Haryana

Sonipat

230A/2014

WINDRAY BIOMEDICALS - Complainant(s)

Versus

GATI KINTETSU EXPRESS PVT. LTD. - Opp.Party(s)

VIJAY SHARMA

17 Nov 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                     SONEPAT.

 

                             Complaint No.230 of 2014

                             Instituted on:10.09.2014

                             Date of order:17.11.2015

 

Windray Biomedicals, Ist Floor, above Sourav Path Labs, ner Sindhu Border, Sonepat through its Manager.

                                      ...Complainant.

 

                      Versus

 

 

M/s Gati Kintetsu Express Pvt. Ltd., Kundli, Sonepat through its Director.

                                      ...Respondent.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. Vijay Sharma, Adv. for complainant.

           Sh. Jagdeep Balyan, Adv. for respondent

.

 

BEFORE-    Nagender Singh, PRESIDENT.

          Prabha Wati, MEMBER.

          D.V. Rathi, MEMBER.

 

O R D E R

 

         Complainant has filed the present complaint against the respondent alleging therein that the complainant was having a biochemistry machine BS-200 for blood test  and on the request of Helpline Medical System, Sri Nagar, the complainant sold the same to him for Rs.3,67,000/- and the same was sent to Helpline Medical System, Sri Nagar.  The medical equipment was earlier sent to M/s Helpline Medical System vide Invoice no.021 dated 29.5.2013 valued for Rs.3,67,200/-.  Due to some unavoidable circumstances, the said Helpline Medical System, Sri Nagar sent back the said machine to the complainant through the respondent. Due to carelessness of the respondent, the said machine was damaged in the office of the respondent. The complainant requested the respondent many a times to pay the amount but of no use. Even the legal notice served upon the respondent dated 18.7.2014 has not brought any fruitful result. So, the complainant has come to this Forum and has filed the present complaint.

2.       In reply, the respondent has submitted that on 30.1.2014 one consignment was booked under doctor no.487156948 by its consignor M/s Helpline Medical Sir Nagar to be delivered to the complainant.   As per the said docket contract the consignment was booked on Freight on Delivery basis i.e. freight was to be paid by the ultimate consignee and complainant at the time of delivery.  As per the details of invoice, old and used machine was sent to him on 23.5.2013.  After using the old machine for more-than 8 months, no question arises for the machine to have the same value as was sent on 29.5.2013. The respondent repeatedly requested the complainant to take the delivery of the said machine but all in vain.   The complainant has avoided to accept the delivery of shipment and issued monetary claim notice upon the respondent. The respondent has paid Rs.1,50,000/- and has credited this amount in the account of the complainant on 24.6.2014 through e-payment.  So, all the dispute out of docket no.487156948 dated 30.1.2014 has been settled as full and final settlement and to the satisfaction of the complainant. The complainant has filed the present complaint which is the result of after thought to extract money from the respondent. Infact there is no deficiency in service on the part of the respondent and thus, prayed for the dismissal of the present complaint.

3.       Both the parties have been heard at length.  All the documents placed on record by both the parties have been perused carefully & minutely.

4.       After hearing both the learned counsel for the parties and after going through the contents of the complaint, reply and evidence led by both the parties in support of their case, we have come to the conclusion that there is deficiency in service on the part of the respondent.

         Ld. Counsel for the respondent has argued that the complainant has no right to file the present case.  The settlement for Rs.1,50,000/- was done in between the complainant and the respondent. Further the machine in question was being used for commercial purposes.

         In the present case, Annexure C1 and Ex.R4 are one and the same document.  The complainant vide this document has written to the respondent Gati Cargo Ltd. that “We have received call from your office for checking and receiving this consignment.  On inspection at Kundli office, we found that instrument shown to us is in worst condition.  

         Further Engineer Remarks mentioned in this document are reproduced below:-

         After inspection we cannot receive the consignment in such condition.

         On 21.2.2014, one surveyor Shri J.N. Jugran has submitted his survey report (marked as JN-R) and as per his report, the complainant has suffered a loss of Rs.2,69,433/- after deducting salvage value of Rs.29,937/- from the amount of Rs.2,99,370/-.

         Further in the present case, Annexure C2 and Ex.R1 are one and the same document.  As per Annexure C2, consignment was to be delivered to Windray Biomedical (the present complainant) and the amount was paid regarding transportation on Freight on Delivery basis.  But the machine in question was delivered to the complainant in a damaged condition which was not accepted by the complainant. 

         The document Ex.R5 placed on record by the respondent itself shows that the complainant has lodged the monetary claim for non-delivery/shortgage/pilferage/damage/leakage sustained to the consignment for an amount of Rs.1,50,000/-.  This document is signed and stamped by the complainant firm and is also attested by the respondent under their stamp.

         No doubt the respondent has paid Rs.1,50,000/- to the complainant, but the same amount has been paid by the respondent without machine.  Whereas the surveyor J.N. Jugran vide his report marked as JN-R has assessed the total loss suffered by the complainant to the tune of Rs.2,9,,370/- and out of this amount, salvage was also deducting at the rate of 10% i.e. Rs.29,937/- and the net assessed loss comes to Rs.2,69,433/-.  So, in our view, the complainant has a right to file the present case regarding the deficient services rendered by the respondent.  The complainant has rightly filed the present complaint against the respondent for their deficient services and there is no nexus regarding any commercial transaction or commercial use of the machine on the part of the complainant.  In our view, the respondent is liable  hand over the machine in question to the complainant or to pay Rs.1,50,000/- to the complainant because the complainant has suffered a loss of Rs.2,99,370/- and out of this amount, he has received Rs.1,50,000/- from the respondent as monetary loss without machine.  We order accordingly.  The respondent is directed to make the compliance of this order within a period of 45 days from the date of passing of this order, otherwise, the respondent shall make the payment of Rs.1,50,000/- to the complainant alongwith interest at the rate of 09% per annum from the date of passing of this order till its realization.  However, the respondent is directed to compensate the complainant to the tune of Rs.3000/-(Rs.three thousand) for rendering deficient services, for causing harassment and under the head of litigation expenses.

         With these observations, findings and directions, the present complaint stands allowed.

         Certified copies of order be provided to the parties free of costs. File be consigned to the record-room.

 

 

 

(Prabha Wati)    (DV Rathi)                (Nagender Singh-President)

Member DCDRF     Member DCDRF              DCDRF, Sonepat.

 

Announced: 17.11.2015