BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.No.69 OF 2010
Between:
1. National Academy of Legal Studies and Research
University of Law (NALSAR)
rep. by its Registrar Prof. KVS Sarma
Justice City, Shameerpet, R.R.District
2. Prof: K.V.S.Sarma S/o late Prof: K.S.N.Murthy
Convener for the Common Law Admission Test
(CLAT) 2009, Ranga Reddy District.
Complainants
A N D
1. M/s Blue Dart Express Ltd.,
1-8-450/1/A/159 and 160, 1st Floor
Victoria Castle, Prakash Nagar,
Begumpet, Secundeabad-03
rep. by its Branch Manager
2. A & S Enterprises
rep. by its Proprietor
(Consolidator of M/s Blue Dart Express Ltd.,)
RTC Colony, Main Road, Medchal
Ranga Reddy District
3. The Managing Director
M/s Blue Dart Express Limited
Blue Dart Centre, Sahar Airport Road
Andheri (East) Mumbai-099
Opposite parties
Counsel for the Complainant M/s A.Kranthi Kumar Reddy
Counsel for the opposite parties M/s M.S.Srinivasa Iyengar (Ops1&3)
M/s A.P.Venu Gopal (Op2)
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
THURSDAY THE THIRTEENTH DAY OF SEPTEMBER
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The complaint is filed seeking direction to the opposite parties to pay a sum of `20,69,873/- towards compensation to the complainant no.1 for the loss incurred in rescheduling CLAT 2009, an amount of `71,50,000/- towards damages for loss of reputation of 11 national Law Universities and `7,75,000/- to the complainant no.2 towards damages for injury to personal reputation and mental trauma to the convener of CLAT 2009.
2. The averments of the complaint are that the first complainant is a reputed university and the second complainant is its convener to organize common law admission test (CLAT) 2009 which is common and joint student admission program of 11 universities viz., 1. National Law School of University, Bangalore, (NLSIU) 2. National Academy of Legal Studies and Research University, Hyderabad (NALSAR), 3. National Law Institute University, Bhopal (NLIU), 4. National University of Juridical Sciences, Kokkata (NUJS), 5. National Law University, Jodhpur (NLU), 6. The Hidayatullah National Law University, Raipur (HNLU), 7. Gujarat National Law University, Gandhi Nagar (GNLU), 8. Dr.Ram Manohar Lolhiya Naitonal Law University, Lucknow (RMLNLU), 9. Rajiv Gandhi National University of Law, Punjab (RGNUL), 10. Chanakya National Law University, Patna, (CNLU), 11. National University of Advanced Legal Studies, Kochi (NUALS).
3. The second complainant in the capacity of convener of CLAT 2009, on behalf of the first complainant entered into an agreement dated 22.4.2009 with first opposite party through its agent, the second opposite party in order to dispatch CLAT 2009 test papers to various test centers in different cities across India. The Common Entrance Test was scheduled to be held on 17.5.2009. The Assistant Manager, Customer Service and one Roser John of the first opposite party assured prompt service. The complainants had sent consignment i.e., 41 trunk boxes containing test papers of CLAT 2009 on 11.5.2009 for dispatch to various test centers in India. The consignment was supposed to be reached the test center before 17.5.2009. Mr.Roser John telephonically informed the complainant on 13.5.2009 that two trunk boxes out of 4 boxes containing CLAT 2009 test papers sent to Dr.Ram Manohar Lohia National Law University, Lucknow were found damaged in transit. The Registrar RMLNLU inspected the consignment and found the seals of the trunk boxes tampered with and she found that some test papers were missing from the boxes.
4. The Registrar, RMLNLU lodged complaint with the police, Lucknow and a case was registered by the police, Lucknow. The complainants also lodged FIR on 14.5.2009 with the police Shamirpet. The possibility of leakage of test papers due to breakage of trunk boxes made the complainants postpone CLAT 2009 sine dine and the same was intimated to all the centers.
5. The Branch Manager of the opposite party no.1 at Lucknow and its Senior Branch Manager wrote to the complainants on 19.5.2009 regretting the inconvenience caused to the complainants. The entrance test was rescheduled as 31.5.2009 and it was informed to all the test centers through CLAT website. On 3.6.2009 the Senior Manager of the opposite party no.1 submitted enquiry report to the complainants admitting that two trunk boxes were broke open during the transit. The complainant incurred amount of `21 lakh for rescheduling of the tests viz., for stationery, printing, communications, faculty, logistics and miscellaneous expenses. The eleven universities and the first complainant as also the second complainant faced defamation due to publication of news regarding question paper leakage and postponement of CLAT 2009. It also caused injury to the personal reputation of the second complainant. The opposite parties were negligent during transit of the consignment. The negligence of the opposite parties resulted in pecuniary loss and loss of reputation to the eleven law universities. The complainants got issued notice through their advocate on 15.2.2010 calling upon the opposite parties to pay the amount sought for, in the complaint. As they failed to pay the amount the present complaint is filed seeking the same amount mentioned in the notice.
6. The opposite party no.1 resisted the claim contending that the complaint is not maintainable as there is no privity of contract between the complainants and opposite parties no.1 and 3. The contract in respect of subject consignment is between the complainants and the opposite party no.2. The complainants entered into service agreement dated 22.4.2009 with the opposite party no.2. There is no cause of action for the complainant to file complaint against the opposite parties no.1 and 2. The complainants entered into separate agreement with the opposite parties no.1 and 3 on 3.9.2001 and they did not choose to send the consignment through opposite parties no.1 and 2 as per the terms of the agreement.
7. There was no leakage of papers and nor missing or loss of the exam papers.
8. The first complainant entered into separate agreement with the second opposite party on 22.04.2009 and with the first opposite party on 3.09.2001. The first opposite party had chosen to send the consignment with the second opposite party under the agreement with the second opposite party. No negligence is pointed out against the first and third opposite party. The complainants suppressed agreement dated 3.09.2001. The complaint involves disputed questions of facts, need extensive evidence, cross examination of witnesses and evidence which cannot be done in summary proceedings. The complainant is bound by limitation clause in the agreement dated 3.09.2001.The third opposite party in independent capacity cannot be made liable in the complaint.
9. The complaint is not maintainable for non-joinder of the eleven universities on behalf of whom the amount of `71,50,000/- is claimed towards damages. The first opposite party has the most domestic extensive network covering over 2,500 locations. It is the India’s premier courier company and has many competitive advantages over other couriers. The first opposite party evolved unique infrastructure in the country. The Airway bill determines the terms of contract between the first opposite party and each consignor. The terms of agreement dated 3.09.2001 are binding on the first complainant. The first opposite party and the second opposite party are bound by the terms and conditions of the consolidation agreement dated 18.02.2009.The first complainant and the second opposite party are bound by the terms of the agreement dated 22.04.2009.
10. As per the Airway bill dated 11.05.2009 issued by the first opposite party , the second opposite party is the consignor of the goods. The shipment was reached Delhi from Hyderabad on 12.05.2009 under strict supervision and scanning at Delhi Air Port and there was no visible damage to the bags. Visible transit damage was observed at Lucknow and the first opposite party informed the second opposite party and the complainant no.1 about the visible damage to the boxes observed at Lucknow and the first opposite party lodged FIR with the Police, Lucknow on 13.05.2009. In presence of the registrar of the RMLNLU and the Police, Lucknow the questions papers were checked and they were found in order and no question paper or document was found missing.
11. The first opposite party had given reply to the notice dated 15.02.2010 issued by the complainant no.1.The opposite parties no.1 and 3 are not privy to the contract entered between the complainant no.1 and the second opposite party. There has been no loss of contents of the consignment and there has been no fault or deficiency in series on the part of the opposite party no.1 and 3. The opposite parties no.1 and 3 cannot be held responsible for the decision taken by the complainants no.1 and 2 to reschedule the test. The claim of the complainants is arbitrary and excessive and too remote as also the complainants cannot claim any relief against the first opposite party and the third opposite party.
12. The second opposite party has filed written version contending that the second complainant is not competent to file the complaint or to verify the pleadings. The second opposite party is not a necessary party to the proceedings. The first complainant is not a consumer; this Commission has no jurisdiction to try the matter; In view of the agreement between the first complainant and the second opposite party, civil court alone has jurisdiction to entertain the complaint. In view of arbitration clause in the agreement, the complaint is not maintainable. By virtue of its conduct, the first complainant waived its right to proceed against the second opposite party and it has to proceed against the first opposite party alone. In absence of the 11 universities as parties , the complaint is not maintainable. Hence, prayed for dismissal of the complaint.
13. The complainant no.2 filed his affidavit and the documents Exs.A1 to A19. On behalf of the opposite parties no.1 and 3, Uma Maheswar Rao, Accounts Manager filed his affidavit and Smt T.Annapurna, the Proprietrix of the opposite party no.2 filed her affidavit and the documents Exs.B1 to B7.
14. The points for consideration are:
i) Whether the complainants are consumers?
ii) Whether the matter involves complicated question of fact so as to be decided by competent court?
iii) Whether the opposite parties rendered deficient service?
iv) To what relief?
15. POINT NO.1& 2: The preliminary objection raised as to the maintainability of the complaint is in regard to different reliefs sought by for the complainants. The first complainant is a University and the second complainant is its registrar. The complainants sought for the relief of `20,69,873/- towards compensation, an amount of `71,50,000/- towards damages for loss of reputation of eleven universities and the amount of `7,75,000/-to the second complainant towards damages for injury to personal reputation and mental trauma to the convener of CLAT-2009.
16. The learned counsel for the complainants has submitted that the second complainant acting for and on behalf of the first complainant consigned common entrance test papers on 11.05.2009 which were to be delivered to various centers before 17.05.2009 and due to negligence of the opposite parties two boxes containing the test papers were tampered with as a result of which the complainants were compelled to reschedule the exam and in view of letter dated 19.05.2009 written by the senior branch manager of the first opposite regretting the inconvenience caused to the first complainant by the opposite parties, the opposite parties are liable to pay compensation and damages to the complainants.
17. The learned counsel for the opposite parties no.1 and 3 have contended that the second relief and the third relief cannot be sought by the complainants as the complaint is filed alleging deficiency in service and the first complainant cannot claim damages for loss of reputation and the second complainant on the premise of injury to his personal reputation. According to the learned counsel, the relief for damages involving personal reputation has to be sought for, in a different Forum.
18. The learned counsel for the second opposite party has contended that the first complainant entered into, two service agreements, one with the first opposite party and another with the second opposite party. The Courier Service Agreement entered into, between the first complainant and the second opposite party on 22.04.2009 provides for the first complainant dispatching CLAT-2009 test papers to various parts of the country and for receiving back them through the second opposite party. The rights and liabilities of the first complainant and the second opposite party have been spelt out in the agreement. Clause 11 of the Agreement provides for settlement of dispute under the agreement by arbitration process, the Vice-Chancellor, NALSAR as arbitrator and Clause 12 of the Agreement relieves the second opposite party from any liability for loss of Test Papers “due to any Act of God, Fire, accidents or any other circumstances beyond Agent’s control”. The agreement is more in the nature of a platform providing for specific performance of contract between the parties.
19. Prior to the date of agreement entered with the second opposite party, the first complainant entered into, agreement with the first opposite party on 3.09.2001 “to carry consignments in the form of parcels, documents, samples, stocks and other loads subject to the restrictions as noted in the waybill and on the terms and conditions set out in the Agreement”. The liability of the first opposite party in case of loss or damage of the consignment is regulated by limitation liability clause and dispute between the parties and the other Clause provides for mutual settlement and the unresolved dispute by arbitrator nominated by the chairman of the first opposite party.
20. The opposite party no.1 entered into Consolidator Agreement with the second opposite party on 18.02.2009. As per the terms of the Agreement , the transactions between the first opposite party and the second opposite party are on principal to principal basis and the first opposite party would carry the consignments of the second opposite party in its network and the second opposite party has to pick up the consignments from its consignor on its own Airway Bill. The first opposite party at the time of receiving the consignment from the second opposite party would use its Airway Bill and the liability of the first opposite party is agreed to be extended to the second opposite party and not to the original consignor.
21. The permutations and combinations of the agreements between the parties extended the complexity of the matter to another agreement in the shape of ‘Memorandum of Understanding’ entered into, among the first complainant and eleven other universities which have not been impleaded as parties to the complaint. The learned counsel for the opposite parties questioned the maintainability of the complaint in absence of the other Universities which are parties to the Memorandum of Understanding’ which in turn is the genesis for the test papers, viz, subject matter upon which the present claim is lodged by the complainants.
22. The Memorandum of Understanding was entered among the first complainant and six other National Law Universities, viz., the National Law School of India University, Bangalore (NLSIU), National Law Institute University, Bhopal (NLIU), National Institute of Juridical Sciences, Kolkata (NUJS), National Law University, Jodhpur (NLU), The Hidayatullah National Law University, Raipur (HNLU) and Gujarat National Law University, Gandhi Nagar (GNLU) for conducting a common entrance test for admission to the Five Year Integrated Law Degree Programme with understanding that every year the common law entrance test would be conducted by each of the eight National Law Universities on rotation basis beginning with the oldest among them. Placing reliance upon Clause 12 and 13 of the MOU, the counsel for the opposite parties would contend that the matter of conducting the common law entrance test involves commercial purpose which would forbid the complainants from invoking the jurisdiction of this Commission.
23. Clauses 12 and 13 of the MOU deal with sale of brochure and application forms and distribution of sale proceeds among the University conducting CAT and other seven universities and they read as under:
12) The pricing of the brochure/application form for CLAT shall be as may be decided by the CC_CLAT each year, taking in to consideration the fact that in any given year six of the participating universities shall be foregoing revenues accruing to them on the sale of the respective application form. Further, at present every candidate has to buy more than one application form for admission to the programmes of study in the participating universities and therefore the CLAT would result in having on purchase of multiple application forms. In the first year, the application form for CLAT 2008, shall be priced at RS.2000/- (two thousand only). The proceeds (revenues) from the sale of application forms and brochures shall be shared in the following manner:
a. 50% of the proceeds shall be retained by the Organizing University for meeting the expenditure on conducting CLAT
b. the remaining 50% of the proceeds shall be divided equally among the participating universities.
13) Each participating University shall be entitled to an equal share from out of revenue accruing on account of the release of CLAT score to institutions and universities other than the participating universities. For CLAT 2008, a fee of RS.1000 (One thousand only) shall be levied. The CC-CLAT shall be competent to revise the fee for release of score-card from time to time.
24. The learned counsel for the opposite parties no.1 and 3 had relied upon the decision of the Hon’ble National Commission in “Pawan Ganga Education Society vs Haryana Urban Development Authority and Another” III(2012) CPJ 341 to contend that setting up of academic and other institutions for imparting education by charging fee from different candidates would involve commercial and profit earning motive.
25. The learned counsel for the complainants contend that the two trunk boxes containing CLAT 2009 Test papers which were meant to be delivered to Dr.Ram Manoher Lohiya National Law University, Lucknow were found damaged in the transit , the seals of the trunk boxes were tampered with, their clamps and locks were found broken and some test papers were found missing from the boxes. The learned counsels for the opposite parties have contended that except damage to the boxes, no damage or loss was occurred to the test papers. In the letter dated 19.05.2009 addressed to the first complainant, the senior branch manager of the first opposite party had informed the first complainant that they conducted preliminary investigation and it was found that the damage was caused only to the boxes during the transit in Kingfisher Airlines from New Delhi to Lucknow. It is the contention of the first opposite party that in presence of the registrar of the RMLNLU and the Police, Lucknow the question papers were checked and they were found in order and no question paper or document was found missing.
26. Through letter dated 3.06.2009 the senior branch manager of the first opposite party informed the first complainant that they lodged FIR with the Police, Lucknow and that of the two boxes, one box was received in open condition and another box with broken wire and without the seal and all the exam papers were correctly accounted for. The learned counsels for the opposite parties had contended that the entire correspondence placed on record by the complainants would show the damage to the two trunk boxes and no loss or no damage to the test papers and the damage was caused only was caused to the boxes during the transit in the Kingfisher flight which is beyond the control of the opposite parties and there was no deficiency in service on their part.
27. Apart from the matter involving the aforementioned disputed questions of facts, the maintainability of the complaint on different aspects such as the reliefs claimed not acceding to the jurisdiction of this Commission, the sale of the brochures and application forms by the first complainant and sharing of the sale proceeds by it and other universities and the various state legislatures governing constitution and functioning of those seven National Law Universities as also the agreements entered parties inter se providing for initiation of arbitration proceedings and specific performance of contract and the matte involving complicated questions of facts requiring detailed examination and cross examination of witnesses etc, lead us to the view that the matter cannot be adjudicated in summary proceedings efore this Commission and it can be decided by Civil Court. As such, the parties are required to be relegated to civil court for proper adjudication of the matter.
28. In “Oriental INSURANCE Company Ltd vs Munimahesh Patel” IV (2006) CPJ 1 , the insurance company disputed the genuineness of the documents and the hon’ble Suprme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction.
“9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent’s wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.
13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs”.
29. The National Commission in ‘Transport Corporation Employees Provident Fund Trust vs Orissa small Industries and another ‘ III(2007) CPJ 316(NC) and ‘Omprakash vs Allahabad Bank’III(2206)CPJ 418, held that the matter involving adjudication of disputed questions of facts has to be tried by competent court. Thus, we are inclined to give opportunity to the complainants to approach competent court for adjudication of the matter.
30. POINT NO.3: In view of finding that the civil court alone is a competent forum to entertain the complaint, there need be no discussion.
31. POINT NO.4; In the result, the complaint is dismissed with liberty to the complainants to approach appropriate civil court having jurisdiction for rederessal of their grievance. No costs.
MEMBER
MEMBER
Dt.13.09.2012
KMK*
Appendix of Evidence
Witnesses Examined
For Complainants for Opposite parties
NIL NIL
EXHIBITS MARKED
For complainant
Ex.A1 CLAT MOU dt.23.11.2007
Ex.A2 Agreement withy courer Service Agency dt.22.4.2009
Ex.A3 Correspondence from Blue Dart Company
Ex.A4 Consignment copies issued by Blue Dart
Ex.A5 News Paper cuttings about postponement dt.14.05.2009
Ex.A6 Intimation to the Centres
Ex.A7 Email dt.13.05.2009 to the centres
Ex.A8 Email dated 14.05.2009 to Vice Chancellors
Ex.A9 Email to all National Law Schools
Ex.A10 Email regarding Rescheduled date
Ex.A11 Email from test centers
Ex.A12 Complaint dt.14.5.2009 with PS Shameerpet
Ex.A13 Letter dt.13.5.2009 of RMLNLU, Lucknow
Ex.A14 Documents and reports submitted by Blue Dart Company
Ex.A15 CLAT-2009 Brochure
Ex.A16 Statement of expenditure
Ex.A17 Office copy of legal notice dt.15.02.2010
Ex.A18 Postal acknowledgements and receipts
Ex.A19 Reply legal notice dt.29.04.2010
For opposite parties
Ex.B1 Power of attorney dt.16.10.2010
Ex.B2 Contract Forum dt.2.9.2001
Ex.B3 Consolidator agreement dt.18.2.2009
Ex.B4 Courier Service Agreement dt.12.04.2009
Ex.B5 Courier receipt
Ex.B6 Legal notice dt.15.2.2010
Ex.B7 Reply dated 29.4.2010
MEMBER
MEMBER
