KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL  NOs.16/13 & 85/13

JUDGMENT DATED:31.10.2013

(Against the order in CC.37/08 on the file of CDRF, Thiruvananthapuram, dtd:31.07.2012)

PRESENT : 

JUSTICE SHRI. P.Q. BARKATHALI                       :  PRESIDENT

APPEAL  NO.16/13

Sectron Electronics (PVT)Ltd.,

R/by its Director, Sathish Prabhu,

S/o M.G.Prabhu, T.C.5/2380,                                       : APPELLANT

Near Narmada Shopping Complex,

Kowdiar.P.O, Thiruvananthapuram.

(By Adv: Sri. C.S.Rajmohan)

            Vs.

1.            Professional Courier R/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.

TVPM – 695 036.

                                                                                                : RESPONDENTS

(R1 & 2 by Adv: Sri.N.G.Mahesh)

3.            Manager, Professional Courier,

Ambalamukku, Peroorkada.P.O,

TVPM.

APPEAL  NO.85/13

1.         The Area Manager, Professional Couriers,

Sreevas Building, Chenthitta.

TVPM – 695 036.                                                                 : APPELLANTS

2.            Manager, Professional Courier,

Ambalamukku, Peroorkada.P.O,

TVPM.

(By Adv: Sri.N.G.Mahesh)

            Vs.

1.            Sectron Electronics (PVT)Ltd.,

R/by its Director, Sathish Prabhu,

S/o M.G.Prabhu, T.C.5/2380,

Near Narmada Shopping Complex,

Kowdiar.P.O, Thiruvananthapuram.

                                                                                                : RESPONDENTS

2.            Professional Courier R/by its Managing Director,

S1,S2,S3 Sai Chambers, 1^st floor, Plot No.44,

Sector II, CBD Belapur, Navi Mumbai-400 614.

(By Adv: Sri. C.S.Rajmohan)

COMMON  JUDGMENT

   JUSTICE SHRI. P.Q. BARKATHALI:  PRESIDENT

Both these appeals arise out of the same order of CDRF, Thiruvananthapuram in CC.37/08 dated, July 31, 2012.  Appeal-16/13 is filed by the complainant and Appeal-85/13 is filed by the opposite parties.

2.          Complainant is M/s Sectron Electronics Private Limited represented by its Director PW1, Sri. Satheesh Prabhu.  The case of the complainant as testified by PW1 and as detailed in the complaint before the Forum in brief is this:-

Complainant is a Private Limited Company engaged in the business of sale of electronics and electrical goods like TV etc.  The complainant purchased one Plasma TV 42” Hitachi make worth Rs.1,20,000/- and 32” LCD TV worth Rs.56,889/- from M/s Sight and Sound Limited, New Delhi for sale.  As  those TVs remained unsold as directed by the Delhi Company, the complainant on April 11, 2007 sent those TVs as two parcels through the courier service of the opposite parties.  The complainant has paid courier charges of Rs.3485/- and Rs.1955/- respectively as per consignment note Ext.P1.  The TVs were packed from the showroom of the complainant on the supervision of the employees of the 3^rd opposite party.  Opposite parties 2 and 3 are fully aware of the contents of the package and quality and standard of packing.  When the parcels did not reach Delhi Company complainant sent a letter dated, May 10, 2007 to 3^rd opposite party.  Second opposite party informed him that Delhi Company is refusing to take delivery of the goods due to delayed delivery.  On July 5, 2007 by letter Ext.P6 the second opposite party informed the complainant that the goods were damaged.  As the Delhi Company refused to take delivery of the goods, complainant took back the goods and found it damaged.  Thus there is deficiency of service on the part of the opposite parties and therefore they are bound to pay compensation for the loss sustained by the complainant.  Complainant claimed a compensation of Rs.2,72,829/- including the value of the damaged TVs.

3.          The opposite parties are M/s Professional Couriers.   They in their version contended thus:- 

The TVs sent by the complainant is intended for sale.  Complainant is engaged in the sale of electronic goods.  Therefore complainant cannot be termed as a consumer as defined under sec.2(1)(d) of the Act, consequently the complaint is not maintainable.  Complainant did not reveal the contents of the packing and the time of booking.  The packing was done by the complainant the TVs were damaged due to defective packing for which the opposite parties are not liable.

4.          The complainant was examined as PW1 and Exts.P1 to P13 were marked on the side of the complainant, DW1 was examined and Ext.D1 was marked on the side of the opposite parties before the Forum.  The report of the commissioner was marked as Ext.C1.  On an appreciation of evidence the Forum found that complaint is maintainable and that there was deficiency of service on the part of the opposite parties and directed the opposite parties to pay to the complainant Rs.1,76,889/-  being the price of the damaged TVs and Rs.5000/- as compensation and Rs.3000/- as costs.  The Forum has also directed the complainant to return the TVs to the opposite parties.  The opposite parties have challenged the said order of the Forum in Appeal-85/13.  Complainant has filed the appeal 16/13 alleging that compensation awarded is very low and that the Forum should not have ordered return of the TVs as the TVs were totally damaged.  Complainant has also claimed interest.

5.                Heard both the counsels.

6.          Counsel for the opposite parties argued that as the complainant firm is engaged in the sale of electronic goods and as the damaged TVs were purchased for sale, the complainant cannot be considered as a consumer under Section 2(1)(d) of the Act and that therefore complaint is not maintainable.  He further submitted that TVs were damaged due to the defective packing made by the complainant.  The counsel for the complainant on the other hand would content that compensation awarded by the Forum below is very low and that as TVs were completely damaged and that the lower Forum should not have ordered return of the TVs.  He would say that complainant is entitled to interest for the compensation awarded.

The following points arise for consideration:-

1. Whether the complaint is maintainable?

2. Whether the compensation awarded is very low?

3. Whether the direction of the Forum to return the TVs to the 

     opposite parties is justified?

4. Whether the complainant is entitled to interest for the  

    compensation awarded by  the Forum?

5. Whether the impugned order of the Forum can be sustained?

7.          The main contention raised by the opposite parties is that complaint is not maintainable as the complainant is a business firm and the TVs are purchased for sale which is a commercial purpose as defined under the Explanation to sec.2(1)(d) of the Act.  There is no merit in the above contention.  The service accepted by the complainant from opposite party is not for making any profit.  It is not for resale.  Therefore it is not a commercial transaction.  Complainant sent only the unsold TVs to the company from where he has purchased the same.  That being so in my view complainant is a consumer as defined under sec.2(1)(d) of the Act.  Consequently, the complaint is maintainable.  The finding of the Forum on this point is confirmed.

8.          The counsel for the opposite parties argued that the TVs were damaged due to defective packing by the complainant for which they are not responsible and that the complainant never revealed contents of the parcel to the opposite parties.  There is no force in the above contention.  Ext.P2 is the declaration for transportation issued by the complainant to the opposite parties wherein TVs as well as its model are clearly mentioned.  Ext.P3 is the delivery Chelan.  It is clear from Ext.P2 and P3 that 2^nd and 3^rd opposite parties are fully aware that the parcel contained TVs.  That being so, the contention of the opposite parties that they have no knowledge regarding the contents of the parcels has already to be rejected.  The finding of the Forum on this point is confirmed.

9.          Regarding the contention of the opposite parties that packing done by the complainant was defective which caused damage to the TVs, we find no substance in the above contention.  PW1 has categorically stated that packing was done in the presence of the opposite parties and that they were satisfied about the packing.  Further if the packing were defective the opposite parties would not have accepted the parcel for transport.  Therefore I am of the view that Forum is perfectly justified in rejecting the above contention of the opposite parties.  It  follows there is defect in the service of the opposite parties and therefore they are liable to pay compensation to the complainant.

10.          Counsel for the opposite parties argued that Forum is not justified in directing the opposite parties to pay the price of the TVs as the commissioner found only minor damage to the TVs . I find no force in the above contention in Ext. C1 commissioner has reported that both the TVs are totally damaged and are not in a serviceable condition.  Therefore Forum is perfectly justified in directing the opposite parties to pay the price of the TVs to the complainant.

11.          Next it has to be considered whether the direction of the Forum to hand over the TVs to the opposite parties is proper or not .The TVs are totally damaged.   Further after a lapse of six years, I feel that such a direction is not warranted. Further TVs do not belong to the opposite parties. That being so I am of the view that the direction of the Forum to handover the damaged TVs to the opposite parties is not proper and is liable to be setaside.

12.          Counsel for the complainant submitted that Forum has awarded a compensation of Rs.5000/- which is very low and the Complainant has paid Rs.5440/- as Courier charge to the opposite parties.  It was also contended that Forum has not awarded interest for the compensation awarded. I also feel that compensation awarded by the Forum is very low. The two TVs are totally damaged due to the negligence on the part of the opposite parties, which caused much hardship to the complainant. Therefore I feel that a compensation of Rs.25000/- would be reasonable in this case. Complainant is also entitled to interest at the rate of 12% per annum from the date of complaint till realization.

In the result Appeal 85/13 filed by the opposite parties is dismissed.

Appeal 16/13 filed by the complainant is allowed in part .The impugned order of the Forum is modified. The finding of the Forum directing the opposite parties to pay the price of the damaged TVs Rs.1,76,889/- and cost of Rs.3000/- is confirmed.  The compensation awarded by Forum is enhanced to Rs.25000/-. The Direction of the Forum to return the TVs to the opposite parties is setaside.  Appellant/Complainant is entitled to a cost of Rs.5000/- in this Appeal.  He is also entitled to interest at 12% per annum from the date of complaint till realization for the entire amount.

JUSTICE P.Q. BARKATHALI:  PRESIDENT

VL.