BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    21^st DAY OF MAY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s. 12 of the Consumer Protection Act of 1986 seeking direction against the Opposite Party (herein after called as OP) to deliver the consignment worth of Rs.1,88,500/- or consequently to pay a sum of Rs.3,00,000/- to the complainant and award interest @ 18% p.a and costs of the litigation.

2.      The brief averments made in the complaint are as follows:

That the complainant has placed the order for supply of dress materials worth of Rs.1,88,500/- from one M/s.Fashion Queen Private Limited., No.17, Jai Gopal Industrial Estate, Bhavani Shankar, X Road, Dadar (W), Mumbai – 400 028.  That as per the information received by complainant from M/s.Fashion Queen Private Limited., Mumbai, it has dispatched the goods from Mumbai worth of Rs.1,88,500/- by way of transport service from OP from Mumbai to Bengaluru.  However, to her shock and surprise the goods worth of Rs.1,88,500/- was not delivered to her for the best reasons particularly known to the OP.  Further complainant submits that, being a transporter it is bounden duty of OP to deliver the goods from Mumbai to Bengaluru within reasonable time and to collect the freight charges for the delivery of the goods.  However, the OP as on this day did not come forward either to the status of what happened to the goods or giving any proper reasons from withholding the goods from OP which is worth of Rs.1,88,500/- and the act of OP in not delivering the goods is nothing but deficiency of service and also amounts to unfair trade practice.  Hence complainant being highly aggrieved by the inaction from OP and for the mischief done by OP, OP need to pay a sum of Rs.3,00,000/- towards damages or compensation for the loss and mental agony and hardship suffered from OP.  Hence legal notice was issued on 14.05.2016.

Complainant further submits that, M/s.Fashion Queen Private Limited., entrusted a consignment of sarees goods to the OP for transportation from Mumbai to Bengaluru and OP did not inform the complainant about what happened to the goods inspite of repeated requests made by the complainant and in view of non-delivery of goods the OP committed deficiency of service and also unfair trade practice against the complainant.  That on 14.05.2016 legal notice was issued to OP.  The same was duly served upon on the OP and to the shock and surprise of the complainant, OP has given untenable reply to the notice.  Further complainant submits that, for the livelihood she placed the order of dress material and the contract for transportation of the said goods is for a consideration (freight charge) and mere fact that such consideration is not paid, would not make the service “free of charge” and OP cannot withhold the consignment for any reason and even the OP got no courtesy to inform the complainant about the status of the consignment until the complainant made the complaint with the Pulakeshinagar Police Station, Bangalore.  Further complainant submits that, in the police station the OP has given reply stating that, the material were burnt near Belgaum and in this regard it received legal notice from the complainant.  However, in the reply notice the OP went to the extent of denying all the averments stating there is no privity of the contract between the complainant with the OP.  The act of OP in not delivering the consignment and thereafter stating the same were burnt near Belgaum and subsequently stating there is no privity of the contract ignoring what OP stated in its reply in the police station and by taking frivolous reason the OP cannot escape from the cluches of law and the overall act of the OP is nothing but deficiency of service and unfair trade practice.  Hence this complaint.

     3. After issuance of notice, OP by way of filing its version denying the allegation made by the complainant.  Further submits that the complaint filed by the complainant is not maintainable since the complainant is not a ‘consumer’ as defined U/s.2 (1)(d) of the C.P Act.  Further submits that, complainant has no cause of action nor is any valid cause evident on perusal of the complaint against the OP.  Further submits that the complainant did not have any documents to show what is the consignment value, what amount of premium has paid to the transporter i.e., OP towards the transport the parcel.  There is no disclosure of vital information like Lorry belong to whom – whether said Lorry belongs to OP or not, destination details, booking details and premium paid receipts etc.  Further submits that, this is the classic example that, how to degrade the reputation of the OP in the transport business, that too it is an ISO 9001:2008 COMPANY.  The malafide intention of damaging the reputation and, on the part of complainant is manifestly forthcoming from the contents of the complaint.  That the complainant’s complaint is based on false, frivolous and incorrect grounds.  OP is not at all aware of the averments made in the complaint that, (a) complainant is in to the Sarees & Dress material business at No.8/1, Wheller Road, Opp. to Shankar Bhel House, Bangalore (b) the complainant had placed the order of dress materials worth of Rs.1,88,500/- from one M/s.Fashion Queen Private Limited, No.17, Jai Gopal Industrial Estate, Bhavani Shankar, X Road, Dadar (W), Mumbai-400 028 (c) the complainant had received the information from M/s.Fashion Queen Private Limited, No17, Jai Gopal Industrial Estate, Bhavani Shankar, X Road, Dadar (W), Mumbai-400 028 that had dispatched the goods from Mumbai worth of Rs.1,88,500/- through the transport service of the OP from Mumbai to Bangalore.  However, to complainant shock and surprise the goods worth of Rs.1,88,500/- was not delivered to the complainant for the best reasons particularly known to the OP.  Further submits that, “viewing in the any angle there is no privity of contract between the complainant and OP.  If it any substance in complainant’s claim against the OP, let the complainant to produce the ‘consignment copy’ issued only by the OP i.e., M/s.Manoj Cargo Carriers, No.81, Rammurthy Mansion, 1^st Main, 3^rd Cross, New Timber Yard Layout, Mysore Road, Bangalore.

   Further submits that, the OP is not at all aware of the averments made in the complaint, first of all, since there is no privity of contract between the complainant and the OP and as well as the OP i.e., M/s.Manoj Cargo Carriers never issued any Consignment Note in favour of the complainant at any point of time.  So, the OP is nothing to do with the complainant illegal fancy claim and pay a sum of Rs.1,88,500/- or Rs.3,00,000/- or claiming interest at the rate of 12% or 18% doesn’t arise for any consideration.  Hence the complaint filed by the complainant is totally vague, misleading the Forum by suppressing the material facts and to achieve unlawfully and hence liable to be dismissed.  Hence on these grounds and other grounds OP pray for dismissal of the complaint.   

4. To substantiate the allegations made in the complaint the complainant submitted her affidavit evidence reiterating the allegations made in the complaint.  One Sri.P.R Prasad, Partner of OP submitted evidence by way of affidavit.  Both parties have produced certain documents.  Both parties have submitted their written arguments.  We have also heard oral arguments.

5. The points that arise for our consideration are:

        6. Our answer to the above points are as under:

REASONS

7. Point No.1:- We have briefly stated the contents of the complaint as well as the version filed by OPs.  The complainant in para-7 of her complaint submits that for the livelihood she placed the order of dress material and the contract for transportation of the said goods is for a consideration (freight charge) hence she is a consumer.  When the complainant has availed the services for her other than the commercial purpose is a ‘consumer’  In this context we place the reliance on the decision of the Hon’ble Supreme Court reported in AIR   1995 SC 1428 in a case of Laxmi Engineering Works Vs. P.S.G Industrial Institute, wherein it has been specifically held;

1. Consumer Protection Act (68 of 1986), S.2(d) Explanation (added by Amendment Act 50 of 1993) – Scope – Explanation is clarificatory in nature and applies to all pending proceedings.

2. Consumer Protection Act (68 of 1986), S.2(d) – Consumer – Definition of – Question whether purpose for which person has bought goods is a “commercial purpose” within meaning of definition of “Consumer” – Is question of fact – To be decided in facts and circumstances of each case.

3.  Consumer Protection Act (68 of 1986), S.2(d) – Consumer – Person who buys goods and uses them himself, exclusively for purpose of earning his livelihood by means of self-employment – Is within definition of expression “Consumer”.

4. Consumer Protection Act (68 of 1986), S.2(d) – “Consumer” – Definition of – Proprietary concern established under employment guarantee scheme purchasing machine for carrying on business of manufacture of machine parts – Purchaser entering into agreement with company for supply of certain parts to be used by company in its product – Machinery supplied beyond stipulated time and was also defective - Complaint against by purchaser – Held, in facts and having regard to nature and character of machine, the machine purchased was not goods purchased by purchaser for use by himself exclusively for purpose of earning his livelihood by means of self employment, - Complaint not maintainable.

2) In the case of Patel Roadways Ltd. V. Birla Yamaha Ltd., (2000) S.C 1461, wherein it was held that consumer Forums have jurisdiction to entertain complaint against common carrier regarding loss or damage to goods entrusted to carrier for transportation.  Hence, we come to the conclusion that the complainant is consumer.  Accordingly answered the point No.1 in the Affirmative.

8. Point No.2:- The main contention taken by the OP is that, complainant is not a ‘consumer’ for which we already recorded our findings on point No.1 holding that complainant is a ‘consumer’.  With regard to the main contention taken by the OP are that, complainant did not have any documents to show what is the consignment value, what amount of premium has paid to the transporter i.e., OP towards transport the parcel.  There is no disclosure of vital information like Lorry belongs to whom – whether said Lorry belongs to OP or not, destination details, booking details and premium paid receipts.  According to the case of the complainant the said consigned articles being burnt near Belgaum.  We have meticulously gone through the contents of the complaint wherein complainant has not whispered a single word in respect of detailed receipt, booking form so also consignment charges if any.  Though the OP has taken specific contention in its reply to the notice issued by the complainant stating that none of the better particulars are furnished in respect of the privity of contract if any exists between the complainant and OP and also for the production of the consignment copy issued by the OP if any.  When the OP has specifically denied in its reply notice dated 23^rd May 2016, the complainant ought to have diligent in pleading the better particulars in the complaint.  When the OP has taken the plea in its version then the complainant has produced one xerox copy of the booking receipt said to have been issued by OP M/s.Fashion Queen Private Limited, Mumbai.  We placed reliance on the said receipts which is not readable in understandable and moreover the said alleged receipt is not in the proper form hence the contention taken by the OP that the said document is got up document and concocted is acceptable hence much reliance cannot be placed on it on the ground that mere production of the documents without proofs of it has no significance.  Hence complaint filed by the complainant is liable to be dismissed, devoid of any merits.  Accordingly we answered the point No.2 in the negative.

          10. Point No.3: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is dismissed devoid of any merits.  Looking to the circumstances of the case parties to bear their own costs.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 21^st day of May 2019)

MEMBER                                                            PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 27.01.2017.

Smt.Vandana Surana.

Documents produced by the complainant:

  Witnesses examined on behalf of the Opposite party dated   
  23.02.2017.

                Sri.P.R Prasad.

Documents produced by the Opposite party:

MEMBER                                                             PRESIDENT

Vln*