Date of Filing: 07/10/2011
Date of Order: 02/12/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 2nd DAY OF DECEMBER 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO.1860 OF 2011
Proprietor,
M/s.Rapitech Solutions Inc,
No.42, BSK III Stage, 3rd Phase,
9th Cross, 3rd Block,
Bangalaore-560 085.
(Rep. by Sri.S.K.Udaya Bhanu, Advocate) …. Complainant.
V/s
1) Chief Executive,
Blue Dart Aviation Limited,
Sahara Airport Road,
Andheri (E), Mumbai-400099.
2) Senior Vice President-South 2,
Blue Dart Express Limited,
Connection Point,
Airport Exit Road,
Bangalore-560 017.
(Rep. by K.Subha Ananthi, Advocate) …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that led to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.9,65,000/-, are necessary:-
The complainant is manufacturing plastic automotive Aerospace components in a small scale sector for his living and he has supplied various components to various educational research center in India. The complainant had booked a consignment against the purchase order with the opposite party on 26.04.2011 and paid a sum of Rs.47,165/- to be transported and delivered at Kanpur. The value of the goods declared as per the endorsement of the opposite party itself is Rs.10,14,600/-. The charge of 47,165/- is the cost of air freight and insurance charges. It should have been air lifted to Kanpur. Even after long delay as the consignment has not reached the consignee and on 21.05.2011 consignee wrote that it had received only undamaged parts and, the fully damaged parts were not taken delivery. Knowing about it the complainant had to spend another additional sum of Rs.4,90,000/- for manufacturing and replacing the damaged parts and sent it with the opposite party itself through Air to the consignee. The complainant had suffered loss in this regard. Hence the complainant has issued notice to the opposite party as it has sent an untenable reply the complainant has made this complaint.
2. In brief the version of the opposite parties are:-
As the complainant is the manufacturer this is a commercial transaction hence the complainant is not a consumer. As per the consignment note this forum has no jurisdiction and it is subject to the jurisdiction of Mumbai. Even otherwise as per the terms of the contract the opposite party is liable to pay only Rs.5,000/-. The opposite party brought back the damaged goods at their cost and delivered it to the complainant. Earlier in the notice, the complainant had claimed Rs.17,00,000/-, later in another notice he claimed Rs.5,00,000/-, now he is making a claim for Rs.10,00,000/-, this shows he has not come to this forum with clean hands. The common insurance basis means that the complainant will be entitled to a certificate of fact/damage enabling him to take insurance and claim. The complainant did not inform the opposite party regarding the fragility. According to the shipment bill, goods are guaranteed at the owners risk and the opposite party is not liable to pay any damages as the complainant is a business concern. There is no question of mental agony.
3. To substantiate their respective cases the parties have filed their respective affidavits and documents and the written arguments.
4. The points that arise for our consideration are:-
:- POINTS:-
- Whether there is any deficiency in service?
- What Order?
5. Our findings are:-
Point (A) & (B): As per the final Order
for the following:-
-:REASONS:-
Point A & B:-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant is the proprietary concern of Jyotish Kumar who manufactures Plastic Automotive Aerospace Components in a small scale sector for his living and he supplies it to educational institutes in India. Accordingly he manufactured certain intake and RT transition made of ABS material worth Rs.10,14,600/- and delivered it to the opposite party for Air lifting to Kanpur to be delivered to the department of Aerospace Engineers (IIT), Kanpur. It is also an admitted fact that regarding the air lifting charges the opposite party has collected Rs.47,165/- which according to the receipt issued by the opposite party includes insurance charges. This receipt has been signed by the complainant and also by the opposite parties. It is also an admitted fact that this material instead of airlifting were sent by the opposite party by lorry which met with an accident somewhere and the goods were damaged. The consignee took only the goods which were not damaged and returned the other goods which were carried by the opposite party back and delivered to the complainant free of costs. It is also an admitted fact that the opposite party had spent Rs.4,90,000/- for replacing the damaged goods manufacturing it again and it had sent it through the opposite party and this time it was air lifted and delivered at Kanpur. That means there is a loss of Rs.4,90,000/- caused to the complainant by the negligence of the opposite party. Apart from this since the complainant is a proprietary concern, because of the damage caused to the material, the owner Jyothish Kumar had undergone mental agony in this regard. The contention per contra by the opposite party cannot be believed.
7. It was contended by the opposite party that the complainant is not a consumer in the sense he manufactures and sales the material in a small scale sector. In this case the complainant has clearly stated and sworn to that he is doing the business for living, that is not denied by the opposite party. Even otherwise the transaction with the opposite party is not the manufacturing or sale of any materials. The opposite party has been engaged by the complainant for transporting the materials from Bangalore to Kanpur in that the opposite party was deficient in rendering service. Hence the transaction between the parties is between the consumer and trader and this is a consumer dispute. Hence the complainant cannot be said that he is not a consumer.
8. Further it was contended by the opposite party that this forum has no jurisdiction and the jurisdiction according to the receipt is vested with Mumbai Court. This is an untenable contention. If cause of action is there at two places, the parties can restrict the cause of auction to any one of the places, but it cannot give the jurisdiction to a court which has no jurisdiction where no cause arose at all. In this case the materials have been delivered to the opposite part for Air lifting to Kanpur at Bangalore and the consignee’s place is at Kanpur. The parties have not restricted the jurisdiction to Kanpur or to Bangalore. No part of the cause of auction arose at Mumbai. The opposite party carried the goods by road and the lorry met with an accident and the goods were damaged at some other place and not at Mumbai. Even otherwise to go to Kanpur from Bangalore person need not go to Mumbai. Merely an accident took place somewhere it does not mean the cause of auction arose at that place. Hence the said contention of the opposite party is nothing but an untenable contention.
9. It is further contended that as per the aviation, limit, terms and conditions carriage, their liability is limited to Rs.5000/-, the goods are carried at the owners risk and they are not responsible. In the receipt issued these terms and conditions are printed on the back side of the receipt and not on the front side. On the back side there is no signature of any person including the complainant or the opposite party. This back side conditions are not easily readable without a magnifying glass. In the main receipt there is no such thing that has been printed or agreed to between the parties in this regard. Here the complainant is not seeking enforcement of any contract. He had delivered the goods to the opposite party for carrying it to Kanpur, delivering the goods for carriage means carrying the goods safely and delivering it to the consignee, in that there is deficiency in service. Hence the opposite party is bound to pay damages and make good the loss. Here the materials has been delivered to the opposite party for transportation to Kanpur, if the materials are not delivered or damaged the opposite party is bound to make good the loss because of their negligence the damage has caused and not because of the negligence of the complainant.
10. Here whether the goods have been insured by the complainant or not, it is immaterial. The opposite party has insured his vehicle, so if any damage is caused to the goods because of the accident the opposite party can recover the money from his insurer, there is no bar for it. Even that has not been done. Hence it is deficiency in service.
11. The complainant has clearly stated and sworn to that in the amount of Rs.47,165/-, Air freight charges is Rs.26,873/- and insurance premium at 2% of the value declared is Rs.20,292/- that is Rs.47,165/-. There is no per contra material in this regard. This 2% insurance that has been collected by the opposite party is on the value of the goods declared hence it is bound to pay regarding the damage. The opposite party now contends that they have collected only 2% that too to enable the complainant to claim insurance from his insurer. It is an untenable contention. If the goods are damaged in the transaction the carrier is bound to pay, for which why should the complainant pay 2% to the opposite party of the charges? there is no answer. The opposite party has filed the affidavit of one Satish whose affidavit cannot be believed it at all. Since he has not signed the weigh bill nor he has prepared freight charges bill. But he is an employee of the opposite party. He cannot be believed at all.
12. The opposite party has filed the copy of the complaint purport to have been given on 30.04.2011 and a print out of the box which has been given to the opposite party by the complainant for air lifting. The alleged complaint is not in the language of the Court nor the contents have been translated and filed before the Court, which cannot be read by this Forum. Which is not even in Hindi language. The photo of the box clearly goes to show that it is meant for air lifting and not for shipping by road. Nobody will collect such huge amount for transport by road. It is meant for only air lifting. But the opposite party took the material by road and got it damaged. Hence opposite party is bound to make good the loss and pay damages and also towards mental agony caused to the complainant.
13. Now we have to see, what is the compensation that has to be ordered to be paid to the complainant. Here the goods worth Rs.4,90,000/- has to be damaged and that has been manufactured by the complainant again and sent to the consignee through the opposite party only and this time it has been airlifted by the opposite party on 05.08.2011. Merely the complainant has claimed different amounts regarding damages is of no consequences. Here the goods worth Rs.4,90,000/- has been damaged by the negligence and deficiency of service by the opposite party. Considering the circumstances if we direct the opposite party to pay Rs.5,00,000/- as compensation and pay costs of this litigation we think that will meet the ends of justice. Hence for the reasons stated above we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant the sum of Rs.5,00,000/- within 30 days from the date of this order.
3. The opposite parties are also directed to pay to the complainant a sum of Rs.2,000/- as costs of this litigation.
4. The opposite parties are directed to send the amounts as ordered at Serial Nos. 2 & 3 above to the complainant through DD by registered post acknowledgement due and submit the compliance report to this Forum with necessary documents within 45 days from the date of this order.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 2nd Day of December 2011)
MEMBER MEMBER PRESIDENT
