Date of Filing: 31/05/2011
Date of Order: 08/08/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 8th DAY OF AUGUST 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1010 OF 2011
Excel Associates,
Its Managing Partner
Sri. T.S. Vijayakumar,
S/o. T.R. Shivappa,
Aged About 47 years,
Managing Partner of Excel Associates,
Having Office at No.9, 2nd Floor,
Ramachandra Complex,
New Belroad, Above Shanthi Sagar Hotel,
Devasandra Circle, BANGALORE-54.
(Rep. by Advocate Sri. R.Nagendra Naik) …. Complainant.
V/s
1) M/s. GMS Express Private Limited,
No.189/1, 6th Cross, 3rd Main,
Chamarajpet, Bangalore.
Rep. by its Manager.
(Rep. by Advocate Sri. P.K. Venkatesh Prasad)
2) M/s. Shree Venkateshwara Cargo,
No.258, Wallax Road,
Chennai-600 003.
(Absent though served) …. Opposite Parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
-: ORDER:-
The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to pay Rs.1,25,000/-, are necessary:-
The complainant had consigned a parcel with opposite party No.1 on 04.02.2011 wide bill No.407489331 to be delivered to the consignee Sri. Amith of M/s. M.B. Accessories Private Limited, at Noida. The value of the material was Rs.77,000/-, it should have been delivered within two days. As it has not been delivered the complainant requested the opposite parties in this regard. Accordingly the opposite party No.1 has directed the opposite party No.2 to trace and deliver the material on 15.02.2011. In spite of that the opposite parties have not traced not delivered the material. As a result there is damage to the reputation of the business of the complainant. Hence the complainant has issued a notice to the opposite parties on 13.03.2011 to which the first opposite party has sent an untenable reply on 25.03.2011. Hence the complainant is seeking compensation of Rs.1,00,000/- and Rs.25,000/- towards mental agony and expenses.
2. In this case the opposite party No.2 though served remained absent throughout the proceedings. In brief the version of the opposite party No.1 are:-
The complainant, entrustment of the material on 03.02.2011 is admitted. The value of the consignment is not mentioned correctly. The value is only Rs.17,000/-. The complainant is not a consumer. The opposite parties have taken hectic efforts to trace the consignment, but due to some inconvenience in transportation the consignment was misplaced and lost. The opposite party No.1 in turn entrusted the material to be transported through opposite party No.2. According to the Foot print of the Receipt Notice the liability is only Rs.100/-. This is the law in CTJ 2004, at P 442, CTJ 2009 at page 50. Hence the liability of the opposite party is only to an extent of Rs.100/-.
3. To substantiate their respective cases the parties have filed Memos stating that their pleadings and documents be read as their evidence. Hence arguments were heard.
4. The points that arise for our consideration are:-
:- POINTS:-
- What is the amount the complainant is entitled to as compensation?
- What Order?
5. Our findings are:-
Point (A) & (B) : As per the final Order
for the following:-
-:REASONS:-
Point A & B :-
6. Reading the pleadings in conjunction with the documents on record it is an admitted fact that the complainant on 03.02.2011 had delivered certain goods to be transported to the consignee at Noida. It is also admitted that the goods were not delivered to the consignee till date. It is an unfair trade practice.
7. The consignment note reads thus:-
That is to say the complainant had declared the value of the goods to be transported as Rs.17,000/-.
8. It is also an undisputed fact that the opposite parties have not delivered the goods at Noida. Hence it is nothing but an unfair trade practice committed by the opposite parties and also deficiency in service. This is admitted by the opposite party No.1 and this is not denied by the opposite party No.2.
9. When the complainant had entrusted the goods to be delivered at Noida to the hands of the opposite party No.1 it was incumbent on the part of the opposite party No.1, itself, to transport it and delivered it to the consignee. But it has handed over the goods to the opposite party No.2. It itself is a deficiency in service and unfair trade practice. It is also an undisputed fact that the weight of the material was 132.810 kgs.
10. Further as the goods were not delivered to the consignee the complainant made a complaint to the opposite party No.1. The opposite party No.1 on 15.02.2011 has written a letter to the opposite party No.2 which reads thus:-
“With reference to the subject matter, we had forwarded one bag weighing 15 Kgs. Vide your CD #40011891 on 04th of Feb 2011, to Delhi by surface mode. To have a great shock, it has been noticed that still now the load has not handed over to our office at Delhi. In the mean time here at Bangalore our customers are stated to claim for their damages. If you wont be able to locate the said load you will be held responsible for all the claims, what ever it may be. To avoid all the unpleasant situation, we request you to locate the where about of the load immediately.”
This clearly goes to show that the opposite parties have misappropriated the goods and have not delivered the goods. Hence the complainant has issued a notice to the opposite party No.1 on 16.02.2011 to which the opposite party No.1 has replied on 25.01.2011 denying the liability. This is nothing but an untenable contention.
11. Further it is an admitted fact that on 03.02.2011 itself the complainant has written to the consignee and also to the opposite party which reads thus:-
That is to say the value of the goods that has been sent is approximately Rs.77,000/-. That means to say these goods delivered to the opposite party No.1 which had to be transported and delivered at Noida is valued Rs.77,000/-.
12. Even to the opposite parties on 04.02.2011 itself the complainant has written a letter which reads thus:-
“We are surprised to notice that you have mentioned wrong amount as goods value which was booked through your company to Noida vide docket no.407489331, dated: 03.02.2011.
You have mentioned as Rs.17,000.00 as goods value on your receipt, in spite of enclosing the declaration letter as Rs.77,000.00.
Kindly give us the clarification in black and white and also please do the corrections at your end.”
That is to say that even the opposite party No.1 admits that the complainant has mentioned the value of the goods wrongly as Rs.17,000/-, but the actual value is Rs.77,000/-. Hence it cannot be said that the value of the goods is only Rs.17,000/- and not Rs.77,000/-.
13. Further it is an undisputed fact that the opposite party has written a letter to the complainant on 05.02.2011 which reads thus:-
“We are in receipt of your letter dt 04th Feb 2011, regarding value of the goods sent through Our courier C.Note No. 407489331 dt. 03.02.2011 to Noida. As per the declaration given to us along with the parcel the value mentioned was Rs.77,000/- (seventy seven thousand only). It’s a writing error it’s mentioned as Rs.17,000/-.”
This also clearly goes to show that the value that has been declared is Rs.77,000/- and the value of the goods is Rs.77,000/- and not Rs.17,000/-.
14. Here the contention of the opposite party No.1 is that they are liable to pay only Rs.100/- towards compensation and not the value of the goods as per the terms of the contract. The S.C. Note issued by the opposite party No.1 does not say that their liability is restricted to Rs.100/- only. Hence the said contention is an untenable contention. The learned counsel for the opposite party No.1 cited a decision between Sunil Chawla –V/s- World Pack Air Courier Service (I) Private Limited reported in 2009 CTJ 50 (CP)(NCDRC). There is no dispute about the said decision the principal of law stated therein but the facts and circumstances of that case is not applicable to the facts and circumstances of this case. Distinguishing or quoting the said judgment in extenso will only bulk and bulge the record and is also against the mandate of regulation 18(5) of the Consumer Protection Regulation. Hence it is not quoted in extenso.
15. Here the goods worth Rs.77,000/- were handed over for delivery. That has not been delivered. Hence reputation of the complainant is lost, his business is lost, the value is lost. There is no contract between the parties that in case of loss of goods only Rs.100/- has to be paid. Hence the complainant is entitled to amount.
16. In this case the opposite party No.1 has simply stated that the opposite party No.2 has misplaced or lost during the goods in transit that’s all. How it has been misplaced? How it is lost? Where it is misplaced? When it was misplaced? Is not at all stated. This clearly goes to show that the opposite parties have misappropriated the entire goods and caused loss to the complainant.
17. It was contended in the version of opposite party No.1 that the complainant is not a consumer. There is no such material. The complainant has entrusted the goods for transportation. This is not a commercial activity. Hence the said contention is an untenable contention.
18. Under these circumstances if we direct the opposite parties to pay compensation of Rs.80,000/- we think that will meet the ends of justice. Which will include the value of the material, the mental agony, damages to the reputation, etc.,. Hence we hold the above points accordingly and proceed to pass the following:-
-: ORDER:-
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant a sum of Rs.80,000/- as compensation within 30 days from the date of this order.
3. The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite parties are directed to send the amounts as ordered at Serial Nos.2 & 3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 8th Day of August 2011)
MEMBER MEMBER PRESIDENT
