Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 has been filed by the Appellant/OP Nos. 1, 2, 3 challenging the impugned judgment and order dated 17.01.2017 passed by the Ld. District Forum, Jalpaiguri in Complaint Case No. 47 of 2016 allowing the complaint on contest with cost.
The Appellant/OP DTDC was directed in the impugned order to pay Rs. 64,000/- to the Respondent/Complainant as compensation for the loss. It was directed further to pay a litigation cost of Rs. 5000/- and a compensation of further Rs. 5,000/- towards mental pain and agony caused to the Respondent/Complainant.
The entire amount as above was directed to be paid within 30 days from the date of the impugned judgment and order, failing which, interest @ 7.5% p.a. should accrue to the above mentioned amount and the Appellant/OP DTDC should pay Rs. 50 per day in addition to the said interest till realization.
The Respondent/Complainant was awarded liberty to realize ordered amount as per provisions of the C.P Act, 1986.
The facts of the case, in a nutshell, were that the Respondent/Complainant, the proprietor of a cloth store, located in the address given in the complaint, booked a consignment of saries lahengas to be delivered to one consignee at Surat with the DTDC Courier, being the Appellant/OP Nos. 2 and 3 through their agent, being Appellant/OP No. 1. The track report of the consignment indicated that the said consignment reached Surat via DTDC Kolkata and DTDC Ahmadabad from Siliguri but as report received from the consignee, the consignment did not reach him.
The Respondent/Complainant’s effort for recovery of the articles being gone in vain, the Respondent/Complainant claimed the value of the articles of the consignment which too had undergone the same fate. Hence, the Complaint Case was filed. The impugned judgment and order which had originated from the said Complainant Case, was put under challenge in the instant Appeal.
Heard both sides through their respective Ld. Advocates.
The Ld. Advocate for the Appellant challenged the maintainability of the complaint citing the very averments in the Complaint in its first paragraph where the Respondent/Complainant confessed to his having a small cloth shop under the name and style “Poddar Cloth Store”. As contended, the very averment led to an undisputed conclusion that the Complaint was related to commercial purpose and accordingly, did not come under the purview of the Consumer Protection Act, 1986.
With the above submission the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondent/Complainant, in course of his submission, defended the interest of his client and the judgment and order impugned as well. As submitted by him, the consignment was booked on payment of charges for covering the risk. Running pages 13 and 14 indicated receipt of the consignment booked by Raninagar, Siliguri Unit, Shipment No. being D23883193.
Drawing notice to the running page No. 17, being the letter dated 04.03.2016, address to one ManishJi, branch Manager, Surat, the Ld. Advocate, continued that the letter itself was explanatory about one of the 63 bags, claimed to have been booked by the Ahmedabad team was found missing at Surat point. The missing bag, as the Ld. Advocate continued, was of the consignment contending subject goods booked on behalf of the Respondent/Complainant.
The Ld. Advocate, with a view to establishing the Complainant’s identity as a genuine Consumer, cited series of references of the Hon’ble National Commission and the Hon’ble Apex Court.
Citing the decision of the Hon’ble National Commission in Revision Petition No. 3589 of 2014 [M/S Gati Ltd.—Vs.—Shri R. Ramesh], reported in (2015) CPJ 597 (NC), wherein the Hon’ble National Commission confirmed the Complainant a Consumer because of the Complainant’s being a proprietorship company, not any company public or private, the Ld. Advocate submitted that the Respondent/Complainant herein too was no company public or private, rather it was only a small cloth store and the consignment value itself was only Rs.64,000/- which was not a very big amount to consider for certain the Respondent/Complainant’s doing business for commercial purpose.
The Ld. Advocate referred further to the decision of the Hon’ble Supreme Court in Civil Appeal No. 1427 of 2007 [Transport Corporation of India Ltd.—Vs.—Ganesh Polytex Ltd.] reported in IV (2014) CPJ 19 (SC) wherein the Hon’ble Supreme Court affirmed the decision of the Hon’ble National Commission of awarding Rs. 29,74,321.45 along with interest @ 12% p.a. towards value of the consignment, booked at Bangladesh for non-delivering the same at Benapole customs stations.
Ld. Advocate referred further to a decision of the Hon’ble National Commission in Revision Petition No. 541 of 2016 [Department of Post and Others—Vs.—Gajanand Sharma] reported in I (2017) CPJ 172 (NC) wherein the Hon’ble National Commission held that non-delivery of letter by the postal department was a willful default on the part of its officials concerned and the attitude of the postal department was viewed as a deliberate attempt to hide the real reasons for wrong doing of its employees by not delivering the letter within the norms prescribed by the postal department itself.
With the submission as above, the Ld. District forum prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record. Also perused the submissions of the Ld. Advocate appearing on behalf of both sides. We do not have the necessity to discuss much about the settled issues as those are already decided without any objection from the DTDC, being the Appellant/OP Nos. 1 and 2. It is better to discuss the sole point of disputes by which the maintainability of the complaint has been challenged and which, as contended, in spite of being pointed out, was left out of consideration of the Ld. District Forum.
It appeared that the disposal of the issue depended upon the decision on the point as to whether or not the Respondent/Complainant should at all be treated as Consumer in view of the fact that the activities were related to commercial purpose. In this context, we, rely on the observation of the Hon’ble National Commission in M/S Gati Ltd.—Vs.—Shri R. Ramesh supra where, in an almost identical circumstances, the verdict went in favour of the Consumer in consideration of the fact that the Complainant’s was a proprietorship company, not any public or private company.
The decision of the Hon’ble Supreme Court in Transport Corporation of India Ltd.—Vs.—Ganesh Politex Ltd., supra also decided a case of loss of goods of a transport company in favour of the said Transport Company/Complainant without considering the nature of transaction. It seems the service is the main factor to be considered here.
Being guided by the illuminating observation of the Hon’ble National Commission and above all the Apex Court, we are not in two minds to decide that the complainant is a Consumer.
We, therefore, have no qualms to decide in the interest of justice that the impugned judgment and order needs only little modification where an additional penalty was Rs. 50 per day has been directed to be paid by the Appellant/OP Nos. 2 and 3 to the Respondent/Complainant.
Hence,
Ordered
that the Appeal be and the same stands allowed in part. The Appellant/OP DTDC is directed to pay Rs. 64,000/- to the Respondent/Complainant as compensation for the loss. It is directed further to pay a litigation cost and a compensation of Rs. 5000/- each to the Respondent/Complainant. The entire amount as above has to be paid within 45 days from the date of the impugned judgment and order, failing which, interest @ 7.5% p.a. should accrue to the above mentioned amount from the date of default till the amount is fully realized. The impugned judgment and order stands modified accordingly.
