BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.426 of 2015
Date of Instt. 01.10.2015
Date of Decision: 15.11.2017
Pooja Enterprises having its Administrative Office at 30, Basti Nau, Jalandhar-144002 through its working partner Jitin Mahajan son of Sh. Sukhdev Raj Mahajan.
..........Complainant
Versus
1. Blue Dart Express Limited, (Regional Office) North, 4th Floor Elegance Tower, Plot No.8, Non Hierarchical Commercial Centre, Jasola, New Delhi-110025 through its Managing Director/Principal Officer/Senior Executive (Customer Service).
2. Blue Dart Express Limited, situated at NH-Jalandhar-Amritsar Bye Pass, near Indian Oil Depot, Jalandhar-144009 through its Area Biz Development Manager.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Sh. Parminder Sharma (Member)
Present: Sh. RK Kashyap, Adv Counsel for the complainant.
Sh. Sushil Rawal, Adv Counsel for the OP No.1 and 2.
Order
Karnail Singh (President)
1. This complaint filed by the complainant, wherein alleged that the complainant is a partnership firm and having two partners namely Nitin Mahajan and Jitin Mahajan, registered with the Registrar of Firms and Societies, Punjab, vide Form 'A' and 'C', issued by the Registrar of firms and Societies. The complainant is a manufacturer of Hockey Sticks and Cricket Bats, enjoying goodwill and reputation for its brand not only in India, but in international market also. The instant complaint was filed through Jitin Mahajan, working as a partner of the firm, who is well conversant with the true facts of the complaint and he is also authorized to file the present complaint as well as to depose before this Forum in connection with the complaint.
2. The OP No.1 is renowned and well established Courier/Cargo Company having its regional office North at Delhi and supervise as well as control the day to day affairs and working of OP No.2. The OP No.1 also redress the grievances of its clients through the OP No.2. The OP No.2 is the one of the branch at Jalandhar of the OP No.1, working under the control and supervision of the OP No.1. The OP No.2 caters to the needs of business houses at Jalandhar for transporting their goods from Jalandhar to other places.
3. That the complainant after being impressed by long lasting goodwill and reputation of the OP No.1 prevailing among the business houses at Jalandhar, had hired the services of the OP No.2 at Jalandhar, thus the complainant is consumer under the Consumer Protection Act and accordingly, the complainant had booked a consignment of 100 pieces of Hockey Sticks with brand name “ALFA Y-30”, vide bill No.6935 dated 10.06.2015 valued Rs.1,02,915/-, which was to be delivered to M/s Sports Line, 35, Lucknow Plaza, Nazirabad Road, Lucknow GPO, Lucknow-226001, on the basis of Airway Bill bearing reference No.50317360881 dated 10.06.2015, issued by OP No.2. Copy of the bill No.6935 dated 10.06.2015 are placed on the file. It is significant to mention here that the OP No.2 has charged and received Rs.1029/-, which includes freight, insurance charges for declared value of the goods for Rs.1,02,975/- and other charges from the complainant. Before booking the said consignment, the OP No.2 assured the complainant that the consignment in question would be delivered to the consignee namely M/s Sports Line at Lucknow within a reasonable time of transportation because the consignee urgently need the goods consigned, which ought to be delivered by 15th of June, 2015 positively. Hence, the OP No.2 booked the consignment in question after understanding the essence of time, as conveyed by the complainant.
4. That on 22nd June, 2015, the consignee Sports Line intimated the complainant telephonically that the consigned goods in question has not been delivered to them. The complainant immediately brought the urgency of delivery of the goods in the notice of the OP No.1, vide email dated 22.06.2015, which is placed on the file. In reply to the said email dated 22.06.2015, the OP stated that the shipment is in transit and has informed destination team for arrangement of delivery on priority once received as stated in email dated 22.06.2015. The OP No.1 has specifically mentioned the reason for delay under code, due to traffic jam. Thereafter, the OP No.1 again intimated the complainant on the basis of email dated 23.06.2015, that vehicle is delayed in check post clearance and matter would be handled on priority basis. It is significant to mention here that on 26.06.2015, the consignee showed his unwillingness telephonically to accept the delivery of the said consignment booked with the OP No.1 being unreasonably delayed by more than fortnight, thus under the compelling circumstances created by the OPs, the complainant advised the OPs to rebook/return the goods consigned, vide airway bill bearing reference No.50317360881 dated 10.06.2015, to the complainant, vide email dated 26.06.2015. The complainant as well as their representative visited the OP No.2 in connection with the re-booking of the consignment in question on number of occasions. However, the Branch Incharge of the OP No.2 assured the complainant that the consignment in question would be re-booked shortly and handed over to the complainant as soon as received at the office of the OP No.2. The complainant after being harassed and felt aggrieved, the OPs were given reminder for re-booking the consignment in question and to compensate the complainant with the cost of goods. In response to the email dated 14.07.2015, the OP No.1 intimated the complainant with another reason of delay stating that, “Vehicle is still held at check post for clearance, Releasing order is awaited from Court, once vehicle gets released will return the same”, vide email dated 14.07.2015. In the first week of August, 2015, Mr. Ashish, the representative of the OP No.1 collected the copy of invoice and GR/Airway Bill from the complainant for processing the claim of consignment, booked by the complainant. The email exchanged between OP No.1 and its representative speaks for acknowledgment of necessary documents sent by the complainant for processing the claim. That instead of compensating and indemnifying the complainant with a cost of goods consigned on 10.06.2015 through OP No.2, the OP No.1 interestingly intimated the complainant with one more new reason stating that due to unfortunate incident vehicle has been robbed by certain miscreants on the way near Shikhobbad. Subjected shipment was traveled in that vehicle and advised the complainant to submit certain documents for issuing certificate of facts by the OP No.1. It is worthwhile to mention here that the OPs have concocted a new story with twisted facts in order to escape from the financial loss cause qua the goods consigned for value Rs.1,02,975/- and compensation on account of mental agony and uncalled harassment suffered by the complainant. Moreover, the failure for timely delivery of consignment to the consignee namely M/s Sports Line, Lucknow within a reasonable time of transportation on the part of the OP has adversely effected the business tie with the consignee resulting into loss of future business and earnings and as such, there is a deficiency of service on the part of the OP No.1 and 2. Hence, the OP No.1 and 2 are jointly and severally liable to indemnify the complainant for loss for the value of the goods and compensation and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the value of the goods for Rs.1,02,975/- as per bill dated 10.06.2015 booked on the basis of Airway Bill bearing reference No.50317360881 dated 10.06.2015 alongwith interest @ 12% per annum and further OPs be directed to pay compensation to the tune of Rs.1,00,000/- to the complainant for harassment and also be directed to pay litigation expenses of Rs.11,000/-.
5. Notice of the complaint was given to the OPs, who filed joint written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable and does not lie and further averred that this Forum has got no jurisdiction to entertain and try the present complaint. The said transaction was for commercial purpose and as such, the Consumer Courts have got no jurisdiction to entertain and try the present complaint. Even otherwise the complainant is not the consumer of the answering OPs. It is further alleged that the present complaint in the present form, as the complainant had entered into the contract with the OP and the complainant is bound by the terms and conditions thereof as such, no remedy is available with the complainant before this Forum and further averred that the complainant is estopped by its own act and conduct to file the present complaint as the complainant failed to get insured the consignment in question and further alleged that the OPs are not liable to pay the compensation as demanded in the complaint as the loss caused to the complainant was due to the reasons beyond the control of the OPs and are force majeure reason and even otherwise the liability of the OP is limited to Rs.5000/- or the cost of reconstruction or actual invoice value, which ever is lower as per the contract entered into by the complainant and terms and conditions thereof. It is not out of place to mention here that the OPs were not liable to pay any compensation/damages to the complainant as there is no negligence on the part of the OPs and there is no deficiency in service or unfair trade practice at all, as the consignment booked by the complainant was duly sent towards the destination by the OPs but while in transit the said consignment was loaded/robbed by unscrupulous people and in this regard, an FIR dated 12.06.2015 u/S 395 IPC PS Dannahar, District Manipur, UP was lodged and due to that reason, the OPs were unable were unable to deliver the consignment towards its destination and the complainant was duly apprised about the said fact. Now, as the consignment was not got insured by the complainant and to cover up his fault and to recover the amount illegally the complainant is leveling false allegations against the OP. However, it is submitted here that the remains of the consignment were obtained on Sapurdari by the manager of the OPs and the same is still lying with the OPs and the OPs requested the complainant number of times to collect the same, but the same refused to receive the same and filed this present complaint just to harass the OPs. On merits, the factum in regard to sending the goods through OP is admitted and it is also admitted that the said goods were robbed during transit, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C1 to Ex.C16 and closed the evidence.
7. In order to rebut the evidence of the complainant, the authorized signatory of the OP tendered into evidence affidavit Ex.OP1-2/1 alongwith some documents Ex.OP1-2/2 to Ex.OP1-2/6 and then closed the evidence.
8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
9. After taking into consideration the submissions made by respective counsel for the parties and from the scanning of the pleading and documents, it reveals that the 100 pieces of Hockey Sticks were purchased by M/s Sports Line, Lucknow Plaza from the complainant on 10.06.2015, vide invoice Ex.C3 and the value of these goods are Rs.1,02,975/- and the said Hockey Sticks are to be delivered to M/s Sports Line, Lucknow Plaza, in Lucknow and accordingly, the same was booked with the OPs, on the basis of airway bill bearing reference No.50317360881 dated 10.06.2015 and copy of the same is available on the file Ex.C4, for delivery of the said Hockey Tickets in Lucknow as per address given on the airway bill and regarding that the OP No.2 took a charges of Rs.1029/- from the complainant, which is also mentioned in the airway bill Ex.C4 and it was also agreed between the parties that the consignment in question would be delivered to the consignee with a reasonable time because the consignee urgently needs the goods, but due to negligence on the part of the OPs, they failed to deliver the goods within time and due to that reason, the consignee refused to received the consignment and accordingly, the complainant asked OPs to rebook the said consignment by same GR/Airway bill, the said re-booking was got by the complainant through email and all the correspondence in regard to inquiry of the consignment and urgent delivery are asked to the OPs through email and copy of the emails are available on the file Ex.C5 to Ex.C15. The grounds took by the OPs for not redelivery of the said goods to the complainant, for the reason that due to unfortunate incident that vehicle has been robbed by certain miscreants on the way near Shikhobbad, subject to shipment was traveled in that vehicle and this information regarding robbery was given by the OP to the complainant, vide email Ex.C16 and no doubt, the OP has also lodged a complaint to the police, which is proved from document Ex.OP1-2/3 as well as from final report of the police Ex.OP1-2/6. Apart from that the OP took a plea that as per agreement Ex.OP1-2/4, the complainant is required to get the goods, so sent should got insured with any insurance company, but for the best known reason, the complainant has not got insurance and as such, the OPs are not liable to indemnify or compensate the complainant because there is a fault on the part of the complainant and moreover, there is an agreement and as per the agreement Ex.OP1-2/4 Clause-16 itself speaks that due to any unavoidable incident took place, then the carrier is not responsible for indemnify to the complainant. We have gone through the Clause-16 of the agreement and find that if, there is any delay of delivery of the consignment due to acts of the God, then a carrier is not liable to compensate the complainant, but not in all cases the carrier is escaped from the liability of safe delivery of the goods. Moreover, it is the duty of the carrier to deliver the goods at destination with a full security and if, there was any apprehension of robbery or theft on the way, then the carrier has to make arrangement of the proper security.
10. In support of above observation, we like to refer a pronouncement of Delhi State Consumer Disputes Redressal Commission, cited in 2006 (III) CPJ 193, title “Shri Giri Raj Freight Carriers Pvt. Ltd. Vs. Sham Lal Banke Behari & Another”. In the aforesaid judgment, a reference of the Hon'ble Supreme Court judgment is also given, which is cited in 2000 (CPJ) 25 (SC), title “Nath Brothers Vs. Best Roadways Ltd” and the Hon'ble Supreme Court has categorically held in the aforesaid judgment that “transporter of goods, who received consignment against consideration on the pedestal of an insurer meaning thereby that the transporter has the same liability as that of the insurer in case of non-delivery of the consignment to the requisite person”, but we think the aforesaid judgment of Hon'ble Delhi State Commission is apparently applicable in this case, because a contract was also executed between the parties in the aforesaid judgment of the State Commission of Delhi and further, we like to refer an other pronouncement of Hon'ble State Commission of Madhya Pradesh, cited in 2007 (I) CPJ 313, wherein his Lordship held as under:-
“OPs bound to make good the loss caused to complainant on account of non delivery of consignment, even without proof of any negligence on its part”.
11. If, we see the aforesaid detailed discussion, coupled with the judgments of the Delhi State Commission as well as Madhya Pradesh State Commission, then we can say without any hesitation that there is a deficiency in service and negligence on the part of the OP and so for the concern of the plea taken by the OP that the transaction in question was for commercial purpose and as such, the Consumer Forum have got no jurisdiction, in response to this version of the OP, we again refer the aforesaid judgment of the State Commission Delhi and State Commission Madhya Pradesh, wherein similar matter has been decided, so, it means the transaction for carrying some goods is not directly or indirectly related to the matter of commercial purpose. So, accordingly, we reach to the conclusion that the complainant has able to establish his case and therefore, we hold that the complainant is entitled for the relief as claimed in the prayer clause.
12. As an upshoot of our above detailed discussion, the complaint of the complainant is partly accepted and the OPs are jointly and severely directed to refund the value of the goods i.e. Rs.1,02,975/- with interest @ 9% per annum from the date of booking i.e. 10.06.2015, till realization and further OPs are directed to pay compensation to the complainant to the tune of Rs.15,000/- for mental agony and harassment and OPs are further directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. The complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
15.11.2017 Member President
