Sikkim

East

cc/05/2019

Anand Thirani - Complainant(s)

Versus

Gati Kintetsu Express Pvt. Limited, - Opp.Party(s)

24 Apr 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, EAST SIKKIM AT GANGTOK

 

CONSUMER COMPLAINT CASE NO.05 OF 2019

(through video-conferencing)

 

DATE OF FILING OF COMPLAINT : 24.04.2019 DATE OF FINAL ORDER                   : 31.07.2021

 

{PRESENT:-            1. Prajwal Khatiwada, President

                                                 2. Anita Shilal, Member

                                                 3. Rohit Kumar Pradhan, Member}

 

Mr. Anand Thirani,

Proprietor of M/s Style,

S/o Om Prakash Thirani

R/o Upper M.G.Marg,

Gangtok, East Sikkim

                                                                                                   ......Complainant

 

                                                          -Versus-

 

1. Gati Kintetsu Express Pvt.Limited,

    Pakyong, Saramsa Road,

    Tambutar, Ranipool,

    East Sikkim

 

2. Depot In-charge

    Gati Kintetsu Express Pvt.Limited,

    Pakyong, Saramsa Road

    Tambutar, Ranipool,

    East Sikkim

 

                                                                                    ....Opposite Parties

 

 

FOR THE COMPLAINANT      :   Ld. Counsel Shri Loknath                                                                       Khanal

                                                                           (through video-conferencing)

 

FOR THE OPPOSITE PARTIES : Ld. Counsel Ms.Rachhitta                                                                         Rai

                                                             (through video-conferencing)

 

O-R-D-E-R

 

1. This is to decide a complaint filed by the complainant under Sections 11 & 12 of the Consumer Protection Act, 1986 claiming deficiency in service on the part of the Opposite Parties(OPs). He has, accordingly, prayed for compensation/damages.
2. Briefly stated, it is the case of the complainant that he is the proprietor of a garment shop by the name and style M/s Style located at M.G.Marg, Gangtok, East Sikkim. According to him, the OPs provide courier services and he has been availing their services since quite sometime. On 09.03.2017, 11.08.2017 & 12.08.2017 he had sent some consignment of articles from Gangtok to Heels N Toes, City Centre Siliguri, West Bengal; New N.S. Road, Jai Gaon, West Bengal; and Kalimpong, West Bengal through the OPs. He was even issued the concerned docket invoices i.e., Exhibits 2, 3, 4 & 5, in that regard by the OPs.
3. However, he was subsequently informed that the entire goods sent by him to the addressees had not been received by them. There was some shortage in the goods. Accordingly, the complainant contacted the OPs who gave him OBN/Observation Notes dated 26.02.2018 & 26.03.2018(i.e., Exhibits 6, 7, 8 & 9) whereby they acknowledged the short-supply and deficiency in service on their part apart from estimating the extent of loss caused to him. However, inspite of the same no steps were taken by the OPs to compensate him despite repeated requests made through phone, email and other modes of communications.
4. Left with no option, the complainant even issued a legal notice to the OPs through his lawyer but to no avail. Accordingly, he has approached this forum.  Claiming gross deficiency in service on the part of the OPs the complainant would pray for the following reliefs:-

        a) Rs.82,839/- (Rupees Eighty two thousand eight hundred and thirty nine) only for cost of goods lost;

      b) Rs.50,000/-(Rupees Fifty thousand) only for delay in service;

   c) Rs.50,000/-(Rupees Fifty thousand) only for mental harassment and agony;

     d) Rs.20,000/-(Rupees Twenty thousand) only for legal expenses; and

     e) Rs.20,000/-(Rupees Twenty thousand) only for consequential reliefs.

5. According to the complainant, the cause of action for filing the present suit first arose on 26.02.2018 when the OPs gave the above OBN/Observation Notes that estimated the extent of loss to him. Thereafter, the cause of action has been continuing within the jurisdiction of this forum.
6. The OPs filed their joint written version in the matter. According to them, the complaint is legally not maintainable. They would, however, not seriously dispute that the complainant had availed their services for transporting the concerned goods-consignment. According to them, the complainant was, however, required to lodge a written claim regarding the short-supply and loss suffer by him within 30 days from the date of docket. The same has been clearly stipulated at Clause 10(a) of the concerned docket invoice(s). They would also deny that there has been any deficiency in service on their part. They would also claim that the concerned consignment was booked for commercial purpose and the complainant is a commercial organization, hence the complaint is not maintainable.
7. It may be mentioned here that though the OPs also challenged the territorial jurisdiction of this Forum to entertain the present complaint on the ground that as per the terms and conditions reflected in the concerned docket invoices it is only the Courts at Secundarabad, Andhra Pradesh(AP) which would have jurisdiction in respect of any dispute or difference arising out of or in relation to such docket-invoices, the said plea was rejected vide order dated 31.10.2020 of this Forum. 
8. The following points were framed for determination after hearing the Counsel(s) for the parties and on careful consideration of their pleadings as well as the various documents filed in the matter. The onus of proof was also fixed accordingly:-

       (1) Whether the complaint is maintainable?(opc)

       (2) Whether there was short-supply of the concerned consignments sent by the complainant to the addressees/recipients thereof through the courier service of the OPs? (opc);

    (3) Whether there has been any deficiency in service on the part of the OPs? (opc); and

     (4) Whether the complainant is entitled to the reliefs prayed for by him?(opc).    

9. The complainant examined himself in support of his case. He filed his evidence-on-affidavit(Exhibit 11) in the matter. The OPs did not adduce any evidence.
10. Ld. Counsel for the parties were also heard on arguments. Ld. Counsel Shri Loknath Khanal, appearing for the complainant, mostly reiterated the submissions of the complainant above. It was contended that the complainant has been able to prove deficiency in service on the part of the OPs. His claims and the evidence put forward by him in that regard could not be controverted by the OPs.
11. Ld. Counsel Ms.Rachhitta Rai, appearing for the OPs, on the other hand, contended that the complainant has not been able to sufficiently prove deficiency in service on the part of the OPs. According to Ld. Counsel, the complainant failed to lodge the claim regarding the short-supply/loss within 30 days from the date of docket which time-period was clearly stipulated in the concerned docket invoices. As such, his claims cannot be entertained.
12. It was also contended that the complainant does not fall within the definition of consumer under the Consumer Protection Act, 1986 as the consignment was admittedly booked by him for his business and commercial purposes.
13. We have given our anxious and thoughtful consideration to the submissions put forward by the Counsel for the parties and have also carefully gone through the evidence/materials placed before us.
14. The points No.(2) & (3) shall be taken up together at first.

       “(2) Whether there was short-supply of the concerned consignments sent by the complainant to the addressees/recipients thereof through the courier service of the OPs?(opc)

   (3) Whether there has been any deficiency in service on the part of the OPs?(opc)”

15. As seen above, the respondents have not seriously disputed that the complainant had availed its services for sending the concerned consignment as above. The complainant has also produced the concerned docket invoices i.e., Exhibits 2, 3, 4, & 5, issued by the OPs in that regard. Exhibit 2 which is docket invoice bearing No.441877877 would indicate that vide it goods of the declared value ₹ 2,60,099/- had been booked by the firm of the complainant on 12.08.2017. Similarly, Exhibit 3 which is docket invoice bearing No.441877853 would indicate that goods of the declared value of ₹ 5,24,542/- were booked by the complainant's firm on 12.08.2017. Exhibit 4 which is docket invoice bearing No.453326554 would also indicate that goods of the declared value ₹ 3,23,621/- were booked on 07.03.2017. Finally, Exhibit 5 which is docket invoice bearing No.453327322 would indicate that goods of the declared value ₹ 62,220/- were booked on 07.03.2017. All these invoices contain the signatures of the authorised personnel of the OPs. These invoices were never seriously disputed by the OPs. Further, the complainant would clearly aver in his evidence-on-affidavit(Exhibit 11) that the entire consignment was not delivered to the addressees. As a matter of fact, according to him when the OPs were later contacted in that regard they had given OBN/Observation Notes dated 26.02.2018 & 26.03.2018 acknowledging the short-supply and also indicating the extent of loss caused to the complainant on that account. These OBN/ Observation Notes have also been filed before this forum by the complainant. Exhibits 6, 7, 8 & 9 are the said Notes. The OPs could not controvert the above evidence of the complainant and the Notes issued by them. A perusal of the same would reveal that the extent of losses suffered by the complainant on account of short-supply of the concerned consignment-goods have been acknowledged by the OPs. The extent of losses have clearly been quantified. In particular, with regard to the goods sent vide docket invoice(Exhibit 2) the OBN/Observation Note is Exhibit 6. The extent of loss has clearly been indicated therein as ₹ 16,378/-. With regard to the docket invoice(Exhibit 5) the OBN/Observation Note is Exhibit 7 where the extent of loss has clearly been indicated as ₹ 14,000/-. With regard to the docket invoice(Exhibit 4) the OBN/Observation Note is Exhibit 8 where the extent of loss has clearly been indicated as ₹ 41,754/-. It may however mentioned here that insofar as the docket invoice(Exhibit 3) is concerned, though Exhibit 9 is supposed to be the concerned OBN/Observation Note the same is not clearly legible. However, when one goes through it at the cost of straining the eyes it is noted to be corresponding to Exhibit 3. In any event, the oral evidence of the complainant would make it clear that Exhibit 9 is with regard to docket invoice(Exhibit 3) and the extent of loss indicated/quantified therein is ₹ 10,707/-. It is reiterated that the OPs could not controvert the above OBN/Observation Notes. It was, however, contended on their behalf that the said Notes are for the months of February 2018 & March 2018 whereas the consignments were supposedly booked as back as in March & August 2017. According to the OPs, it was required of the complainant to lodge a written claim within 30 days from the date of booking. However, admittedly no written claim or complaint was ever lodged by the complainant with the OPs with regard to the short-supply of the concerned consignments. As such, they cannot be held liable in the matter. In this regard, it may be mentioned here that though according to the OPs the complainant was required to lodge a written claim within 30 days as above, it is they themselves who would later issue OBN/Observation Notes above as late as in February-March, 2018. Clearly, the Notes have the effect of not only establishing the loss suffered by the complainant but also of acknowledgement of deficiency in service on their part by the OPs. They cannot as such squirm away from their liability now. The points No.(2) & (3) are, accordingly, decided in the affirmative.
16. The points No.(1) & (4) shall be taken up now.

“(1) Whether the complaint is maintainable?(opc):

(4) Whether the complainant is entitled to the reliefs prayed for by him?(opc)”

17. As mentioned earlier above, vide order dated 31.10.2020, this forum has already held that this forum has the territorial jurisdiction to entertain the present complaint. The said order has attained finality as the OPs did not assail it before the higher forum. It was also contended by the OPs that the complainant has admitted during his cross-examination that the above consignments had been booked for his business/commercial purposes. As such, he would not fall within the definition of consumer under the Consumer Protection Act, 1986. In this regard, it may be mentioned here that there is nothing on record to show that the complainant deals in the goods of the nature of the concerned consignments with the sole purpose to generate profits. It is well-settled that commercial purpose means that the concerned goods are related to an activity directly intended to generate profits, which is the main aim of commercial purpose.[1] This is not seen to be the case here. The OPs have not cared to substantiate the above bald claims.
18. Suffice it to say, the present complaint which has been filed by the complainant claiming deficiency in service on the part of the OPs is clearly maintainable. Point No.(1) is, accordingly, decided in the affirmative.
19. Resultantly, it is hereby ordered that the OPs shall pay the total amount of losses as quantified vide the above OBN/ Observation Notes i.e., Rs.82,839/-(Rupees Eighty two thousand eight hundred and thirty nine) only. Further, the OPs shall pay interest at the rate of 9% per annum on the said amount w.e.f the date of filing of the present complaint i.e., 24.04.2019, until full payment. Furthermore, considering the nature of the complaint and the undue harassment suffered by the complainant we consider it seemly to order compensation of ₹ 10,000/- and further ₹ 10,000/- towards cost of litigation to be paid by the OPs to the complainant. Point No.(4) is also decided in the affirmative accordingly.
20. Complaint allowed to the above effect. The awarded amount shall be paid within six weeks from the date of this order.

              PRONOUNCED THROUGH VIDEO-CONFERENCING          

            

      (Anita Shilal)                (Rohit Kumar Pradhan) (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRF(E) at Gangtok      DCDRF(E) at Gangtok                 DCDRF(E) at Gangtok

         (through VC)                       (through VC)                                 (through VC)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIST OF WITNESSES EXAMINED BY THE COMPLAINANT

 

01.        CW1     - Anand Thirani(complainant)

 

LIST OF DOCUMENTS EXHIBITED BY THE COMPLAINANT

01.        Exhibit 1    - Original trade licence

02.        Exhibit 2    - Original docket invoice

03.        Exhibit 3    -      -do-

04.        Exhibit 4    -      -do-

05.        Exhibit 5    -  -do-

06.        Exhibit 6    -  OBN/Observation Note

07.        Exhibit 7    -  -do-

08.        Exhibit 8    -        -do-

09.        Exhibit 9    -   -do

10.        Exhibit 10   -  Original office copy of legal notice

11.        Exhibit 11   -  Evidence-on-affidavit of CW1

 

                                                              LIST OF WITNESSES EXAMINED BY THE OPPOSITE PARTIES

                                                                                                                   NIL

LIST OF DOCUMENTS EXHIBITED BY THE OPPOSITE PARTIES

NIL       

 

   Anita Shilal)                (Rohit Kumar Pradhan)     (Prajwal Khatiwada)            

           Member                               Member                                                            President

    DCDRF(E) at Gangtok      DCDRF(E) at Gangtok                 DCDRF(E) at Gangtok

         (through VC)                       (through VC)                                 (through VC)