BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 247/2012 Filed on 28/07/2012

ORDER DATED:  18/11/2022

ORDER

SRI. VIJU V.R : MEMBER

The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986.The case of the complainant is that the 2^nd complainant has purchased a Mini Lona Bag (metal) for an amount of Rs.7,500/- (including tax amount) on 09/05/2012 for his personal use form the 1^st opposite party showroom.  Since the equipment is a bulky one and the 2^nd complainant could not carry it along with his baggage in the train from Ernakulam to Thiruvananthapuram and from there to Neyyattinkara by bus, he wanted it to be delivered at least at his office at Sanghumugham through some other means.   One person attached to the 1^st opposite party’s showroom happily accepted the 2^nd complainant’s request.  He agreed to deliver it on the next day by some other arrangement.  After this assurance the 2^nd complainant purchased the mini lona bag from the 1^st opposite party.  A cash invoice No.459 dated 09/05/2012 for Rs.7,500/- had been issued to 2^nd complainant.  Even after days of wait the 2^nd complainant did not get the item in spite of repeated phone calls to the 1^st opposite part.  On 30/05/2012, 2^nd complainant sent a letter expressing his grievances happened due to 1^st opposite party unfair trade practice.  A reply dated 31/05/2012 was received by the 2^nd complainant along with a receipt having PA No.491742 dated 09/05/2012 of issued by 2^nd opposite party was attached.  But unfortunately the mini loan had not reached at 2^nd complainant.  The 2^nd opposite party never contacted him.  After repeated calls the 2^nd complainant got an SMS on 25/05/2012 from a mobile number.  On contacting that number the 2^nd complainant was told that they were not in receipt of the goods so far and gave another number & when he contacted in that number one person has told the 2^nd complainant that the item is with him at daily express office for the last two week.  They did not deliver it to the 2^nd complainant at his office or house as he has to take delivery form 3^rd opposite party’s office.  This was totally against what the 1^st opposite party had promised at the time of purchase.  By that time more than two weeks have elapsed.  When the 2^nd complainant went to collect the goods from the 3^rd opposite party’s office on 25/05/2012 at 4.00pm he has found that it was closed and the gate was locked.  On enquiring at the next shop were M/s.Sheltron Digital System Ltd., was functioning it is understood that this early closure is unusual and normally they used to function till 8.00pm.  The 2^nd complainant again rang in the same mobile and he was told that the office was then opened around 11.am.  The 2^nd complainant went there immediately and reached by 11.15 to find that it was closed and the gate was locked.  The mini lona was purchased to maintain 2^nd complainant’s mexcican  gran in his 5000sq.feet lawn.  Mean while it was destroyed by fungus and weeds during the heavy summer rains.  Thus the 2^nd complainant was forced for replant  mexcican gran in 5000 sq.feet lawn.  Thus a loss of more than 1.5 lakhs rupees has happened to the 2^nd complainant because of the delay in delivery of the mini lona by the opposite parties.  He purchased another lawn mower subsequently.  So the purpose of mini lona purchased from the 1^st opposite party became useless.  A legal notice was sent through 1^st complainant on 15/06/2012.  But the 2^nd opposite party unclaimed the legal notice, hence this complaint.

The Opposite parties 1 to 3 entered appearance &filed version.

The 1^st opposite party has averred that the consumer complaint is prima facie not maintainable against 1^st opposite party either in law or on facts of the case.The functioning of any consumer organization is for an amicable settlement of the consumer issue brought before the consumer organization.The 1^st opposite party ought to have tried for a mediatory settlement rather than demanding Rs.1,75,000/- from the 1^st opposite party without understanding the facts and law involved in this dispute.The 1^st complainant or even the 2^nd complainant has no cause of action against the 1^st opposite party.The purchase of mini lona with bag (metal) for Rs.7,500/- by complainant from the 1^st opposite party is admitted.The averment of the complaint that complainant purchased mini lona with bag (metal) from the 1^st opposite party on the assurance that it should be delivered on the next day by the 1^st opposite party is absolutely false.After the purchase of mini lona with bag(metal) complainant requested a staff of the 1^st opposite party to help him to book the mini lona with bag (metal) through daily express cargo service.According the staff of the 1^st opposite party on the same day despatched mini lona with bag (metal) through daily express, the cargo service, to the official address of the complainant.The 1^st opposite party when received a complaint of non receipt of the cargo from the complainant immediately contacted the local office of the 2^nd opposite party at Ernakulam.1^st opposite party on the basis of the information received from the 2^nd opposite party furnished all particulars of the cargo including the phone number of the 2^nd and 3^rd opposite parties.Further 1^st opposite party has also forwarded letter dated 31/05/2012 furnishing copy of L.R. and contact number in writing to the complainant under registered post.Further the attempt of the 3^rd opposite party to contact the 2^nd complainant in phone number has also become futile.The 1^st opposite party is further informed by the opposite parties 2 and 3 that in spite of specific repeated requests by them, the 2^nd complainant had failed to take delivery of the cargo for reasons best known to him.The averment of the 2^nd complainant’s that Mexcican gran in his 5000 Sq feet lawn was destroyed by fungus and weed during the heavy summer rains and that complainant was forced to replant mexcican gran in 5000sq.feet lawn and further that complainant had incurred a loss of Rs.1.5 lakhs etc. are absolutely false.The employee of the 1^st opposite party shop was acting as an agent of the 2^nd complainant on his request while despatching the cargo through the 2^nd opposite party at the request of the 2^nd complainant.Thus there is absolutely no consumer relationship between 2^nd complainant and the 1^st opposite party.There is no negligence and deficiency in service from the side of the 1^st opposite party.Hence complaint may be dismissed with compensatory cost to 1^st opposite party.

The 2^nd & 3^rd opposite party has contended that thecomplaint is not maintainable with in law or on facts.The complainant has approached the court with unclean hands.The 2^nd complainant had availed the service of the 1^st opposite party alone and never had any occasion to avail the services of the 2^nd and 3^rd opposite parties.He had purchased some articles from the 1^st opposite party and paid consideration to him alone.Therefore he cannot claim any compensation or damages for deficiency of service or unfair trade practice against the 2^nd and 3^rd opposite parties as he is not a consumer of the 2^nd and 3^rd opposite parties.

The 1^st opposite party had sent an article with a specific direction that, it shall be collected by somebody from the office of the 3^rd opposite party.The delivery mode of the article was godown delivery.As nobody had come to collect the parcel even a week after the receipt of the same at the office of the 3^rd opposite party, the officers of the 3^rd opposite party had informed the matter to the 1^st opposite party. Thereafter, the officers of the 3^rd opposite party traced out the details of the 2^nd complainant from the 1^st opposite party and informed him also regarding the parcel.Even then nobody came to collect the same.The 1^st complainant has got no authority to file such a complaint and the relationship between the 1^st and 2^nd opposite parties has to be proved by the 2^nd complainant.The parcel was sent with the definite undertaking that, it shall be collected by the recipient from the office of the 3^rd opposite party.But due to some dispute between the 2^nd complainant at the 1^st opposite party that, the parcel is not collected from the office of the 3^rd opposite party.The parcel is lying idle in the godown of the 3^rd opposite party since the last several years and it being a bulky one, the 2^nd complainant and the 1^st opposite party are liable to pay demurrage charges to the 2^nd and 3^rd opposite parties for the same.The averment regarding M/s. Sheltron Digital System Ltd. etc. are utter false.The 2^nd complainant did not suffer any loss.Hence the complaint may be dismissed with costs to opposite parties 2 and 3.

Issues to be ascertained:

(ii). Whether there is any deficiency in service from the side of

opposite parties 1 to 3?

(iii). Whether the complainant is entitled to get the reliefs?

Issues Nos (ii) & (iii):-  Both these issues are considered together for the sake of convenience.  The 2^nd complainant has filed affidavit in-lieu of chief examination and was examined as PW1 & he has produced 6 documents which were marked as Exts.P1 to P6.  The commission report was marked as Ext.C1 & the commissioner was examined as CW1.  PW1 was cross examined by opposite parties 1 to 3.  The 1^st opposite party has filed affidavit in-lieu of chief examination & has produced 5 documents which were marked as Exts.D1 to D5.  There was no evidence from the side of opposite parties 2 &3.  All the parties filed the argument note.  The 1^st complainant being a registered body can file complaint for any person, hence the complaint is maintainable.

The main contention raised by the 2^nd complainant is that the consignment was not delivered to him on proper time.It is admitted by 1^st opposite party that the 2^nd complainant has purchased a mini lona with bag from them, which is evident from Ext.P1.It is also admitted by the 1^st opposite party that their staff has despatched the product on the same day of the purchase of the product from them. On going through Exts.P6 & D2 it can be seen that the product was send to the 2^nd complainant through 2^nd opposite party.So 1^st opposite party has done their part, so there is no deficiency in service from the side of 1^st opposite party, hence 1^st opposite party is exonerated.

It is admitted by 2^nd &3^rd opposite party that the 1^st opposite party has send an article through them with specific direction that it shall be collected by somebody from the office of the 3^rd opposite party & further they have contended that they have given repeated reminders over the phone & send messages to the 2^nd complainant to collect the parcel from their office.But opposite parties 2 & 3 has not produced any evidence to prove the same.They have also admitted that the parcel is lying idle in the godown of the 3^rd opposite party.So it is clear that opposite parties 2&3 has not delivered the parcel to the 2^nd complainant which amounts to deficiency in service from the side 2^nd & 3^rd opposite party.Hence 2^nd & 3^rd opposite parties are jointly & severally liable to compensate the complainant.

Even though the 2^nd complainant has alleged that he had sustained a loss of 1.5 lakhs due to the act of opposite parties, he has not produced any evidence to prove the same. Ext.C1 also does not mention about any loss occurred to thecomplainant.

In the result, the complaint is partly allowed. The opposite parties 2 &3 are jointly & severally directed to pay an amount of Rs 25,000/- (Rupees Twenty Five Thousand Only) as compensation for the mental agony suffered by the complainant and pay Rs 2500/- (Rupees Two Thousand Five Hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9% per annum from the date of order till realization

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 18^th  day of November, 2022.

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P.V.JAYARAJAN                 : PRESIDENT 

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PREETHA G. NAIR              : MEMBER    

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                                                                 VIJU V.R                          : MEMBER

R                                                                                            

C.C. No. 247/2012

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

V         COURT WITNESS:

VI.       COURT EXHIBITS:

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PRESIDENT

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