Haryana

Ambala

CC/166/2017

Akshay Jain Proprietor - Complainant(s)

Versus

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

Nikhilesh Bhagi

23 May 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

      Complaint Case No. : 166 of 2017

                   Date of Institution    : 31.05.2017

                 Date of Decision     : 23.05.2018

 

Akshay Jain, Proprietor 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.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH.D.N.ARORA, PRESIDENT.               

                   SH.PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Nikhlish Bhagi, Adv. for complainant.

                   Sh. Rohit Jain, counsel for the OPs.

 

ORDER

 

                   Brief facts of the present complaint are that complainant deals in the business of manufacturing and supply of electric equipments and is running small scale industry in the name and style M/s Arihant Research & Marketing to earn livelihood and is also in the approved list of Govt. of India Canteen Store Department. The Op No.2 is running common carrier and is providing carrier facility to customers on payment of service free/freight and Op No.1 is its branch. The Canteen Store Department had placed an order for supply of goods to their Vizag (Vishakhapatnam) depot vide two bills No.AC155 and AC156 dated 24.08.2016 amounting to Rs.9792 and Rs.9040 respectively. The goods in four packages/cases were handedover to OP No.1 vide consignment note No.123776166 dated 24.08.2016 against freight charges of Rs.1720/- including door delivery charges which were to be delivered till 20.10.2016.  The complainant requested the OPs for delivery of consignment in time and also sent email on 07.09.2016  followed by reminder dated 08.09.2016 but it was assured that the consignment would be reached in time.  During this period the complainant also received an order from CSD for supply of goods at Kolkatta depot  vide bill No.AC207 dated 08.10.2016 for Rs.18080/-. The complainant handedover the consignment to OPs to deliver the same at Kolkatta vide consignment note 126860376 dated 08.10.2016 and OPs had assured that the same would be delivered till 20.10.2016.  The complainant requested the OPs several times for delivery of consignments within time and vide email dated 26.10.2016 enquired the status of consignment but the Ops failed to supply the same in time.  The CSD Depot of Vizag had not accepted the cartoons as the same were in broken condition, therefore, vide letter dated 04.11.2016 requested the OPs for rebooking of material from Vishkhapatnam to Ambala. Vide letter dated 06.12.2016 the complainant again enquired the status of consignment followed by letters and reminders but the OPs failed to deliver the goods at Vizag and Kolkatta within agreed time and even failed to deliver the consignment of Vizag Depot till 05.09.2016 and Kolkatta depot till 04.11.2016 and the Kolkatta depot refused to accept the consignment reached on 09.11.2016, therefore, penalty @ 2 % was imposed upon it for non delivery of material.  After receipt of intimation from CSD Kolkatta the complainant requested the OPs to return the goods with proof that same is not accepted by the consignment but they failed to do so and returned the same on 07.03.2017 after charging additional fare of Rs.2436/- illegally and wrongly and even there was shortage of stock worth Rs.576/-. The act and conduct of the Ops clear cut deficiency in service on their part and it not only caused financial loss to the complainant but also caused mental agony and harassment.  In evidence, the complainant has tendered affidavit Annexure CX and documents Annexure C1 to Annexure C27.

2.                          On notice Ops appeared and filed their joint reply wherein preliminary objections such as cause of action, maintainability and suppression of material facts etc. have been taken.  As a matter of fact the business of the complainant is purely commercial as the complainant sells manufactured products to many whole sellers and retailers. The complainant himself had approached the Ops for delivery of goods and the same was subject to flexibility of time duration for delivery of the goods due to natural calamity/causes. The OPs had never committed any specific date for delivery of the goods.  The CSD officials had rejected the consignment as the same were not up to the order that the CSD had made.   As per the version of the complainant, the OPs had delayed the delivery in Kolkatta for a period just of 5 days which could be accepted by the CSD Kolkatta as per the CSD policy acceptance of goods in case of late delivery mentioned by the complainant para No.9 of the complaint and it shows the reason for rejection of the goods by the CSD Kolkatta was fault on the part of complainant and not the late delivery of goods. The version of the complainant is self-contradictory as he has already stated that the goods were delivered in Kolkatta on 09.11.2017. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit Annexure RA.  

3.                We have heard learned counsel for the parties and gone through the record very carefully.

4.                Before proceeding further it is desirable to discussion Section 2 (1) (d) and (g), which is as follows:

(d) "consumer" means any person who-

 

1. 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
2. hires or avails of any services 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 beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, does not include a person who avails of such services of any commercial purpose;) [Explanation.-For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (g)    "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

 

Undisputedly, the complainant had booked the parcels i.e. one was to be delivered at Vizag (Vishakapatnam) in two packets on 24.08.2016 and other was at Kolkatta on 08.10.2016. The parcels booked for Vizag was for bill amount of Rs.9600.36 for (One Up Cloth Clip) and Rs.9039.89 (one up Grass Broom, Dura) total for Rs.9600.36+9039.89= Rs.18640.25 and the parcel booked for Kolkata was containing (one UP Grass Broom Dura) for Rs.18,080 (round figure).  The delivery time was fixed for 10 days for Vizag and 18 days for Kolkata as per Annexure C15. The OPs had charged freight charges Rs.2435/- for all the parcels as per Annexure C6 & Annexure C11. It is established on the case file that the parcel which was to be delivered within 10 days at Vizag could not reach there, therefore, complainant sent an emails   Annexure C13 & Annexure C14 and requested to return the entire stock. Undisputedly, the stock sent to Vizag was returned but as per complainant there was less stock of Rs.576/-. It is established on the case file that the Ops have been failed to perform their part of contract for which they had charged from the complainant at the time of booking of parcels to be delivered at Vizag and Kolkata. It was the duty of the OPs to follow the schedule meant for delivery of the consignment in time as mentioned in Annexure C15 but it is strange that the OPs had not even followed its own schedule. Feeling aggrieved from the acts and conduct of the OPs the complainant has filed the present complaint but in the reply to the complainant the OPs are trying to match make the wrongs done on their behalf by twisting the facts after making lame excuses. The Ops in para No.13 have mentioned that the consignments were sent back after being rejected by the CSD officials due to the fault on the part of the complainant but the OPs have failed to prove on the case file that what fault the complainant has made. There is no plea of the OPs that the complainant had not paid the fright charges and at the time of booking the parcels were in damaged condition. It is strange that on one hand the OPs did not adhere to their own schedule and on the other hand tried to shift the burden of their own wrongs to the shoulders of the complainant by saying that the consignments were rejected due to fault of the complainant.  The OPs are even ceased to take a plea that the transactions made by the complainant for commercial purposes and not for earning livelihood. This arguments further shows that in this way or that way the Ops are trying to deviate from the mistake done on their behalf. The complainant is very much consumer of the complainant as it had paid the freight charges to the OPs and after receiving the charges it was the duty of the Ops to deliver the consignments in intact conditions. The present case is squarely covered by the case laws relied upon by learned counsel for the complainant, which are as follows:

Action Construction Equipment Ltd. & others Vs. Bablu Mridha 2012 (4) CPJ 245 (NC)

 

When a buyer takes the assistance of one or two persons to assist/help him in operating the machine, he does not cease to be a consumer.

 

Cheema Engineering Services Vs. Rajan Singh 1996 (2) CPJ 88 (NC)

 

It is from the evidence on record that the said machine was purchased for earning livelihood. Complainant as such is a consumer under the Act- Order of authorities directing refund with 18 % below upheld

 

Hummingbird Technologies Pvt. Ltd Vs. D.Thanigaiyelan  2003 (1) ALT 15  (NC)

 

Complainant was running a small scale industry as an Engineering Graduate and was doing business in programming geometrical profiles with important machine costing Rs.20 lacs-Mere being registered for Central and Sales Tax complainant did not make the unit for commercial enterprises- Complainant held to be a consumer.

 

Someshwar Prasad Sinha Vs. Mithila Devi 2007 (2) WBLR 174 (NC)

 

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.

 

M/s Transport Corporation of India Ltd. Vs. M/s Veijan Hydrair Ltd.  2007 AIR (SCW) 1527

 

When a person entrusts goods to a common carrier for transportation and the transportation and the carrier accepts the same, there is contract for service within the meaning of CP Act and when the goods are not delivered, there is deficiency of service.

 

M/s Gati Ltd.  Vs. M/s Synergetic Automationa 2017 (1) Law Herlad (SC) 565 (NC)

 

Courier company failed to produce any receipt or document in support of contention that goods were delivered to said consignee- Courier company held liable to pay compensation to complainant. 

 

 Gati Limited Vs. Hiteshi Israni  2012 (4) CLT (NC) 306

 

 The petitioner as a cargo carrier was obliged to take proper care and to ensure that no damage was caused to the consignment. The Fora below rightly held the petitioner guilty of deficiency in service in that behalf- No reason to differ from the concurrent findings and orders recorded by Fora below.

 

 

                   From the above said discussion, it is very much clear that the complainant has faced mental agony, harassment and financial loss due to deficiency in service on the part of OPs as per the provisions of Section 2 (1) (d) (g) of Consumer Protection Act. Undisputedly, the consignments have been returned to the complainant, therefore, it would appropriate if we direct the Ops to compensate the complainant as the parcels were rejected being in damaged condition besides paying the freight charges received by them as well as the costs of less products received by the complainant and returned fare charges. Accordingly present complaint is hereby allowed alongwith cost which is assessed Rs.5000/- the Ops are directed to pay Rs.10,000/-only as compensation on account of mental agony, harassment and financial loss besides paying Rs.2220+1780=4000/- as freight charges and Rs.2436/- returned fare charges and Rs.576/- being shortage of goods along with interest @ 9 % per annum from the date of filing of the complaint till its realization. Copy of the order be sent to the parties concerned, free of costs, as per rules.  File after due compliance be consigned to record room.

 

Announced on: 23.05.2018                                  (D.N.ARORA)

                                                                               PRESIDENT

 

                                                               (ANAMIKA GUPTA)

                                                                                 MEMBER

 

                                                                            

                                                                   (PUSHPENDER KUMAR)

                                                                             MEMBER