(Pronounced on 9th June, 2017)
As per Mr. Hemantkumar Pateriya, Member.
The complaint is filed by the complainant U/s 12 of The Consumer Protection Act, 1986, for deficiency in service and negligence in duty committed by the O.P.
1. The brief facts of the complaint are as follows:-
The complainant is an unemployed graduate, running bakery business under the name and style as “Mahalaxmi Bakery General Stores” at Bhandara for the purpose of self employment.
The O.P.No. 3 Sodexo SVC India Pvt. Ltd. At Goregaon (East) Mumbai is the provider of food and facilities management services which deals with service vouchers and card, meal pass and gift pass.
The O.P.No. 3 used to affiliate retailers/businessman as their franchisee by allotting affiliated code and code No. 88334 was allotted to the complainant.
The O.P. No. 4 Sunderbabu Periasamy is Assistant Manager of O.P.No.3 who deals with reimbursement of the Sodexo SVC vouchers.
The O.P. No. 1 & 2 are running a courier service under the name and style as First Flight Courier Service at Bhandara and Andheri (East) Mumbai respectively.
The O.P. No. 3 used to issue gift/service vouchers of various values to customers/consumers residing within Bhandara District. These vouchers are used by customers/consumers while purchasing the various daily needs & consumable items from the complainant’s shop. Such vouchers are collected by the complainant and are to be reimbursed by the O.P.No.4 on claim of the complainant.
In the month of January 2015 the complainant received of vouchers of various values issued by the O.P.No.3, from various customers/consumers who had purchased daily needs and consumable items from the complainant’s shop. The complainant sent these vouchers worth Rs.12,165/- to O.P.No.3 through the O.P.No.1 vide consignment No. M91600001687 and envelop No. 3761379 on dtd. 06/02/2015 weighing 240 gms.
The complainant on 16/02/2015 came to know that the O.P.No.3 received the envelope No. 3761379 on 15/02/2015 weighing on 0.015 gms only. There were no vouchers found in the said envelope. The complainant approached the O.P. through his e-mail on dt.17/02/2015 and enquired about the consignment which was delivered under weight i.e. 0.015 gms only. The complainant also enquired through his e-mail on dt.27/02/2015 to the O.P.No. 3 & 4 whether they had received the envelope broken/sealed. If it was opened unsealed/broken then how could they have accepted the consignment. But the O.P. did not pay any attention to the request of the complainant.
The complainant also sent notice on 12/03/2015 through his e-mail to O.P.s but, the O.P.s failed to comply with complaint which is a deficiency in service on the part of O.P.s. Hence, the complainant claimed following damages.
- Cost on account of reimbursement of vouchers alongwith 12% P.A. interest from 06/02/2015. Rs.12,165/-
- Mental harassment Rs.10,000/-
- Cost of complaint Rs.10,000/-
The complainant has filed the list of documents which includes P.O.D. copy, claim form, consignment delivery runsheet, e-mail dt.16/02/2015 by complainant by O.P.No. 3 & 4, e-mail dt.17/02/2015 by complainant to O.P.No. 1, 2 & 3, 4, legal notice through e-mail by complainant to O.P. No. 1, 2 & 3, postal acknowledgements.
2. The complaint has registered & notice was issued to the O.P. After receiving the notice the O.P. No. 3 & 4 has paid Rs.11,711/- vide cheque No. 232851 dt. 12/07/2016 to the complainant. Therefore, the complainant has withdrawn the complaint against the O.P. No. 3 & 4 on dtd. 08/08/2016 (Exh.12).
3. The O.P. No.1 appeared before the forum and filed their reply on 08/08/2016 (Exh.10).
4. The O.P.No.2 also filed pursis on 13/12/2016 (Exh.18) and adopted the reply/written statement filed by the O.P.No.1.
5. In the reply, the O.P.No. 1 & 2 submitted that the complainant is not a consumer because he runs “Bakery and general shop” to earn profit which comes under commercial purpose.
They have admitted that the complainant sent one envelope as described by the complainant for which the O.P.No.1 charged Rs.50/-. The consignment was duly received by consignee without any mark of irregularity or any complaint. The complainant did not pay any attention to get the consignment insured. Therefore, there is no liability of the O.P. and there is no deficiency and negligence in duty on the part of the O.P.s.
3. After hearings and going through the complaint and reply of both the parties, the following points arose for consideration.
Points Findings
1. Whether, the complainant is consumer? Yes.
2. Whether there is deficiency in service
on the part of O.P.No. 1 & 2? Yes.
3. What order? As per final order.
REASONS
5. AsPoint No.1 : According to Consumer Protection Section 2 (d) (ii), “consumer” means any person who…
- 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 paid 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
- Hires or avails of any services for a consideration which has been 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 purpose.
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.
The complainant is an unemployed graduate running bakery business for the purpose of self employment and hence by virtue of above explanation he comes under the definition of “Consumer”. Therefore, finding as to Point No. 1 is recorded in the affirmative.
6. As to Point No. 2 & 3 :- It is admitted by O.P.No.1 & 2 that the complainant had booked the consignment No. M91600001687 and envelope No. 3761379 weighing 240 gms through O.P.No.1 from Bhandara to Mumbai on dt.06/02/2015 (Exh.No.2/1).
The complainant on 16/02/2015 came to know that the O.P.No. 3 received the envelope No. 3761379 weighing 0.015 gms only on dt.15/02/2015 and also there were no vouchers in the said envelope (Exh.No.2/3).
The complainant on 12/03/2015 also sent notice through his e-mail to O.P. (The copy of notice is at Exh. No.2/8) . But the O.P.s neither complied with the notice nor replied it. As the O.P.No.3 received envelope weighing 0.015 gms only instead of 240 gms which has booked on 06/02/2015(Exh.No.2/1) shows that due to negligence of the O.P.No.2. The vouchers worth Rs.12,165/- were missing from the envelop. This is deficiency in service on the part of O.P.No. 1 & 2 who is courier service provider.
During the pendency of the proceeding O.P.No. 3 & 4 made a payment of Rs.11,711/- vide cheque No. 232851 dt.12/07/2016 to the complainant (Exh.No.12/1) which reduced the loss to the extent of (Rs.12,165/- - Rs.11,711/-) = Rs.454/-.
Therefore, the complainant is entitled to recover Rs.454/- with interest @9% P.A. from the date of order till the realization of the amount. The complainant is also entitled to get compensation of Rs.3,000/- for mental & financial harassment and also Rs.2,000/- as legal charges from O.P.No.1 & 2 jointly or severally for the above reason the finding as to points No. 2 & 3 are recorded accordingly.
In view of above findings Forum has passed the following order.
ORDER
1. The complaint u/s 12 of the Consumer Protection Act, is partly allowed.
2. The O.P.No. 1 & 2 is directed to pay Rs.454/- with interest @9% P.A. from the date of this order till realization of the amount.
3. The O.P.No. 1 & 2 is directed to pay jointly or severally damages Rs.3,000/- for mental and financial harassment alongwith Rs.2,000/- towards the cost of legal litigation.
4. The O.P.No. 1 & 2 should comply this order within one month from the date of receipt of copy of this order.
5. Copy of the order be supplied to the parties free of costs.
6. B & C file of the complaint be returned to the complainant.
