OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.100/14
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Smti Manorama Kumari - Complainant
D/o -Sri Uma Sankar Prasad
R/O -House No.40.Garima Garden
Block No.3,1st floor(B), Japorigog,
Karbi Namghar Path,
Guwahati-5
-vs-
1) Gati Kintesu Express Pvt.Ltd. -Opp. party
Represented by its Principal Officer/Secretary/Director
19,,Road No.32,Behind APSRTC Bus depot,
IDA,Jeedimetia, Hyderabad,Telangana,500055.
2) The Principal Officer/Secretary/Director
Gati Kintesu Express Pvt.Ltd. ,
19,,Road No.32,Behind APSRTC Bus depot,
IDA,Jeedimetia, Hyderabad,Telangana,500055.
3) Gati Kintesu Express Pvt.Ltd. ,
C-7, Transport Nagar,
Near RTO, Kanpur Road,
Lucknow-226012, Uttar Pradesh
4) The Officer-in-charge/Distribution Manager
Gati Kintesu Express Pvt.Ltd. ,
ABC Compound,Beharbari Beltola, NH-37.
Guwahati-781029, Assam.
5) Sri Arun Ghosh,
Legal Deparment,
Gati Kintesu Express Pvt.Ltd.
P-18,Ground Floor, Taratala Road, Kolkata-700088,
West Bengal, India.
6) Sri Bhagwan Sharan
S/O Sri Uma Shankar Prasad
C-1653, Avas Vikash Colony,
Rajaji Puram, Lucknow-226017
Appearance-
Learned advocate Mr.Abdul Sattar for the complainant .
Learned advocate Sri Monjit Chetia for the Opp.PartyNo.1 to 5
Date of oral argument- 07.02.2017 and 21.02.2017
Date of judgment- 08.03.2017
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Smti Monorama Kumari against Gati Kintesu Express Pvt.Ltd. and five others was admitted on 5.11.14 and notices were served on all the opp.parties and Opp.Party No.1 to 5 filed a joint written statement.The case against Opp.Party No.6 namely Sri Bhagwan Sharan is proceeding on exparte vide this forum’s order dated 24.6.16. The complainant side filed her evidence in affidavit on 29.6.15 and she was also cross-examined by Opp.Party No.1 to 5 side on 16.12.15. The Opp.Party No.1 to 5 side filed evidence of Sri Benudhar Satpathy on 15.3.16 and he was also cross-examined by ld counsel of the complainant side. The complainant side ld counsel Mr.A.Sattar filed a written argument on 14.9.2016 and ld advocate Mr.Monjit Chetia on 6.1.16, and after filing of the written argument, on 7.2.17 we heard oral argument of ld advocate Mr.A.Sattar for the complainant, but on that day opp.party side ld counsel is not found and accordingly the day of 21.2.2017 was fixed for oral argument of ld counsel of Opp.Party No.1 to 5 side, but on that day also Opp.Party No.1 to 5 side is found absent without step and as a result the day of 8.3.2017 has been fixed for delivery of judgment without giving further time to the Opp.Party No. 1 to 5 side to forward their oral argument .
2) We have perused the written argument filed by the counsels of the complainant and Opp.Party No.1 to 5 .We have also perused oral argument of ld counsel of complainant; and today we deliver the judgment, which is as below-
3) The gist of the complaint of the complainant is that her brother, Sri Bhagwan Sharan (Opp.party No.5) booked certain house hold goods (a sewing machine) on 6.5.2014 from Locknow at the branch of the Opp.Party No.3, Gati Kintesu Express Pvt.Ltd. which is a branch of Opp.Party No.1, Gati Kintesu Express Pvt.Ltd., Hyderabad, vide Docket No. 419363432 to be delivered to her at Guwahati and Opp.Party No.3 assured safe delivery and a consignment note was issued to Opp.Party No.6 sent with note to her. The consignment was dumped in her house on 6.6.14 while as per computer originated delivery note the assured date of delivery was 12.5.2014 and while the consignment did not reach her in time she made vigorous enquiry with the branch of the Opp.Party No.1 at Guwahati and she know from company’s website (www.gatikwe.com) that the consignment travelled to various places and ultimately got dumped in her house on 6.6.2014 i.e. after more than one month from the date of the booking. The consignment was delivered in totally torn and damaged condition without taking any acknowledgment from her. At the time of delivery she took photograph of consignment and the delivery person, but she keep the consignment preserved for finalization of the dispute. She reported the matter to the Distribution Manager of the Guwahati Branch about the matter and the Distribution Manager assured her that he will take needful action to compensate her for loss sustained by her. Thereafter, on 9.6.14 one Mr.Bhaskar Dev an executive of Opp.Party No.1 and Sri Sontosh Kr.Roy , a staff of Guwahati branch of opp.party No.1 visited her house to assess the damage, but they kept mum on looking the distorted condition of the consignment and left her house assuring her that they will inform their company about the matter, but she received nothing from them, and then she sent notice to them on 20.8.14 by registered A/D letter; and after receiving the notice, one Sri Arun Ghosh (Opp.Party No.5) gave a reply on 9.9.14, and informed her that service department of the company was working on the issue. Thenafter, complainant waited for more than one month , but the opp.party side has not acted upon their assurance, and so such act on the part of op.party is a case of deficiency of service towards her. The value of consignment is Rs.3,000/- and consignment charge paid is Rs.930/, the cost of Rs.1,000/-. She prays for directing the opp.parties to pay her Rs.1,04930/- which is includes the value of the consignment, the freight charge, cost of notice, compensation for causing mental agony and incidental expenses.
4) The gist of the pleading of the opp.party No. 1 to 5 is that the complainant is not a customer of the opp.parties having Opp.Party No.6 hired their service; there is no contract between the complainant and them. The packaging was done by Opp.Party No.6 himself, but opp.party was not aware what was inside the booking , but the value declared was Rs.3000/-; they are carrier of the goods, they had not done booking of the goods; first the booking was done by Opp.Party No.6 (the brother of the complainant) and for such act they are not liable ; as per condition stipulated in the booking slip they are not responsible for faulty packaging . The contract is between Opp.Party No.6 and them and not with the complainant and hence complaint is liable to be dismissed. The consignment was damaged as a result of faulty packaging done by Opp.Party No.6, but not due to any act of them. The consignment was delivered in the residence of the complainant with utmost care and responsibility. The assured date of delivery is 17.5.2014, but not 7.5.2014. The complainant refused to receive the consignment and therefore, delivery man had no other option, but to hand over the goods without acknowledgment but with a request to her to contact their local office having the delivery man was not empowered to address any grievance of the complainant. The reason for damage of the consignment is attributable to Opp.Party No.6 having he make the faulty packaging of the goods. Mr.Rajesh Kr.Sarma never assured the complainant to do needful to compensate her; and no person of their company gave her assurance for payment for damage of the goods. The grievance raised by the complainant is mis-conceived . The complainant is not entitled to any amount as prayed for . No cause of action arose as explained by the complainant. The dispute which between the Opp.Party No.1 to 5 and complainant’s brother is a dispute subject to jurisdiction of court at Sekunderabad,Telangana. As per arbitration clause, the complainants dispute shall be referred to the arbitrator and the opp.parties shall be entitled to nominate a sole arbitrator to adjudicate the dispute. The complaint is hit by Arbitration and Conciliation Act,1966 and by virtue of arbitration clause, the jurisdiction of this forum and other courts has been ousted . The complaint is liable to be dismissed.
5) After perusing the evidence of the complainant (P.W.1), Smti Monorama Kumari (Complainant), and Ex.1,1(A) and Ex.2, it is found that the brother of the complainant, Sri Bhagwan Charan on 6.5.2014 visited the branch of Opp.Party No.1- Gati Kintesu Express Pvt.Ltd. ,situated at Lucknow and booked one sewing machine of value of Rs.3,000/- to be delivered to the complainant at House No.90, Garima Garden, Guwahati, properly packing the said sewing machine in a box properly.
The complainant states in her evidence that the Opp.Party No.1 gave assurance that within a short period the consignment would be delivered to the consignee (complainant), but more than one month elapsed and the consignment was not delivered to her, but suddenly, on 6.6.2014, two workers of Opp.Party No.1 , guwahati branch brought the consignment to her residence, but the box was found totally broken down and the sewing machine inside the said broken box was also in damage state and the said delivery men issued a certificate that the said consignment contained in a broken box was handed over to them to deliver the same in the residence of complainant, and Ex.3 is the said certificate. This certificate is not disputed by the opp.party side. Thus, it is seen that Ex.3 fully corroborate the statement of the complainant (P.W.1) . The photograph of the consignment (Ex.4) also corroborates the statement of the P.W.1. Thus, it is fully established that on 6.6.2014 the consignment was delivered to the complainant, although the assured date of delivery was 7.5.2014 meaning thereby the consignment was delivered to the complainant after 1 month of booking. Secondly, it is also found that the consignment was dumped in the house of the complainant and the box, within which, it was packed was found completely broken down causing injury to the sewing machine (consigned item). It is also established that the sewing machine (consignment) was delivered in damaged condition.
The complainant further states in her evidence that while she failed to receive the consignment within time she searched in the companys’ website www.gatikwe.com and came to know that the said sewing machine unnecessarily travelled to various places and finally it was dumped in her house on 6.6.2014. This fact is admitted by the opp.party side also and for such travelling of the sewing machine to different places before dumping it in her residence, it got damaged. The opp.party sides’ plea that damage to the consignment was caused due to faulty packaging by the Opp.Party No.6 is found not proved by the opp.party side by adducing proper evidence. In such situation it must be held that the opp.party side admits the fact that the consignment was delivered to the complainant in damaged condition and it was delivered after delay of 1 month which is not desirable and not as per assurance. Thus , two things are cleared from the evidence of both sides that the consignment was delivered after delay of 1 month of its booking . Although the promise date of booking was 7.5.2014 and second thing is that the consignment was delivered to the complainant in damaged condition.
6) The second plea of the opp.party is that the dispute needs to be referred to Arbitrator and both the parties have Arbitration Agreement in connection of the said transaction and therefore, this forum has no jurisdiction to dispose of the present dispute. Their another plea is that the dispute in connection with the said transaction, the court/tribunal at Sekunderabad (Telangana) only has the jurisdiction. But the opp.party side has failed to prove their plea that both the parties had entered into an arbitration agreement as per provision of Arbitration and Concealment Act,1996 and as to jurisdiction of court of Sekunderabad (Telangana). Thus, it is not established that both the parties had entered into an agreement to referr any dispute in connection with said transaction to the arbitrator. Secondly, there is found no agreement as to ouster of jurisdiction of this forum in connection with said dispute. Consumer protection act , 1986 is a beneficiary legislation and it is a special law and the consumer forum has jurisdiction in the place where the opp.party side resides or has business or the place where the cause of action arises. In the present case, the Opp.Party No.1 has its branch at guwahati also, which is at ABC Compound, Beharbari, Beltola, Guwahati-29. Secondly, the consignment was dumped at guwahati in the residence of the complainant in damaged condition, which shows that the cause of action arose within the jurisdiction of this forum. Therefore, we hold that this forum has jurisdiction to adjudicate the present dispute and this jurisdiction cannot be ousted by any agreement between the parties, if any.
7) The Opp.Party No.1 which has branchs at Lucknow and Guwahati, failed to deliver the consignment which is a sewing machine to the complainant in good condition as per contract. So it is an act of deficiency in service on their part towards the complainant . Moreover, the delayed delivery is also an act of deficiency of service. In result the opp.parties are namely, Opp.Party No.1,2,3 & 4 are liable to pay proper compensation to the complainant for such deficiency in service.
As the sewing machine was delivered to the complainant in damaged state, the Opp.Party No. 1 to 4 are liable to pay the value of said sewing machine (Rs.3,000/-) to the complainant. Secondly, in delay delivery of said consignment they are also liable to pay proper compensation, which we hold that Rs.5,000/- will be proper compensation of delay delivery. Thirdly, the opp.party side caused mental agony to the complainant by delivering the sewing machine in damaged state and also caused harassment to her compelling her to make several correspondence with them. So, for causing mental agony and harassment to the complainant, they are also liable to pay atleast Rs.10,000/- as compensation. Moreover, the complainant being a reputed advocate of Guwahati was compelled to attend this forum leaving aside her professional works on several dates in prosecuting the opp.parties for no fault of hers, but for the fault of Opp.party No.1 to 5. So, Opp.Party No. 1 to 4 are also liable to pay atleast Rs.10,000/- as cost of the proceeding. From the evidence of the complainant, it is also found that after delivery of the said consignment in damaged state, the complainant on 20.8.2014 sent a notice u/s 16 of Carrier by Road Act,(Ex.15) to pay per proper compensation for delivery of the sewing machine in the damaged state, and before that also as result of her correspondence with the opp.parties the executives of the Opp.party No.1 namely, Bhaskar Dev and Mr.Sontosh Kr.Roy visited her house on 9.6.2014 and assesse the damaged and they also communicated their report to Opp.Party No.1,2 & 3 , but Opp.Party No.1,2 & 3 did not take any step for giving relief to the complainant, rather, one Sri Arun Ghosh ,legal department of Opp.Party No.1, Kolkata branch ,vide his letter dtd.9.9.14, asked her to wait and assured her to give her best service; and yet the opp.party side has not taken step to meet up the dispute. Therefore, we hold that the cause of action of this dispute arose first on 7.5.2014 and thereafter on 12.5.2014, 6.6.2014, 20.8.2014 and 9.9.2014 . It is also found that the complaint within limitation. Therefore, we hold that there is no any impediment to allow the complaint against the Opp.Party No.1,2 ,3& 4.
8) Because of what has been discussed as above the complaint against the Opp.Party No. 1 to 5 is allowed on contest, but against Opp.Party No.6 is dismissed on exparte and accordingly Opp.Party No.1 to 4 are directed to pay Rs.3,000/- to the complainant as value of the damaged sewing machine and also to pay her Rs.5,000/- as compensation for delay delivery of the consignment and Rs.10,000/- as compensation for putting the complainant in mental agony, and for causing harassment to her, and also to pay Rs.10,000/- as cost of the proceeding, to-which, they are jointly and severally liable. They are directed to pay the amounts within three months , in default, the awarded amount shall carry interest @12% per annum from this day till full satisfaction of the award.
Given under our hands and seals in this day of the 8th March, 2017.
(Smti A. D. Lahkar) (Md.S.Hussain)
Member President
