IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the    25^th  Day of  June  2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                        CC No.294/16

M/s Transworld Scales and Services          :         Complainant

Beach Road, Kollam

Represented  by its Proprietor

Sri.Ravisankar

S/o Sreedharan

Sreedhar, Mundakkal,Kollam.

[By Adv.A.Abdul Kalam]

V/s

1. M/s Trackon Courier Pvt.Ltd.           :         Opposite parties

         Pottakuzhi, Kaloor P.O

        Kochi

2. Manager

         M/s Trackon Courier Pvt.Ltd.

         Branch Office

         Lekshmana Nagar-146

         Asramam, Kollam.

          [By Adv.Roy Varghese&Adv.Adarsh.S]

DRAFT ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

          This is a case based on a Consumer complaint filed under Section 12 of the Consumer Protection Act 1986.  The averments in the complaint in short are as follows:-

          The complainant is carrying on business of weighing machines and its allied products under  the name  and style ‘Transworld Scales and Services’ having its office at Beach Road, Kollam.  On 28.05.14 the complainant  booked a  consignment address to the consignee M/s Orion Automation System, Bangalore through the opposite party at their office at Kollam.  The complainant entrusted invoice No.274 dated 28.05.14 for Rs.37098/- to the opposite party   while   booking   consignment.  The   opposite  party also issued

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proper receipt/Trackon Docket No.394764429  dated 28.05.14 on receiving the said consignment.  Two weeks thereafter the  complainant came to know that the said consignment was not delivered to consignee by the opposite party and when requested them to take necessary steps for proper delivery of the same, the opposite party acted in a most irresponsible way.  Thereafter  the  complainant  issued  notice to the opposite party on 25.07.2014 informing them that the said parcel was not delivered.  In addition to the above notice the complaint informed the opposite party through email on various dates such as 07.10.14, 15.05.15, 26.05.15  regarding the non delivery of the above consignment.  The complainant has also caused to issue a notice    through    their    counsel   to    the      opposite party    on    13.04.2016  demanding  to     pay  Rs.3,00,000/- as compensation for the loss of one bag containing valuable machine weighing 9 kg and its accessories.  The said notice was returned to the sender with remark addressee left.  Thereafter the  complainant traced out the opposite party address and again served a notice on 19.04.16 to the opposite party intimating them the above demand.  The said notice was  served upon them and a reply was send with false contentions.  The consignee to which the above parcel was send  by one of the best clients of the complainant.  Due to the non delivery of the above parcel the business relation between them stopped and thereby the complainant was forced to pay the consignee an amount of Rs.37,098/-.  The complainant suffered loss because the opposite party, courier company failed to deliver the booked consignment to the consignee.  By non delivery of consignment and by not compensating the complainant for the loss incurred even after repeated demands.  The opposite party is guilty of deficiency in service for which the complainant consumer is to be suitably compensated.  Due to the act of opposite party the complainant suffered loss in their business for more than  three lakhs, but   for   the   sake of settlement the complainant is valued for Rs.87,098/- in total.  More   specifically   Rs.50,000/-  towards  compensation and  Rs.37,098/-

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towards the cost of weighing machine sent through opposite party.  The act of opposite party amounts to gross deficiency in service and unfair trade practice as contemplated under the provisions of  the Consumer Protection Act.  The opposite party is liable for the loss sustained to the complainant for the reason of  non delivery of consignment.

                   In response to the notice both the opposite parties entered appearance and filed a detailed joint written version resisting the complaint. However the following facts are admitted in the written version.  M/s.Trackon Couriers Pvt. Ltd. is a company incorporated and it carries on business of courier   service , delivery of     parcel  etc.  The 1^st   opposite  party is having its original office at Kochi and it is managing the day today  business all over Kerala.  The 2^nd opposite party is its Branch Office at Kollam.

It is contented that the complaint is hopelessly barred by limitation under Section 24(A) of the Consumer Protection Act.  The complainant is not a  consumer as defined under Section 2(1)(d) of the Consumer Protection Act.  The complainant availed services  of the opposite parties   in  connection  with  their  business purpose as admitted in paragraph 5 of the complaint.  Hence the complainant will not come within the purview of the definition of consumer.  Hence the complaint is to be dismissed inlimini.  The complainant availed the service of the opposite parties 1&2 for the distribution  and also for the collection of defective and damaged systems for servicing.  There is gross negligence  on the part of the complainant in not reporting any grievance regarding non-delivery of articles within 6 months.  The complainant has not received a notice as envisaged under Section 10 of the  Carriers Act 1865.  The above provision makes it mandatory to issue 6 months statutory notice to the Common Carrier.  The complainant has not sent any formal complaint of notice for about 1 year.  Hence there is non-compliance of Section 10 of the Carriers Act.  Usually   costly  articles are insured under Transit insurance, especially for

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delivery outside Kerala which is done through railway.  But the complainant inspite of appraised of the said fact  by the 2^nd opposite party was unwilling to get it insured.  Hence the above consignment has been booked at the sole risk of the consigner.  The complainant had not declared the value of consignment as insisted under  Section 3 of the Carriers Act. There is a clause in the consignment note regarding limiting of liability to Rs.100/-.  The  limited liability clause in courier’s receipt constituted a contract between the parties and in case of loss of courier parcel, courier company is liable to pay limited liability amount with interest and not the actual value(in the absence of special    contract   to   the   country).    In  this  case  there is no special contract  between the complainant and the opposite party apart from the courier receipt.  The amount claimed by the complainant is highly exorbitant and imaginary.  The complainant has not suffered any loss or agony as alleged in the complaint.  The opposite parties cannot be blamed due to  the mistakes of the complainant.  There is no deficiency in service on the apart of the opposite parties.  The opposite parties further pray to  dismiss the complaint with their costs.

          In view of the above pleadings the points that arise for consideration are:-

1.  Is not  the complaint  maintainable?
2. Whether there is any deficiency in service or unfair trade practice on the side of the opposite parties?
3. Whether the complainant is entitled to get compensation as prayed for?
4. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P9 documents.  No evidence either oral or documentary has been adduced by the opposite parties.

Heard both sides.  Both of them have also filed notes of argument.

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Point No.1

          The specific case of the complaint is that the complainant is carrying on business of weighing machine and its allied products under the name ‘Transworld Scales and Services’ having its office at Beach Road, Kollam.  The further case of the complainant is that he booked  a consignment addressed to  the consignee M/s Orion Automation System, Bangalore vide  invoice No.274 dated 28.05.14 for Rs.37098/-, the 2^nd opposite party has also issued proper receipt/Trackon Docket No.394764429  dated 28.05.14 on receiving the said consignment.    However the consignment was not delivered to the opposite party.  The complainant alleges deficiency in service in non delivering the consignment at the destination and seeks compensation.  It is also clear from the averments in the complaint that on 25.07.14 the complainant issued notice stating that parcel was not delivered.  Hence according to the complainant he is entitled to get compensation and the value of the consignment as per the invoice. 

The opposite party resisted the complaint  mainly on 3 grounds.  The 1^st ground is that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act  1986.

          In view of the pleadings  in paragraph No.1 of the complaint it is crystal clear that the complainant is a business man and he has been doing business at beach road, Kollam.  The allegations in paragraph No.2 to 5 and 7 and the evidence tendered by PW1 would clearly indicate that the complainant has availed the service of the opposite party courier service for commercial purpose.  There is a specific contention in paragraph No.4 that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act.  But the complainant has not chosen to amend the complaint and incorporate any pleadings   to the   effect that  the complainant has availed the  service not for any commercial purpose or the business conducted by him is a self employment

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for the purpose of earning his lively hood.   In view of the facts and circumstances of this case the forum is not expected to draw any inference to the effect that M/s Transworld Scales and Services is a self employment business of the complainant for earning  lively hood.  In the circumstances we are of the view that the complainant would not come  within the meaning of the term consumer as defined under section 2(1)(d) of the Consumer Protection Act.

          It is  also brought out in evidence that after  2 weeks of entrusting the consignment to the opposite party  it has came to the knowledge  of the complainant  that  the  said  consignment  was not delivered to consignee by the opposite party and when the complainant requested to take necessary steps,  the opposite party  acted in a most irresponsible manner and there after the complainant issued notice to the 1^st opposite party on 25.07.14 informing them that the said parcel was not delivered.  In view of the above pleadings it is crystal clear that the consignment was  not delivered to the consignee and that fact  was within the knowledge of the complainant after 2 weeks of booking the consignment.  If that be so the complainant is having knowledge regarding the non delivery of the articles on  or before 12.06.14.  Section 24(A) of the Consumer Protection Act 1986 would mandate  that the District Forum shall not admit the complaint unless it is filed within 2 years from the date of which cause of  action had arisen.  It is clear from the pleadings and evidence available on   record   that   the  complainant  has  obtained knowledge that the consignment was not delivered at the destination as early  on 12.06.14 and hence cause of action started to accrue on that date and will end on 11.06.16.  But admittedly the complaint has seen filed only on 14.11.16 which is admittedly after 2 years, 5 and odd months from the date of starting  the cause of action.  The complainant has also not seen filed any petition  or affidavit to satisfy  the District Forum that he had sufficient cause for not filing the complaint within the specified period of 2 years.  Though  a preliminary hearing

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was made and the forum has ordered to   number of cases and issue notice,  there is nothing on record to indicate that the forum has applied the legal mind and recorded  its reason for condoning the delay of 5 and odd months in filing the complaint.  The learned counsel for the  complainant has also not considered the question of limitation raised in paragraph No.3 of the complaint as a serious contention nor filed any petition   to condone the delay.

According to the opposite party’s counsel even if the case would come within the provisions of Section 10 of the  Carriers Act, the complaint is hopelessly barred by limitation.  It is pointed out that as per Section 10 of the Carriers Act no complaint shall be instituted against the  common carrier unless a notice in writing of the loss has been given to the carrier before the institution of this complaint within 6 months from time when the loss or injury  first came to the knowledge of the plaintiff/petitioner.  According to the learned counsel for the complainant  6 months prior notice is mandatory  only  in respect of loss or damage to the complainant so   as to make good the loss occasioned.  But where there is no loss or  injury to the goods but the common carrier wrongly or illegally refused to deliver goods and the person entitled to delivery initiates action for non delivery Section 10 will not apply.  In view of the facts and  circumstances of the case  we are of the view that Section 10 of the Carriers Act is not applicable to the facts of the case as this is a consumer complaint filed before the  forum.  The Consumer Protection Act is a self contained code.  The provision regarding   limitation   is    provided under Section 24(A) of the Consumer Protection Act and the reliefs sought for in the complaint is in addition to the relief prescribed under the Carriers Act and in derogation of the provisions of any other Act.  Therefore we are of the view that Section 24(A) of the Consumer Protection Act 1986 alone is applicable to the present complaint and in view of the materials available on record we have no hesitation to hold that the   complaint   is   not   maintainable   as  it is hopelessly barred limitation

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prescribed u/s 24(A) of the Consumer Protection Act and the complainant has not offered any valid reasons to condone the delay of  5 and odd months in filing the complaint.  Point No.1 answered accordingly.

Point No.2 to 3

 In view of our findings with regard to point No.1 it is clear  that the complainant is not a consumer and present complaint is barred by limitation u/s 24(A) of the Consumer Protection Act and therefore  the complaint is not maintainable.  In the circumstances the other points need not be discussed.  The point answered accordingly.

          In the result the complaint stands dismissed as it is not maintainable.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  25^th    day of    June 2019.         

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Forwarded/by Order

           Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Ravisankar

Documents marked for the  complainant

Ext.P1                  :         Courier receipt

Ext.P2                  :         Copy of  the notice 25.07.14

Ext.P3 Series        :         Email copies

Ext.P4                  :         Copy of legal notice

Ext.P5                  :         Returned registered envelope

Ext.P6                  :         Postal receipt

Ext.P7                  :         Copy of legal notice

Ext.P8                  :         Copy of reply notice

E.M.Muhammed Ibrahim:Sd/-

                                                                                   S.Sandhya Rani:Sd/-

                                                                                  Forwarded/by Order

                                                                                  Senior Superintendent