DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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M/s Fragrance Exim Pvt. Ltd., 41, Industrial Area, Phase-II, Chandigarh, India – 160047, through its Director Shri Surinder Kohli s/o Sh. Late Avtar Singh, R/o #254, Sector 6, Panchkula.

                                                                   ---Complainant

Vs

[1]     D.T.D.C. Courier & Cargo Limited, SCO No. 267, Sector 35-D, Chandigarh.

[2]     D.T.D.C. Courier & Cargo Limited, Corporate Office: DTDC House, #3, Victoria Road, Bangalore- 560 047.

[3]     D.T.D.C. Courier & Cargo Ltd., Regional Office: B-101, Phase-I, Narain Industrial Area, New Delhi – 110 028.

---- Opposite Parties

BEFORE:          SH.LAKSHMAN SHARMA                  PRESIDENT

MRS.MADHU MUTNEJA                    MEMBER

                        SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:      Shri D.K. Singal, Counsel for Complainant.

Sh. G.L. Aggarwal, Counsel for Opposite Parties.

PER MADHU MUTNEJA, MEMBER

1.                The instant complaint relates to alleged deficiency in service and unfair trade practice by the Opposite Parties due to non-delivery of items booked by the Complainant Company from overseas to Chandigarh.

                   Factually speaking, the Complainant purchased a number of goods through internet in an open auction and had made payment through credit card. These consignments were booked with the Opposite Parties to be delivered to the Complainant at Chandigarh. The detailed list of the goods/articles booked with the Opposite Parties is at Annexure C-2.  The Complainant has alleged that the goods have not yet been delivered to it, till date, which amounts to breach of contract and gross deficiency in service by the OPs.  As the value of the goods runs into lakhs of rupees and the Complainant had already made payment to the Seller, the Complainant has filed the instant complaint, after exhausting its patience by visiting the office of the Opposite Parties number of times and also issuing a legal notice to them.   In this regard, it needs to be added that the Complainant has stated that an agreement had been entered into between the parties for regular carriage of articles/ goods from various placed to the office of the Complainant.

                   Hence, alleging deficiency in service and unfair trade practice, the Complainant has prayed for the following reliefs: -

i)       Delivery of all the articles/ goods booked with the Respondent Company or in the alternative the price of all the goods/ articles.

ii)      A sum of Rs.04 lacs as compensation and damages for the harassment, mental agony and loss.

iii)     A sum of Rs.50,000/- for the charges undertaken by the Complainant in visiting the office of the Respondent Company for getting his grievance redressed.

iv)      A sum of Rs.50,000/- as cost of litigation.

v)       Any other relief, as this Ld. Forum may deem fit in the circumstances of the present case.

                   On the last date of hearing i.e.27^th July, 2012, the Complainant made the following statement: -

“I restrict my claim with regard to compensation for mental harassment and agony to the extent of Rs.2 lac only instead of Rs.4 lac as pleaded in Para No. 17(ii) of the complaint.”

                   The Complainant has placed on record all the annexures in support of its contentions.

2.                After admission of the complaint, notices were sent to the Opposite Parties.

3.                Opposite Parties in reply have taken the preliminary objection that the alleged agreement between the parties (Annexure R-1) is not valid as it does not bear the signature of any official of the Opposite Parties. 

                   On merits, Opposite Parties have denied that the Complainant is the Managing Director of the Company, or that the Complainant is a consumer of the Opposite Parties. Opposite Parties have admitted that they are in the business of Courier and Cargo Service, but have denied all the allegations by the Complainant.  Even the booking of the consignment has been denied. In the affidavit of Mr. Mahesh Pathak, A.M., the reply on merits has been reiterated.  Opposite Parties have, therefore, prayed for the dismissal of the Complaint. 

4.                In the rejoinder to the reply filed by the Opposite Parties, the Complainant has stated that denial by the Opposite Parties to the agreement is wrong and that the original copy of the agreement on which both the parties had put their signatures is in the possession of the Opposite Parties. Also Annexure C-5 is a confirmation by the Opposite Parties about the articles lying at their office (Pages 9 to 11). The Opposite Parties have been regularly collecting service charges through Cheque as well as cash from the Complainant. The bills issued also show the relationship of consumer and service provider between the parties (proof at Annexure C-6 and C-7). The Complainant has added that it had also given a bank guarantee in favour of the Opposite Parties with Punjab and Sind Bank to the tune of Rs.2,00,000/- and paid a sum of Rs.10,00,000/- to the Opposite Parties on 9.11.2010 by way of Cheque (Annexure C-8 to C-9). Hence, the documents placed on record (Annexure C-5 to C-9), establish the relationship between the parties. The e-mail at Annexure C-10 received from the Opposite Parties acknowledges that the articles/goods are lying with the Opposite Parties. The Complainant has, therefore, prayed that the complaint be allowed with costs, as prayed for.            

5.                Parties led evidence in support of their contentions.

6.                We have heard the learned counsel for the Complainant and Opposite Parties and have perused the record.

7.                At the outset, it needs to be mentioned that the Complainant is a duly incorporated Company with the Registrar of Companies and has filed the instant complaint through its Managing Director, who is fully competent and authorized to file the instant complaint. However, there is no resolution or authority letter on record in favour of the Managing Director issued by the Company M/s Fragrance Exim Pvt. Ltd. to file the instant complaint.     

                   Interestingly, the alleged offer for courier and cargo services by the Opposite Parties to the Complainant (Annexure C/1) has not been signed by the Opposite Parties.  The contract for credit sales between the parties has also not been signed by the Opposite Parties.  Opposite Parties have denied all contracts.

                   The list of articles placed on record by the Complainant which allegedly have not been delivered by the Opposite Parties are not on any letter head of either of the parties and the value of all the goods has not been mentioned. Where the value is mentioned it is not in Indian currency.

8.                Annexure C-2 and C-4 are the lists of undelivered articles placed on record by the Complainant. The only apparent difference between the two lists is that page 8 of Annexure C-4 which is from page 5 to 8 in the paper book shows a total loss of Rs.16,06,202.10/-. The rate of conversion of dollar or how this amount has been arrived at is not given or proved.

                   Annexures C-5 to C-8 are more details given by the Complainant. However, whether these details relate to the instant complaint or a prior engagement is not clear.  What is definitely brought out is that invoices have been issued by the Opposite Parties from Naraina, New Delhi. The registered office of the Opposite Parties is at Bangalore. More details of transactions from 1.4.2009to 31.10.2010 between the parties have been placed on record from Pg. 15 to 25. However, the stamp of the Opposite Parties on all papers seems to be from Naraina, New Delhi only.   

9.                It is interesting to note here that the Complainant is talking of a number of goods purchased through internet in an open auction, which are continuously being booked with the Opposite Parties. Annexure C-7 is a receipt of Rs.7.00 lacs paid to the Opposite Parties. However, there is no mention of the transactions against which this payment has been made. Annexure C-8 is the bank guarantee, between the Complainant and the Punjab and Sind Bank, issued by the Bank from Chandigarh. Annexure C-10 is a friendly e-mail from the office of the Opposite Parties to the Complainant, with an offer to resolve the pending issues. A list of articles have been mentioned which have been delivered to the Opposite Parties by UPS to forward to India. However, there is no mention or proof whether these articles relate to the instant complaint or are different. The value of the articles has also not been mentioned. 

10.              The entire situation relates to the business transactions of a company, which is purchasing things from overseas and getting them transported to Chandigarh through the Opposite Parties. The whole exercise definitely relates to business transactions, as the volume of goods and the details of the items given at annexures clearly show that these items cannot be for personal use and are for further sale in the market. It has already been stated above that the Complainant is a company and the relevant resolution authorizing the Managing Director is not on the record. The alleged agreement between the parties is also unsigned by the Opposite Parties and the detail of goods as well as value of the goods lost is also not clear. There are too many letters of too many articles which seems similar yet different. Hence, in our opinion, to prove the actual loss the Complainant needs to give more specific details, as well as the actual value of goods lost/undelivered to prove its claim. This detail needs to be proved with cogent evidence, which will not be possible in the summary procedure allowed under the Consumer Protection Act, 1986. Otherwise also, the Complainant is not covered under the definition of consumer under Section 2(d)(1) of the Act as the goods do not seem to be for personal use. The Complainant is a Company. Even the compensation prayed for by the Complainant for mental agony and harassment is not payable as mental agony and harassment can be to a natural person only and not to an unnatural person (company) as held by the Hon’ble Supreme Court of India in case SIKKA PAPERS LIMITED VS. NATIONAL INSURANCE COMPANY LIMITED & OTHERS, (2009) 7 Supreme Court Cases 777, as under: -

“Consumer Protection Act, 1986 – S. 14(1) – Mental harassment – Compensation for – Claim by a corporate entity – Admissibility – Only a natural person and not corporate entity, held, can claim such compensation – Contract Act, 1872 – S.73 “                                      (Para 27)

In the present case, also the Complainant is a ‘Company’ and not a natural person. Hence, compensation for mental agony and harassment cannot be awarded to the Complainant.

11.              Hence, in view of above discussion, we do not feel that the Complainant has not made out an adequate case of deficiency in service or unfair trade practice against the Opposite Parties. The case is accordingly, dismissed. No costs.

12.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30^th July,  2012.                                                                            

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER