D.O.F. 26.08.2010
D.O.O. 01.10.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri.K.Gopalan : President
Smt. K.P.Preethakumari: Member
Smt.M.D.Jessy : Member
Dated this the 1st day of October, 2011.
C.C.No. 212/2010
M.R. Vijayaraghavan
Partner, M/s. Abbas Ali & Vijayaraghavan, : Complainant
Naragapuram, Thalassery.
(Rep. by Adv. K.M. Vasantharam)
1. Manager,
Professional Courier,
Paralpalli Complex, New Bus stand, Thalassery.
2. Professional Courier,
District Administration & Operation Office, : Opposite parties
No.5, T.P. Complex, Bank road, Kannur – 1.
(Rep. by Adv. K. Vinod Raj)
3. Professional Courier,
Operation officer of Professional Courier
Ernakulam bulk operation office, Edappally, Cochin.
O R D E R
Sri. K. Gopalan, President.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to pay ` 1,00,000 as compensation together with the cost of this proceedings.
The facts give rise to the above complaint are these: The complainant, a Chartered Accountant forwarded a packet of 14 income tax appeals through opposite party to the Commissioner of Income Tax appeals Cochin on 20.01.2010. Service charge also paid and obtained receipt No.0183643. Complaint received an information during the month of May, 2010 from Assistant Commissioner of Income tax that penalty proceedings will be completed on or before 30.06.2010 against Mr. Ayoob and MRA bakery, Thalassery since number of appeal is preferred. Complainant contacted the opposite party immediately and enquired regarding the delivery of article and insisted for the proof of delivery of article. Opposite party informed that the proof of delivery will be issued soon. Complainant also sent his staff to make enquiry with the Commissioner’s office and realized from officials that they have not received any appeals. Then Subhash and Sony contacted the office of the opposite party at Ernakulam. But they send them to another office at Edapalli. It could be seen from there that the packet sent by the complainant is in a highly damaged condition and Mr. Subhash identified the article. The entire papers of the all 14 appeals were discoloured and stamp affixed were spoiled on account of the careless handling. Complainant received these discoloured papers of the appeals on 14.06.2011 from professional courier (cok) in bulk. The complainant could not present 14 appeals within time due to the negligent handling of the article by the opposite party. He was forced to file it with a petition to condone the delay of six months after obtaining the consent of the client. The subject matter of the appeal involves nearly 4 crores and tax effect is more than ` 1.5 crore. There is no stay of the assessment order, against the assessment order passed by Deputy Commissioner of Income Tax, Calicut. Penalty proceedings is completed and he assess, Mr. Ayoob and MRA Bakery were forced to file another appeal against the enforcement of penalty amount. The penalty amount involved in the appeals amounts to ` 50 lakhs. Preparation of appeals involved laborious task. Complainant suffered very much mentally, physically and financially. Hence this complaint.
Pursuant to the notice 1st and 2nd opposite party entered appearance and jointly filed version denying the material allegations of the complainant. As per the version 3rd opposite party was impleaded. Though notice was sent and served properly 3rd opposite party remained absent even without filing version. He was called absent subsequently and declared exparte. The defence taken by opposite parties in brief is as follows : The complainant sent a sealed cover to be sent to the Commissioner of income tax appeals, Cochin. The same was sent to the operations office of professional couriers in Jacob Vallamad office, Ernakulam for delivery. It was reached there on 21.01.2010 in good condition. They sent the same to the operations office, Edappally on the same day for delivery. So if anything happened from the Ernakulam and Edappally office of the professional couriers these opposite parties are not liable.
On the above pleadings the following issues have been taken for consideration.
- Whether there is any deficiency in service on the part of opposite party?
- Whether the complainant is entitled for the remedy as prayed for?
- Relief and cost.
The evidence consists of oral testimony of PW1 and Ext.A1 to A7 on the side of complainant. No evidence adduced on the side of opposite party.
Issues 1 to 3
Admittedly complainant sent a sealed cover to the Commissioner of Income Tax appeals, Cochin. The case of the complainant is that opposite parties did not deliver the packet to Assistant Commissioner of Income Tax Opposite party took the contention that the alleged packet was sent to their Ernakulam office and there from bulk operation office Edappally on the same day 21.01.2010 for delivery. So if anything happened from the Ernakulam and Edappally office, the contesting opposite parties No.1 and 2 are not liable. Thus it can be seen that opposite party has no case that it had delivered to the concerned Assistant Commissioner of Income Tax. It is admitted that the packet of complainant was received by opposite party and the same also sent to their office in Ernakulam. If anything happened thereafter, the contention of opposite party 1 and 2 is that, the 3rd opposite party is answerable for the liability and not opposite parties No.1 or 2.
Complainant adduced evidence by way of affidavit in tune with the pleadings. Ext.A1 receipt proves that the complainant has sent the alleged packet through opposite party. Ext.A2 the receipt of “Non delivery of consignment” issued by professional courier cok (Bulk) Ernakulam proves that the consignment sent by the complainant had not been delivered to Assistant Commissioner of income tax appeals. What 1st and 2nd opposite party contended is that they have sent the alleged packet to their Ernakulam office and therefrom to Professional Courier cok (Bulk) Ernakulam. If anything happened there the liability does not go to them but the people therein Ernakulam office is answerable as if they are entrusted the packet to sent to their Ernakulam office. In a way it is an admission that the alleged article was not delivered to the addressee but it is 3rd opposite party responsible for the same and 1st and 2nd opposite party has no liability. Anyhow Ext.A2 itself proved that the alleged article had not been delivered to the consignee.
It can be seen that the article was kept in the office of the opposite party in their Ernakulam office without giving an information to the consignor. Every consignment will have a definite number to identify the same wherefrom it has sent. The opposite parties and their men were not at all serious and they did not care what will happen with the undelivered article. They were least bothered. It is definitely a gross negligence. The bundle consists of full set of 14 appeals. So it is big bundle. If such a bundle is neglected it cannot be considered as merely a mistake. It is left neglected knowingly well without attended, whatever may the consequence suffered by the parties concerned, the degree of deficiency in service in this case is very high since they kept mum for more than six months for which they deserves a heavy fine.
Complainant adduced evidence by way of affidavit as follows. The above said appeals could be filed after six months and has not yet received on file by condoning the delay. The appeals shall be received on file and numbered only after condoning the delay. Petition to condone the delay may or may not be allowed. The subject matter in appeal involved Rupees 1.5 crores. There is no stay against the order of the Deputy Commissioner and this penalty proceedings completed and Mr.Ayoob and MRA baking were compelled to file another appeal against the enforcement of penalty amount. The penalty amount involved is ` 50 lakhs. The preparation of appeal involved laborious task. He further gives evidence that he has suffered a loss of ` 1,00,000 and mental agony. It is due to the deficiency in service rendered by the opposite parties. It is quite understandable that the preparation of appeals, question of penalty and appeal against enforcement of penalty are all not merely a question of financial loss, though heavy but it is a matter of great mental agony.
Opposite party has not come forward to give any evidence to rebut what complainant alleged nor to establish the contention raised by opposite parties. PW1/complainant was cross examined at length for 1st and 2nd opposite party. PW1 deposed in cross examination that it is not sure that the delay shall be condoned. If it has not been condoned that shall be loss for him and his client. To another question he has answered the authorization letter to file appeal has been submitted before the Commissioner. He has also answered that assessment order was submitted by him. Complainant again stated that delay is more than six months and appeal is pending now. He further stated, answering another question, that it is not correct to say that it can be said whether or not there shall be any loss on account of return of appeal, only after the appeal is disposed. It is also stated by the complainant that it is the staff of complainant who entrusted the 14 appeals with opposite parties.
Ext.A1 shows 1st opposite party has received payment of consideration. 1st opposite party has the liability to deliver the article to the consignee. Whether he delivers it through his parallel office or sub office or through other agencies is immaterial. The question whether opposite party has discharged his obligation by delivering the alleged packet to the consignee or not is the material question? In this case 1st opposite party failed to deliver the article to the addressee and committed deficiency in service. 1st and 2nd opposite parties did not adduced any evidence to prove otherwise. It is quite natural that the preparation and resubmitting the 14 appeals with delay petition is a tiresome task especially the work being done under tension. Financial loss on the one hand and physical and mental sufferings on the other hand cannot be avoided. It is also a considerable aspect that the tension still follow till the disposal of delay petition.
In the light of above discussion we have no hesitation to find that there is deficiency in service on the part of 1st opposite party. Thus we are of opinion that an amount of ` 30,000 (Rupees Thirty Thousand only) as compensation will meet the end, of justice. Complainant is also entitled for ` 1000 as cost of this litigation. The issues 1 to 3 are found in favour of complainant and order passed accordingly.
In the result the complaint is allowed directing 1st opposite party to pay an amount of ` 30,000 (Rupees Thirty Thousand only) as compensation together with ` 1000 (Rupees One Thousand only) as cost of this litigation within one month from the date of receipt of this order failing which the complainant is entitled to execute the order after the expiry of 30 days as per the provisions of Consumer Protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1. Consignor copy of OP.
A2. Certificate of non-delivery from OP.
A3. Letter dated 23.06.2010.
A4. Copy of lawyer notice dated 01.07.2010.
A5. Acknowledgment card.
A6. Appeal Memorandum filed before Income Tax Commissioner. (14 in
Numbers)
A7. Acknowledgment from I.T. Commissioner.
Exhibits for the opposite party
Nil
Witness examined for the complainant
PW1. Complainant
Witness examined for opposite party
Nil
/forwarded by order/
SENIOR SUPERINTENDENT
