Date of Filing : 08.01.2020
Date of Disposal: 26.08.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.J.JAYASHANKAR, B.A.,B.L., .....MEMEBR-I
THIRU.P.MURUGAN,B.Com., ICWA (Inter), B.L., ....MEMBER-II
CC. No.05/2020
THIS FRIDAY, THE 26th DAY OF AUGUST 2022
M/s.R.G.Bronze Manufacturing Company pvt., Ltd.,
Rep. by its Senior Manager K.R.Sampath,
No.DP-70, SIDCO Industrial Estate,
Ambattur Chennai. ……Complainant.
//Vs//
M/s.Oasis Express Cargo & Logistics Private Limited,
Rep. by its Authorised Officer,
No.22 7 23, First Floor, 3rd Cross,
Air View Colony, Konnena Agrahara,
H.A.L.post,
Bangalore – 560 017. ..........Opposite party.
Counsel for the complainant : M/s.J.Deliban, Advocate.
Counsel for the opposite party : M/s.T.D.K.Govindrajan, Advocate.
This complaint is coming before us on various dates and finally on 04.08.2022 in the presence of M/s.J.Deliban Advocate, counsel for the complainant and M/s.T.D.K.Govindrajan Advocate counsel for the opposite parties and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite party in not delivering the consignments as per the agreed terms and conditions along with a prayer to direct the opposite party to pay a sum of Rs.2,00,000/- for the deficiency in service and to pay a sum of Rs.5,00,000/- towards loss of reputation and mental agony with cost of the proceedings.
Summary of facts culminating into complaint:-
It is the case of the complainant that they are manufacturing products for various industries including Defence Sector of the Government throughout the country. They manufacture components for internal combustion Engine, Transmission, Compressor and various other appliances. The opposite party being a logistics service provider, approached the complainant in the month of February 2017 to provide them an opportunity to deliver the consignments to their customers vide letter dated 21.02.2017. The opposite party made an estimation of quotation towards shipment of consignments through Air, Train and Express with precise date of delivery to the customers along with other terms and conditions. The opposite party has portrayed themselves as one of the leading logistics service providers. The complainant extended their business relationship with the opposite party by accepting to transport the consignments to their customers at several destinations. However the consignments were not delivered as per the agreed terms and conditions vide letter dated 21.02.2017 by the opposite party to the customers. They it was contended that the opposite party had committed clear breach of obligations made by them vide letter dated 27.02.2017 in delivering the consignments within the stipulated time which caused huge loss to the complainant as well as customers of the complainant. The complainant was penalised by their customers for the deliberate negligence of the opposite party. It was submitted by the complainant that neither any of the consignments was delivered within the stipulated time and for instance vide invoice No.6996 dated 17.09.2018 covered by the docket No.811371 dated 17.09.2018 of the opposite party, the complainant handed over the consignments for delivery to the consignee namely M/s. Bajaj Auto Limited Aurangabad which was delivered by the opposite party only on 22.09.2018, approximately six days i.e.2 days over and above the committed days and invoice No.12317 dated 21.01.2019 covered by docket No.812433 dated 21.01.2019 delivered to the same consignee on 07.02.2019 which was 14 days over and above the committed days. The opposite party failed and neglected to deliver the consignments within the stipulated time as per their commitment of 4 days from the date of collecting the consignment from the complainant and when clarification was sought for, from the opposite party they admitted that due to misconception it was not delivered to the consignee/customers of the complainant and therefore the complainant has decided to restrain from transporting any consignments through the opposite party but the opposite party was repeatedly insisting the complainant to release the outstanding payment with immediate effect. In the conciliation between the M/s. Bajaj Auto Limited pertaining to the penalty levied by the customer, the opposite party insisting for the outstanding payment though the opposite party was also liable for the short supply of the consignment. On 14.06.2019 the complainant informed the opposite party that they are impelled to deduct the entire amount which is levied on the complainant as penalty by their consignee from the bills of payment submitted by the opposite party for short delivery of consignments. The opposite party has stated that any shipments lying above 20 days in their warehouse would invite a charge of 0.05% of value on the invoice but they have not claimed the same. Further the complainant submitted that the shipments lying in the warehouse above 20 days was due to mistake committed by the opposite party and the present claim of the opposite party is only an afterthought consequent to the communication of the complainant stating that the penalty levied on them would be deducted from the bills of payment to the opposite party. However the complainant further states that they reiterated their claim vide email communication dated 11.06.2019 that the entire amount levied as penalty to the complainant by the consignee will be deducted from the bills of payment submitted by the opposite party, the said deduction is nothing but the penalty levied on the complainant by his customer for the wilful negligence of the opposite party which has been admitted by them. However it is submitted that as per the bills submitted by the opposite party till date for the services provided by them the complainant has to pay a sum Rs.5,17,544/- which shall be deducted from the penalty amount of Rs.7,19,887/- levied by the customer on the complainant and the remaining sum of Rs.2,02,343/- has to be paid by the opposite party to the complainant. On receipt of the email dated 11.06.2019 the opposite party expressed their willingness to settle the issue amicably and requested the complainant to come in person and accordingly on 02.07.2019 Mr.Francis Noronha, Managing Director of the opposite party along with Area Manager met the complainant in person and during the meeting the complainant with all documentary evidences highlighted the error committed by the opposite party and the said Mr.Francis Noronha, Managing Director admitted the fact of short delivery of consignments and assured that he will strictly comply the issue and no such short delivery would occurred in the future. The complainant concurring with the assurance made by him and informed him that if the penalty levied by their customer was waived of, they will continue their business with the opposite party. However without sorting out the issue, the opposite party had been insisting the complainant to make the full payment towards the bills submitted by them. Therefore, left with no other alternative remedy, the complainant was constrained to send a legal notice dated 22.07.2019 for recovery of balance amount of Rs.2,02,343/- towards the penalty levied by the customer of the complainant, damages of Rs.25,00,000/- for the loss of reputation and Rs.5,00,000/- for the resultant mental agony suffered by them due to the short supply and delay in delivering the consignment to their customers and Rs.2,00,000/- for the deficiency in service rendered by the opposite party. On receipt of the legal notice, opposite party lodged a police complaint. The complainant appeared and explained the entire scenario that the disputes between the parties are purely of civil in nature and also informed that the opposite party had filed the complaint with a malafide intention to spoil the reputation of the complainant. As the disputes are of civil in nature the police directed the opposite party to work out the remedy before the competent Civil Court. The complainant states that the opposite party vide a reply notice dated 31.07.2019 denied the short supply of consignments to the customer of the complainant and levelled false allegations against the complainant. Therefore on 22.08.2019 complainant issued a rejoinder to the reply notice dated 31.07.2019 and reiterated their claim made in the legal notice dated 22.07.2019. The complainant states that as the opposite party could not succeed in threatening the complainant by lodging a criminal complaint, caused a legal notice dated 08.08.2019 to the complainant claiming a sum of Rs.7,21,627/- inclusive of the interest. The complainant states that on 23.08.2019 the complainant replied aptly to the notice dated 08.08.2019 sent by opposite party and denied all the allegations levelled against them and reiterated their claim made in the legal notice dated 22.07.2019 sent to the opposite party. The complainant further states that they reserve their right to file appropriate civil suit before the competent court having jurisdiction towards their claim of Rs.27,02,043/- that is Rs.2,02,343/- the balance amount arising out of the penalty levied on the complainant by the consignee and Rs.25,00,000/- towards the damages for loss of their reputation. Thus alleging deficiency in service in providing inadequate service by the opposite party as per section 2(1) (g) of the Consumer protection Act, 1986 the present complaint was filed by the complainant for the following reliefs;
To direct the opposite party to pay a sum of Rs.2,00,000/- for deficiency in service;
To direct the opposite party to pay a sum of Rs.5,00,000/- towards loss of reputation and mental agony caused to the complainant along with cost of the proceedings.
Defence of the opposite party:
The opposite party filed version stating that the complaint is not maintainable either in law or on facts but they admitted the letter of proposal dated 21.02.2017 sent to the complainant. It is submitted that they transported the complainant’s consignment to their customers without any remarks to utmost satisfaction from Feb 2017 to till the June 2019. It was submitted that all the consignments was transported by the opposite party were delivered as and when the same was demanded to be supplied by the consignee/ complainant’s customer M/s Bajaj Auto Limited and after that the opposite party inform about the reaching of the consignment to the destination. The opposite party submitted that the materials were kept in the warehouse under the request of complainant’s customer, as materials were taken delivery by the consignee/complainant’s customer on requirement basis and further submits that a mail or requirement for the shipments will be sent or telephonic cal by consignee/complainant’s customer M/s Bajaj Auto Limited and also by the complainant, so that the material was in-warded based on daily MIS and consignee/complainant’s customer M/s. Bajaj Auto Limited and the same was communicated to the complainant on a daily basis with a copy to consignee/complainant’s customer M/s. Bajaj Auto Limited and hence the opposite party denies that there was any negligence on their part and that the complainant was raising the allegations for the first time nearly after lapse of two years, only to avoid the payment of outstanding amount due on the bills to the opposite party for the transporting the consignment and as a counter blast for the claiming of the outstanding payment of bills. It was also submitted that all the consignments were delivered against their docket and none of the consignment was lying with them and only a part of the consignment was not delivered which was kept in the ware house due to oversight and the same was promptly informed to the complainant. On request to generate new invoice the same would be delivered and all the consignments were thus cleared. On 25.10.2018 it was submitted that the opposite party was in no way connected or bound on the contract entered into between the complainant and their client M/s. Bajaj Auto Limited and the opposite party denies that they received any communications from the complainant till 18th June 2019 even after the complainant stopped the business with the opposite party suddenly in the month of March 2019 without any communication to that effect and also denied that the complainant informed the opposite party over the telephonic conversation that in the event of deduction any made by the consignee/customer of the complainant based on the said debit note, the same shall be deducted in the bills of payment to be submitted by the opposite party. The opposite party submits that the payments due on the bills for the service rendered by the opposite party pertain to the alleged transactions were cleared by the complainant long back without any objection, complaints or remarks of the alleged incident or with reserving their right to claim the same for any debit note and also there was no such agreement for the same and clause 4 of the terms and conditions entered into between the opposite party and the complainant clearly specify that “ in case of shortage or damage M/s. Oasis will issue a certificate to customer for claim the insurance (COF)” and hence the claiming the debit notes of the consignee/customer from the opposite party will not at all arise. The opposite party further submits that the allegations were made only to defeat the legal entitlement of the opposite party on the outstanding payment which is due. The opposite party submits that the complainant stopped doing business with the opposite party in the month of March 2019 and when they started demanding the outstanding payment due on the bills of payment to the tune of Rs.6,72,585/- then, the complainant told that they are busy on audit and they will revert back and also said that the business was dull due to dip in the automobile business and did not made any reference about the alleged debit note of the consignee. The opposite party submitted that when they persisted for the payment of the outstanding, the complainant said that there was debit bill from their customer M/s. Bajaj Auto Limited and they will repay the due after sorting out the issue with their customer but never demanded the opposite party to adjust the claim of the debit note of their customer from the outstanding payment of bills or said that the debit note was issued only due to the negligence or deficiency of service in short supply of the materials by the opposite party. The opposite party submits that for the first time the complainant demanded that the claim made on the debit note raised by their customer will be adjusted on the outstanding payment of the bills due to the opposite party through the legal notice dated 22.07.2019 and not at an earlier point of time or before the demand for the outstanding bills were made, which they are not legally entitled as the opposite party has nothing to do with the alleged debit note/penalty levied by the customer of the complainant and they suitably replied the allegations made in the notice by way of a reply notice dated 31.07.2019 denying each and every allegations made by the complainant. Thus contending that there is no deficiency in service on the part of the opposite party they sought for the dismissal of the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A13 were marked. On the side of opposite party proof affidavit was filed and documents Ex.B1 to Ex.B20 were marked.
Point for consideration:-
Whether the complaint as filed could be tried in a summary manner before this Consumer Commission?
Whether the deficiency in service as alleged by the complainant against the opposite party in not delivering the consignments as per the agreed terms and conditions vide letter dated 21.02.2017 causing monetary loss to the complainant has been successfully proved by him and if so to what reliefs the complainant is entitled?
Point:
On the side of complainant the following documents were filed in support of the complaint allegations;
Price /Quotation letter issued by the opposite party to the complainant dated 21.02.2017 was marked as Ex.A1;
Debit Note raised by the customer of the complainant dated 13.06.2018 was marked as Ex.A2;
Invoice of the complainant dated 17.09.2018 was marked as Ex.A3;
Email communication of the opposite party admitting the short supply dated 24.09.2018 was marked as Ex.A4;
Invoices and other relating documents of the complainant pertaining to the consignments handed over to the opposite party for delivery to their customers dated from Oct 2018 to Jan’ 2019 was marked as Ex.A5
Penalty levied on the complainant by their customers dated 25.06.2019 was marked as Ex.A6;
Legal notice issued by the complainant to the opposite party dated 22.07.2019 was marked as Ex.A7;
Letter given by the complainant before the Police Authorities dated 23.07.2019 was marked as Ex.A8;
Reply notice of the opposite party dated 31.07.2019 was marked as Ex.A9;
Legal notice sent by the opposite party to the complainant dated 08.08.2019 was marked as Ex.A10;
Rejoinder sent by the opposite party dated 22.08.2019 was marked as Ex.A11;
Reply sent by the complainant to the notice sent by the opposite party dated 2308.2019 was marked as Ex.A12;
Acknowledgement card for proof of service was marked as Ex.A13;
On the side of opposite party the following documents were filed in support of their defence;
Main communication regarding stocks along with the list of stocks by opposite party to the complainant and consignee on arrival of the consignment was marked as Ex.B1;
Invoice No.6993 issued by complainant dated 17.09.2018 was marked as Ex.B2;
Docket No.811371 issued by opposite party for the invoice No.6993 dated 17.09.2018 was marked as Ex.B3;
Bill for docket No.811371/invoice No.6993 along with money receipt dated 09.10.2018 was marked as Ex.B4;
Mail communication by the opposite party to the complainant and consignee from 24.09.2018 to 29.09.2018 was marked as Ex.B5;
Docket No.811570 issued by opposite party for the invoice No.7311 dated 25.09.2018 was marked as Ex.B6;
Bill for docket No.811570/invoice No.7311 along with money receipt dated 10.11.2018 was marked as Ex.B7;
Invoice No.12686 issued by complainant dated 28.03.2018 was marked as Ex.B8;
Docket No.808576 issued by opposite party for the invoice No.12686 dated 29.03.2018 was marked as Ex.B9;
Bill for docket No.808576/invoice No.12686 along with money receipt dated05.05.2018 was marked as Ex.B10;
Invoice No.12901 issued by complainant dated 31.03.2018 was marked as Ex.11;
Docket No.808593 issued by opposite party for the invoice No.12901 dated 31.03.2018 was marked as Ex.B12;
Bill for docket No.808593/invoice No.12901 along with money receipt dated 22.06.2018 was marked as Ex.B13;
Invoice No.3354 issued by complainant dated 31.07.2017 was marked as Ex.14;
Docket No.806572 issued by opposite party for the invoice No.3354 dated 31.07.2017 was marked as Ex.B15;
Bill for docket No.806572/invoice No.3354 along with money receipt dated 22.06.2018 was marked as Ex.B16;
Invoice No.12317 issued by complainant dated 21.01.2019 was marked as Ex.17;
Docket No.802433 issued by opposite party for the invoice No.12317 dated 31.07.2017 was marked as Ex.B18;
Bill No.80013733 issued by the opposite party was marked as Ex.A19;
Mail communications between opposite party, complainant and consignee regarding the box containing materials retained by the Security gate of Bajaj Auto Consignee from 06.04.2018 to 15.07.2019 was marked as Ex.A20;
We perused the written arguments filed by the both parties and also the evidences submitted by them. To avoid repetition of facts alleged by both parties we are discussing only the essential facts that are necessary to determine the real issues. As the complaint and written version averments are complicated and elaborate in nature, we dwell to decide preliminarily as to whether the complaint could be tried summarily by this commission. The sum and substance of the written arguments filed by the complainant is that the opposite party had failed to supply the consignments to the customers of the complainant in time and thus had committed deficiency in service. It is contented that vide e-mail communication dated 24.09.2018 they have admitted the short supply of consignments which was marked as Ex.A3. Further penalty was levied by the consignee M/s. Bajaj Auto Limited vide invoices No.MH1180012850, Invoice No.DS12901 dated 31.03.2018, invoice No.DS06993 dated 17.09.2018 and invoice No.DS 12317 dated 21.01.2019. The consignee had imposed a penalty to the tune of Rs.5,28,707/- for short supply made by the opposite party.
On the other hand by way of the written arguments the opposite party has submitted that there was no short supply of the consignment by them and that the present complaint was filed only to avoid the suit for recovery of money filed by the complainant against the opposite party.
On appreciation of the pleadings and documents provided by both the parties this commission is of the view that the present complaint is liable to be dismissed on the ground that the dispute raised in the complaint could not be adjudicated before this commission in a summary manner. It is seen that the business transaction between the parties is based upon a contract under specific terms and conditions. Further the debit notes and invoices were produced by the complainant shows that the issue involves and requires elaborate evidence. Further the levy of penalty as alleged by the complainant by their consignee could be proved only by making them as a party to the proceedings and also requires necessary pleadings and evidence to prove the same. It is also to be noted that the opposite party had already filed a suit for recovery of money and there is no impediment for the complainant to claim compensation as alleged in the present complaint by way of damages in that suit itself. Therefore when the issue involved in the complaint is of contractual nature claiming damages from the opposite party for their non performance in accordance to the terms and conditions of the contract the same cannot be adjudicated by the Consumer Commission as the dispute requires elaborate evidence by way of trial procedure and thus a competent Civil Court would be the proper Forum to adjudicate the said issue. Thus we answer the point in negative against the complainant.
Point No.2:
As we have held that the complaint could not be adjudicated in a Summary manner before this Commission, we restrain ourselves from discussing the merits of the complaint to determine whether the opposite party has committed any deficiency in service or not. Thus this point answered accordingly.
In the result the complaint is dismissed. No order to cost.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 26th day of August 2022.
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MEMBER-II MEMBER -I PRESIDENT
List of document filed by the complainant:-
Ex.A1 21.02.2017 Price /Quotation letter issued by the opposite party to the complainant Xerox
Ex.A2 13.06.2018 Debit Note raised by the customer of the complainant Xerox
Ex.A3 17.09.2018 Invoice of the complainant. Xerox
Ex.A4 24.09.2018 Email communication of the opposite party admitting the short supply. Xerox
Ex.A5 Oct‘2018 to
Jan‘2019 Invoices and other relating documents of the complainant pertaining to the consignments handed over to the opposite party for delivery to their customers dated from Oct 2018 to Jan’ 2019 Xerox
Ex.A6 25.06.2019 Penalty levied on the complainant by their customers. Xerox
Ex.A7 22.07.2019 Legal notice issued by the complainant to the opposite party Xerox
Ex.A8 23.07.2019 Letter given by the complainant before the Police Authorities. Xerox
Ex.A9 31.07.2019 Reply notice of the opposite party. Xerox
Ex.A10 08.08.2019 Legal notice sent by the opposite party to the complainant. Xerox
Ex.A11 22.08.2019 Rejoinder sent by the opposite party. Xerox
Ex.A12 23.08.2019 Reply sent by the complainant to the notice sent by the opposite party. Xerox
Ex.A13 24.08.2019 Acknowledgement card for proof of service Xerox
Document filed by the opposite party:
Ex.B1 Main communication regarding stocks along with the list of stocks by opposite party to the complainant and consignee on arrival of the consignment Xerox
Ex.B2 17.09.2018 Invoice No.6993 issued by complainant Xerox
Ex.B3 17.09.2019 Docket No.811371 issued by opposite party for the invoice No.6993 Xerox
Ex.B4 09.10.2018 Bill for docket No.811371/invoice No.6993 along with money receipt Xerox
Ex.B5 24.09.2018 to
29.09.2018 Mail communication by the opposite party to the complainant and consignee Xerox
Ex.B6 25.09.2018 Docket No.811570 issued by opposite party for the invoice No.7311 Xerox
Ex.B7 10.11.2018 Bill for docket No.811570/invoice No.7311 along with money receipt Xerox
Ex.B8 28.03.2018 Invoice No.12686 issued by complainant Xerox
Ex.B9 29.03.2018 Docket No.808576 issued by opposite party for the invoice No.12686 Xerox
Ex.B10 05.05.2018 Bill for docket No.808576/invoice No.12686 along with money receipt Xerox
Ex.B11 31.03.2018 Invoice No.12901 issued by complainant Xerox
Ex.B12 31.03.2018 Docket No.808593 issued by opposite party for the invoice No.12901 Xerox
Ex.B13 22.06.2018 Bill for docket No.808593/invoice No.12901 along with money receipt Xerox
Ex.B14 31.07.2017 Invoice No.3354 issued by complainant Xerox
Ex.B15 31.07.2017 Docket No.806572 issued by opposite party for the invoice No.3354 Xerox
Ex.B16 31.08.2017 Bill for docket No.806572/invoice No.3354 along with money receipt Xerox
Ex.B17 21.01.2019 Invoice No.12317 issued by complainant Xerox
Ex.B18 22.01.2019 Docket No.802433 issued by opposite party for the invoice No.12317 Xerox
Ex.B18 08.05.2019 Bill No.80013733 issued by the opposite party Xerox
Ex.B20 06.04.2018 to
15.07.2019 Mail communications between opposite party, complainant and consignee regarding the box containing materials retained by the Security gate of Bajaj Auto Consignee Xerox
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MEMBER-II MEMBER-I PRESIDENT
