BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st of March 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.203/2010
(Admitted on 24.07.2010)
Bujanga Shetty,
So. Late Krishna Shetty,
Aged about 50 years,
RA. Thaggu Mane, Hejamadi,
Udupi District. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Shrikanta Shetty K).
VERSUS
1. Atlas Engineering Works,
Baikampady,
Mangalore
Rep. by its Manager.
(Advocate for the Opposite Party No.1: Sri.N.Sukumar).
2. Shri Sai Transport and Courier Pvt. Ltd.,
W.B. Plaza, 1st Floor,
No.122/141-A, Ward No.3,
New Cotton Market,
Opp: North Traffic Police Station,
Hubli – 580 029.
(Advocate for the Opposite Party No.2: Sri.Suraj Lal Shetty).
3. Mangalore Logistics,
Booking and Delivery Office,
Central Bus Stand,
K.S.R.T.C. Mangalore,
Rep. by its Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.3: Sri.Bharathraj Hegde).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he is the owner cum driver/operator of the JCB Excavator bearing registration No.MH 04/B/5523 operating by self and eking his income out of the above said vehicle. It is stated that, the Hydraulic pump of the said JCB failed to work. The said part has been entrusted on 06.05.2010 with the Opposite Party No.1 for repair and paid Rs.10,000/- as advance repair charge and kept balance of Rs.5,000/- payable after getting it repaired. It is stated that, the Opposite Party No.1 told the Complainant that a week time is required for rectifying the defect but the Opposite Parties did not repair the above said pump and the same has not been received by the Complainant so far. Feeling aggrieved by the above, the Complainant lodged a complaint in Panambur Police Station Mangalore. At the same time, the Opposite Party No.1 also lodged complaint about the missing of Hydraulic pump of the Complainant before the Barke Police Station. In police investigation, it is revealed that the said Hydraulic pump lost during transit by K.S.R.T.C. The Complainant submits that, he has lost the Hydraulic pump which costs Rs.60,000/- and repair charge advanced Rs.10,000/- and also lost his income from 15.05.2010 onwards. It is stated that, the Complainant is not in a position to purchase a new one, that the subject JCB crane is under finance from ‘Sriram Transport Finance Company’ and he has to remit the loan amount and the JCB is kept idle. Because of the deficiency on the part of the Opposite Parties, the Complainant sustained loss and untold hardship. Hence, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties jointly, severally and personally to return the repaired Hydraulic Pump i.e., Rs.70,000/- along with interest at 10% p.a. and Rs.19,00,000/- as compensation and Rs.5,000/- as cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed separate version.
Opposite Party No.1 stated that, the complaint is bad for non-joinder of necessary party as the Complainant has not made the person who had repaired the Hydraulic pump and sent back to Mangalore through Opposite Party No.3 to this complaint. According to the Opposite Party No.1, the person who had repaired the Hydraulic pump is a necessary party to the proceedings.
The Opposite Party No.1 submits that, the Complainant approached this Forum by suppressing the true facts. It is stated that, initially the Complainant had approached Tauras India Limited for repair of the Hydraulic pump, after inspection the said Company had returned the pump on the ground that the defect cannot be rectified. Thereafter, the Complainant brought his pump to Opposite Party No.1 for repair, Mr.Sharath being the Supervisor of Opposite Party No.1 Company examined the said pump in detail and advised the Complainant that it is not repairable and returned back to the Complainant. Thereafter the Complainant had enquired with Mr.Sharath about the persons who repair the Hydraulic pump. It is stated that, since the Complainant known to Mr.Sharath, he told him that one Mr.Prabhu of Tumkur is expert in handling such cases and hence the Complainant requested Mr.Sharath to contact Prabhu through phone. Accordingly, in the presence of Complainant, he contracted the above said Prabhu and told the condition of the pump. In turn the above said Prabhu asked the Complainant to send the said pump to him for repair and told to the Complainant that the repair charge will cost Rs.15,000/-. Since the said Prabhu is known to Mr.Sharath, the Complainant requested him to send the pump in the name of Mr.Sharath. Accordingly the Complainant had sent the pump through Opposite Party No.3 in the name of Mr.Sharath on 13.05.2010 and receipt is given in the name of Mr.Sharath.
It is further stated that, on 15.05.2010 the above said Prabhu contacted Mr.Sharath and told that the said pump is ready he would send the pump on the same day through Opposite Party No.2, hence at 4.00 p.m gone to receive the parcel but the parcel was not received. On 16.05.2010 along with the Complainant went to Opposite Party No.3 office and enquired about the parcel. But Opposite Party No.3 told him that his office has not received any parcel from Tumkur and thereafter enquired with the bus driver, they have told that parcel has already given and handed over to Opposite Party No.3 but Opposite Party No.3 stated that, they have not received any parcel from Tumkur on 18.05.2010. Thereafter, on the request of the Complainant, a complaint was lodged in the name of Mr.Sharath against Opposite Party No.3 before the Barke Police Station for missing of the parcel and stated that, this Opposite Party has not received any amount from the Complainant towards repair charges. The above said Prabhu of Tumkur being known to Mr.Sharath, the parcel has sent in the name of Mr.Sharath and the said Mr.Prabhu had sent the pump back through Opposite Party No.3 and Opposite Party No.2 being the main branch of Opposite Party No.3 are jointly and severally liable for missing of the parcel and only Opposite Party No.2 and 3 are liable to return the repaired Hydraulic Pump or to pay amount as claimed by the Complainant and stated that he is not liable for any relief claimed in the complaint.
Opposite Party No.2 and 3 submitted that, the Complainant is not a consumer and the present complaint is beyond the purview of Consumer Protection Act and stated that this Opposite Party is not aware about the para No.2 of the complaint and denied the cost of the Hydraulic Pump is Rs.60,000/-. It is stated that, after receiving the complaint in respect of alleged missing of luggage, this Opposite Party immediately written a letter to the Control Officer, KSRTC, Mangalore Division as per its letter dated 21.05.2010 and lodged a police complaint before the Jurisdictional Police Station dated 23.06.2010. This Opposite Party made all his efforts done his duty promptly. It is stated that, the Opposite Party issued the receipt having payment and in respect of goods wherein which clearly disposes at one Mr.Prabhu is the sender and Mr.Sharath is the consignee who is the Opposite Party No.1 herein. It is stated that, the Complainant not complied the minimum requirements which are mentioned in the receipt before claiming the amount and stated that, the complaint is bad for non-joinder and mis-joinder of necessary party and there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complaint is bad for non-joinder and mis-joinder of necessary party?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Bujanga Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Mr.Sharath (RW1), Manager of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. One Mr.B.Mohammed Bava (RW2) – Manager of the Opposite Party No.3 filed counter affidavit but not answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Party No.3 as listed in the annexure. Both parties produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
The Complainant came up with a complaint and filed affidavit of evidence stated that, he is the owner cum driver of the J.C.B. Crane bearing registered No.M.H.04/B-5523, who is operating the above crane by self for eking his income out of the said JCB under self employment. The Hydraulic Pump of the said JCB failed to work during the operation. The same has been entrusted on 06.05.2010 to the Opposite Party No.1 for repair and paid Rs.10,000/- as advance and kept Rs.5,000/- balance payable after repair. One Mr.Sharath, staff of the Opposite Party No.1 told the Complainant that, a week is required for rectifying the defect of the said pump since he will send it to Tumkur. The Opposite Party No.1 sent the Hydraulic Pump of the Complainant through Opposite Party No.2 to Tumkur on 13.05.2010 and the Opposite Party No.1 informed the Complainant to receive back the repaired Hydraulic Pump from the Opposite Party No.3 on 15.05.2010. The Complainant waited at Opposite Party No.3 office but he did not receive back the Hydraulic Pump. Feeling aggrieved by the same, the Complainant lodged complaint against the Opposite Party No.1 in Panambur Police Station. In the meantime, the Opposite Party No.1 also lodged complaint about the missing of the Hydraulic Pump before the police station. The police investigation revealed that, the said Hydraulic Pump lost during transit by KSRTC. It is stated that, the Complainant lost the Hydraulic Pump which costs Rs.60,000/- in addition to that, advance amount paid Rs.10,000/- towards the repair charge and lost the income per day from 15.05.2010 onwards. It is also stated that, the subject JCB Crane under finance from Sriram Transport Finance Company and the JCB is kept idle and thereby he has suffered financial loss other than mental agony and harassment and relied Ex C1 to C10.
The Opposite Party No.1 who is the repairer of the above said Hydraulic Pump denied the entire allegations and stated that, the Complainant entrusted the repair of the Hydraulic Pump to one Mr.Prabhu of Tumkur through Mr.Sharath. Since the above said Mr.Prabhu is known to Mr.Sharath, the Complainant requested this Opposite Party to send the pump in the name of Mr.Sharath. Accordingly this Opposite Party had sent the pump through Opposite Party No.3 in the name of Mr.Sharath on 13.05.2010 and stated that there is no deficiency on his part and filed oral evidence by way of affidavit in order to substantiate their version.
Opposite Party No.2 and 3 stated that, they have received the complaint in respect of missing of luggage and immediately written a letter to the Control Officer, KSRTC, Mangalore Division, as per its letter dated 21.05.2010 and also lodged a police complaint before the Jurisdictional Police Station as per complaint dated 23.06.2010 and made all efforts in order to ascertain the missing luggage. It is further stated that, one Mr.Prabhu is the sender and Mr.Sharath is the consignee who is the Opposite Party No.1 and the Complainant not complied the minimum requirements which are mentioned in the receipt and stated that there is no liability to pay any compensation and filed oral evidence by way of affidavit and produced Ex R1 to R3.
On scrutiny of the oral as well as documentary evidence available on the file of this FORA, we find that, the subject JCB Hydraulic Pump was sent by the consignor by name one Mr.Prabhu and the consignee is one of the staff of Opposite Party No.1 i.e., Mr.Sharath. It is the definite case of the Complainant that, he has entrusted the Hydraulic Pump for repair to one Mr.Sharath who is the staff of the Opposite Party No.1. The above said fact was not denied by the Opposite Party No.1. Further the Ex C7 i.e., the courier bill issued by the Opposite Party No.2 dated 13.05.2010 clearly reveals that, the Opposite Party No.1 i.e., Mr.Sharath staff of the Opposite Party No.1 sent the Hydraulic Pump to one Mr.Prabhu of Tumkur on 13.05.2010. That itself is sufficient to hold that, the Opposite Party No.1 received the Hydraulic Pump for repair from the Complainant and thereafter the Opposite Party No.1 sent the Hydraulic Pump to one Mr.Prabhu for further action/repair. If at all the Hydraulic Pump sent by the Complainant to Mr.Prabhu at Tumkur then definitely the name of the Complainant should have find a place in the courier receipt and the courier receipt would have been in the name of the Complainant. Further the receipt dated 15.05.2010 reveals that, Mr.Prabhu sent the Hydraulic Pump through courier in the name of Mr.Sharath i.e., the Opposite Party No.1. If at all, the Complainant entrusted the Hydraulic Pump through Mr.Sharath i.e., Opposite Party No.1, then the pump should have been sent by Mr.Prabhu to the Complainant directly not in the name of Mr.Sharath. The above receipt clearly disclosed that, the Opposite Party No.1 sent the pump to repair to Tumkur who is known to them. The Opposite Party No.1 must establish that why they have sent the machine to Tumkur. The Complainant is nothing to do with Mr.Prabhu of Tumkur in this case. If at all any transaction that is between the Opposite Party No.1 and Mr.Prabhu of Tumkur and not between the Complainant and Mr.Prabhu of Tumkur. There is no contractual relation between the Complainant and Mr.Prabhu. Hence the question of making Mr.Prabhu as necessary party to the proceedings does not arise. Therefore, the question of non-joinder of necessary party in this complaint does not arise. In the instant case, the main contract is between the Complainant and the Opposite Party No.1. So, it is the bounden duty of the Opposite Party No.1 to return the Hydraulic Pump to the Complainant.
However, we observed that, the Opposite Party No.1 i.e., Mr.Sharath entrusted the pump to one Mr.Prabhu of Tumkur and Mr.Prabhu after repairing the Hydraulic Pump sent the machine to Mr.Sharath i.e., the Opposite Party No.1 through courier service of Opposite Party No.2 and 3. The Opposite Party No.3 admitted that, they have received the payment in respect of goods to deliver to the consignee i.e., Mr.Sharath who is the Opposite Party No.1 and also admitted that the above said pump was missed while in transit.
Now the point for consideration is that, admittedly the Hydraulic Pump belongs to the Complainant sent for repair to the Opposite Party No.1 is lost while in transit. The missing of the machine while in transit has been admitted by the Opposite Party No.2 and 3 in this case. On overall consideration of the case on hand, it is the responsibility of the Opposite Party No.1 to pay the damages to the complainant because the contract is between the Complainant and the Opposite Party No.1. But in the instant case, the Opposite Party No.2 and 3 who are the courier service provider admitted that the pump was lost in transit. When that being the case, the Opposite Party No.2 and 3 must pay the damages to the consignor. As per the courier receipt, the Opposite Party No.1 is the consignor but the above said machine originally belongs to the complainant, who in turn deputed the machine for repair to the Opposite Party No.1. From the above discussion, it is proved beyond doubt that, the Hydraulic Pump is lost during transit, hence the complainant is entitled for compensation in this case. According to the complainant, the cost of the Hydraulic Pump is Rs.51,096.15. In order to substantiate the same, the complainant produced Customer Order Registration Bill from Taurus Excavators Private Limited, Mangalore i.e., document No.1, wherein it shows that the rate of the Hydraulic Pump P-92 Brand is of Rs.51,096.15. There is no contra evidence produced by the Opposite Parties to disprove the same. Apart from the above, the complainant also produced a letter issued by the Sriram Transport Finance Company Ltd., dated 13.09.2010, wherein it discloses that the complainant is the borrower availed a loan in respect of the above said J.C.B and he is in due of installment of Rs.4,03,175/- (as per Ex C10). The above documents clearly showed that, the Complainant is the owner of the above said JCB availed a loan with the finance company and because of the missing of the above Hydraulic Pump definitely he has been put to trouble and suffered financial loss and the JCB kept in idle as well.
As far as relief is concerned, the Complainant sought return of the repaired Hydraulic pump or Rs.70,000/- along with interest and also claimed the compensation and cost. Since the Opposite Party No.2 and 3 who are party to the proceedings admitted that, the above subject Hydraulic pump has been missed while in transit the question of returning the Hydraulic pump after repair does not arise in this case. In the absence of the same, the Complainant is entitled for cost of the Hydraulic Pump i.e., Rs.51,096.15 from the Opposite Parties. Now the question is who has to pay the said damages to the Complainant? In the instant case, the contract is between the Complainant and the Opposite Party No.1 and Opposite Party No.1 in turn have a contractual relation with Opposite Party No.2 and 3 because he is the consignor. When that being the case, the Opposite Party No.1 shall pay the cost of the Hydraulic pump and also compensation and cost to the Complainant first and then recover from the Opposite Party No.2 and 3 or otherwise the Opposite Party No.1 to 3 jointly and severally directed to pay Rs.51,096.15 i.e., the cost of the Hydraulic along with interest at 12% p.a. from the date of incident i.e., lost in transit till the date of payment. Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation and hence separate compensation not allowed in this case.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties are jointly and severally hereby directed to pay Rs.51,096.15 (Rupees fifty one thousand ninety six and paise fifteen only) i.e., the price of the Hydraulic Pump along with interest at 12% p.a. from the date of incident i.e., lost in transit till the date of payment. Further Rs.1,000/- (Rupees one thousand only) awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 15 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of March 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Bujanga Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Driving licence of the Complainant (Notarized).
Ex C2 – 21.05.2010: Police complaint filed by the Complainant before the Panambur Police Station.
Ex C3 – 25.05.2010: C.Mis No.33/PNB/10 receipt issued by Panambur Police Station (Original).
Ex C4 – 25.05.2010: Endorsement of Panambur Police Station (Original).
Ex C5 - : Police complaint filed by Sharath of Opposite Party No.1 (Copy).
Ex C6 – 18.05.2010: Complaint lodged with Opposite Party No.3 by Sharath of Opposite Party No.1 (Copy).
Ex C7 – 13.05.2010: Courier bill issued by Opposite Party No.2 (copy).
Ex C8 – 15.05.2010: Courier bill issued by Opposite Party No.2 (copy).
Ex C9 - : Pamphlet of KSRTC and Opposite Party No.3 (copy).
Ex C10 – 13.09.2010: Letter of dues issued to the Complainant by Sriram Transport Finance Co. Ltd.(Original).
Doc. No.1: Customer order registration Bill from Taurus Excavators Private Limited, Mangalore for Rs.51,096.15.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.Sharath, Manager of the Opposite Party No.1.
RW2 – Mr.B.Mohammed Bava – Manager of the Opposite Party No.3.
Documents produced on behalf of the Opposite Party No.3:
Ex R1 – 15.05.2010: Original bill issued by the Opposite Party No.2.
Ex R2 – 21.05.2010: Letter issued by Opposite Party No.3 to K.S.R.T.C.
Ex R3 – 23.06.2010: Police complaint given by the Opposite Party No.3.
Dated:31.03.2011 PRESIDENT
