CC No.877.2015

Filed on 07.05.2015

Disposed on.18.12.2017

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 18^th DAY OF DECMBER 2017

CONSUMER COMPLAINT NO.877/2015

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

              Smt.L.MAMATHA, B.A., (Law), LL.B.

                     MEMBER

                                         V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 07.05.2015 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Party to pay the said sum of Rs.4,92,018/- the value of the goods lost by the Opposite Party, along with interest at 24% p.a. from 27.10.2014 till the date of payment as compensation and other reliefs.
2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant had booked consignment of Two Boxes consisting of 52 Kits of Apple I Phones, that one box contained 28 kits and another box contained 24 kits, each Kits consist of One Apple I Phone, 1 Mount, 1 Charger, 1 Key Chain and 1 Pen, valued at Rs.20,500/-.  The total value of the consignment is valued at Rs.10,66,040/-.  The Complainant had booked the consignment with the Opposite Party under consignment bearing No.D19850416, dt.27.10.2014 from the K.P.West Collection Centre, which was to be delivered M/s Uber India Systems Private Limited., Iples Office, 12^th Floor, Tower-I, India Bulls Finance Center Senapati Bapat Marg, Lower Parel, Mumbai-400013, Maharashatra. The Complainant when contacted M/s Uber India Systems Private Limited regarding whether they received the consignment sent by the Complainant, it was informed that they had received only One box containing 28 kits and the other one containing 24 kits was not received nor had been delivered to the said address by the Opposite Party.   The Complainant had immediately wrote a letter dt.08.11.2014 to the Opposite Party regarding non-delivery of the said Box containing 24 Kits, or which the Opposite Party wrote a letter dt.20.11.2014 which they have confirmed that the said box has not been delivered to M/s Uber India Systems Private Limited.  That till today the said box valued at Rs.4,92,018/-.  The value of the box which is not delivered by the Opposite Party. The aforesaid transaction is commercial in nature and the Opposite Party is liable to pay Rs.4,92,018/-, along with interest at 24% p.a. from the date of consignment i.e., from 27.10.2014, till the date of payment.  As per the Legal Notice dt.05.03.2015, the Opposite Party was called upon to pay the aforesaid value of the goods to the Complainant.  The said notice is received by the Opposite Party on 07.03.2015, as per the confirmation issued by the Postal Department.  The Opposite Party has failed to comply with the demands of the Complainant.  That the Complainant has no other alternative but to approach this Hon’ble Forum.    Hence, this complaint.     

3. In response to the notice, the Opposite Party put their appearance through their counsel and filed their version.  In the version pleaded that the complaint is frivolous and is not maintainable either in law or on facts.  The Complainant will not come under the definition of ‘Consumer’ under the Consumer Protection Act, 1986.  The Complainant is a Partnership Firm represented by its Partner, and is engaged into the business of selling the products to its customers in and outside Bangalore.  The services engaged by the Complainant is for the commercial purpose.  Under these circumstances, the Complainant is not come under the purview of definition of Consumer as defined under Sec-2(d) of the Consumer Protection Act, 1986.  Hence, the complaint filed by the Complainant has to be rejected.  The Complainant had sent the consignment bearing No.D19850416 dt.27.10.2014 through Opposite Party to be delivered to consignee i.e., M/s Uber India Systems Private Limited, Iples Office, 12^th Floor, Tower-I, India Bulls Finance Center Senapati Bapat Marg, Lower Parel, Mumbai-400013, Maharashtra. But the Complainant had not disclosed the content and value of the consignment at the time of booking and further not furnished pro-forma Invoice in respect of value of the consignment.  In the absence of any declaration made by the Complainant to the Opposite Party in respect of the content and value of the consignment, it cannot be presumed that the Complainant had sent the alleged two Boxes consisting of 52 kits of Apple I Phones, that one ox contained 28 Kits and another box contained 24 Kits, through parcel to the consignee. Under these circumstances, the Complainant is put to strict proof of the allegation that he had sent the alleged two Boxes consisting of 52 Kits of Apple I phones, that one box contained 28 Kits and another box contained 24 Kits through Opposite Party on 27.10.2014.  No liability would arise against this Opposite Party in case of non-disclosure by the Complainant in respect of content of the consignment and its value with supported documents at the time of booking.  In the absence of any such declaration no liability would not arise against Opposite Party for the loss or damage caused to the consignments.  In the instant case the Complainant had not disclosed the content of the consignment at the time of booking, though he was obligated to disclose the same.  In absence of such declaration it cannot be presumed that the Complainant had sent the alleged Two Boxes consisting of 52 Kits of Apple I phones, that one box contained 28 Kits and another box contained 24 Kits, through Courier.  The Complainant has taken hectic effort to deliver the consignment to consignee. But due to unavoidable circumstances beyond the control of Opposite Party the consignment was lost with other consignments during transit and it was not delivered to the consignee.  And the Opposite Party has also lodged the Police complaint after the loss of consignment during transit.  It is denied by the Opposite Party that the worth of the value of the box is Rs.4,92,018/-.  Moreover the Complainant failed to obtain Risk coverage policy by paying an amount of 2% on the declared value of the consignment.  Since the Complainant had not declared the value of the consignment and further failed to obtain the Risk coverage policy.  So, the Opposite Party is not liable to compensate the Complainant to the extent of damage and further to the extent of worth of the consignment.  Under these circumstances, the Opposite Party’s liability is restricted to Rs.100/- only as per the terms and conditions as enumerated in the consignment note.  The Opposite Party is not liable to pay the sum of Rs.4,92,018/- being the value of consignment and interest @ 24% p.a. as compensation to the Complainant.  Hence prays to dismiss the complaint.

4. The Complainant represented, Sri.Sampath Kumar filed his affidavit by way of evidence and closed his side.  The Opposite Party, Sri.S.Sujith filed his affidavit by way of evidence.  Heard the arguments.

 5.     The points that arise for consideration are:-

1. Whether the Complainant is a ‘Consumer’ as defined Under Section 2(d) of Consumer Protection Act, 1986 ?
2. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
3. If so, to what relief the Complainant is entitled ?

6.     Our findings on the above points are:-

                POINT (1):-  Accordingly

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

7. POINT NO.1:- The learned Counsel for the Opposite Party argued that the Complainant is not a ‘Consumer’ as defined under Section 2(d) of the Act.  The very cause title of the complaint shows that the Complainant is a Partnership Firm represented by its partner and is engaged into the business of selling the products to its customers.   The services engaged by the Complainant is for the commercial purposes.  Under these circumstances, the Complainant is not comes under the definition of Consumer.  On this ground itself, the complaint is liable to be dismissed. 
8. The learned Counsel for the Complainant argued that the Complainant is a ‘Consumer’ as defined under Section 2(d) of the Act.  Nodoubt the Complainant is a Partnership Firm represented by its Partner and ‘Consumer’ means any person who avail any service for consideration. The Person as defined Under Section-2m includes a Firm whether registered or not, thereby the Complainant is a ‘Consumer’ as defined under Section 2(d) of the Act.
9. With this argument and on perusal of record, nodoubt this complaint is filed by M/s T.S.S.Ventrues, A Partnership Firm represented by its Partner.  But that itself is not proper to accept the argument put forth by the learned Counsel for the Opposite Party that the Complainant is not a ‘Consumer.  As rightly argued by the learned Counsel for the Complainant, the ‘Consumer’ means any person who heirs the service in the instance case the Complainant who avail the service of the Opposite Party i.e., for delivery of the consignment to the consignee and person means Firm so even Partnership Firm can be a person thereby the Complainant is a ‘Consumer’ as defined under Section 2(d) of the Act, therefore it is not proper to accept the argument of the learned Counsel for the Opposite Party.  So also it is not proper to accept the argument of learned Counsel for the Opposite Party.  The Complainant was availed the service of the Opposite Party for the commercial purpose.  On the other hand, the Complainant is a ‘Consumer’ as defined under Section 2(d) of the Act. Hence, we answer point No.1 in Accordingly. 
10. POINT NO.2:-  By looking into the allegations made in the complaint as well as the version filed by the Opposite Party, it is clear that the Complainant had booked consignment with Opposite Party bearing No.D19850416, dt.27.10.2014 from the K.P.West Collection Centre, which was to be delivered M/s Uber India Systems Private Limited., Iples Office, 12^th Floor, Tower-I, India Bulls Finance Center Senapati Bapat Marg, Lower Parel, Mumbai-400013, Maharashatra.    The consignment of two boxes consisting of 52 Kits of Apple I Phones, that one box contained 28 Kits and another box contained 24 Kits.  Further to substantiate this, Sri.Sampath Kumar, Partner of Complainant, in his sworn testimony, he has reiterated the same and produced the Invoice No.1016 dt.27.10.2014.  As looking into this Invoice, it is very clear that the Complainant sold 52 Uber Kits I Phone to Uber India Systems Private Limited, IPlex Office, 12^th Floor, Tower 1, India Bulls Finance Center, Senapati Bapat Marg, Lower Parel-400013, Mumbai for total consideration of Rs.10,66,040/- and also produced the Booking Slip issued by the Opposite Party.   By looking into this Booking Slip, it is very clear that the Complainant had booked consignment through Opposite Party to the consignee i.e., M/s Uber India Systems Private Limited, the value of the goods is mentioned as Rs.10,66,040/- and this booking slip is dt.27.10.2014, the consignment No.D19850416.  This evidence of the Complainant has not been disputed or challenged by the Opposite Party, thereby, it is proper to accept the contention of the Complainant that the Complainant had booked consignment containing 52 Kits of I Phones to be delivered to M/s Uber India Systems Private Limited IPlex Office, 12^th Floor, Tower 1, India Bulls Finance Center, Senapati Bapat Marg, Lower Parel-400013, Mumbai for total consideration of Rs.10,66,040/-.

11. In the version, the Opposite Party had taken a defence that the Complainant had not disclosed the content and value of the consignment, but this defence is falsifies.  As looking into the evidence placed by the Complainant i.e., booking slip issued by the Opposite Party it is dt.27.10.2014.  In the booking slip, it is clearly mentioned that the value of the consignment is of Rs.10,66,040/- and further the Complainant also produced the Invoice, it clearly shows that the value of the consignment is of Rs.10,66,040/-.  On the other hand, in support of this defence, the Opposite Party have not placed any supporting evidence, except the interested version of Sri.S.Sujith, Senior Manager of Opposite Party.  Therefore, it is not proper to accept the defence taken by the Opposite Party. 
12. Further as looking into the allegations made in the complaint and also the version filed by the Opposite Party, it is very clear that due to unavoidable circumstances beyond the control of Opposite Party the consignment was lost with other consignments.  Further the Complainant in order to substantiate this fact that out of the consignment booking two Boxes consisting of 52 Kits of Apple I Phones, that one box contained 28 Kits was delivered to the consignee and once box contained 24 Kits was not delivered on the value of the said Kits is Rs.4,92,018/-.  The Complainant reported the same and produced the Letter addressed by the Complainant to the Opposite Party.  In that letter, he has clearly mentioned that the Complainant had booked 2 Parcel, out of 2 one parcel was missed and only one parcel was handed over to the consignee.  The consignee has not received 24 units valued Rs.4,92,018/-.  To this letter, the Opposite Party had issued a reply on 20^th of November 2014, the consignment was packed in two boxes, and same was destined to Mumbai, is been delivered with on one box short.  Even in this reply, they have clearly admitted that they have not delivered to Boxes of Kits and lost one box contained 24 Kits and the value of the said Kits is of Rs.4,92,018/-.  Even this evidence has not been challenged by the Opposite Party.  Therefore, it is proper to accept the contention of the Complainant that the Opposite Party had failed to delivered the consignment booked by the Complainant i.e., 52 Kits in two Boxes out of 2 boxes, one box contained 24 I Phone pieces was not delivered to the consignee the value of the said missing consignment is of Rs.4,92,018/-, thereby the Complainant is entitled for refund of the value of the consignment goods which was lost by the Opposite Party while in transit and also the Complainant is entitled for compensation for causing mental agony and lost.  Hence, this point is held in the Affirmative. 

13. POINT NO.3:- In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is allowed holding that there is deficiency of service by the Opposite Party.

The Opposite Party is to pay sum of Rs.4,92,018/- to the Complainant being the value of the goods lost by the Opposite Party. 

The Opposite Party is further directed to pay sum of Rs.50,000/- for causing mental agony. 

The Opposite Party is also liable to pay a sum of Rs.5,000/- as cost.

The Opposite Party is directed to pay the aforesaid amount within 30 days from the date of receipt of this order.  Failing which the aforesaid amount will carry interest at 18% p.a. from the date of order till the date of payment.

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 18^th day of December 2017)

        MEMBER                                             PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Sri.Sampath Kumar, Partner of Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1. Office copy of the Legal Notice dt.05.03.2015
2. Postal Acknowledgement dt.06.03.2015
3. Delivery Report of Legal Notice.
4. Letter written by Complainant to the Opposite Party along with Invoice
5. Reply Letter dt.20.11.2014 by Opposite Party.
6. Letter dt.13.12.2014 to Inspector of Police
7. Acknowledgement by Police
8. Letter dt.30.12.2014 by Opposite Party.
9. Invoice copy dt.27.10.2014 issued by TSS Business Ventures
10. Copy of the Booking Slip dt.27.10.2014 issued by DTDC
11. Office copy of the letter dt.08.11.2014, issued by the TSS Ventures
12. Copy of the Letter dt.20.11.2014, issued by the DTDC.
13. Copy of the Letter dt.30.12.2014, issued by the DTDC.
14. Copy of the computer receipt for having received the Legal Notice.

Witness examined on behalf of the Opposite Parties:

1. Sri.S.Sujith, Senior Manager of the Opposite Party by way of affidavit.

List of documents filed by the Opposite Party:

                                      -NIL-

       MEMBER                                                                      PRESIDENT