11-03-2015 - The reasons for delay in disposal of this appeal can be seen from the order sheets.
All the three appeals arise out of the common order dated 22.09.2011 passed by learned District Consumer Forum, Gumla in Complaint Case No. 38 of 2005 / 328 of 2004. They were taken up together and are being disposed of by this common order.
2. The Complainant will be referred as BSNL, the Opposite parties 1, 2 and 3 in the Complaint Petition, will be referred as the Courier, and the Opposite Party No.4 will be referred as the Supplier, for short.
F.A 276 of 2011
3. Inspite of sufficient opportunity, the appellants who are the agents / branch office of the Courier did not deposit the statutory amount.
Accordingly this appeal has been held to be not maintainable vide order dated 4.12.2014.
F.A No. 126 of 2013
On Limitation
4. Heard the parties.
Mr. Manish Kumar, learned counsel appearing for the supplier submitted that the appellant/Supplier has prayed for condoning the delay of 732 days in filing this appeal on the following grounds. It sent it’s show cause, in the Complaint Case by post and as the consignment sent through the Courier was not delivered to it, it was under the impression that no adverse order could be passed against it, and therefore it did not take steps in the Complaint Case. From the notice of this appeal it learnt about the impugned order and thereafter it took much time in engaging Counsel and filing this appeal. He also submitted that there was no allegation in the Complaint against the Supplier.
5. On behalf of the complainant/ BSNL the said prayer was seriously contested. The order dated 23.4.2013 passed by the Hon’ble National Commission was relied, by which R.P. No. 1147 of 2013 was dismissed with cost due to unexplained delay.
It was also submitted that in the Complaint allegation was made against the Courier and Supplier both.
6. Admittedly, after sending the show cause by post, the appellant did not take any step in the Complaint case. The ground, that it was under the impression that no adverse order could be passed against it, is absurd. The other statements made in the petition for explaining the delay are also absolutely vague and general. It is true that liberal approach is taken while condoning the delay, but then the delay has to be properly explained.
Learned Counsel tried to impress us on merit saying that the Supplier was not responsible till the Consignment sent through the Courier was delivered to it. It was also submitted that there was no allegation against the Supplier in the Complaint.
As noticed hereinafter, the Complaint was against the Courier and Supplier both. In our opinion the appellant/ supplier has miserably failed to explain the long delay of 732 days in filing this appeal.
Accordingly the prayer for condoning the delay is rejected. Consequently this appeal stands dismissed.
F.A.No. 37 of 2012
On limitation
7. Heard the Parties on the point of condoning the delay of about 130 days in filing this appeal.
It was submitted that F.A. No. 276 of 2011, was filed by the Brach Office / Local agents of the Courier, within time.
On behalf of BSNL, the prayer for condoning the delay was contested.
However, on being satisfied with the grounds, the delay is condoned.
On merits -
The background-
8. The complaint in question was filed on behalf of BSNL alleging that three numbers of LWC/ defective cards were sent to the Supplier on 01.03.2004 through the Courier for its replacement but the said cards were not delivered to the Supplier. Further the Supplier has failed to replace the defective LWC Cards inspite of repeated requests. BSNL claimed Rs. 14, 72,000/- being the cost of the Cards, besides Rs. 15000/- as compensation and cost of litigation, against all the Opposite Parties.
9. The case of BSNL in short is as follows. BSNL purchased DWDM equipment along with accessories from the Supplier. Three numbers of LWC cards became defective. BSNL requested the Supplier to replace them .As per the request of the Supplier, they were sent through the Courier but were not delivered to the Supplier. Further inspite of several requests the Supplier did not replace the cards. BSNL wrote several letters to the Supplier about the consignment, but for informing that it was not received, it took about three months. Then BSNL wrote letter to the Courier, but it also took about two months in informing that the consignment was misplaced. Such deficiencies in service on the part of the Courier and the Supplier caused huge loss to the complainant to the extent of Rs. 14,72,000/-.
10. The defence of the Courier is that on the Booking receipt there is clear term that it’s liability was Rs. 50/- maximum per consignment in case of loss, and that at the time of booking the article, BSNL did not disclose the correct value, otherwise it would not have been booked without insuring it.
11. The case of the Supplier as per its written statement in short was that unless the defective cards were delivered, they could not be replaced and therefore it could not be held liable.
12. BSNL and the Courier led documentary and oral evidence.
13. The learned District Forum interalia, held that all the O.Ps. had committed deficiency in service. While assessing the damages, the Learned District Forum took half of the costs of faulty cards i.e. Rs.7,36,000/-. It held that 1/3 of this amount should be borne by BSNL. 1/3 of the amount was to be paid by the Courier ( O.Ps. No. 1 to 3 )and 1/3 of the amount was to be paid by the Supplier/O.P.4 . Accordingly the Courier were directed to pay Rs. 2, 70,000/- jointly or severely to BSNL and the Supplier was directed to pay Rs. 2,70,000/- to BSNL, within 90 days of the order, failing which simple interest @ 12% per annum from the date of the order, till the payment was also to be paid by the Courier and the Supplier.
The preliminary objection
14. Mr. Bibhash Sinha, learned counsel appearing for the Courier submitted that the Complaint itself was not maintainable as the BSNL purchased the equipments and the LWC Cards for commercial purpose.
15. From the impugned order, it does not appear that the said objection was raised by the Courier and therefore there was not adjudication on this point. It may also be noted that such objection has not been taken by the Courier in these appeals also.
On this, Mr. Sinha submitted that this is a legal question and it can be raised at any stage.
16. In our opinion, this question could be decided only on basis of the facts and circumstances brought on the record, as the said question is mixed question of fact and law. In view of this position, it is not necessary to consider the judgements referred by Mr.Sinha on the point, as to when one can be said to be a consumer, and when not.
17. Moreover, prima-facie it appears that such objection is not tenable. There is nothing to show that BSNL is a dealer of such equipments or LWC Cards. Rather it appears that they were purchased by BSNL for its use for providing Telecom Services.
Therefore this objection that BSNL is not a consumer cannot be accepted.
Submissions on merit
18. It was submitted on behalf of BSNL that it did not file the detailed Complaint, but in the formal Complaint the following prayer was made-
“ Complainant prays that this Hon’ble Forum may be pleased to grant compensation of Rs. 14,72,000/- as cost and damages on account of non-delivery of the booked articles of 3 Nos. of LCW to O.P. No.4 through the O.P. No. 1 to 3 . And O.P. No.4 has not replaced the defective article supplied to complainant inspite of several request and demand and hence deficiency of service. Therefore all the O.P. 1 to 4 are jointly liable to compensate the loss of Complainant. And a further sum of Rs. 15,000/- be awarded to the Complainant as cost of litigation for mental agony and harassment. The detailed of facts will be filed separately.”
19. Thus it was argued on behalf of BSNL that it made complainant against Courier for not delivering the consignment, as well as against the Supplier for not replacing the defective cards inspite several requests and demand.
20. It appears that the allegation in the complainant are in two parts. First part is against the Courier alleging deficiency in service for non-delivery of the consignment and the second part is regarding deficiency in service on the part of the Supplier for not replacing the defective cards inspite of several requests.
21. It was further argued on behalf of BSNL that the following uncontroverted position also clearly shows that there was deficiency in service on the part of the Courier as well as the Supplier.
The LWC Cards were sent on 1.03.2004 through the Courier. When BSNL did not receive any response, it wrote a letter to the Supplier on 7.04.2004.When no reply was received, BSNL again wrote a letter to the Supplier on 17.05.2004 and wrote a letter to the Courier also on 18.5.2044 to send proof of delivery (P.O.D) of the said consignment. Neither the Courier nor the Supplier responded. When BSNL sent a Fax on 3.07.2004 it was said by the Supplier that the LWC cards were not received. Then by the letter dated 13.072004 the Courier replied to BSNL that the consignment was misplaced.
Thus the Supplier took about three months in informing that it did not receive the consignment, whereas it should have responded without any delay. B.S.N.L. could offer some terms for replacement if the Cards were not received. There is nothing to show that the Cards could be replaced only after the defective Cards were received.
Then the Courier took more than four months in informing BSNL that the consignment was lost, whereas it was it’s duty to send either P.O.D or inform BSNL about missing of consignment without any delay.
It was therefore argued on behalf of BSNL such actions/inactions on the part of the Courier and the Supplier also constitutes deficiency in service on the part of the Courier and the Supplier.
22. The only contention raised on behalf of the Courier is that its liability was limited to Rs. 50/- per consignment as mentioned in the consignment note, and had BSNL disclosed the value, it would not have been sent without insuring it.
23. In support of the said contention, Mr. Bibhash Sinha appearing for the Courier relied on the judgement of Hon’ble Supreme Court in the case of Bharathi Nitting Company Vs DHL Worldwide Express Courier Division reported in (1996) 4 SCC 704; II (2004) CPJ 39 ( NC) Desk to Desk Courier Vs Kerala State Electronics Dev. Corp. Ltd. and the judgement of Airpak Courier ( India) (P) Ltd. –vs- S. Suresh dt. 11.3.1993, passed by Hon’ble National Commission in F.A. No. 65 of 1992.
24. On the other hand on behalf of the BSNL it was submitted that it is not disputed that BSNL has been sending consignments through this Courier without disclosing the value and without insuring them.
On the point that the liability of the Courier could not be limited as per the terms printed in consignment note in small and fine print, reliance was placed on the judgement of Hon’ble National Commission rendered in the case of M/s Tata Chemical Ltd. Vs Skypak Courier Pvt. Ltd. on 14th December, 2001 in Original Petition No. 66/1992
Findings -
25. It is seen that the order in the case of Desk to Desk Courier, (Supra) was passed on the basis of Bharathi Nitting (Supra). The order of Bharathi Nitting (Supra) was considered in the case of Tata Chemicals Ltd. (Supra). But it appears that the order passed in the case of Tata Chemicals Ltd. (Supra) was not brought to the notice of the Hon’ble National Forum while passing order in the case of Desk to Desk Courier (Supra).Therefore in view of the order passed in the case of Tata Chemicals Ltd. (Supra), it is not possible to rely on the orders passed in the case of Bharathi Nitting and Desk to Desk Courier (Supra). Further, the fact situation in the case of Airpak Courier (Supra) was quite different from the present case.
26. Thus in view of the order passed in the case of Tata Chemical Ltd. (Supra), we find no merit in the appeals filed by the Courier.
Further the undisputed long delays on the part of the Courier and Supplier, as noticed in Paragraph 21 hereinafter, also clearly establishes gross deficiency in service on the part of the Courier and the Supplier.
27. Thus after considering the case from different angles, we are of the view that no grounds are made out for interference with the order under appeal.
28. However, even though F.A. No. 276/11 and F.A. No. 126/13 have been dismissed, we think it proper to modify the operative portion of the impugned judgement. Half of the value of the LWC Cards has been taken by learned District Forum for fixing the amount of compensation. Whereas we think it proper to fix a lump sum amount.
Accordingly the Courier/ appellants in F.A No. 276 of 2011 & FA No. 37 of 2012 will jointly or severely pay Rs. 50,000/- to BSNL and the Supplier / appellant in FA No. 2016 of 2013 shall also pay of Rs. 50,000/- to BSNL / Complainant, within 90 days of this order, failing which, the said appellants will be also liable to pay simple interest @ of 9 % per annum from the date of this order till the date of the payment/ realization.
With these observations and modification, these appeals are disposed off.
Issue free copy of this order to all concerned for information and needful.
Ranchi,
Dated:-11-03-2015
