BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.426 of 2015/444 of 2018
Date of Instt. 01.10.2015/22.10.2018
Date of Decision: 13.11.2018
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)
Smt. Harvimal Dogra (Member)
Present: Sh. RK Kashyap, Adv Counsel for the complainant.
Sh. Sarju Puri, Adv Counsel for the OP No.1 and 2.
Order
Karnail Singh (President)
1. This complaint is received by way of Remand from the Hon'ble State Commission, whereby order of this Forum has been setaside and further directed to decide the complaint afresh after taking into consideration the amended provision i.e. the Carriage by Road Act, 2007 (41 of 2007) and the Carriage by Road Rules, 2011 and accordingly, the instant complaint has been registered on remand and both the parties appeared in this complaint.
2. Brief facts of the complaint are 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.
3. 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.
4. 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.
5. 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/-.
6. 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.
7. 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.C-1 to Ex.C-16 and closed the evidence.
8. 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.
9. We have heard the learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the complainant as well as case file very minutely.
10. We have considered the rival contention of both the counsel for the parties and find that 100 pieces of Hockey Sticks were purchased by M/s Sports Line, 35, Lucknow Plaza from the complainant on 10.06.2015, vide Invoice Ex.C-3 and the value of these Hockey Sticks are Rs.1,02,975/-. The said Hockey Sticks are to be delivered to M/s Sports Line, 35, Lucknow Plaza in Lucknow and accordingly, the same was booked by the complainant with OPs, vide Air-Way Bill, bearing No.50317360881 dated 10.06.2015 and copy of the said Air-Way bill is proved on the file Ex.C-4. The said Hockey Sticks are to be delivered at the address given on the Air-Way bill, the OP No.2 took a charge of Rs.1029/- from the complainant, which is very well mentioned in the Air-Way bill Ex.C-4. It was also agreed between the parties that the consignment in question would be delivered to the consignee within a reasonable time because the consignee urgently required the goods, but due to the negligence on the part of the OPs, the said goods were not recovered to the consignee within a stipulated period and accordingly, the consignee refused to receive the consignment and thereafter, the complainant asked OP to re-book the said consignment by same GR/Air-Way 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 placed on the file Ex.C-5 to Ex.C-15. The ground took by the OPs for not delivery of the said goods to the complainant, for the reason that due to unfortunate incident that vehicle has been robbed by the certain miscreants on the way near Shikhobbad, subject to shipment was traveled in that vehicle and this information of robbery was given by the OP to the complainant, vide email Ex.C-16, admittedly, the OP has also lodged a complaint to the police, which is proved on the file Ex.OP1-2/3 as well as final report of the police Ex.OP1-2/6. The other plea taken by the OP is that as per agreement Ex.OP1-2/4, the complainant is required to get the goods, so sent, insured with any insurance company, but for the best known reason, the complainant himself miserably failed to get insurance of that goods and thus, the OPs are not liable to indemnify or compensate the complainant because there is no fault on the part of the OP. Moreover, it is a fault on the part of the complainant. There is an agreement between the parties and copy of the same is available on the file Ex.OP1-2/4 and as per Clause-16, whenever any unavoidable incident took place, then the carrier is not responsible for indemnifying to the complainant and further alleged that the liability of the carrier/OP is very limited as per Clause 13 of the agreement Ex.OP1-2/4 and in support of these submissions, the counsel for the OP made reliance upon a pronouncement of Hon'ble State Commission of Punjab, decided in First Appeal No.1899 of 2011, decided on 16.02.2015, titled as “Parveen Kumar son of Ratan Lal Vs. Trackon Courier, South Circular Road, Near Haqiqat Rai, Abohar, Tehsil Abohar through its Incharge/Manager and Others” and further made a reliance upon an other pronouncement of Hon'ble Apex Court, cited in 1996 AIR (SC) 2508.
11. We have considered the aforesaid judgment as well as agreement, the case of the party is covered under Section 17 of the Carriage By Road Act, 2007. We like to reproduce Section 17 as under:-
“Save as otherwise provided in this Act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except the following, namely;- (a) act of God; (b) act of war or public enemy; (c) riots and civil commotion; (d) arrest, restraint or seizure under legal process; (e) order or restriction or prohibition imposed by the Central Government or a State Government or by an officer or authority subordinate to the Central Government or a State Government authorized by it in this behalf;
Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non-delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non-delivery had the common carrier exercised due diligence and care in the carriage of the consignment.” If the aforesaid Section 17 of the Carriage By Road Act, 2007 is to be co-related with Clause-16 of the Agreement Ex.OP1-2/4, wherein the condition is almost same in regard to payment of the compensation i.e. if any accident caused to the vehicle due to any factor beyond the control of Blue Dart i.e. OP. Here, we first of like to refer Clause-13 (h)(i) of the Agreement, which is also related to the similar case in hand i.e. whenever any domestic article is to be booked for carrying one place to other and in this clause, the liability of the public carrier is limited to the tune of Rs.5000/- or cost of the reconstruction or actually invoice value whichever is lower, for shipments/consignments, which are not insured. We find that this clause is not create any hindrance in the right of the complainant to claim compensation from the complainant i.e. more than Rs.5000/- because the complainant has paid freight charges as well as other charges, vide Air-Way bill Ex.C-4 and declared value of the booked goods is also mentioned in the said Air-Way bill i.e. Rs.1,02,975/-. In the column of detail regarding payment, the OP has also charged Rs.204/- FOV Charges/Owner's risk and further, we are coming to agreement Ex.OP1-2/4, wherein a heading under insurance is given and as per that heading, it is stated that no claim shall be entertained under the insurance arrangement, if freight together FOV Charges are not paid by the Shipper/Consignor/Consignee to Blue Dart. In this case, the complainant has paid FOV Charges as discussed above and again we referred the Air-Way bill, wherein categorically mentioned that the complainant paid FOV charges of Rs.204/-. So, according to agreement, if FOV charges is paid, then it is the responsibility and liberty of the public carrier i.e. OP to get the insurance of the goods of the complainant, but in this case, the OP has not got insured the goods of the complainant and as such, there is a fault on the part of the OP not of the complainant.
12. Further, coming to Clause-16 of the agreement, wherein specifically mentioned that if any damages caused to the vehicle beyond the control of Blue Dart and similarly there is a proviso in Section 17 of the Carriage By Road Act, 2007 that the public carrier is not responsible to pay any compensation if damages caused to the booked goods, while the public carrier exercised his act with due diligence and care in the carriage of the consignment, but in this case, the OP has not took any plea that the incident of robbery was beyond the control of the OP's employee and they have did their job with due diligence. If there is no such type of evidence came or plea taken by the OP, then the OP cannot immune from the liability to pay the compensation to the complainant. Further the non-delivery of the consignment is not in dispute, the same is established and as per provision of Carriage By Road Act, 2007, in case of non-delivery of the consignment by the carrier, the burden of proving the absence of negligence is on the carrier, but in the present case, we find that the OP could not discharge its burden of proving the absence of negligence. So, accordingly, we think that the OP being a carrier cannot escape his liability taking a plea that he had no control over the alleged incident of robbery, which occurred in course of carriage of consignment on the way. So, accordingly, we find that the judgments referred by learned counsel for the OPs are not helpful in this case, whereas the complainant has able to prove its case and thus, the complainant is entitled for the relief as claimed.
13. In view of the above detailed discussion, the complaint of the complainant is partly accepted and OPs, who are jointly and severally liable to compensate the complainant, are directed to refund the value of the goods i.e. Rs.1,02,975/- with interest @ 12% per annum from the date of booking i.e. 10.06.2015, till realization and further OPs are further directed to pay compensation to the complainant, to the tune of Rs.15,000/- for mental agony and harassment and litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
14. 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 Harvimal Dogra Karnail Singh
13.11.2018 Member President
