Complaint filed on: 30-05-2011
Disposed on: 24-09-2012
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.996/2011
DATED THIS THE 24th SEPTEMBER 2012
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.GANGANARASAIAH, MEMBER
SMT.ANITA SHIVAKUMAR.K., MEMBER
Complainant: -
M/s. Shree Mahaveer Textile Stores,
A registered partnership firm
Registered under the Indian Partnership Act, and
Reptd by one of its Partner
Sri.Mikhil.R.Batavia,
Carrying on their business at
No.159, Cubbonpet main road,
Bangalore
V/s
Opposite party: -
M/s. Dig Vijay Express,
Reptd by its proprietor Sri.----,
Having their office at no.20/1,
3rd Cross, Fifth main,
Opposite to post office,
S.R.Nagar, Bangalore - 27
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OP, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to pay a sum of Rs.35,140=00 with 18% interest per annum from the date of filing of the complaint to till the date of realization and cost.
2. The brief facts of the complaint can be stated as under.
The complainant is a registered partnership firm registered under the Indian Partnership Act and the complainant is represented by one of its partners by name Sri.Mikhil.R.Batavia, who is authorized to sign and verify the complaint. The complainant is a wholesale dealer dealing in textiles spare parts and other accessories in the site at Bengaluru and during the course of business transaction M/s. Warp Websters Private Limited having their registered office at RZ598, Street No.3, Main Sagarpur, New Delhi has approached the complainant for supply of Rapier tapes and other accessories for their business at New Delhi and as per the orders placed by the customer, the complainant has agreed to sell the goods in favour of the said customers. In pursuance of the mutual arrangement between the parties the complainant has raised an invoice totally amounting to a sum of Rs.66,147=00 towards supply of the materials as per the order placed by the consignee under an invoice bearing no.14721 dated 23-9-2010. The complainant had booked the consignment through the OP being courier service so that the goods are lifted from Bengaluru to New Delhi to be delivered to the consignee. The complainant having approached the OP to deliver the goods to the consignee the OP had agreed and undertaken to deliver the goods at New Delhi by receiving a sum of Rs.794=00 being the transportation charges. As per the direction given by the OP, the complainant has booked the entire consignment in two separate bundles so as to enable to the OP to transport the same and deliver to the consignee. The complainant having entrusted the goods to be delivered to the consignee was in anticipation that the OP would take all necessary precautions and care to see that the entire consignment is delivered to the consignee at New Delhi. While such being the fact the complainant learnt from the consignee M/s. Warp Websters Pvt. Ltd that the OP has delivered on bundle only at New Delhi and in fact the consignee not only informed the complainant over telephone but also addressed a letter dated 25-9-2010 intimating the complainant that one of the two bundles forwarded by the complainant has not been delivered to them and that as the goods are required by them urgently and their business is affected and the goods be delivered to them at the earliest. Immediately on receipt of the said letter the complainant had informed the OP about the missing bundle and also called upon the OP to deliver the goods immediately to the consignee. While such being the fact the complainant learnt from the consignee by their letter dated 9-10-2010 that the OP has delivered the missing bundle on 8-10-2010 in a damaged condition. On coming to know of the said fact, the complainant immediately contacted the OP’s office to know the details and the reasons for delay in not delivering the goods to the consignee and on verification it was learnt that the OP has sent the goods to Mumbai instead of forwarding the goods to New Delhi and it was only after correspondence and demands of the complainant, the OP has delivered the goods to the consignee not only causing undue delay but the entire consignment packed in a bundle enclosed with thick PVC pipes had been badly damaged and as a result the consignee was not in a position to utilize the goods for the purpose of their business on account of the mishandling and even though the complainant packed the entire materials in keeping with the safety and so also from causing any damage to the materials while in transit. Despite the said fact as the goods were not only wrongly forwarded to Mumbai even though there was a specific instruction to be delivered at New Delhi the OP being the carrier without just and sufficient cause has mishandled the consignment and as result the consignee has rejected the goods as it has become a dead stock due to damage in transit which is totally due to the gross negligence and rough handling of the consignment. The entire consignment has rendered itself and more so is not fit to be marketed which is entirely due to negligent on the part of the OP. Hence the complainant has called upon the OP to compensate or make good the value of the damaged materials forwarded to the consignee together with the damages suffered by the complainant due to inaction in not delivering the goods on time. The complainant has got issued notice to the OP on 26-2-2011 calling upon the OP to make good the said amount of Rs.25,551=00 being the costs of the materials with interest at 24% p.a., and to pay Rs.5,000=00 being the pecuniary damages. The notice was sent by the complainant through courier, RPAD and under certificate of posting, despite the receipt of the notice, the OP has not chosen to reply to the notice. Hence, the present complaint is filed.
3. After service of the notice, the OP has appeared through its counsel and filed objection, contenting interalia as under:
Admittedly the complainant is a registered partnership firm, it is false that the complainant is a wholesale dealers dealing in the textile spare parts and other accessories. The complainant is called upon to prove the same. The OP does not know the transaction between the complainant and M/s. Warp Websters Pvt. Ltd. The complainant is called upon to prove the same. It may be true that, invoice is raised as stated in para 4 of the complaint and the amount mentioned in the invoice may not be correct amount of the product and the complainant is called upon to prove the cost of the product. It is true that, the complainant has booked the consignment through the OP to New Delhi address and the OP does not know the content of the courier which is packed. In fact the party who comes to book the consignment was asked about the insurance for the transportation and very particularly insisting the OP to transport the courier with the coverage of insurance, for the transportation of goods, the OP has informed the complainant that they will not be knowing the content of the courier and there should be any articles which will damage during the course of transportation and after hearing this from the OP, the complainant said that nothing delicate in the parcel it is very hard and there will be no problem in the transportation. In the background of the complainant very particularly asking for insurance coverage for the goods he is suppose to transport will clearly show that the intention of the complainant in sending the goods through courier. It appears the complainant has sent the damage goods only to the consignee with an intention to claim insurance and also with an intention of claiming damages from Courier Company to enrich at their cost. It is false as stated in para 7 of the complaint and as per the direction given by the complainant the consignment had been packed the entire consignment in two separate bundles so as to enable the OP to transport the same and deliver to the consignee, the complainant is called upon to prove the same, the complainant had come with the two bundles of the consignment and after the talk, the complainant stated that there is no delicate articles or goods in the consignment and booked to transport to the consignee. As per the request the complainant the consignment has been delivered to the consignee at New Delhi. During the period when the consignment is booked, lorries were not allowed inside New Delhi for the reason there were commonwealth games going on and hence out of two bundles one was in the godown struck up and could not be delivered on the same day, when the first bundle was delivered. There was no agreement between the parties regarding any condition about delivery with in one or two days. There is no negligence on the part of the OP, it is the duty of the complainant to pack the articles properly with due care. Since, the OP will not knowing the contents of the consignment while transportation of the goods, the OP has not delivered any goods in a damaged condition as stated by the complainant. It is appears the complainant and consignee were hand in glouse with an understanding to claim insurance and they have planned to send the damaged goods in the transportation. There is no delay on the part of the OP, and there is no negligence on the part of the OP in delivery of the goods, and it is in a good condition only. Neither, the complainant nor the consignee has under gone any loss in their business. Even as per the terms and conditions of the transportation, the OP is liable to pay only to an extent of Rs.100/- for any damages or loss of goods, so the complainant is not entitled to file any case and claim abnormal money from the OP. The complainant has filed a false case against the OP without any reasons and without any fault of the OP. Hence, it is prayed to dismiss the complaint with cost.
4. So from the averments of the complaint of the complainant and objection of the OP, the following points arise for our consideration.
1. Whether the complainant proves that, it was only after correspondence and demands of the complainant, OP has delivered the goods to the consignee not only causing undue delay, but the entire consignee packed in a bundle has been damaged and due to that the consignee was not in a position to utilize the goods for the purpose of their business, and he has rejected the goods and this has taken place on account of negligence and deficiency of service and rough handling of the consignment by the OP?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
5. Our findings on the above points are;
Point no.1: In the affirmative
Point no.2: The complainant is entitled to recover
a sum of Rs.25,500=00 being the value
of the damaged goods and cost of
Rs.2000=00
Point no.3: For the following order
REASONS
6. So as to prove the case, one Mikhil.R.Batavia who being a partner of the complainant’s firm has filed his affidavit by way of evidence on behalf of the complainant and produced 8 copies documents with list, two documents with memo dated 2-11-2012 and one tax invoice book memo dated 18-6-2012, one document with memo dated 24-05-2012 and original courier receipt along with memo dated 15-3-2012. On the other hand, one Sanjay Chathurvedi, the Proprietor of the OP has filed his affidavit and produced two documents with list dated 2-11-2011. We have heard the arguments of both sides, and we have gone through the oral and documentary evidence of both parties in between line.
7. One Mikhil.R.Batavia, who being the partner of the complainant has stated in his affidavit that, the complainant being firm of partnership is engaged in the business of dealing in textiles spare parts and other accessories in the site at Bengaluru and during the course of business transaction M/s. Warp Websters Private Limited has approached them for supply of Rapier tapes and other accessories for the purpose of business at New Delhi and accordingly placed the orders as per their invoice raised in their favour bearing no.14721 dated 23-9-2010 amounting to a sum of Rs.66,147=00. In pursuance of invoice they have agreed to forward the goods to New Delhi to their consignee through the OP who involved in the business of courier service in the city of Bangalore. He booked the consignment through the OP by paying a sum of Rs.794=00 towards the shipment/transportation charges for the services to be rendered by the OPs. As per the specification of the OPs they had arranged for the goods to be supplied to their consignee by packing the materials into two separate bundles, so that the consignment shall be delivered without causing any damages The OP having received the bundles they were under the bonafide impression that the consignment be delivered to the consignee in time. While such being the fact, we received a phone call from our consignee that out of the two bundles forwarded by them through the OP, the OP has delivered only one bundle and in fact they have also addressed a letter dated 25-9-2010 intimating that one of the bundle has not been delivered despite invoice being raised in their favour for delivering the two bundles containing the materials and consignment and requested to do the needful as it has affecting their business on account of inordinate delay in not delivering the goods to them. On receipt of the said communication and letter they contacted the OP to ascertain the details as to why the other bundle has not been delivered to them even though there was an obligation and duty cast on them to deliver the goods in time and without causing any damage. But it was learnt from our purchase by their letter dated 9-10-2010 that the OP has delivered the missing the bundle on 8-10-2010 in a damaged condition containing rapier tapes which were five in numbers. On coming to know of the said fact, they contacted the OPs and on verification it was learnt that, the OPs instead of delivering the goods at New Delhi had forwarded the goods to Mumbai and after making correspondences and demands by them, the OP was able to trace the goods and forwarded the goods to New Delhi and the consignment which were covered with thick PVC pipes were badly damaged due to mishandling of the consignment which was entirely due to the negligence of the OP and as a result the consignment could not be utilized by the consignee as it became a dead stock, so they were constrained to make good the value of the consignment in a sum of Rs.25,551=00. So they suffered a financial loss of Rs.25,551=00 together with damages on account of negligent act of the OP. Hence, the present complaint is filed, so order be passed, as prayed in the complaint.
8. By making careful reading of the averment of complaint of the complainant and evidence of one of the partner of complainant as mentioned above, it is made explicitly clear that, the partner of the complainant has tendered his evidence in accordance with the averment of the complaint. Let us have a look at the relevant documents of the complainant to know whether the oral evidence of partner of the complainant is fortified by the documentary evidence or not. Document no.1 of the complainant list is the copy of partnership deed dated 1-1-2008 executed by four partners in respect of M/s.Sree Mahaveer Textile Stores being the complainant and among partners one of partner by name Mikhil.R.Batavia is partner of the complainant and he has filed affidavit on behalf of the complainant as partner. Document no.2 is the copy of value added tax registration certificate issued by the Asst. Commissioner of Commercial taxes dated 21-10-2008 in the name of complainant having validity from 1-4-2005 until cancelled. Document no.3 is the copy of tax invoice issued by the complainant in the name of consignee M/s. Warp Webstar Pvt. Ltd, New Delhi dated 23-9-2010 for having delivered six pieces of rapier tape having 1813 mm valued at Rs.4,600=00 each, three pieces of rapier tape having 1963 mm valued at Rs.4,950=00 each, five pieces of blue tape having 3440 mm valued Rs.1,900=00 each and three pieces of Reed foy MBJ 21830 having the value of Rs.3,850=00 each and courier charges of Rs.1,350=00 and CST charges of Rs.1,297=00 and in total of Rs.66,147=00, and these goods were delivered to the OP for delivering the same to the consignee under bill no.14721. Document no.4 is the copy of note issued by the OP dated 23-9-2010 for having collected of Rs.794=00 towards transportation charges to deliver the consignment to consignee M/s. Warp Webstar Pvt. Ltd, New Delhi, wherein the consignee has made an endorsement and put signature on 23-9-2010 stating that, first packet received on 25-9-2010 and second packet received in damaged condition on 8-10-2010. Document no.5 is the copy of letter of the consignee dated 25-9-2010 addressed to the complainant stating that, they have received only one parcel instead of two, kindly check with courier cargo company and inform the status, and the material is required very urgently the machine of the customers have stopped for want of this material. Document no.6 is the copy of letter of the consignee in the name of the complainant dated 9-10-2010 stating that, they have received the missing parcel in damaged condition and rapier tapes five numbers are badly damaged and not usable and details of damages are three numbers of rapier tape having 1813 mm and two numbers of rapier tape having 1963 mm and requested the complainant to send them the replacement immediately and on enquiring with the courier cargo people they have informed this parcel had gone to Mumbai i.e. the reason for delay. Document no.7 is the copy of legal notice issued to the OP by the lawyer of the complainant dated 26-2-2011 calling upon them to indemnify the loss as their goods were damaged on account of their negligence. Document no.8 consisting of the certificate of posting and postal acknowledgment cards of the OP. The said documents of the complainant go to reveal that, the complainant has sent consignment to the consignee through OP by paying transportation charges and while delivering the goods, the OP delivered one packet of consignment on 25-9-2010 in good condition and second packet was delivered to the consignee on 8-10-2010 in damaged condition and inspite of issuing legal notice, the OP has neither replied to the notice nor indemnified the loss caused to the goods of the complainant. The oral evidence of the complainant that, on account of negligence and deficiency of service of the OP, the goods sent to the consignee delivered late and in a damaged condition is corroborated by tax invoice of the complainant and receipt issued by the OP, endorsement made by the consignee on the receipt issued by the OP, and copy of letter issued by consignee to the complainant, and copy of notice issued by the complainant to the OP.
9. At this stage, it is relevant to have look at the oral and documentary evidence of the OP. One Sanjay Chathurvedi who being the proprietor of the OP has stated in his affidavit admitting that the complainant has booked the consignment through them to New Delhi address, but he does not know the content of the courier which is packed and he told the complainant that, he does not have any facility of coverage of insurance for the transportation of goods and the complainant told that nothing delicate in the parcel, and it is very heard and there will be no problem in the transportation. It appears that the complainant has sent damaged goods only to the consignee with an intention to claim insurance and during the period when the consignment is booked, lorries were not allowed inside the New Delhi as there was common wealth games going on and hence out of two bundles one was in the godown struck up and could not be delivered on the same day, when the first bundle was delivered. With the due care and caution the parcel was transported and there is no negligence on their part. The complainant is called upon to prove the damage, they are liable to pay only to an extent of Rs.100=00 for any damages or loss of goods, the claim of the complainant is not correct and he is not entitled to any relief, so the complaint be dismissed.
10. Document no.1 produced by the OP is receipt issued by the OP dated 23-9-2011 for having collected Rs.794=00 from the complainant for transportation charges in respect of goods to be sent to the consignee. Document no.2 of the OP is the copy of consignment note issued by the Cares Cargo Forwarders dated 23-9-2010 for having received two articles having weight 70 kgs and name of the consignor is the OP and name of the consignee is S.S.Dubay and the said document of the OP will go to show that, the OP has received the consignment from the complainant for transportation of the goods to consignee after collecting transportation charges and nothing more. The documents produced by the OP do not through light that, the complainant has delivered the damaged goods to the consignee and there is no negligence on the part of the OP. The oral evidence of the OP mentioned above is not countenanced by any documentary evidence. So making the comparative study of material evidence of both parties, it is crystal clear that, the oral and documentary evidence of the complainant are more believable trustworthy and acted upon than the material evidence of the OP. So from the material evidence of the complainant, it is made unambiguously clear that, the OP while delivering the goods to the consignee, one of the packet containing goods was delivered safely and second packet containing five rapier tape was delivered late that too in a damaged condition. The duty of the OP who being the consignor has to deliver the consignment to the consignee safely and without causing any damage to the goods. But the OP has not taken due care and caution while delivering the goods to the consignee properly. So on account of negligence of the OP, five rapier tape contained in second packet were damaged extensively and due to that the complainant has suffered loss and the OP has to indemnify the loss caused to the complainant. The complainant who comes to the forum seeking relief has proved this point satisfactorily by placing convincing material evidence, and accordingly, we answer this point in a affirmative.
11. In view of our affirmative findings on the point no.1, the complainant is entitled to the claim the value of damaged goods. So making calculation of damage of rapier tapes as per the invoice book produced by the complainant it amounts to Rs.23,700=00, courier charges and P & F and CST will be of Rs.1,300=00 and Rs.500=00 and in all the value of damaged goods will be Rs.25,500=00. So the complainant is entitled to claim Rs.25,500=00 towards damage of five rapier tape which were damaged at the time of transportation of the same to the consignee. The OP is liable to indemnify the loss of the said damaged goods, and the OP is directed to pay a sum of Rs.25,500=00 to the complainant within 30 days from the date of the order, failing which, he shall pay the said amount to the complainant with 10% interest per annum from the date of the order till the date of the realization. The OP is further directed to pay a sum of Rs.2,000=00 to the complainant towards cost of the litigation. The complainant is directed to hand over the damaged packet to the OP after receiving payment, and accordingly we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is partly allowed. The OP is directed to pay a sum of Rs.25,500=00 (Rs. Twenty five thousand and five hundred only) to the complainant within 30 days from the date of the order. Failing which, the OP shall pay the said amount to the complainant with 10% interest per annum from the date of the order till the date of the realization.
The OP is further directed to pay a sum of Rs.2,000=00 (Rs.Two thousand only) to the complainant towards cost of litigation.
The complainant is directed to hand over damaged pack to the OP after receiving payment.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 24th day of September 2012.
MEMBER MEMBER PRESIDENT
