Complaint No: 71 of 2022.
Date of Institution: 16.05.2022.
Date of order: 01.03.2024.
Sharma Books and General Store Kahnuwan Tehsil and District Gurdapur, through its Proprietor Manish Sharma.
…........Complainant.
VERSUS
1. Delhi Punjab Goods Carrier Pvt. Ltd. NN 4-5, DPGC House, G.T. Road, Patel Chowk, Jalandhar, through its M.D. Gurdeep Singh. Mobile No. 98140-66895, Pin Code – 144008.
2. Vijay Transport Gurdaspur, through its Manager Gagan and owner Sh. Vijay Mahajan Mobile No. 83604-00685, Pin Code – 143521.
….Opposite parties.
Complaint U/S 35 of Consumer Protection Act, 2019.
Present: For the Complainant: Sh.Dheeraj Kumar Sharma and Sh.Kewal Singh Saini, Advocates.
For the Opposite Parties: Sh.Bharat Aggarwal, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Manish Sharma, Complainant (Proprietor of Sharma Books and General Store) (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, 2019 (here-in-after referred to as 'Act') against Delhi Punjab Goods Carrier Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant being proprietor is running a Books store under the name and style "Sharma Books and General Store" at Kahnuwan Tehsil and District Gurdaspur. It is further pleaded that the complainant bought the goods and used by him exclusively for the purpose of earning his livelihood by means of self-employment, hence the complainant falls under the definition of Consumer under Consumer Protection Act. It is pleaded that the opposite party No. 1 is running the business of shipping of goods throughout India by road transport, having its office in various part of States and having collaboration with various transport firms. It is further pleaded that opposite party No. 1 is having Office at Lahori Gate Delhi and the opposite party No. 2 i.e. Vijay Transport Gurdaspur, is the authorized Goods transport agency of the opposite party No. 1 at Gurdaspur. It is further pleaded that the complainant made a purchase of following goods containing 3 packages for a sum of Rs.23,583/-, the detail of which is as under :-
i) Playing Cards vide Bill Invoice No.001 dated 01.03.2022 amounting to Rs.9,856/-.
ii) Bangles amounting to Rs.10,300/- vide Bill Invoice No.185 dated 02.03.2022.
iii) Teddy Bears / Toys amounting to Rs.3427/-.
It is further pleaded that the above stated consignment was given to the opposite party No. 1 in their office at Lahori Gate Delhi vide G.R. No.DL1210031613 on dated 02.03.2022 as per the Consignment / bill dated 02.03.2022, weighing 1.80 kg (containing three Packages as detailed above). The amount of Rs.982/- is to be paid at the time of receiving the consignment to the office of the opposite party No. 2 i.e. authorized Goods Transport agency at Gurdaspur. It is further pleaded that the said consignment was to be delivered/shipped by the opposite party No. 1 from Lahori Gate Delhi to Gurdaspur. It is further pleaded that goods under consignment was shipped on dated 02.03.2022 through the opposite party No. 1 i.e. Delhi Punjab Goods Carrier Pvt. Ltd. It is further pleaded that the parcel in question was shipped by the opposite party No. 1 to its Gurdaspur delivery agent i.e. the opposite party No. 2. It is further pleaded that when the complainant approached the opposite party No. 2 for receiving the parcels, the opposite party No. 2 did not make the delivery of the same on the pretext that the consignment is in transit (on the way). Then again the complainant visited the opposite party No. 2, but the official of the opposite party No. 2 asked the complainant there a clear instruction from the opposite party No. 1 that the goods in question will not be released to the complainant until and unless he will not deposit Rs.43,982/-. It is further pleaded that the opposite party No. 2 advised the complainant to visit the office of the opposite party No. 1 and have talk with them. Thereafter, the complainant paid several visit to the office of the opposite party No. 1 and asked the reason for such illegal demand of Rs.43,000/- and requested to release the goods in question, which is lying with the opposite party No. 2, after receiving the shipping charges of Rs.982/-, because the complainant had already paid the actual amount of purchased goods of Rs.23,583/- to the shopkeeper at Delhi, but the opposite party No. 1 did not pay any heed toward the genuine request of the complainant and raised illegal demand of Rs.43,000/- and illegal endorsement to this effect has also been made on the consignment G.R. No.DLI210031613 as well as Challan No.JAL021020302 of the opposite party No. 1 dated 27.04.2022. It is further pleaded that the opposite parties instead of discharging their legal liability are putting off with one pretext or the other and thereby causing unnecessary delay in the delivery of goods unnecessarily, which is lying with the opposite party No. 2. It is further pleaded that as already stated above, the complainant had run pillar to post and made several visit to the office of the opposite party No. 1 at Jalandhar by Car and during this journey from Gurdaspur to Jalandhar, the complainant spent about Rs.12,000/- on the petrol as well as Toll Tax. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to release / handover the goods lying in the 3 parcels under consignment to the complainant. The complainant is ready to deposit Rs.982/- as applicable for shipping / transport charges of the consignment. It is further prayed that the opposite parties may kindly be burdened compensation costs / damages to tune of Rs.70,000/- on account of causing inconvenience, harassment, deficiency in services and financial loss alongwith Rs.20,000/- as litigation expenses, in the interest of justice and fair play. Or Any other relief to which this Hon'ble Commission may deem fit in favour of the complainant and against the opposite parties, may be granted.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable in the present form and no cause of action has accrued to the complainant against the answering opposite parties for filing the present complaint. It is further pleaded that complainant has no locus standi to file the present complaint. It is pleaded that the present complaint is sheer misuse and abuse of the process of law. The complainant has not come to this Hon’ble Court with clean hands and has filed a false complaint by setting up totally a false and concocted story, with sole motive to cause unnecessary harassment and inconvenience to the answering opposite parties. It is further pleaded that the complainant is the consignor of the shipment of goods and during the booking of the goods for the shipment from Delhi to Gurdaspur, the complainant attached the invoice of the goods in which the price mentioned for the goods was under value. It is further pleaded that vehicle in which the consignment was shipped was audited by the tax department and at the time of the checking the inspector/authority raises the objection for the same and bound the vehicle. It is further pleaded that the OP No. 1 through their agent i.e. the OP No. 2 intimate the consigner and consignee for to be present the record of the goods before the taxation department or at the office of the OP No. 1, but the complainant become failure to present the same. It is further pleaded that due to the inconvenience, negligence and defrauds nature of the complainant, the vehicle of the OP No. 1 became bound for some days and they have to suffer from huge financial loss and also suffered mental pain and agony. It is further pleaded that due to the wrongful conduct of the complainant the other consignments which were lying in the same vehicle became bound and due to this wrongful act of the complainant, the reputation of the OP No. 1 firm became degrade in the market. It is further pleaded that to protect the reputation of the firm of the OP No. 1, the OP No. 1 got released the vehicle on their own responsibility after paying the lump sum penalty. It is further pleaded that after that, the firm of the OP No. 1 many time requested to the complainant to pay the penalty and take the consignment, but the complainant never ever paid any heed toward the request of the employee of the firm of the OP No. 1 even threatened the opposite parties that, the complainant will sue in a false case in the court of law. It is further pleaded that the complainant is liable to clear the taxation audit of the goods as per the invoice of shipment.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Manish Sharma, (Complainant) (Proprietor of Sharma Books and General Store, Gurdaspur) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-7.
5. Learned counsel for the opposite parties has tendered into evidence copies of documents Ex.OP-1 to Ex.OP-6.
6. Rejoinder filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant is running a shop under the name and style Sharma Books and General Store for earning his livelihood by way of self employment. It is further argued that complainant had purchased goods worth Rs.23,583/- i.e. playing cards, bangles and teddy bears. It is further argued that the said consignment was booked with opposite party No.1 for delivery at Gurdaspur and the consignment was to be delivered to the complainant by opposite party No.2 after receiving Rs.982/- as transport charges. It is further argued that complainant had approached opposite party No.2 for receiving the parcel but opposite party No.2 refused to release the parcel with the excuse that complainant has to pay the penalty of Rs.43,982/- imposed by Excise and Taxation Department. It is further argued that opposite parties had not supplied any detail of any such penalty imposed on the goods of the complainant. As such withholding of consignment by the opposite parties amounts to deficiency in service.
9. On the other hand counsel for the opposite parties has argued that goods were to be transported from Delhi to Gurdaspur and the price mentioned in the invoice for the goods was under value and on audit by taxation department, objections were raised by the inspector and vehicle was bound. It is further argued that complainant failed to come present to get the consignment released on account of which opposite parties suffered loss of business. It is further argued that the vehicle was got released by the opposite parties after paying penalty of Rs.1,37,000/- to the Excise and Taxation Department and as such there is no deficiency in service on the part of the opposite parties and complaint is liable to be dismissed.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. To prove his case complainant has placed on record his self declaration Ex.CW-1/A, copy of tax invoice Ex.C1 and Ex.C2, copy of receipt regarding booking of consignment Ex.C3, copy of payment made to toll plaza Ex.C4 to Ex.C6 and copy of challan Ex.C7 whereas opposite parties have placed on record copy of challan Ex.OP-1, copy of higher slip booking Ex.OP-2, copy of G.R. enquiry challan Ex.OP-3, copy of higher slip booking Ex.OP-4, copy of challan Ex.OP-5 and copy of release order Ex.OP-6.
12. It is admitted fact that complainant is running a shop in the name and style Sharma Books and General Store. It is further admitted fact that complainant had booked consignment from Delhi to Gurdaspur with the opposite party No.1 vide G.R.No.DL1210031613 on dated 02.03.2022. It is further admitted fact that consignment was to be delivered to the complainant by opposite party No.2 after receiving of Rs.982/-. It is further admitted fact that consignment has not been delivered to the complainant by the opposite parties and has been withheld by the opposite parties. The only disputed issue for adjudication before this Commission is whether the opposite parties can withheld the consignment on account of penalty imposed by the Excise and Taxation Department.
13. Perusal of tax invoice Ex.C1 and Ex.C2 shows that in both the invoices GST has been included in the bills and total cost of the consignment mentioned therein was Rs.23,583/-. Perusal of booking slip Ex.C3 shows that the consignment was to be delivered to the complainant by the opposite parties after receiving transport charges of Rs.982/-. The plea of counsel for the opposite parties that the payment has not been made by the complainant as such complaint is not consumer of the opposite parties. However, perusal of definition of consumer as per Section 2(1) (d) of the Act, is provides as under:-
"2(1) (d) "consumer" means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and party promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
Explanation. For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment".
As per the said definition the consideration can be paid or promised to be paid and in the in the present case complainant has never refused to pay the transportation charges of Rs.982/-. As such complaint falls within the definition of 'consumer'. The only excuse of opposite parties for withholding of the consignment of the complainant is that the goods mentioned in the tax invoices Ex.C1 and Ex.C2 were under value and the vehicle of the opposite parties was audited and impounded by the Excise and Taxation Department and opposite parties had to pay penalty of Rs.1,37,000/- to the department. It is further plea of the opposite parties is that they are ready to release the consignment after receiving penalty of amount of Rs.43,982/- form the complainant. However, perusal of release order Ex.C6 shows that the consolidated amount of Rs.1,37,000/- is mentioned in the release order and truck No.PB08E74789 is mentioned with remarks carrying misc. goods but perusal of release order Ex.C6 is not clear to this effect that penalty of Rs.43,982/- has been imposed on the goods of the complainant mentioned in invoices. Counsel for the opposite parties has not been able to explain as to how the opposite parties have arrived at figure Rs.43,982/- without furnishing any detail. More over it is not the case of the opposite parties that only consignment of the complainant was being transported by charging meager amount of Rs.982/-. The amount arrived at and calculated by the opposite parties is only mentioned on Ex.C3 without signatures of any authority from Excise and Taxation Department. We are of the view that since from the perusal of the record placed by the opposite parties it is not clear whether any penalty was imposed on the goods mentioned in Ex.C1 and Ex.C2 and what was the actual amount of penalty. As such without any evidence on record the opposite parties cannot claim the amount of Rs.43,982/- from the complainant and withhold the consignment of the complainant. Accordingly, withholding of the consignment of the complainant definitely amounts to deficiency in service.
14. Accordingly, present complaint is partly allowed with the following directions:-
i) Opposite parties No.1 and 2 are directed to release the consignment of the complainant within 30 days of the receipt of copy of this order.
ii) After receiving the consignment complainant shall make the payment of Rs.982/- to the opposite parties No.1 and 2.
iii) In case opposite parties No.1 and 2 are unable to hand over the consignment to the complainant in that case opposite parties No.1 and 2 shall make payment of Rs.23,583/- to the complainant alongwith interest @ 9% P.A. from the date of filing of present complaint till realization.
iv) Opposite parties No.1 and 2 are at liberty to recover the penalty if any deposited by them by filing a separate petition in the competent court of law.
15. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March. 01, 2024 Member.
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