Haryana

Ambala

CC/266/2018

Akshay jain - Complainant(s)

Versus

M/s TCI Freight - Opp.Party(s)

06 Sep 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.: 266 of 2018.

                                                          Date of Institution         :   20.08.2018.

                                                          Date of decision   :   06.09.2019.

 

Akshay Jain, Proprietor of M/s Arihant Research & Marketing, 627/4, Circular Road, Ambala City-134003 (Haryana).

                                                                             ……. Complainant.

                                                   Versus

 

1. M/s TCI Freight, Baldev Nagar, Ambala City, through its Branch Manager.
2. M/s TCI Freight, 69, Sector-32, Gurgaon, through its Managing Director.

 

           ..…..Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri Nikhilesh Bhagi, Advocate, counsel for the complainant.

Ms. Neha Arora, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay Rs.5,220/- alongwith interest @18 p.a. from the date of booking, till its final payment.
2. To pay Rs.50,000/- as compensation on account of mental agony & physical harassment suffered by him.
3. To pay Rs.11,000/- as litigation expenses.
382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that the complainant is running a small scale industry of general items under the name and style of M/s Arihant Research & Marketing, to earn his livelihood and is not involved in any commercial activities. The complainant being proprietor of said firm is fully competent and empowered to file this complaint. The complainant is on the approved list of Government of India Canteen Store Department and supply various general items to it. The OP No.2 is running common carrier and is providing carrier facility to the customers on payment of services fee/freight. The OP No.1 is the branch office of OP No.2 at Ambala. The OPs approached the complainant and requested for booking of goods for delivery in India. After negotiation, rate was fixed and the OPs assured to deliver the consignments in time. The Canteen Store Department placed an order for supply of goods to its Kolkatta depot and the same were supplied to Kolkatta depot vide bill No.AC137 dated 06.08.2016 amounting to Rs.4620/-. The said goods were handed over to the OPs to deliver at Kolkatta, vide consignment note No.123762225 dated 08.09.2016, for which, freight charges of Rs.600/- were charged and the OPs assured that the consignment will be delivered upto 18.08.2016. He requested the OPs several times to deliver the consignment within time and even he visited the office of the OP No.1, to know the status of delivery of consignment, where, official of the OP No.1 after checking online status of consignment told him that goods have been reached at Kolkatta office and assured that the same will be delivered within 2-3 days. In the month of August 2017, when his accountant checked the statement of account of CSD Kolkatta, it came to notice that the complainant has not received the payment of bill No.AC137. Upon enquiry, CSD Kolkatta informed that goods of aforesaid consignment/order has not been received by them, so have not released the payment of said bill. Thereafter, the complainant visited the office of the OPs, where its official gave print of consignment status report. As per the said report, the consignment was delivered on 27.05.2017. The complainant again contacted the CSD Kolkatta, its official informed him that the goods have not been received till yet. The complainant wrote an email dated 03.01.2018, whereby, he demanded POD (Proof of Delivery) of said consignment, but instead of giving the same, they replied that goods were gone vide Docket No.209410316 being UGC i.e. unclaimed goods. The OPs failed to deliver the goods within agreed times and also wrongly booked the same for Bhiwandi being UGC. Earlier the goods were not delivered in time for which the complainant filed separate complaint against the OPs and the same was allowed by this Forum. Due to non supply of goods, it has created not only created a cloud on his goodwill, but he also suffered a loss of Rs.5,220/- (i.e. Rs.4,620/- value of goods + freight charges of Rs.600/-). By doing so, the OPs have committed deficiency in services. Hence, the present complaint.  

2.                Upon notice, the OPs appeared through counsel and filed written version and have raised preliminary objections regarding maintainability and jurisdiction. On merits, it is stated that the business of the complainant is purely commercial as he sells manufactured products to many whole-sellers and retailers. The complainant also deals in trading of various goods throughout the nation. The OPs did not give any specific time for delivery of goods booked by the complainant as it is impossible to determine the time for delivery due to uncertainty. However, the complainant was informed telephonically that the consignee refused to receive the goods and he needs to place an order for return-transport of said parcel/goods, but he did not respond. As such, the officials of the OPs titled them as “unclaimed goods” and by the time decompose them. There is no fault on the part of OPs, hence, the present complaint may kindly be dismissed with costs.

3.                The learned counsel for the complainant tendered affidavit of complainant as Annexure CX alongwith documents as Annexure C-1 to C-11 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavit of Shri Alok Dubey, Branch Head of the OP company as Annexure OPA and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel for parties and carefully gone through the case file.

5.                 At the outset, the learned counsel for the OPs has raised the objection that the complainant is not a consumer, as he is doing the business for commercial purposes, whereas, the learned counsel for the complainant has argued that the complainant is a consumer, as per the Act as he is doing the business for earning his livelihood by way of self employment. It may be stated here that no such document has been placed on record by the OPs to prove that the complainant is doing his business for commercial purposes. Since complainant is doing the business for earning his livelihood by way of self employment, therefore, as per Section 2 (1)(d) of the Consumer Protection Act, 1986, he is a consumer. In the case of Someshwar Prasad Sinha Vs. Mithila Devi 2007 (2) WBLR 174 (NC), the Hon’ble National Commission has held that Complainant running a small printing press and bought machinery costing less than a lakh of rupees of taking loan from the bank- Business for self employment  purpose- So a consumer- Nothing to show price of the machine refunded- Award of money by District Forum held proper- No merit in revision petition. In this view of matter, we do not find any merits on this contention of the learned counsel for the OPs that the complainant is not a consumer, thus the objection raised by him, is not tenable, hence rejected.

6.                On merits, the learned counsel for the complainant has argued that the OPs have not delivered the consignment booked by the complainant for Canteen Store Department, Kolkatta depot and as such, the OPs have committed deficiency in the services. On the contrary, the learned counsel for the OPs has argued that the consignee refused to take the delivery of the goods sent by the complainant and this fact was duly informed to him and was asked to place an order for return-transport of said parcel/goods, but the complainant did not come forward to take the delivery of the returned goods, as a result whereof, the OPs titled the goods as “unclaimed goods” and after sometime decomposed the same. However, no cogent evidence has been produced by the OPs to prove that the consignee refused to take the delivery of the consignment and they have intimated the complainant regarding this fact. Thus, the barred assertion of the OPs, cannot be relied upon. In the email dated 19.01.2018 (Annexure C-11), it is mentioned that goods were not delivered. By not delivering the consignment to the consignee, the OPs have committed deficiency in services. Thus, they are liable to compensate the complainant for the loss suffered by him. From the Consignor Copy (Annexure C-8), it is evident that the complainant has booked the goods worth of Rs.4,620/-. From the money receipt (Annexure C-9), it is apparent that the OPs had charged Rs.600/- as freight charges. Thus, the OPs are liable to pay the amount of Rs.5,220/- (Rs.4620+Rs.600). They are also liable to compensate the complainant ‘being proprietor of a firm, for the mental agony and physical harassment suffered by him alongwith litigation charges.

7.                 In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs in the following manner:-

1. To pay Rs.5,220/- alongwith interest @ 7% per annum from the date of filing the present complaint, till its realization
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

                   The OPs are further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 06.09.2019.

 

 

          (Vinod Kumar Sharma)       (Ruby Sharma)                  (Neena Sandhu)

              Member                            Member                            President