Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that the complainant firm through its proprietor entrusted garments i.e. 54 ladies kurtas total weighing 60 Kg, costs of Rs.2,27,840/- to Opposite Party at Moga for carrying the same to M/s.SHR LIFESTYLE PRV.LTD. WZ-114D, TODAPUR ROAD, NEW DELHI vide consignment Note .312368 dated 05.10.2018 and the said value was also declared at the time of handing over the consignment to Opposite Parties. In the normal course, the said consignment should have been reached to the consignee, but in the said case, the consignment has not reached to M/s.SHR LIFESTYLE PRV.LTD. WZ-114D, TODAPUR ROAD, NEW DELHI so far, but inspite thereof, the Opposite Parties did not give any satisfactory reply to the complainant and ultimately, failed to deliver the same to M/s.SHR LIFESTYLE PRV.LTD. WZ-114D, TODAPUR ROAD, NEW DELHI. On enquiry from the depot of Opposite Parties, it has come to the notice of complainant on 18.12.2020 that said consignment has been lost in transit and is not traceable. Thereafter, the complainant made so many requests to the Opposite Parties, but to no affect. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to pay a sum of Rs.2,27,840/- i.e. the cost of the goods alongwith interest 2 12% per annum and also to pay Rs.1,00,000/- on account of compensation for causing him mental tension and harassment besides Rs.5500/- as costs of litigation or any other relief to which this District Consumer Commission may deem fit be also granted .
2. Opposite Parties appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party and that the complaint is absolutely false and frivolous. It is submitted that the complainant has handed over a sealed packet in the name of Life Style Private Limited and at that time, the said packet was not opened and so , the Opposite Parties can not say how many clothes were there in the said packet. Actually, the said consignment was sent to Delhi by the Opposite Parties and it is not the duty of the Opposite Parties to send the same to the concerned party. Moreover, the Delhi/New Delhi sin 70 KMs and it is the duty of the concerned party to get/ collect the said consignment from the Opposite Parties/ transporters from their office/ godown. The Opposite Parties made requests to the complainant many a times that the said consignment is lying in the godown of the Opposite Parties at Delhi and nobody is coming to collect the same, but the complainant requested the Opposite Parties that the Opposite Parties should keep the same for sometime as there is a dispute between the complainant and said firm M/s.Life Style Private limited regarding due amount and due to good faith and being the complainant as old customer of the Opposite Parties, the Opposite Parties kept the said consignment in his godown. However at that time, the Opposite Parties told the complainant that the complainant has to pay rent etc, for the storage of the said consignment and at that time, the complainant assured that she will pay the rent to the Opposite Parties. It is clearly mentioned in the said builty that if the consignee does not take delivery within three months, the company reserves the right of putting the same in public auction for the difference or shortage. Even the Opposite Parties asked the said firm M/s.Life Style Private limited to collect the said consignment, but the said fir m told the Opposite Parties that there is dispute between them and the complainant regarding quality of the goods already sent to them and regarding the payment. However, the consignment is still lying in the godown of the Opposite Parties and the complainant can collect the same at any time from their godown after paying the rent etc. and hence, there is no deficiency in service on the part of the Opposite Parties. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C13 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Sh.Sanjay Kumar Ex.Ops1 alongwith copies of documents Ex.OP2 to Ex.OP8 and closed the evidence.
5. We have heard the ld.counsel for the parties and gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the complainant as well as ld.counsel for Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as written reply respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the complainant is that the Opposite Parties have not delivered the consignment at its destination and hence there is deficiency in service on the part of the Opposite Parties. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that in fact, said consignment was sent to Delhi by the Opposite Parties and it is not the duty of the Opposite Parties to send the same to the concerned party. Moreover, the Delhi/New Delhi sin 70 KMs and it is the duty of the concerned party to get/ collect the said consignment from the Opposite Parties/ transporters from their office/ godown. The Opposite Parties made requests to the complainant many a times that the said consignment is lying in the godown of the Opposite Parties at Delhi and nobody is coming to collect the same, but the complainant requested the Opposite Parties that the Opposite Parties should keep the same for sometime as there is a dispute between the complainant and said firm M/s.Life Style Private limited regarding due amount and due to good faith and being the complainant as old customer of the Opposite Parties, the Opposite Parties kept the said consignment in his godown. However at that time, the Opposite Parties told the complainant that the complainant has to pay rent etc, for the storage of the said consignment and at that time, the complainant assured that she will pay the rent to the Opposite Parties. It is clearly mentioned in the said builty that if the consignee does not take delivery within three months, the company reserves the right of putting the same in public auction for the difference or shortage. Even the Opposite Parties asked the said firm M/s.Life Style Private limited to collect the said consignment, but the said fir m told the Opposite Parties that there is dispute between them and the complainant regarding quality of the goods already sent to them and regarding the payment. However, the consignment is still lying in the godown of the Opposite Parties and the complainant can collect the same at any time from their godown after paying the rent etc. and hence, there is no deficiency in service on the part of the Opposite Parties. The main contention of the Opposite Parties is that it is not the duty of the Opposite Parties to deliver the consignment at its destination because the area of Delhi/ New Delhi is about 70 KMS which is clearly mentioned in the terms and conditions of the builty. Perusal of condition No.11 of terms and conditions of the builty dated 20.01.2021 shows that in the said condition, it is clearly mentioned that if the consignee does not take delivery within three months the company reserves the right of putting the same in public auction for the difference or shortage, company can recover from the sender. In the said terms and conditions (No.6) it is also mentioned that the delivery of goods will be taken within 7 days after arrival at the destination failing which demurrage @ Rs.5/- per quintal per day will be charged etc. and these terms and conditions have nowhere denied by the complainant by producing any iota of evidence and as such, the complainant is bound by the terms and conditions of the buility duly issued by the Opposite Parties to the complainant. In view of the Judgements passed by the Hon’ble National Commission in Prema & Ors. Vs. Life Insurance Corporation of India, IV (2006) CPJ 239 (NC) and in Kishore Chandrakant Rathod v. Managing Director, ICICI Prudential Life Insurance Co Ltd and Ors, (Revision Petition No. 3390 of 2013, NCDRC), the onus was on the Complainant to read the contents of these conditions. In the case titled as “Pramod Kumar vs. SBI Life Insurance Co.” decided by DCDRF, (North-West) New Delhi, on 18/02/2014 (Case No.-935/2012) it has been held as under :
“…We have heard arguments advanced at the bar and have perused the record. The applicant has admitted that he had received the policy bond from which he had learned that he has being issued with another policy rather than the one for which he had made an application. If it was so the applicant had the option to reject the policy bond received by him within the Free Look period of 15 days. Since the applicant didn’t exercised the said option he cannot now raise a grievance about the same. In view of the judgement cited above we hold that there is no deficiency of service on the part of the OP…”.
7. Further more, at the initial stage of this complaint, the Opposite Parties have moved an application before this District Consumer Commission to dismiss the complaint on the ground of maintainability because the present complaint has bee filed by M/s.Jai Sons through its proprietor having registration certificate of the firm and this fact itself proves that the complainant firm is running its business for commercial purpose and earning huge profits by employing member of employees, so the complainant firm do not fall under the definition of consumer and as such the present complaint is not maintainable. In the reply to this application, the complainant has nowhere denied this fact by filing any cogent and convincing any evidence. But said application was deferred for want of relevant evidence on record. Section 7 of the Consumer Protection Act, 2019 provides that (7) "consumer" means any person who— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or, but in the instant case, the complainant has nowhere denied that that complaint firm M/s.Jai Sons does its business of selling clothes for resale or for any commercial purpose. On this score, the complainant does not come within the ambit of consumer under the Act.
8. In view of the aforesaid facts and circumstances of the case, we find no deficiency in service on the part of the Opposite Party and hence, the instant complaint stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
9. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated:15.06.2022.
