Orissa

Cuttak

CC/98/2015

Propritor,Om Saree Mandir - Complainant(s)

Versus

Gati Kintetsu Express Pvt Ltd - Opp.Party(s)

A K Mishra

22 Sep 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.98/2015

M/s. OM SAREE MANDIR,

A Proprietorship firm, represented through

Proprietor Sri S.N.Santuka,Dolamundai,

P.S:Madhupatna,PO:Buxibazar,

Cuttack-753001.                                                                      … Complainant.

 

                Vrs.

 

1.         Gati Kintetsu Express Pvt. Ltd.,Having its

Registered office at 1-7-293,First Floor,M.G.Road,

Secunderabad-500003.

 

2.        Gati KWE,represented through its Manager,

Customers Convenience Centers, Plot No.102,

Labour Colony,

Rajabagicha,Cuttack.                                                                 … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   10.09.2015

Date of Order: 22.09.2017

 

For the complainant:           Sri A.K.Mishra,Adv. & Associates.

For Opp.Parties 1 & 2:         Mr. B.Mohanty,Adv. & Associates.

                     

 

 

Sri Dhruba Charan Barik,President.

                The complainant has filed this case having attributed deficiency in service and unfair trade practice on the part of the O.Ps and seeking appropriate relief as prayed for in his complaint petition.

1. The laconic facts of the complainant’s case are that the complainant is running a partnership farm having its shop at Dolamundai in Cuttack City, Cuttack in the name and style “OM       SAREE MANDIR” and deals with garments especially sarees.  He had placed orders with Sri Viratra Handloom Tex manufacturer situated at Coimbatore for supply of certain specified nos. saree materials and accordingly the latter had supplied 13 nos. of sarees worth Rs.57,510/- as per invoice no.252 dt.26.8.14.  Annexure-1 is the copy of the said invoice.
2. On verification it was found that some of the sarees would not suit the business purpose of the complainant and accordingly he returned some of them to Sri Viratra Handloom Tex for exchange through the O.P.2 who is the Branch Manager of O.P.1.  The consignment No. was 422164217 dt.1.12.14 for the declared value of Rs.44,000/-.  The copy of the aforesaid docket no. has been filed and marked as Annexure-2.  O.P.2 assured the complainant that the articles of the consignment would be delivered to the addressee at Coimbatore on 6.12.14.
3. The complainant enquired about the delivery of the consignment from the addressee towards the end of December,2014 but he was astonished to know that  O.P.2 had not delivered the consignment to him as yet.  On being asked,  O.P.2 thereafter replied to the complainant  that he would look into the matter.  In subsequent occasions, the complainant repeatedly enquired into the matter from O.P.2 and requested him for early delivery of the consignment to the addressee but of no avail.  Lastly on 9.2.15 the customer care centre of the O.P.1 mailed a text to the complainant requesting him to provide for claim process.  The copy of the print out of the mail sent on 9.2.15 has been marked as Annexure-3.  On 12.2.15 another E-mail was also sent to the complainant by O.P.1 stating that on receipt of the report from its Coimbatore branch, the status of the aforesaid docket would be confirmed to him by the next date.  Annexure-4 is the print out of the mail sent on 12.2.15 but it did not yield any result.  On 22.2.15 the complainant sent a letter to O.P.2 along with claim and other details and requested him to do the needful to compensate the loss sustained by the former due to latter’s negligence.  Annexure-5 is the said letter dt.22.2.15.  The complainant had also sent his grievances vide different letters on 22.6.15 to other branch offices situated at Rajabagicha,Cuttack and another at Cuttack Bhubaneswar road.  Similar letter of the same date was also sent by registered post to the office of  O.P.1 at Secunderabad.  Annexure-6 series are such letters containing grievances of the complainant sent on 22.6.15.
4. It is categorically stated that negligence on the part of the O.P as stated above is tantamount to gross deficiency in service and unfair trade practice and it has caused serious mental agony and harassment to him and has also caused substantial financial loss to his business.  As such it is prayed that the O.Ps may be directed to refund Rs.44,000/- towards value of the articles booked, Rs.20,000/- towards loss of business, Rs.10,000/- towards mental agony and harassment caused to him and Rs.5000/- towards penalty all total  Rs.79,000/- in the interest of justice.
5. The O.Ps filed written version of their case stating therein that the case is not maintainable both in fact and law and the complainant is not a consumer.  He is guilty of suppression of material fact and has not approached this Forum in clean hand. 
6. Interalia it is stated that the complainant should have filed money suit in the competent Civil Court under  The Carriers Act 1865 for redressal of his grievances for which a notice to the Career is required to be served before institution of suit  but he has failed to do it.
7. It is categorically stated that the complainant booked both the consignments vide Docket No.422164217 and at the time of booking he willingly agreed to book the consignment on the Shipper’s Risk/Owners risk basis which implies that the complainant himself has taken the transit risk and for any loss or damage to the consignment during transit, he himself would be liable.  The O.Ps as such is no way liable for the loss or damage caused to the complainant as alleged.
8. The averment of the written version has further made it specific that the O.Ps have delivered consignment at the address given by the complainant.  The O.Ps are not liable for the damages, if any caused to the consignment after delivery to the addressee.  It is emphatically stated that no loss or damage has been caused to the consignment during transit.  It is therefore prayed that there is no deficiency in service or unfair trade practice on the part of O.P. in any manner and this Forum has no jurisdiction to entertain the case since the complainant is not a consumer in view of the commercial transaction made by him as revealed from the facts and circumstances of this case and as such it is prayed that the case may be dismissed.
9. We have gone through the case records as well as the annexures carefully filed in the case.  We have also heard the learned counsels from both the sides at length.
10. At the outset objection is raised by the learned counsel for the O.Ps that the present case is not maintainable since the complainant is not a consumer as defined U/S-2(d)(ii) of the C.P.Act and the goods purchased by him was meant for commercial use.  This argument has been seriously resisted by the learned counsel for the complainant on the ground that the complainant was running a small scale business for earning his livelihood by way of self-employment.  In the instant case no doubt the complainant was earning his livelihood by way of self-employment by running his business and for the said purpose the sarees were purchased from the supplier.  In view of the above the objection raised by the learned counsel for the O.P is not accepted and the complainant is well within the meaning of consumer as defined U/S-2(d)(ii) of the C.P.Act.
11. So far as the contention of deficiency in service and unfair trade practice on the part of the O.Ps are concerned, it is fairly submitted by the learned counsel for the complainant that while booking the consignment with the O.P.2 on 1.12.2014, the complainant was given the assurance by the O.P.2 that it would be delivered to Sri Viratra Handloom Tex,Koimbatore on 6.12.14 but it was not delivered to the addressee even till the end of December,2014.  Despite repeated correspondences made for the purpose, no satisfactory reply was given to the complainant for which he sustained heavy loss in his business.  As such it is stated that the deficiency in service and unfair trade practice are writ large in the conduct of the O.P because of non-delivery of the consignment to the addressee.  Contrary to it, the learned advocate for the O.P has drawn the attention of the court to Annexure-2 which is the docket bearing No.42164217 relating to the consignment of the goods of the complainant.  It is fairly submitted that the complainant booked the consignment vide this docket and at the time of booking, he agreed to book the consignment on the Shipper’s risk/Owner’s risk basis and accordingly the docket was duly signed by the complainant.  Annexure-2 which is the photo copy of the said docket clearly shows that tick mark has been made in the relevant box showing that consignment was booked under Shipper’s risk and accordingly dues have been collected from the complainant.  It was within the full knowledge of the complainant.  It is further submitted that once the consignment is booked under Shipper’s risk/Owner’s risk, the O.P being the carrier is no way responsible for any loss or damage caused to the consignment during transit.  There is absolutely no submission made by the learned counsel for the complainant to the contrary on this point.  As such the liability cannot be extended to the O.Ps for any loss or damage to the consignment during course of transit.
12. Objection is also raised by the learned counsel for the O.P on the point of jurisdiction.  It is submitted that in the instant case it would have been appropriate for the complainant to file a money suit against the said O.Ps under the provisions of Carrier’s Act,1865 in the competent Civil Court for redressal of his grievances.  Instead of adopting correct procedure for the appropriate reliefs sought for by the complainant as stated above, he has approached this Forum for the same relief and as such it is not maintainable.  The learned counsel for the complainant has taken serious exception to it.  Law is well settled that Consumer Fora  have jurisdiction to entertain complaint against common carrier regarding loss or damage to goods entrusted to carrier for transportation.  This view has been taken by the Hon’ble Apex Court in a decision reported in AIR 2000(SC) 1461(Patel Roadways Ltd. Vrs. Birla Yamaha Ltd.).  That apart the C.P.Act has been enacted with a view to supplement and not to supplant the other laws for the time being in force.  In view of the above, the objection raised by the learned counsel for the O.P is not acceptable.
13. From the above discussion, it is held that the complainant has failed to satisfactorily prove that there was any deficiency in service or unfair trade practice on the part of the O.Ps so as to make them liable to pay compensation and for other reliefs as prayed by the complainant.  Hence ordered;

ORDER

                                The case of the complainant is dismissed on contest.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 22^nd     day of September, 2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                    President.

                                                                                                          (Sri B.N.Tripathy )

                                                                                                                      Member.

                                                                                                           (Smt. Sarmistha Nath)

                           Member(W)