COMPLAINT FILED ON: 26.08.2009
DISPOSED ON: 24.01.2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)
DATED THIS THE 24TH JANUARY 2011
PRESENT:- SRI. B.S. REDDY PRESIDENT
SMT. M. YASHODHAMMA MEMBER
SRI. A. MUNIYAPPA MEMBER
COMPLAINT NO.2062/2009
Complainant | Shri R.K. Raman, M/s Angadi Silks, No.514/39, 46th Cross, 5th Block, Jayanagar, Bangalore – 560 041. Advocate: Sri. K.S. Tushar and Another V/s. |
OPPOSITE PARTY | Blue Dart Express Limited, Connection Point, Ground Floor, Airport Exit Road, Bangalore – 560 017. Rep: by its Customer Service Manager Advocate: Sri. J. Pradeep Kumar and Others |
O R D E R
SRI. B.S. REDDY, PRESIDENT
The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P.) to pay sum of Rs.60,000/- as insurance amount towards the Tanjore Painting along with interest at 12% p.a. and to pay an amount Rs.30,000/- for mental agony suffered by the complainant for the damage caused to the painting on the allegations of deficiency in service on the part of the OP.
2. The case of the complainant to be stated in brief is that:
The complainant is an art enthusiast and promotes works related to cultural, literary, drawings, art, fine art and sculptural talent. The complainant utilized services of OP on 05.09.2008 for shipping a very valuable and precious “Tanjore Painting” depicting “Krishna Rasaleela” to be sent from Bangalore to a person by name Ms. Neelam Chopra at Agra. The complainant paid to the OP an amount of Rs.435/- as freight charges, Rs.261/- as fuel surcharge, Rs.150/- as AWB fee, Rs.1,200/- as insurance charges and service tax plus cess in all totaling to Rs.2,299/-. The declared value of the shipment was Rs.60,000/-. During transit from Bangalore to Agra the painting was improperly handled in gross negligence and carelessness by OP thereby causing damage to the Tanjore Painting without prejudice, certificate issued by the Manager Accounts of the OP indicated that the consignment / painting was delivered in a damaged condition. The painting is damaged beyond repair and it cannot be restored to its original form. The complainant lodged a claim in the letter dated 03.10.2008. The Senior Executive – Customer service of OP requested to the complainant to send a hard copy of the original invoice for processing the claim which the complainant complied with immediately. Thereafter the Executive – claims of OP deputed one surveyor by name Mr. Ganapathi Holla for carrying out the survey of the damaged painting and to provide the ILA on completion of the survey. After the survey the surveyor observed that the frame glass was broken and the Radha’s picture was fully scratched and it has happened due to bad handling of the consignment. OP assured to pay the insured amount to the complainant within a week’s time, OP even after several days did not pay the amount. The complainant sent many reminders through e-mail requesting to pay insurance amount, but there was no reply from the OP. On 12.01.2009 the complainant received an e-mail from the Assistant Manager – Customer Service denying the payment of the complete insurance amount for the reason that there is no refund for paintings and wherein the said Assistant Manager offered to refund the FOV charges levied on the consignment and also the an amount of Rs.5,000/- as maximum liability. OP has mentioned in the invoice that the value of the shipment is Rs.60,000/- for which an amount of Rs.1,200/- was collected as insurance amount. The complainant being an aged person and senior citizen was made to run from pillar to post for the payment of insurance amount and finally denied payment of the said amount on untenable and frivolous reasons, thereby causing great deal of mental agony to the complainant and more so with bearing the loss of a beautiful Tanjore painting. The legal notice dated 26.05.2009 was sent to the OP to pay sum of Rs.50,000/- in lieu of the damage caused to the Tanjore painting and a sum of Rs.60,000/- as damages for the mental agony. OP has not complied with the demand. Hence the complaint is seeking necessary reliefs stated above.
3. On appearance, OP filed the version and additional version contending that the complainant was engaged in the business of selling paintings to customers and one such business transaction was the sending of painting (consignment) to one Ms. Neelam Chopra in Agra through Blue Dart. Hence it is clear that M/s Angadi Silks is a commercial entity and the transaction was a commercial transaction. Thus M/s Angadi Silks is not a consumer as per the Consumer Protection Act. Hence the complaint is not maintainable. The accepted jurisdiction between the parties is the jurisdiction of Mumbai. The complainant while booking the consignment signed the airway bill accepting the terms and conditions wherein it is clearly stated that all claims are subject to the jurisdiction of Mumbai. Hence complaint deserves to be dismissed. The airway bill is in the name of M/s Angadi Silks and the complaint should have also been filed under that name alone. Hence the complaint deserves to be dismissed. It is admitted that the complainant booked consignment on 05.09.2008 to Agra to be delivered to Ms. Neelam Chopra. In the airway bill it was very clearly stated that “Non Negotiable – At Owner’s Risk” and it was under this knowledge that the complainant booked the consignment. Further in the same airway bill it has been clearly mentioned that “the company’s liability on this shipment is limited to Rs.5,000/- or cost of reconstruction whichever is lower”. This is in case of uninsured consignment. In the case of an insured consignment, the liability of OP is zero, since only damage certificate needs to be issued. The complainant has not come with clean hands. From the complaint itself it is seen that the complainant had admitted that they had an insurance policy from M/s Royal Sundaram covering the consignment / painting. But thereafter without disclosing this information the complainant re-insured the consignment through blue dart which is not permissible. Hence the complainant has to make its claim to M/s Royal Sundaram insurance company and not to the OP. OP offered to issue damage certificate to complainant to enable him to the claim insurance the complainant refused to accept the same. The consignment / painting was packed by the complainant and not by the OP. Knowing that it is a fragile item, the complainant ought to have ensured better packing especially in view of the fact that they were opting for surface / road transport of a glass item. Due care was taken by OP, however due to bad packing by the complainant the glass became susceptible to breakage. Hence it cannot be said or establish that there was negligence or carelessness by the OP. The complainant deserves to be dismissed since the essential element of negligence or deficiency in service does not exist. The parcel was to be delivered in Agra and it was delivered in Agra. As per IRDA paintings and other invaluable items cannot be insured. Hence it was perfectly logical for the OP to write back to the complainant after knowing about dual insurance was not possible to process the insurance for a painting.
In the additional version it is contended that the photographs produced disclose that the pictures it can be clearly seen that the damage to the painting could not have been caused in this manner due to breakage of glass. The painting was not an oil painting and was a water colour painting and has been severely smudged by either the complainant or consignee by using a wet cloth. The damage alleged could not have been caused by the OP. The value claimed by the complainant cannot be true since painting is made of water colour and not of oil colours. The complainant availed the services of OP in order to make profit by selling the painting to its customer; hence the complainant is not a consumer. Hence it is prayed to dismiss the complaint.
4. In order to substantiate the complaint averments, the complainant filed affidavit evidence. The Assistant Manager of OP Mr. Joy Ebenezer filed affidavit evidence and additional affidavit evidence in support of the defence version and produced documents. The complainant further filed rejoinder affidavit to the additional affidavit of OP. Both the parties filed written arguments. Arguments on both sides heard.
5. Point for consideration is:
“Whether the complainant is a ‘Consumer’
as defined U/s 2(1)(d) of the Consumer
Protection Act and the complaint is
maintainable”?.
6. We record our findings:
In “Negative”.
R E A S O N S
7. At the out set it is not at dispute that the complainant availed the services of OP on 05.09.2008 for shipping “Tanjore Painting” depicting “Krishna Rasaleela” to be sent from Bangalore to one Ms. Neelam Chopra at Agra. The complainant paid an amount of Rs.435/- as freight charges, Rs.261/- as fuel surcharge, Rs.150/- as AWR fee, Rs.1,200/- as insurance charges and service tax plus cess in all totaling to Rs.2,299/-. The declared value of the shipment was Rs.60,000/-. The complainant claims that during the transit from Bangalore to Agra, the painting was improperly handled in gross negligence and carelessness by OP, thereby caused damage to the painting. The said painting is stated to have been insured by OP for an amount of Rs.60,000/- by collecting an amount of Rs.1,200/- from the complainant as insurance amount. Thus the complainant is claiming that insurance amount of Rs.60,000/- with interest at 12% p.a. and in addition an amount of Rs.30,000/- compensation towards mental agony.
8. The main defence of OP is the complainant was engaged in the business of selling paintings to the customers and one such business transaction was the sending of painting (consignment) to one Ms. Neelam Chopra in Agra through OP. Further it is contended that M/s Angadi Silks is a commercial entity and transaction was a commercial transaction, as such complainant is not a ‘Consumer’ as per the Consumer Protection Act and the complaint is not maintainable.
9. OP along with further affidavit evidence dated 05.12.2009 produced an invoice raised by the complainant M/s Angadi Silks dated 04.09.2008 for an amount of Rs.60,000/- as the cost of Tanjore Painting in favour of M/s Neelam Chopra, Agra. Based on this invoice raised by the complainant it is contended for the OP that the complainant had sent a painting (consignment) to Ms. Neelam Chopra and the same was booked through the OP, the said painting was sold for an amount of Rs.60,000/- to the Ms. Neelam Chopa. The services of OP to transport the said paintings to the purchaser is in order to earn the profit by sale of the same; amounts to commercial transaction, hence the services availed for such commercial purpose does not fall under the services availed under the Act. Hence the complainant is not a ‘Consumer’ as defined U/s 2(1)(d)(ii) of the Consumer Protection Act and the complaint is not maintainable. Further it is contended that in the letter by the complainant to the OP dated 03.10.2008 the complainant has clearly mentioned that “otherwise we will be forced to take suitable measures to recover this amount from you plus the business loss that has occurred”. Based on this letter it is contended that the complainant admits the business with Ms. Neelam Chopra thereby making it a commercial transaction. OP has also produced an internet print out which clearly states that M/s Angadi Silks has a handicraft section. In the complaint complainant has not pleaded that the painting was a gift, only after version was filed, the complainant has come with a new story of the painting being a gift.
10. Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 states as follows:
Consumer:
“……………………….but does not include a person who avails of such services for any commercial purpose”.
(Added the Act 62 of 2002 w.e.f. 15.03.2003)
Thus it becomes clear that according to Section 2(1)(d)(ii) a person availing the services for any commercial purpose would not fall within the ambit of ‘Consumer’ as defined under the Act. We are unable to accept the contention of the complainant that the paintings (consignment) booked through OP was sent to the consignee as a gift, but not by way of sale. If it was a gift, there was no reason for the complainant in not pleading that material fact in his complaint. Only after the OP filed the version contending that the said consignment was booked by way of sale to the consignee, in the affidavit filed by complainant he has come up with a case that the painting was sent to the consignee was a gift. If that painting was only a gift there was no reason for the complainant to raise invoice showing the cost of the painting at Rs.60,000/- and addressing a letter to the OP on 03.10.2008 stating that the complainant will be forced to take suitable measures to recover the said amount plus business loss that has occurred. Thus it becomes clear that the painting (consignment) was sent to the consignee as the article sold to the consignee making the transaction a commercial transaction. The internet print out of M/s Angadi Silks produced by OP clearly reveals that the store creates corporate gifts too and one section includes silk wall hangers, home furnishings and even corporate files. The handicraft section stocks small antiques though larger pieces are available on order. Special collections are created for festivals like Onam, Durgapuja and Diwali. Thus it becomes clear that M/s Angadi Silks is a commercial entity and the consignment booked through OP was commercial transaction to deliver the consignment to the consignee who is a purchaser of the paintings. We are unable to accept the contention of the complainant that the invoice was raised only for the purpose of insuring the consignment by OP.
11. The complainant relied on the principles laid down in AIR 2000 Supreme Court 1461 Patel Roadways Ltd., Vs. Birla Yamaha Ltd., and AIR 2000 Supreme Court 1635 M/s Economic Transport Organization Vs. Dharwad District Khadi Gramudyog Sangh etc., where in was held that complaints against carrier of goods – alleging loss or damage to goods entrusted for transportation – can be entertained by Consumer Forums and Section 9 of carrier Act imposing burden on carrier to prove absence of negligence applies to such proceedings under Consumer Protection Act. It may be noted that before the amendment of Section 2(1)(d)(ii) with effect from 15.03.2003, a person hiring or availing services for consideration was not excluded even though the services were availed for a commercial purpose. In view of the same the disputed transactions in the above cases were of prior to amendment of Section 2(1)(d)(ii), as such the principles laid down in the above rulings are not applicable to the facts of the case. The complainant in view of its being commercial entity, availed of services of the OP for furthering and advancing its business profits. Under these circumstances we are of the view that the complainant is not a ‘Consumer’ as defined U/s 2(1)(d) of the Act, the complaint filed is not maintainable. Accordingly we proceed to pass the following:
O R D E R
The complaint filed by the complainant is dismissed as not maintainable. Considering the nature of dispute no order as to costs.
Send copy of this order to both the parties free of costs.
(Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 24th day of January – 2011.)
PRESIDENT
MEMBER MEMBER
Snm:
