opposite party No 1 Mangalore office but did not get the response. But the contention is not substantiated by mentioning the date on which or the person contacted. Even for an opposite party No 1 interrogatories for a specific question no 3 as to when and where the opposite party No 1 was approached the answer given by the complainant is ambiguous by stating  I say on 04.2013 at first opposite party Mangalore. Also question no 4 and 5 not established the attempt to collect the goods. The approach is not established. As per record first approach is the legal notice on 08.08.2013 (after four months from the date of booking) and the complaint being filed on 15.03.2014 (after 11 months of booking). It shows the complainant was not serious about the consignment and not made a sincere effort in either collecting the stock or safe guarding the stock. It is to be kept in mind that the business man must know the value of the stock and the necessarily of reaching of the stock in right time. The opposite party No 1 claims he is not aware of the value of the stock or the nature the goods. Hence the complainant not made reasonable effort in getting released the stock from the opposite party No 1. Hence keeping in mind the stock is of the nature of depreciating in value but there is contributory negligence we consider an amount of Rs. 3,000/ as nominal compensation and Rs.2,000/ as litigation expenses.  Hence we answered the point no 3 in the affirmative with modification. The opposite party No 2 has been discharged as there is no relief prayed against him.

POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is allowed in part. The opposite party No 1 shall deliver the consignment/parcel to the complainant at Uppanangadi with an advance notice of 7 days and shall pay an amount of Rs.3,000/ towards compensation and Rs.2,000/ towards cost of proceedings within 30 days of the order copy received.

The complaint against the opposite party No 2 is dismissed.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 9 directly typed by Member, revised and pronounced in the open court on this the 16^th June 2017)

            MEMBER                                              PRESIDENT

        (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                D.K. District Consumer Forum

Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Suresh G

Documents produced on behalf of the Complainant:

Ex.C1: 9.4.2013: Notarized copy of tax invoice.

Ex.C2: 9.4.2013: Copy of the receipt issued by 1^st Opposite Party.

Ex.C3: 8.8.2013: O/c of the regd lawyer’s notice.

Ex.C4: 12.8.2013: Postal acknowledgement of Opposite Parties.

Ex.C5: 3.9.2013: reply of 1^st Opposite Party.

Witnesses examined on behalf of the Opposite Parties:

RW1 K. Moideen, Prop.M/s Ideal Travels

Documents produced on behalf of the Opposite Parties:

Ex.R1: present parcel/Luggage Receipt.

Ex.R2: Parcel/Luggage Receipt pertaining to the year 2012.

Ex.R3: parcel/luggage Receipt pertaining to the year 2014.

Dated:  16.06.2017                             MEMBER