Tamil Nadu

StateCommission

FA/13/2017

The Manager /Incharge - Complainant(s)

Versus

Mrs.Hemalatha Charodia Proprietor M/s.Sruthi's - Opp.Party(s)

M/s.R.Dhanalakshmi

05 Jan 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 BEFORE   Hon’ble THIRU. JUSTICE. R. SUBBIAH                   ::     PRESIDENT                       

                  Tmt.Dr.S.M.LATHA MAHESWARI                            ::      MEMBER

 

F.A. No. 13/2017

  (Against the order in C.C. No.68/2014 on the file of the D.C.D.R.C., Chennai (North)

                         DATED THE 05^th  DAY OF JANUARY 2022

 

The Manager / Incharge,

M/s. K P N Speed Parcel Service Pvt. Ltd.,

New No.46, Old No.334 B, Wall Tax Road,

Chennai – 600 079.                                                          ..Appellant /Opposite party.

 

- Versus -

Mrs. Hemalatha Charodia,

Proprietor,

M/s. Sruthi’s,

New No.365, Old No.212, Sydenhams Road,

1^st Floor, Apparao Garden,

Choolai,

Chennai – 600 112.                                                         ..Respondent /Complainant.

 

Counsel for Appellant /Opposite party                : M/s. R. Dhanalakshmi

Counsel for Respondent /Complainant             : M/s. T.R. Kumaravel

 

This appeal coming before us for final hearing today, on 22.12.2021 and on hearing the arguments of Appellant and on perusing the material records, this Commission made the following order in open court :-

ORDER

Tmt. Dr. S.M. LATHA MAHESWARI:

            This appeal has been filed by the appellant / opposite party under section 15  of the Consumer Protection Act 1986 against the order of the District Consumer Disputes Redressal Commission, Chennai (North).

 

 

 

 

1.         The factual background culminating  in to  appeal is as follows:-

The complaint was filed alleging deficiency in service on the part of the opposite party with a prayer to direct them to pay a sum of Rs.42,712/- towards the cost of lost CARTON BOX, Rs.130/- towards the freight charges, Rs.50,000/- towards damages and Rs.7,000/- towards the cost of the complaint.

2.         It was the case of the complainant that he had booked with the opposite party the parcel 1- CB- CARTON BOX on 08.03.2013 vide invoice No.VE-01672 and that the carton box contains pharmaceutical products to the value of Rs.42,712/-.  The parcel was proposed to be delivered to M/s. Doctors Pharma in Krishnagiri.  The complainant also paid Rs.130/- as freight charges to the opposite party and a valid receipt was issued by them.  However, till the date of filling of the complaint the parcel containing pharmaceutical products was not delivered to the consignee by the opposite party.  Though various communications and legal  notice was issued by the complainant the opposite party did not reply to the same.  Thus, the complaint was filed for the reliefs as mentioned above.

3.         The opposite party filed version  admitting the booking of the carton box  to be delivered to the consignee in Krishnagiri and the receipt of freight charges was also admitted.  However, they disputed that the value of the CARTON BOX did not amounts to Rs.42,712/-.  They also disputed that the complainant was not a consumer and hence, the complaint was not maintainable.   Thus, they prayed for the dismissal of the complaint. 

4.         The complainant filed proof affidavit and submitted documents marked as Ex.A1 to Ex.A4.  On the side of the opposite party proof affidavit was filed but no document was filed. 

5.         The learned District Commission after perusing the pleadings and documents filed by the parties partly allowed the complaint and ordered the opposite parties to pay a sum of Rs.42,712/- along with Rs.5,000/- towards compensation for mental agony and Rs.5,000/- towards litigation expenses.  Aggrieved by the said order, the opposite party had preferred the present appeal. 

6.         Point for consideration:-

Whether the opposite party has committed deficiency in service in not delivering the consignment / CARTON BOX booked by the complainant  and if so to what relief the complainant is entitled?

7.         Point:

Heard the Counsel for the appellant.  Inspite of sufficient notice though the respondent / complainant initially appeared through a Counsel later failed to submit any oral or written arguments.   The learned Counsel for the appellant  argued that the complainant is a commercial entity and not a consumer as per the Consumer Protection Act, 1986 and hence the complaint before this Forum is not maintainable.  Further, the Counsel submitted that the complainant failed to enquire immediately about the loss of goods and sent the legal notice only after a lapse of an year which shows that they are not so particular about the product sent through the appellant herein.  The Counsel also disputed that  the District Commission failed to note that the complainant in Ex.A2 invoice did not declare the value of the good sent through the courier.  Thus, the main crux of the argument is that the complainant is not a consumer and that the complaint is not maintainable before this Forum.   

8.         As per explanation provided Under Section 2 (1) (d)  of the Consumer Protection Act, 1986 which is as follows:

            ‘For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment’.

In the present case, the complainant had sent the CARTON BOX through the opposite party to be delivered to a person in Krishnagiri.  The appellant /opposite party though contended that the complainant is a commercial entity did not adduce any pleadings nor produce any documents to show that the complainant was a commercial entity and was carrying on commercial activity and earning huge profit out of the same.   Admittedly, the complainant seems to be the Proprietrix of a small shop namely; M/s. Sruti’s.  It does not seems that the complainant was engaged in a huge commercial transaction.  Thus, except bald and vague assertion that the complainant is a commercial entity no valid evidence was submitted by the opposite party to prove the same.  In such circumstances, we are of the view that the complainant very well comes within the explanation clause for the definition of the ‘Consumer’ as provided under section 2 (1)(d) of the Consumer Protection Act, 1986 and the argument of appellant that the complainant is not a consumer has to be brushed aside.

9.         With regard to the alleged deficiency in service on the part of the opposite party, it is amply evident that the complainant had sent the CARTON BOX through the opposite party as witnessed by the receipt Ex.A2 which also shows that Rs.130/- was paid as Freight charges.  The opposite party also never denied the booking of the CARTON BOX by the complainant.  While so, they had not pleaded or submitted any piece of evidence to show that the same was delivered to the address mentioned in the receipt.  In toto, the opposite party failed to rebut the case of the complainant that they had committed deficiency in service by not delivering the parcel.  In such circumstances, we are of the opinion that the non-delivery of the CARTON BOX booked by the complainant after receiving the freight charges for delivering the same clearly amounts to deficiency in service on their part.

10.       With regard to the compensation, the appellant disputes the amount awarded by the District Commission with respect to the value of goods /products lost.   Ex.A1, the invoice submitted by the complainant clearly shows that he had purchased pharmaceutical products worth Rs.42,712/- and in the legal notice dated:12.02.2014 Ex.A3 the complainant had clearly mentioned that the products sent was of the value Rs.42,712/-.  No reply notice was given by the opposite party refuting the amount as mentioned by the complainant.  In such circumstances, we are of the view that though the complainant had not mentioned the value of the goods in the receipt, Ex.A2 he had proved sufficiently that the goods sent in the CARTON BOX by courier through the opposite party was of the value of Rs.42,712/-.   Hence, the complainant is entitled to be indemnified for the loss sustained by him by the act of deficiency in service committed by the opposite party.  In such circumstances, the findings rendered by the District Commission holding that the opposite party had committed deficiency in service and that the opposite party should compensate the complainant by paying a sum of Rs.42,712/- towards the value of the goods along with compensation for mental agony and cost of the complaint is justified.  Thus, the point is answered in favour of the complainant and as against the opposite party.  The findings of the District Commission is confirmed.

In  the result, the appeal is dismissed confirming the order of the District Commission, Chennai (North) made in C.C. No.68/2014 dt.01.12.2016.   No cost.

 

S.M.LATHA MAHESWARI                                                                         R. SUBBIAH             

          MEMBER                                                                                          PRESIDENT