DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.

CC.No.514 of 10-10-2012

Decided on 28-01-2013

M/s Baldev Kumar Makhan Lal aged about 54 years r/o Sadar Bazar Bathinda, through its Proprietor Makhan Lal s/o Diwan Chand r/o House No.14138, St.No.5, Ganesha Basti, Bathinda.

........Complainant

Versus

1.Blazeflash Couriers Ltd., Blazeflash House, Registered Office: J & K Industrial Estate, Ground Floor, Unit Nos.10 & 11, Opp. Mahakali Caves Road, MIDC Signal, Andheri East, Mumbai-93; through its Managing Director.

2.Blazeflash Couriers Ltd., Branch Office, opp. Mahabir Mandir, Near Underbridge, Railway Road Bathinda; through its Area Manager.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt. Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.Gian Chand Bansal, counsel for complainant.

For Opposite parties: Sh.Vikas Singla, counsel for opposite parties.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant firm is distributor of the seeds of the various companies for his livelihood and he has sent a consignment of the seeds of Century Seeds Pvt. Ltd., B-44, Industrial Area, Phase 3, Mohali (Punjab) on 23.3.2011 through the opposite party No.2 against the payment of the requisite fee of Rs.430/- vide receipt No.190725842 dated 23.3.2011 but no proper receipt was issued to the complainant by the opposite party No.2. The consignment sent by the complainant through the opposite parties has not been delivered by them to the addressee. The complainant has repeatedly visited the office of the opposite party No.2 at Bathinda but they have been putting off the matter on one or the other pretext. The said seeds are perishable and due to the act and conduct of the opposite parties, have outlived their life and the period of the germination has expired thus the complainant has suffered the loss of Rs.25,490/-. Hence the complainant has filed the present complaint to seek the directions to the opposite parties to pay the compensation of Rs.85,000/- for his mental harassment including the financial loss of Rs.25,490/- and cost.

2. Notice was sent to the opposite parties. The opposite parties after appearing before this Forum have filed their joint written statement and admitted that the complaint has availed their services, for the commercial purposes, being the transaction of the sale and purchase therefore as per the law laid down and settled by Hon'ble Supreme Court of India in a matter reported in I (2010) CPJ 4 (SC) titled as Economic Transport Corporation Vs. Charan Spinning Mills Private Ltd., the complainant does not fall within the definition of 'Consumer', hence is not competent to invoke the jurisdiction of this Forum and the complaint be dismissed on this score. The opposite parties further pleaded that at the time of booking, the contents and value of the consignment are not disclosed and/or not mentioned in the impugned consignment note, the liability of the opposite parties in the event of non-delivery due to transit loss of the booked consignment is limited to Rs.100/-. The impugned consignment note constitutes a contract between the complainant and the opposite parties for providing courier services therefore he is bound with the terms & conditions of the booking and the opposite parties have mentioned the terms of the booking as under:-

“The liability of Blazeflash for any loss or damage to the consignment in transit or for any delay in delivery of the consignment shall be strictly restricted/limited to Rs.100/- for each domestic consignment and Rs.1000/- for each international consignment. Further Blazeflash shall also not be responsible for any consequential losses or damages or compensation. No claim or complaint shall be entertained after one month from the date of the consignment note, as we do not keep record pertaining to proof of delivery, after expiry of the said period. The above condition are in addition to the terms and conditions mentioned on the reverse, which have been read over to me/us and have been understood and accepted to me/us. The consignor himself shall collect the P.O.D form us within one week of booking.”

The complainant, being in possession of the original consignment Note was aware of the aforesaid terms of the booking and at no point of time has objected to the existence of the said terms. To support their version the opposite parties have referred the various authorities.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. Admitted facts of the parties are that the complainant has booked a consignment of seeds and paid the requisite fee of Rs.430/- vide receipt No.190725842 dated 23.3.2011 which is to be delivered to Century Seeds Pvt. Ltd., B-44, Industrial Area, Phase 3, Mohali (Punjab), on 23.3.2011 through the opposite party No.2.

6. The submission of the complainant is that the opposite parties have failed to deliver the said consignment to the addressee as the seeds were sent in the said consignment, these being perishable, have outlived their life and the period of the germination has expired hence he has suffered the loss of Rs.25,490/-. The complainant specifically submitted that he is the distributor of the seeds of the various companies and running the firm to earn his livelihood.

7. The submissions of the opposite parties are that the complainant has availed their services, for the commercial purposes, being the transaction of the sale and purchase and have given the reference of law laid down by Hon'ble Supreme Court of India in case titled Economic Transport Corporation Vs. Charan Spinning Mills Private Ltd., (Supra). As such the complainant is not the 'Consumer'. Moreover as per the terms & conditions of the agreement the liability of opposite parties is restricted/limited to Rs.100/- for each domestic consignment and Rs.1000/- for each international consignment. Further Blazeflash shall also not be responsible for any consequential losses or damages or compensation. No claim or complaint shall be entertained after one month from the date of the consignment note, as the opposite parties do not keep record pertaining to proof of delivery, after expiry of the said period. The opposite parties have specifically submitted that these terms & conditions are written overleaf of the receipt which are duly read by the complainant and he is bound by such terms & conditions.

8. The objection regarding the commercial transaction being carried out by the complainant is not tenable as he is the distributor of the seeds of various companies and doing so to earn his livelihood not to gain the huge profit. Moreover the opposite parties have not placed on file any evidence to prove their version that he is carrying on the said business for commercial purpose or earning huge profits or has employed many employees. Hence the complainant falls within the definition of 'Consumer' as provided under the 'Act' under section 2 (1) (d).

The another point of the argument of the opposite parties is that their liability is restricted to Rs.100/- in case of the domestic consignment whereas Rs.1000/- in case of the international consignment. In the case in hand the complainant has sent the consignment to Mohali (Punjab). This is the domestic consignment but he had paid Rs.430/- for delivering the same to its destination which has not been delivered by the opposite parties till date. The opposite parties have urged that they do not keep/maintain the record of the transactions regarding proof of delivery more than one month as such they have no record regarding the delivery of the said consignment. Hence they are admitting their liability indirectly. Further the opposite parties have specifically argued that the terms and conditions were read to the complainant when he booked his consignment, but a perusal of these terms & conditions shows that these are not signed either by the complainant or the opposite parties, hence not binding on the complainant. The support can be sought by the precedent laid down by the Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur in case titled Blaze flash couriers(P) Ltd Vs. V. Manish Jain, I (2010) CPJ542, wherein it has held:-

“ Contention, value of parcels not mentioned-Liability in case of damage limited to only Rs.100/--Contention rejected-Terms and conditions printed on the receipt not binding unless same signed by consumer”.

Further the support can be sought by the precedent laid down by Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case titled Pavit Garg Vs. Blazeflash Couriers Ltd. & ORS., (IV (2009) CPJ271,

“Contention, as per terms mentioned on envelope liability of postal authorities limited to Rs.100/- only-Contention rejected-Contents of courier receipt in very fine print, practically illegible-No signatures put by appellant on the receipt giving consent to the terms of respondents-Admittedly letter delivered after 7 days-Delay not explained by respondents-Deficiency in services proved”.

9. The complainant has not placed on file any evidence regarding the price of the seeds rather he has placed on file only bill Ex.C2 issued on the letter head of Baldev Krishan Makhan Lal of Rs.21,655/- dated 23.3.2011 but this amount has not been disclosed by him to the opposite parties. Hence the complainant is not entitled to get the refund of abovsaid amount. Although in letter Ex.C3 it has been specifically mentioned by the complainant that the amount of material was Rs.25,490/- yet this fact was never disclosed to the opposite parties at the time of booking the consignment by the complainant.

10. Therefore in view of the what has been discussed above there is deficiency in service on the part of opposite parties for not delivering the consignment in question. Thus it would meet the ends of justice if this complaint be allowed with Rs.5000/- as compensation. Thus this complaint is partly accepted with Rs.5000/- as compensation and Rs.2000/- as litigation expenses against the opposite parties. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

11. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

28-01-2013

(Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member