BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 225/2009 Filed on 21.08.2009

ORDER DATED: 28.02.2018

Complainant:

Bharat Sanchar Nigam Ltd., represented by its Divisional Engineer K. Vijayakumaran Nair, Transmission Maintenance, Telecom Bhavan, Medical College, Thiruvananthapuram-695 511.

                                                (By Adv. C.R. Sudheesh)

Opposite parties:

1. The Professional Couriers represented by its Chief Manager, 17 Cathedral Garden Road, Nungampakkom, Chennai-600 034, Tamil Nadu.

(By Adv. Mahesh. N.G)

2. The Manager, Professional Couriers, T.C. 24/345, Prasanth, Near Sasthamkovil, Thycaud, Thiruvananthapuram-14.
3. Kannan Nair, (Franchisee), Professional Couriers, Ponnambalam Shopping Complex, Kumarapuram, Medical College P.O, Thiruvananthapuram.  

(By Adv. S. Roshan for O.P 2 & 3)

This C.C having been heard on 13.12.2017, the Forum on 28.02.2018 delivered the following:

ORDER

SMT. R. SATHI:  MEMBER

The complainant is Bharat Sanchar Nigam Ltd. (BSNL) represented by its Divisional Engineer and it carries out the maintenance and operation of long distance digital communication network which interconnect all the outgoing and incoming national and international trunk circuits from all telephone exchanges to Tvpm district and from Tvpm district to all other exchanges.   In short, the digital transmission station is the network interconnecting point of all types of calls and data circuits to different subscribers and exchanges.  The HFCL is a firm engaged in the service and repairs of switch cards and the firm is approved by Govt. of India for availing their services.   On 21.04.2008 the complainant availed service of the opposite parties for sending a switch card 41 C to HFCL for upgrading the efficiency for handling more calls.  The parcel containing the switch card was accepted by 3^rd opposite party on 21.04.2008 vide courier consignment note No. 3083437 and Rs. 50/- was charged for delivering the parcel.  At the time of accepting the parcel the 3^rd opposite party assured that it will be delivered to the consignee on 22.04.2004.  But the parcel was not delivered to the consignee as agreed by the opposite parties.  On 27.04.2008 the complainant informed the customer care services of the opposite party regarding non-receipt of the consignment by the HFCL and as required by the opposite party a description of the consignment indicating the value of the switch module as Rs. 95,000/- was also supplied on 29.04.2008 by the complainant.  The 2^nd opposite party informed the complainant through letter that the consignment was found missing and could not be traced.  The parcel had contained a switch card unit 41 C having value of Rs. 1,12,757/- which is inclusive of all taxes.  The same was lost due to the negligence and mismanagement on the part of the opposite parties, which amounts to deficiency in service.  Hence the complainant filed this complaint for directing the opposite parties to pay Rs. 1,12,757/- with cost of Rs. 5,000/-. 

Opposite parties 2 & 3 filed version stating that the complaint is not maintainable.  The complainant is a company incorporated under the Companies Act 1956.  The service of the opposite parties availed by the complainant is for commercial purpose.  For maintaining a complaint under the Consumer Protection Act 1986 the service availed by the complainant shall be for the purpose of earning livelihood by means of self employment.  Hence the present complaint is not maintainable before this Forum as the complainant does not come under the purview of consumer as defined under the Consumer Protection Act 1986.  These opposite parties admit that a consignment was booked from the complainant’s office to the 3^rd opposite party’s office on 21.04.2008.  The parcel was brought packed from the complainant’s office itself and they never disclosed its actual contents.  It was specifically informed the complainant that if the contents are valuable one valuing more than one thousand rupees the same has to be insured.  If the actual contents was alleged by the complainant and have disclosed the same to the 3^rd opposite party, the latter would not have booked the consignment without a transit insurance coverage.  These opposite parties had promptly delivered the consignment at the office of the 1^st opposite party and the same, if at all lost is at the instance of the 1^st opposite party.  Further the 1^st opposite party and these opposite parties are separate entities having no supervision or control over each other.  Hence these opposite parties are not responsible for the loss sustained to the complainant.  The courier consignment note is the document that is the basis of the contract between the parties, clearly shows the conditions of carriage and the clause limiting the carriers’ liability.  As per the terms and conditions the liability of the opposite parties limited to Rs. 100/- for any loss.  There is no negligence or irresponsibility or deficiency in service or unfair trade practice on the part of these opposite parties.  Hence complaint is only to be dismissed. 

The authorized representative of complainant filed affidavit in lieu of chief and marked Exts. P1 to P10.  He was examined as PW1.  The 3^rd opposite party filed affidavit in lieu of chief for 3^rd opposite party and on behalf of 2^nd opposite party also.  But 3^rd opposite party expired and legal heirs of 3^rd opposite party was not impleaded.    

Issues:

1. Whether the complaint is maintainable?
2. Whether there is any deficiency of service on the part of opposite parties?
3. Whether the complainant is entitled for the reliefs sought for?

Issue (i):- Case of the complainant is that they had availed the service of the opposite parties for sending switch card unit to HFCL for upgrading deficiency for handling more calls of the complainant, that the parcel containing the same was handed over to the 3^rd opposite party on 21.04.2008 for delivering the parcel to HFCL Chennai, that the 3^rd opposite party had assured and undertook that the said parcel will be delivered to the consignee on 22.04.2008 itself but the said consignment was not delivered to the consignee as agreed, that the complainant on 30.05.2008 has filed a complaint to the 2^nd opposite party to which the 2^nd opposite party vide their letter dated 11.06.2008 has forwarded Ext. P5 letter issued by the Officer in Charge of the 1^st opposite party in which it was stated among other than the consignment which was booked by the complainant was found missing and could not be traced out, that the consignment contained goods worth Rs. 1,12,757/- which is inclusive of actual cost of Rs. 94,500/-, Basic excise duty 16%, education cess 2%, sales tax 1% and packing and forwarding 2 %, that the complainant had issued a letter dated 04.07.2008 to the 3^rd opposite party for which they had not sent any reply or return the parcel and hence claiming an amount of Rs. 1,12,757/- the present complaint is filed.  Here the main contention raised by opposite parties 2 & 3 is the question of maintainability.  They also filed separate petition challenging maintainability on the ground that the complainant availed the service of opposite parties is totally for commercial purpose.  For maintaining a complaint under the Consumer Protection Act 1986 the service availed by the complainant shall be for the purpose of earning livelihood by means of self employment.  Hence this complaint is not maintainable before this Forum as the complainant does not come under the purview of ‘consumer’.  The complainant did not contradict the contention of opposite parties 2 & 3 regarding maintainability.  Ext. P7 is a letter issued by the complainant company to the opposite party.  In that letter it is clearly stated that “if the card is not received/upgraded in time, it will affect the functioning of this particular telecom equipment and will result in huge revenue loss to the department”.  This letter itself shows that the card sent by the complainant to opposite party courier is required for profit making.  At the time of cross examination PW1 “താങ്കള്‍ പറയും പ്രകാരം എന്തെങ്കിലും loss ഉണ്ടായിട്ടുണ്ടെ ങ്കില്‍ company-യുടെ consignment contract പ്രകാരം limited liability of Rs. 100/- മാത്രമേയുള്ളൂ എന്ന്‍ പറയുന്നു.  (Q).  ഞങ്ങ ള്‍ contract sign ചെയ്തിട്ടില്ല. (A)”.   

It is evident from the documents and statements that the services availed by the complainant is totally for commercial purpose.  Hence complaint is dismissed as not maintainable.  Therefore other issues are not discussed. 

In the result, complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

 Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 28^th day of February 2018.

     Sd/-

R. SATHI                               : MEMBER

      Sd/-

P. SUDHIR                            : PRESIDENT

      Sd/-

                                                                        LIJU B. NAIR                        : MEMBER

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C.C. No. 225/2009

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - K. Vijayakumaran Nair

 II      COMPLAINANT’S DOCUMENTS:

P1     - Consignment note

P2     - Copy of mail dated 29.04.2008

P3     - Complaint regarding non-delivery of consignment

P4     - Reply letter dated 11.06.2008

P5     - Letter dated 03.05.2008 issued by 1^st O.P

P6     - Letter dated 25.06.2008 issued by HFCL

P7     - Letter issued by complainant

P8     - Acknowledgement card

P9     - Copy of reminder sent by complainant

P10   - Copy of Court Case/Urgent

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

NIL

                                                                                                      Sd/-

PRESIDENT

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