DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 511/2011

M/s S.P.S. International Ltd.,

Having its Office at W-12,

Okhla Industrial Area, Phase-II,

New Delhi-110020.                                                      ….Complainant

Versus

1. Mr. Santosh Tiwari, DTDC Channel Partner,

Jeet Communication,

294, Sant Nagar, Room No. 3 & 4,

East of Kailash,

New Delhi-110065.

2. General Manager/ Chief Office In-charge,

DTDC Courier & Cargo Limited (Delhi Regional Office)

B-101, Phase-1, Industrial Area, Naraina, New Delhi-110028

3. M/s DTDC Courier & Cargo Limited

Through its Chairman & Managing Director,

Having its Corporate Office at

DTDC House  No. 3 Victoria Road, Bangalore-560047                                                  

….Opposite Parties

                                                  Date of Institution      :21.12.11     Date of Order                         :18.12.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

Brief facts of the complaint as stated are:-

1. Complainant is a printer supplier of OMR forms, answer booklet with barcodes, application forms, admit card, computer paper products and provides service of data base management and OMR technologies etc. The complainant actively participates in tenders both government and privates.
2. The complainant booked a consignment with DTDC channel partner of DTDC Courier and Cargo Ltd. hereinafter referred to as ‘OP’. It is stated that the consignment contained tender papers bearing quotation nos. ABV-IIITMG/Registrar/1431 dated 30.08.2011 for printing and supply of answer booklets, vide DTDC plus shipment no. V06351723 dated 09.09.2011. It is further averred that total cost of tendered items contained in the shipment was valued of Rs.1,26,500/- approximately. The complainant booked the shipment to be delivered to the Registrar, Atal Bihari Vajpai Indian Institute of Information Technology and Management, Gwalior.
3. It is next stated that at the time of acceptance of shipment at Delhi office, OP promised that the shipment would be delivered on time but the complainant was surprised from tracking the shipment/ consignment that the shipment was not delivered till 22.09.2011 to the above said addressee. It is alleged that due to negligent and deficient service of OP complainant failed to participate in the tender bid and due to this, lost the business opportunity owing to the failure of timely and proper delivery and also lost goodwill and reputation in the market.
4. Further on lodging the complaint to OPs, the OP vide email dated 27.09.2011 replied that Mr. Deepak employee of OP-1 came to the office of the complainant on 26.09.2011 for delivery of the packet but the security guard of the complainant refused to receive the packet. Same is denied by the complainant. Complainant states that OP’s employee Deepak Pandey has himself admitted in writing that he did not come on 26.09.2011 rather he came on 27.09.2011.
5. Being aggrieved by the dealing and deficient service provided by the OPs, the complainant approached the Forum with the following prayers :-
1. to order for payment of Rs. 1,26,500/- approx. (Rupees One Lakh Twenty Six Thousand Five Hundred only) as the value of the shipment and
2. to pay a sum of Rs.50,000/- towards loss of business opportunity suffered by the complainant due to deficiency in services, and
3. to pay interest as per MSMED Act to the complainant till the date of payment, and
4. to pay a sum of Rs.11,000/- to the complainant towards the cost of litigation.

2. OP resisted the complaint inter-alia on the ground that the complaint is not maintainable as the said consignment contained tender papers is not acceptable as the contents of the consignment were not disclosed at the time of booking of the consignment. Further the value of the consignment was not declared at the time of booking and the consignment was not insured. It is reiterated by the OP that the sealed consignment without declaring the value contents and without insurance was booked for its delivery. OP further submits that at the time of booking of the consignment, the complainant informed OP-1 that the consignee is within the township of the Gwalior but when it reached at Gwalior office,  it was found that the same is outside the limit of the town and is far from the Gwalior town. It is next stated that even the pin code number was not mentioned in the consignment, therefore, it was returned to the complainant.

2.1    It was next submitted by the OP that on 26.09.2011 when the OP staff went to deliver the packet it was not accepted at the office of the complainant and on the next day when the delivery boy again went to deliver the consignment the complainant pressurized the delivery boy to write that he did not come on 26.09.2011 and it was under the threat that he wrote that he is coming today i.e. 27.09.11.

3. It is further submitted that the present complaint is not maintainable as the services hired by the complainant was for commercial purpose as per the complaint. Therefore, the present case does not fall under the ambit of Consumer Protection Act. It is next stated that even otherwise in case of any loss or damage the liability of the OP is limited to Rs.100/- only. It is therefore, prayed that the complaint be dismissed.  
4. Complainant has filed rejoinder controverting the allegations in the written statement and reiterating the averments made in the complaint. The complainant has filed his own evidence by way of affidavit. Evidence by way of affidavit of Sh. Rakesh Kumar, Legal Executive of the OP has been filed.
5. Written arguments have been filed on behalf of the parties.
6. We have gone through the material placed on the record and heard the arguments addressed by the complainant and Ld. Counsel of the OP.
7. It is admitted fact that the complainant booked a consignment with the OP which was to be delivered to Atal Bihari Vajpai Indian Institute of Information Technology and Management, Gwalior. The said consignment was booked on 09.09.2011 and was not delivered till 22.09.2011 to the addressee. The complainant alleges deficiency of service on the part of OP as the consignment allegedly contained tender papers and total cost of tender was valued at Rs.1,26,500/- approximately. It is further stated by the complainant that due to the negligent and deficient service of OP complainant could not participate in the tender bid. Due to non-participation, the complainant lost the business opportunity owing to the failure of timely and proper delivery and also lost goodwill and reputation in the market. OP controverted the statement stating that contents of the consignment were not disclosed at the time of booking of the consignment in the consignment note. Further it is also stated by the OP that why was the consignment, if valuable, not insured.
8. The main contention of the OP is that the present complaint is not maintainable as the service hired by the complainant was for commercial purpose. We find no merit in the contention as the complainant had hired the service of the OP and was not doing any business with OP to make profit. Therefore, the question of commercial purpose does not arise. Similar view is taken by Hon’ble National Consumer Dispute Redressal Commission in the matter of M/s Harsolia Motors vs. National Insurance Company Ltd. which held :-

……   “it is apparent that even taking wide meaning of the words ‘for any commercial purpose’ it would mean that good purchased or services hired should be used in any activity directly indented to generate profit. Profit is the main aim of commercial purpose. But in a case where good purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.”

In the present case also the services were hired for consideration and not directly intending to generate profit. Therefore, the present complaint falls within the ambit of this Forum.

9. Contention of OP is that the contents of the consignment were not disclosed at the time of booking of the consignment. This contention of OP holds no water in the eyes of the Forum as copy of the envelope placed on record by the complainant as exhibit CW-1/C states :-

“CONFIDENTIAL”

QUOTATIONS NO. ABV-IIITMG/Regisrar/1431, DATED: 30.08.2011

FOR

“PRINTING & SUPPLY OF ANSWER BOOKLETS.”

10. The next contention of the OP is that if the consignment was of great value, consignee should have insured the contents and should have declared the value of the consignments. The consignment contained tender papers, therefore, the papers as such were not of great value, but the business it might have fetched to the complainant is what the issue is all about. Therefore, it was the potential value of the documents which was substantial not the tender papers hence, the question of insurance does not arise.
11. Therefore, this Forum is of the opinion that OP is negligent to the extent that it did not deliver the consignment on time despite the complainant booking the consignment in DTDC Plus [“which assures Next Business Day (NBD) delivery on priority in all metros and major cities and also this is 100% money back guarantee”].
12. Forum cannot accept the argument that complainant incurred loss because of failure to participate in the tender bid. Award of contract on participation in tender is very uncertain. Complainant cannot claim any loss on that account. Further the complainant has nowhere in the complaint mentioned the closing date of tender bid, whether there was sufficient time left for him to participate in the tender bid or not, is not very clear to the Forum.
13. In view of the discussions stated above, the Forum is of the opinion that the OP was negligent to the extent that the consignment was not delivered on time. Therefore, we partly allow the complaint. OP is directed to pay Rs.10,000/- for deficient services, harassment and litigation  cost to the complainant within 45 days of receipt of copy of this order. Failing which OP shall become liable to pay interest @ 6% p.a. on the amount of Rs.10,000/- from the date of the filing of the complaint till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 18.12.2018