BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 23^rd DAY OF JULY 2016

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OP) with a prayer to direct them to pay a sum of Rs.14,500/- to Department of Commercial Taxes, Squad No.V, Ernakulam and thereafter deliver the consignment to the addressee as stated in the consignment and to pay him a sum of Rs.1,00,000/- for having caused financial loss including the price of seized consignment, mental agony, hardship together with litigation cost of Rs.5,000/-.

2. The brief averments made in the complaint are as under:

The complainant is manufacturer of Electronic Test Instruments.  That the complainant has sold materials to M/s. Elmactics Enterprises, 33/153L, SNDP Shopping Complex, Alinchuvadu, Civil Line Road, Edappally P.O, Cochin-682024 under a tax invoice No.877 dated 11.01.2014 and obtained e-SUGAM FORM Sl. No.11967776531 from the Department of Commercial Taxes, Government of Karnataka.  That on 11.01.2014 the complainant handed over the consignment to OP-1 with a direction to deliver the same to M/s.Elmactics Enterprises at Cochin and paid necessary charges for the same for which OP-1 issued receipt.  That the said consignment was weighing 14.9 kgs on the date of handing it over to OP-1.  That the said consignment did not reach the addressee and after several enquires with the OPs the complainant came to know that the said consignment has been detained by the office of the Inspecting Assistant Commissioner (Int.), Department of Commercial Taxes Squad No.V, Ernakulam on the ground that “the consignment is not declared at any border check post in Kerala”.

OPs had assured the complainant that the consignment will be delivered to the addressee as early as possible.  However due to the negligence of the OPs in not following the rules and regulations in the state of Kerala, the said consignment has been seized by Department of Commercial Taxes.  Due to the seizure of the said consignment the addressee could not receive the materials sent by the complainant.  Despite several requests by the complainant, OPs have not shown any interest in getting the consignment released from the concerned department.  Meanwhile the addressee of the consignment has received a notice under the Kerala Value Added Tax Rules, 2005 Form No.17A notice and the same was also issued to OPs at their office at Ernakulam branch.  However, the OPs are not bothered in getting the consignment released.  That the OPs are very well aware of the rules and regulations prevailing in State of Karnataka as well as in the state of Kerala in the matter of transporting consignment, but the OPs have failed to follow the same and for that reason the consignment has been seized by the Department of Commercial Taxes in Kerala and till today it is in their custody.  That the OPs are required to deposit the security amount as stated in the notice issued by the Department of Commercial Tax and get the consignment released and deliver the same to the addressee.  That due to non receipt of the consignment the said addressee threatened the complainant with action.  Therefore, the complainant was forced to send another consignment to the very same address through another service provider “Professional Courier” and the same has been delivered to the addressee by professional courier on time.  That the OPs are transporting the consignment booked with them without following rules and regulations thereby causing great hardship to the customer like complainant and the same amounts to deficiency of service.  Since the OPs failed to get the consignment released by paying the amount as demanded in the notice issued by Department of Commercial Taxes, Kerala, the complainant having no other alternative got issued a legal notice dated 08.02.2014 to the OPs.  Despite receipt of the notice, the OPs have failed to comply the demand made in the said notice.  Therefore, the complainant is constrained to approach this Forum.

For the reasons mentioned above, the complainant prays for an order directing the OPs to pay a sum of Rs.14,500/- to the Department of Commercial Taxes, Squad No.V, Ernakulam and get the consignment released and deliver the same to the addressee immediately and to pay a sum of Rs.1,00,000/- to the complainant for causing him financial loss, mental agony, hardship etc., together with litigation cost of Rs.5,000/-.

3. In response to the notice issued the OPs entered their appearance through their advocate and OP-2 filed its version which was adopted by the OP-1 and the brief averments made therein as under:

That the complainant is manufacturer of Electronic Test Instruments.  Therefore, the transaction in question is a commercial transaction; hence the complainant is not a ‘consumer’ as defined U/s.2 (d) of the Consumer Protection Act and the complaint is not maintainable in this Forum.  It is true that the complainant booked the consignment on 11.01.2014 at their Branch Office OP-1 to be delivered to M/s.Elmactics Enterprises in Cochin State of Kerala.  It is also true that the said consignment wad detained by Department of Commercial Taxes, Kerala as the document Form No.8 FA of Kerala Value Added Tax Rules, 2005, furnished by the complainant is not in accordance with law.  The OPs informed the complainant about the same and requested him to provide proper Form No.8FA since such form provided by the complainant at the time of booking was not in compliance with the rules laid down by the Government of Kerala for filing of 8FA declaration.  The Form 8FA furnished by the complainant along with consignment does not have any details except the seal and signature of the complainant.  Therefore, the Department of Commercial Taxes, Kerala has detained the consignment for want of necessary declaration in Form No.8FA.  Had the complainant furnished proper documents i.e., Form 8FA, the consignment would have been delivered to the consignee on time without fail.  For want of proper documents, the OPs could not deliver the consignment to the consignee.  Therefore, no negligence or deficiency of service can be attributed to the OPs.  That the complainant has not availed the risk coverage policy in order to protect his rights in the event of any loss or damage caused to the consignment.  In absence of the same, the liability of OPs is restricted only to Rs.100/- as per the terms and conditions mentioned in the consignment note.  The complainant has booked the consignment having understood the terms and conditions mentioned in the receipt.  Therefore, OPs are not liable to pay any amount as prayed by the complainant.

For the reasons stated above, the OPs pray for dismissal of the complaint.       

4. The complainant to substantiate the allegations made in the complaint submitted his evidence by way of affidavit.  He has also produced documents in support of the allegations made in the complaint.  OP-2 got filed the affidavit of their Senior Manager Mr.S.Sujith in support of the averments made in the version.  The OPs did not produce any documents in support of the averments made in the version despite mentioning in their version as well as in the affidavit with certain documents have been produced by them.  Written arguments were submitted on behalf of the complainant.

5. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        6. Perused the allegations made in the complaint, averments made in the version, sworn testimony of both parties, written arguments of the complainant, documents produced by the complainant and the other materials placed on record.

7. Our answer to the above issues are as under:

REASONS

8.  It is not in dispute that the complainant is engaged in manufacturing of Electronic Test Instruments and he has sold certain materials in all worth Rs.31,212/- to M/s.Elmactics Enterprises of Cochin, Kerala under a tax invoice No.877 dated 11.01.2014 after obtaining e-SUGAM FORM from Department of Commercial Taxes, Government of Karnataka, with OPs for its delivery to the consignee.  It is also not in dispute that, the consignment was handed over to OP-1 for its delivery to the address mentioned on the consignment under consignment No.*D16527347.  Complainant has paid the necessary charges for the transportation of the same consignment to Cochin in Kerala and has produced the copy of receipt issued by OP-1.  The complainant has also produced the copy of the tax invoice dated 11.01.2014 as well as the copy of e-SUGAM FORM obtained from the Department of Commercial Taxes, Government of Karnataka.

9. It is pertinent to note that, OP-1 which is maintained and supervised by OP-2, did not raise any objections at the time of booking consignment for transportation and did not complain that the complainant has not complied with the required rules and regulations prevailing in the State of Kerala for transportation of the said consignment.  It is not in dispute that on the way to Cochin the said consignment has been detained by the Inspecting Assistant Commissioner (Int.) Department of Commercial Taxes, Squad No.V, Ernakulam on the ground that “the consignment is not declared at any border check post in Kerala”.

10. The OPs did not dispute the detention of the said consignment by Inspecting Assistant Commissioner (Int.) Department of Commercial Taxes, Squad No.V, Ernakulam.  However, OPs contend that the said consignment has been detained due to non furnishing of Form 8FA.  However, the OPs in para-4 of their version admit that the complainant had furnished Form 8FA at the time of booking the consignment but he did not furnish necessary details in the said Form 8FA except putting the seal and signature.  The complainant denied that he has committed any mistake at the time of booking the consignment and insisted that he has complied with all the necessary formalities as required by Department of Commercial Taxes both in Karnataka as well as in Kerala.

11. The OPs to substantiate that the said consignment was detained for not furnishing the proper Form 8FA by the complainant along with consignment, did not produce any credible oral or documentary evidence.  It is pertinent to note here that as could be seen from the notice issued in Form No.17A by the Intelligence Officer/Intelligence Inspector, Squad V, Ernakulam dated 13.01.2014.  The said consignment has been detained for not declaring the said consignment at any border check post in Kerala by the OP during transportation and not for non-compliance of proper declaration in Form 8FA by the complainant, as claimed by them in their version and affidavit.  The OPs have not all produced any documentary evidence issued by Department of Commercial Taxes, Kerala to believe that the said consignment was detained/seized for non compliance of proper declaration in Form No.8FA.  It is evident from the above mentioned notice issued in Form No.17A by the Department of Commercial Taxes, Kerala, the consignment has been detained/seized for the reason that “the consignment is not declared at any border check post in Kerala”.  From the reasons assigned in the said notice, it is apparent that the OPs have failed to declare the consignment at the border check post in Kerala immediately after entering the State of Kerala.  Due to the failure on the part of OPs in declaring the consignment at border check post, the said consignment has been detained/seized.  The consignee has been issued with a above mentioned notice in Form No.17A to pay security deposit of Rs.14,500/-.  Copy of the said notice has also been served on the office of the OP at Ernakulam, Kerala.  It is evident from the discussions made above the non declaration of the consignment at the border check post by the OPs, the consignment has been detained.  The conduct of OPs in not following the standard procedure in interstate transportation of consignment has resulted in the detention of the consignment which amounts to deficiency of service.  Therefore, we are of the opinion that, OPs have to be directed to get the said consignment released by paying a sum of Rs.14,500/- as called upon under Form No.17A notice issued by Intelligence Inspector, Squad V of Ernakulam and deliver the consignment to the consignee.  The detention/seizure of the said consignment is because of the deficiency of service on the part of OPs.  The same must have caused great inconvenience, hardship, mental agony to the complainant.  Therefore, OPs have to be directed to pay compensation of Rs.20,000/- to the complainant apart from litigation cost of Rs.4,000/-.

12. In view of the facts and circumstances of the case, we are of the opinion that there is no basis for the contention of the OPs that the complainant is not a ‘consumer’ as defined under the Consumer Protection Act, merely because he is manufacturer of certain Electronic Testing Materials.  Admittedly the OPs are service providers.  In the given facts and circumstances of the case, we are of the opinion that the complainant is a ‘consumer’ as defined in the Consumer Protection Act, 1986.

13. The order could not be passed within the stipulated time due to heavy pendency.         

14. For the discussions made above, we proceed to pass the following: 

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  The OPs are directed to get the consignment in question released from the Intelligence Officer, Intelligence Inspector, Squad V, Department of Commercial Taxes, Ernakulam, Government of Kerala by paying a sum of Rs.14,500/- forthwith and deliver the consignment to the addressee/consignee.  In default the OPs shall pay a sum of Rs.31,212/- the loss suffered by the complainant due to non delivery of consignment to the consignee/addressee on time.  Further the OPs are directed to pay compensation of Rs.20,000/- together with litigation cost of Rs.4,000/-.

OPs shall comply the said order within four weeks from the date of communication of this order.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 23^rd day of July 2016)

MEMBER                            MEMBER                    PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 26.12.2014.

1. Sri.John Kurian.

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party-2 dated 10.04.2015.

1. Sri.S.Sujith.  

Document produced by the Opposite party/s - Nil

MEMBER                             MEMBER                     PRESIDENT

Vln*