Complaint filed on: 16.08.2012

                                                      Disposed on: 29.12.2016

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.1646/2012

DATED THIS THE 29^th DAY OF DECEMBER 2016

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant: -                     

M/s. OPTO Circuits (India) ltd., Plot No.83,

Electronics City

Bengaluru-560100

By its Senior Manager Personnel and Human Resource Mr.M.V.Nagaraj

By Adv. Sri. B.Pramod  

V/s

Opposite parties:-    

1. First Flight Courier Ltd.,

(A Company incorporated under the provisions of the companies act)

Having its Regd. office at

No.505, Cotton Exchange Building. Kalbadevi Road

Mumbai-400002

Rep. by its Managing Director

2. First Flight Courier Ltd.,

Bengaluru Branch office, No.123, Krishna Reddy Building, Near Suresh Bar and Restaurant, Bommasandra

Bengaluru-560100

Rep. by its Branch Manager

By Adv. Sri.G.H.Nagaraj

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainant has been alleging the deficiency in service in not compensating the consignment lost in the transit and has claimed its value of Rs.2.25 lakhs with interest 24% and compensation of Rs.25,000/-

          2. The case of the Complainant in brief is that it being the manufacturer and distributor of medicinal devices in continuation of regular placing of consignments booked 4 consignments to be delivered to its unit office as per the invoices dated 10.01.2011, 03.01.2011 and 17.01.2011 worth around Rs.2.25 lakhs each. Out of which one carton box as per invoice dated 03.01.2011 carrying worth Rs.2.25 lakhs devices could not be traced at the end also, though because of their efforts only, they were able to trace the remaining three carton boxes of two invoices in the office of Opposite party No.2 itself. Inspite of lapse of considerable time the Opposite parties did not keep up assurance of paying compensation for the loss caused due to their faulty services, negligence which made them to loose their goods worth Rs.2.25 lakhs. Thereby there is deficiency in service by the Opposite parties. The letter dated 31.01.2012 did not receive the reply. Hence notice was issued on 25.06.2012 and later filed this case.

3. The Opposite party No.2 has filed the version denying alleged deficiency of service on its part of the Opposite party company. It has contended that the Complainant is not a consumer nor there is consumer dispute, because it is a private limited company involved in commercial activities. It is filed on baseless allegations. It is bad for mis-joinder and non-joinder of parties. The Complainant abused the process of law to harass the Opposite party company. The Complainant had requested for courier services on credit basis which was entered in to agreement form. In terms of agreement itself the Complainant had no right to book the consignment valued over Rs.1 lakh. The Complainant had booked one consignment dated 09.02.2011 to its unit office declaring it as a parcel but without declaring its value. The Opposite party company handed over the above consignment with other consignments for delivery and its staff lost the courier bag at Visakapatnam railway station and it could not be traced. Missing complaint was lodged on 11.02.2011 with intimation to the Complainant. The clause no.10 of agreement is that “the Opposite party company is not responsible for any loss or damage if caused due to any acts of God such as accidents, any natural calamity, not commotion, strike or any other cause whatsoever beyond the control of the company. No claim for loss or / and damage will be entertained by the company in such events.” In the present case the Opposite party company lost the parcel beyond its control and tried to its level best to trace the same. Hence the complaint is liable to be dismissed. Clause 14 says that “no claim for loss will accepted by the company after 90 days from the date of booking of the concerned consignment, nor any communication will be entertained by the company beyond the above period.” The Complainant has claimed after lapse of 1½ years. Hence the complaint becomes liable to be dismissed.

4. The officials of the Complainant and the Opposite party No.2 have filed their respective affidavit evidences. The complaint has relied on Ex-A1 to Ex-A8 documents and the Opposite party No.2 has relied on Ex-B1 to Ex-B3 documents. Written arguments were filed by both the parties. Arguments were heard.

5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainant establishes the deficiency in service against the Opposite parties company in not compensating the consignment lost in the transit.
2.  To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Negative

2) As per final order – for the following    

REASONS

          7 Consumer Dispute No.1:  The undisputed facts reveal that the Complainant is the company involved in manufacturing and distributing of medicinal devices. The Opposite parties are also the company involved in forwarding of goods or the materials all over India.

          8. It is also undisputed that on 09.02.2011 the Complainant had booked 4 consignments to be delivered at its unit at Vadlapudi post, Duvvada post, Viskhapatnam of Andhra Pradesh. Out of such 4 consignments, the consignment dated 03.01.2011 was not delivered by the Opposite parties. In this connection the Complainant did correspondence as per Ex-A2, Ex-A3 and Ex-A4 with the Opposite parties.

          9. It is also undisputed that the Opposite parties informed its Bengaluru office through Ex-A5 letter dated 14.02.2011 that on 11.02.2011 at Vishakapatnam railway station one of their courier boxes were found missing and the same could not be traced despite their efforts which made them to lodge police complaint. The said police complaint was supported by the certificate issued by Vishakapatnam railway police as per Ex-A6 dated 05.08.2011 to the effect that the bag missed on 11.02.2011 could not be traced despite their efforts.

10. The Complainant wrote a letter dated 31.01.2012 informing the Opposite parties that consignment not delivered/found lost was consisting of the articles worth Rs.2,25,000/- and hence it has to be compensated. The Complainant wrote the letter Ex-A7 dated 31.01.2012 to the Opposite parties mentioning the parcel worth Rs.2,25,000/- found missing. The Opposite parties in their reply notice letter Ex-A8 dated 25.06.2012 denied their liability reiterating efforts made by its employees. The opposite party has produced the contract form Ex-B1 and agreement Ex-B2 entered between both the parties to contend that the complainant has no right to seek the reliefs of this complaint. 

          11. In Ex-B2, contract for credit sales, executed between both the parties, the following terms & conditions are as here under:

3) The customer agrees not to book any of the following items through the company:                              a) Currency b) Gold c) Drugs d) Explosive                           e) Hazardous chemicals  f) Beazer bank DDs or cheques g) Liquids h) Radioactive material                          i) Pomographic material j) Tender documents                      k) Share certificates l) Glass items or any article so banned under the Indian Postal Act 1896.

10) The Company will not be responsible for any loss or damage of the consignment caused due to any acts of God such as accidents, any natural calamity, riot, commotion, strike or any other cause whatsoever beyond the control of the company. No claim for loss or/and damage will be entertained by the company in such events.

14)  No claim for loss will accepted by the company after 90 days from the date of booking of the concerned consignment, nor any communication will be entertained by the company beyond the above period.

 12. The Complainant is commercial establishment/ company, it has entered in to agreement with the Opposite parties company as per Ex-B2 and the same is not stated by the Complainant before the forum and it amounts suppression of facts. The contractual obligations disqualify the Complainant to seek the compensation as one of the consignments were found stolen/missing in the railway station and inspite of their efforts it was not traced even by the police also and that incident was beyond the control of the Opposite parties. There was the condition in Ex-B2 that the consignments valued over Rs.1 lakh is not acceptable under one consignment note and the consigner shall not be entitled for the claim, if he holds a marine policy.  The Complainant in his letter Ex-A7 has addressed the consignment as one parcel worth USD.5000.00 (Rs.2,25,000/-). Such letter is a base to show that the Complainant has booked the consignment declaring it as worth Rs.2,25,000/-. Ex-A4 material gate pass of the Complainant shows the item no.2 as 25000 and it was under head/column quantity number. Ex-A3 consigner copy issued by the Opposite parties also does not show any amount as its valuation. Ex-A2 does not show that it was the document given to Opposite parties while booking the last consignment.

13. The consignment was lost in February 2011. Ex-A5 shows that Bengaluru office was also informed in February 2011 about the missing of the bag consisting of the consignment of one out of four boxes. Ex-A7 shows that the Complainant officials learnt about the return of consignment to Bengaluru office and hence the persuaded, valued by visiting Bengaluru office repeatedly and later learnt about the missing of the consignment. Sequence of Ex-A3, Ex-A5 and Ex-A7 clearly shows that the Complainant was aware about the missing of consignment in February 2011 itself because of enquiry with the Bengaluru office for taking the returned consignment. In Ex-A8 legal notice dated 25.06.2012, the Complainant has mentioned that three parcels were traced on Bengaluru office because of their repeated efforts and visits on 02.04.2011 and then they learnt the missing of forth consignment.

14. In terms of agreement the Complainant ought to have submitted his request for compensation within 90 days i.e. within May 2011 are atleast by June 2009 but has mentioned in Ex-A8 admittedly they waited for five months and wrote the letter in January 2012. Thereby it is clear that the contractual obligations were also not fulfilled by the Complainant.  Non-compliance of clause 14 makes the Complainant to disqualify from asking the compensation in terms of agreement.  Otherwise also the Complainant who did all these transactions being the company for its commercial purpose also gets no right to be called as consumer. Hence the Complainant failed to establish the Consumer Dispute No.1. Accordingly Consumer Dispute No.1 is answered in negative.

          15. Consumer Dispute No.2: In view of findings of Consumer Dispute No.1 the Complainant deserves to get the following:

ORDER

          The Complaint of the Complainant is here by dismissed. No order as to costs.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 29th day of December 2016).

Documents marked on behalf of Complainant:

Documents marked on behalf of Opposite party No.2