BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 37/2008 Filed on 28.02.2008

Dated : 31.07.2012

Complainant :

Sectron Electronics (Pvt) Ltd., represented by its Director, Satish Prabhu, S/o M.G. Prabhu, T.C 5/2380(1), Near Narmada Shopping Complex, Kowdiar P.O, Thiruvananthapuram.

(By adv. K.C. Anil Kumar)

Opposite parties :

1. Professional Courier represented by its Managing Director, S1, S2, S3, Sai Chambers, 1^st Floor, Plot No. 44, Sector II, CBD Belapur, Navi Mumbai-400 614.

    

2. The Area Manager, Professional Courier, Sreevas Building, Chenthitta, Thiruvananthapuram-695 036.

    

3. Manager, Professional Courier, Ambalamukku, Peroorkada P.O, Thiruvananthapuram.

(By adv. N.G. Mahesh for OP 2 & 3)

This O.P having been heard on 20.07.2012, the Forum on 31.07.2012 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant is a private limited company having its registered office at Kowdiar engaged in the business of sale of electronics and electrical goods like T.V and other equipments. On 11.04.2007, complainant sent two parcels containing Plasma T.V 42'', Hitachi make worth Rs. 1,20,000/- and 32'' LCD TV Hitachi make worth Rs. 56,889/- and as per the demand of opposite parties, complainant given more particularly described delivery/demonstration challan dated 11.04.2007, copy of retail invoices dated 25.11.2006 and 22.02.2006, declaration for transportation etc. to the opposite parties 2 and 3. The above TVs were purchased by the complainant from M/s Sight and Sound India Ltd., New Delhi for sale. Since the above TVs were remained unsold, as desired by the Delhi company, it was sent through the courier service of the opposite parties on the above date after having been paid the courier charges of Rs. 3,485/- and Rs. 1,955/- as per consignment note No.s 7397659 and 7397658 dated 11.04.2007 respectively prescribed by the opposite parties 2 and 3, who issued the receipt for the same. The TVs were packed at the show room of the complainant at the instance and supervision of the employees of the 3^rd opposite party who were fully satisfied with the packing. Opposite parties 2 and 3 are fully aware of the quality and standard of the packing and also its contents. Under law, opposite parties are found to got themselves satisfied about the safety of the packing and its contents also. Complainant made several enquiries about the arrival of the parcels at the Delhi company. Normally parcels would have reached maximum period of 5 days. Repeated enquiries did not yield any positive results. This was alerted to opposite parties 2 and 3 over telephone several times, who promised to look into the matter. Finally after a lapse of one month, i.e on 10.05.2007 complainant wrote a letter to 3^rd opposite party complaining the non-delivery of the goods. 2^nd opposite party wrote back on the same date to the complainant stating that Delhi company is refusing to take delivery of the goods for reasons not known. Later continued that reason for refusing to take delivery is the delayed delivery. 2^nd opposite party agreed to reimburse the courier service charges. But on 05.07.2007 2^nd opposite party again sent a letter to complainant stating that Delhi company refused to take delivery of goods due to damage which was caused during transit and wanted the complainant to take back the goods from their office. When the opposite parties tried to deliver the parcel to the addressee(Delhi company) they refused to take delivery since it was seen damaged. They took the photographs of damaged parcels and sent to the complainant. Accordingly 3^rd opposite party had taken back the parcels to the office of the complainant. On seeing the parcels back, complainant felt shocked about the condition of the packing. It was found that the packing were damaged and the TVs inside were fully damaged and rendered useless totally. Opposite parties have taken again more than one month to bring back the parcels to their office at Thiruvananthapuram. Complainant accepted the parcel on assurance made by the 2^nd and 3^rd opposite parties to afford necessary compensation sustained by the complainant. But thereafter no response from these opposite parties. The parcels were kept in the complainant's showroom without open and still it is kept as it was delivered by the opposite parties. Regarding the same, complainant sent a registered notice on 18.07.2007 to 2^nd opposite party detailing the damages and also requesting them to pay compensation within 7 days from the date of receipt of the notice. 2^nd opposite party accepted the notice and sent a reply dated 07.08.2007 justifying their acts and attributing faults upon the complainant and compensation if any is only to the extent of Rs. 100/- only. Opposite party company is solely responsible for the damage sustained to the goods, which was frankly admitted by them in the letter dated 05.07.2007 that damage caused during transit opposite parties are eloped from contending any thing about the safety of the packing. In fact, it was done at the supervision and instruction of their employer. If any defect in the parking, they would not have accepted the parcels. It was due to the negligence, carelessness, irresponsibility and lack of proper care and caution of the opposite parties and their personnel which resulted damage to the goods There was total deficiency of service from the side of opposite parties. Hence this complaint.

2^nd and 3^rd opposite parties filed version. Though the 1^st opposite party accepted notice of this complaint issued from this Forum, but they did not turn up to contest the case. The main contention of the 2^nd and 3^rd opposite parties is that the complainant is not a consumer and there is no consumer dispute or deficiency in service or unfair trade practice warranting any interference by this Forum. It has been clearly admitted by the complainant in para 1 of the complaint that they are engaged in the business of sale of electronic and electrical goods like TV and other equipments. Further it is admitted in para 3 by the complainant that the parcels sent by them thorough the opposite party contained Plasma TV 42'' and 32'' LCD TV which were purchased by them from M/s Sight and Sound India Ltd., New Delhi for sale. Hence they submitted that the complaint is not maintainable before this forum. Opposite parties further stated that the actual contents of the consignments were not revealed to the 3^rd opposite party at the time of booking the same by the complainant. Opposite parties further submitted that the statement of the complainant that it was packed under the supervision and instruction of the employees of the 3^rd opposite party and that the copy of the retail invoice, delivery/demonstration challan and declaration for transportation etc. are given to these opposite parties are totally false. Such statements are only after thoughts of the complainant. The consignments were brought packed by the complainant's agents alone to the 3^rd opposite party's office without disclosing its actual contents. They made the 3^rd opposite party to believe that the consignment consists of pamphlets and other papers related to their products of marketing and other services. It is further submitted that if at all the consignments contained the T.V set as alleged by the complainant the packing was substandard for packing such expensive and easily breakable articles which can be the reason for the alleged damage. Further a letter dated 05.07.2007 stating that the consignment was damaged during transit was issued to the complainant by the 2^nd opposite party when the consignment was delivered back to the complainant, only as per the complainant's request to avail insurance amount. Such a letter was issued only to maintain good customer relationship. Opposite parties submit that even though complainant had not disclosed the opposite parties about the actual contents, they have brought back the unclaimed consignment at the cost and expense of the opposite parties itself. They denied the averment of the complainant that the complainant accepted the parcel on assurance made by the opposite parties to afford necessary compensation. No such assurance was given by the opposite parties as there was no deficiency of service from the part of the opposite parties. Opposite parties stated that the complainant ought to have insured the consignment if it contained such expensive articles as alleged, about which the 3^rd opposite party had informed the complainant at the time of booking itself. Opposite parties further submitted that the courier consignment note, the document that is the basis of the contract between the parties clearly shows the conditions of carriage and the clause limiting the carrier's liability in sufficiently bold prints which are easily readable. These conditions were brought to the notice of the consignor by the opposite party at the time of entrustment of the consignment by the consignor to the opposite parties which was accepted by the consignor which make the parties binding by the terms in the contract. As per the said terms and conditions if at all any loss had occurred to the complainant due to the act of the opposite parties, the opposite party's liability has to be confined to Rs. 100/-. The value of the consignment was far in excess of the maximum limited liability indicated and hence the complainant ought to have taken a transit insurance cover. The complainant has not suffered any loss or mental agony as alleged in the complaint due to the act of these opposite parties and hence is not entitled for any reliefs as sought for by him in the complaint.

Complainant filed proof affidavit and examined him as PW1. From his side 13 documents were marked as Exts. P1 to P13. From opposite parties' side, 3^rd opposite party filed affidavit and examined him as DW1 and through him Ext. D1 marked.

Points to be ascertained are:-

1. Whether the complaint is maintainable before this Forum?

2. Whether there is deficiency in service from the side of opposite parties?

3. Whether the complainant is entitled to get the reliefs sought for in the complaint?

4. Costs.

Point (i):- In this case opposite parties' main contention is that the complainant is not a consumer under Sec. 2(1) (d) (ii) of the Consumer Protection Act. Complainant is a business firm engaged in the business of sale of Electronic and electrical goods like TV and other equipments. Opposite parties stated that the complainant himself admitted the fact in the complaint that the parcels sent by them through the opposite parties contained Plasma T.V and LCD TV which were purchased by them from M/s Sight and Sound India Ltd., New Delhi for sale. Therefore the opposite parties submitted that the transaction connected with commercial purpose which has been excluded from the purview of the Act by way of amendment with effect from 15.03.2003. As per this amendment “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self employment. The contention of the opposite parties are that the complainant is a private limited company engaged in the sale of TV sets and other electric items in large scale with profit motive intention. Hence the complaint is not maintainable before this Forum. But the argument of the complainant is that the transaction between complainant and opposite parties are not a business transaction. The service accepted by this complainant from the opposite parties is not for commercial purpose. The TVs sent through courier service of the opposite parties are purchased by the complainant from M/s Sight and Sound India Ltd. New Delhi for resale. Since the above TV remained unsold as desired by the company it was sent through the courier service of the opposite parties. The service accepted by the complainant from the opposite parties is not for making any profit. The service accepted by the complainant from the opposite parties are not for resale or commercial transaction. Hence we are of the same opinion that this transaction is not for commercial purpose or for profit motive. Hence we find that the complaint is maintainable.

Points (ii) to (iv):- Complainant is a private limited company engaged in the business of sale of electronic and electrical goods like TV and other equipments. Ext. P12 is the evidence that the complainant is a private limited firm under Companies Act, 1956. On 11.04.2007 complainant sent two parcels containing one Plasma TV 42'' Hitachi make worth Rs. 1,20,000/- and one 32'' LCD TV worth Rs. 56,889/- along with delivery/demonstration challan, copy of retail invoice dated 25.11.2006 and 22.02.2006 and declaration for transportation etc. to the opposite parties 2 & 3. The above TVs were purchased by the complainant from M/s Sight and Sound India Ltd., New Delhi for sale. Since the above TVs remained unsold, as desired by the Delhi company, it was sent through the courier service of the opposite parties on the above date after paying the courier charges of Rs. 3,485/- and Rs. 1,955/- as per consignment note No.s 7397659 and 7397658 dated 11.04.2007 respectively prescribed by the opposite parties 2 and 3, who issued the receipt for the same. Ext. P1 series are the evidence of that transaction. Ext. P1 series are the consignment note issued by the opposite parties dated 11.04.2007. As per consignment note No. 7397659 complainant had paid Rs. 3,485/- as the charge for the transit and as per consignment note No. 7397658 complainant had paid Rs. 1,955/- and the weight is noted as 23 kg and 41 kg. Complainant argued that the TVs were packed at their showroom at the instruction and supervision of the employees of the 3^rd opposite party who were fully satisfied with the packing. Opposite parties 2 & 3 were fully aware of the quality and standard of the packing and also its contents. Complainant's contention is that the opposite parties are bound to get themselves satisfied about the safety of the packing and its contents also. It is part of their duties also. Ext. P2 is the declaration for transportation issued by the complainant to the opposite party. In that document the item and its model are clearly mentioned. Ext. P3 is the delivery chalan. Hence the contention of the opposite parties that they have no knowledge about the content of the parcel is not sustainable. From the document we find that the 2^nd and 3^rd opposite parties were fully aware that the parcel contained TVs and for that they have received this much amount as courier charge. Complainant had sent the consignment on 11.04.2007, but the consignment was not delivered till 10.05.2007. Then complainant sent a letter to the opposite party on 10.05.2007. Copy of that letter is marked as Ext. P4. According to the complainant normally the parcels would have reached within a maximum period of 5 days. Ext. P5 is the reply letter issued by the opposite party to the complainant stating that the Delhi company is refusing to take delivery of the goods for reasons not known and the letter continued that the reason for refusing to take delivery is the delayed delivery and they agreed to reimburse the courier charge. Through this letter opposite parties admitted that there is delay in delivery. On 05.07.2007 the opposite parties again sent a letter stating that the Delhi company refused to take delivery of the goods due to damage which was caused during transit and requested to take back the goods from their office. That letter is marked as Ext. P6. Opposite parties admitted that the goods were damaged during transit. Thereafter on 07/07 the opposite parties had delivered the parcels to the office of the complainant and they felt shocked about the condition of the package which got damaged fully. It was found that the packing was damaged and the TVs were fully damaged and rendered useless totally. Thereafter complainant sent legal notice to the opposite parties demanding compensation for the loss. But there was no response from the side of opposite parties. They denied the total allegations and in the reply notice they informed that as per the terms and conditions of the consignment note if at all any loss had occurred to the complainant due to their act, their liability has to be confined to Rs. 100/- only. But both parties have not signed the document. Exts. P7 to P10 are the copies of notices, reply notice and its postal receipts and acknowledgement cards. Complainant argued that due to the carelessness, negligence and deficiency in service of the opposite parties the goods are totally damaged while transit. Complainant filed commission application to examine the condition of the TVs and this Forum appointed Mr. Sabu. C. Varghese as expert commissioner. He ascertained the condition of the TVs and filed report and that report along with photographs is marked as Ext. C1. In his report commissioner reported that the TVs were totally damaged and the items are not in serviceable condition. He also stated the cost of the TVs. The cost of the items as per the invoice No. 680 dated 22.02.2006 and 317 dated 25.11.2006 of Sight and Sound India for 42'' Plasma TV and 32'' LCD TV are Rs. 1,15,385/- and Rs. 56,889/- respectively. In this case the complainant has filed proof affidavit and examined him as PW1. 3^rd opposite party has also filed proof affidavit and examined him as DW1. From opposite parties' side reply notice dated 28.09.2007 is marked as Ext. D1. In this case the opposite parties' contention is that as per the terms and conditions of the consignment note, their liability is limited at Rs. 100/-. But in this case neither the consignor nor the consignee has signed the consignment note. Hence the terms and conditions are not bound to be obeyed by them and there is no contract between them. From the above mentioned findings and discussions we find that there is deficiency in service from the side of opposite parties. It is the duty of the opposite parties to check the safety of the packing before accepting the consignment and before transit and it is the duty of the opposite parties to deliver the goods safely to the addressee. And it is the duty of the opposite parties to deliver the goods within the specific period. In this case there is enormous delay in delivery also. Due to the negligence and carelessness of the opposite parties the goods were totally damaged. As per the commission report the total cost of TV is seen as Rs. 1,76,889/-(Rs. 120000 + Rs. 56889). The opposite parties are liable to pay this amount to the complainant along with compensation and costs. Opposite parties never raised any objection regarding the price of the TVs. From the above mentioned reasons, we allow the complaint.

In the result, the opposite parties are directed to pay the cost of the TVs Rs. 1,76,889/- along with Rs. 5,000/- as compensation and Rs. 3,000/- as costs to the complainant. Opposite parties are jointly and severally liable to pay the above said amount and after the compliance of the order, complainant shall return the TVs to the opposite parties. Time for compliance one month from the date of receipt of the order. Otherwise 9% annual interest shall be paid for the entire amount till date of realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of July 2012.

Sd/- BEENAKUMARI. A : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

S.K. SREELA : MEMBER

jb

C.C. No. 37/2008

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Satish Prabhu

II COMPLAINANT'S DOCUMENTS :

P1 - Courier Consignment Notes issued by opposite party.

P2 - Copy of declaration for transportation issued by complainant

P3 - Copy of delivery/demonstration chalan issued by complainant

P4 - Letter dated 10.05.2007 issued by complainant

P5 - Letter dated 10.05.2007 issued by Professional Couriers to

Satheesh Prabhu.

P6 - Letter dated 05.07.2007 issued by Professional Couriers to

Satheesh Prabhu.

P7 - Copy of letter dated 18.07.2007 send to opposite party by

complainant.

P8 - Letter dated 07.08.2007 issued by opposite party to

complainant.

P9 - Advocate notice dated 08.09.207

P10 - Postal receipts and acknowledgement cards

P11 - Copy of certificate of incorporation.

P12 - Copy of Memorandum of Association of Sectron Electronics

Pvt. Ltd.

P13 - Photos.

III OPPOSITE PARTY'S WITNESS :

DW1 - Arun Kumar. G

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Advocate notice dated 28.09.2007

V COURT EXHIBIT

C1 - Commission Report

Sd/-

PRESIDENT

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