This case is coming for final hearing on 08-07-2014 in the presence of Sri Surendra Mishra Advocate for the Complainant and of N.Madhava Rao Advocate for Opposite Party and having stood over till this date, the Forum delivered the following.                                                                                                                                             

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

1.       The case of the complainant is that he booked some material through opposite party on 27.03.2012, but the opposite party had not delivered the material to the consignee at Mumbai to Material organization in time.  The Opposite party delivered the material on 22.04.2012 i.e., with 20 days delay, the actual delivery schedule was as mentioned by the opposite party was on 02.04.2012.  The opposite party issued a receipt docket vide Sl.No.458610288 and the complainant paid Rs.2,070/- towards freight charges for 90kgs of said material.  Because of the late delivery of the material by the opposite party the consignee deducted Rs.20,000/- due to late delivery of the said material.  The complainant made several telephone calls time to time and asked about the delivery of the materials, but the opposite party did not care and not gave any proper reply.  Hence, the complainant issued a registered Lawyer’s notice on 07.08.2012 to the opposite party calling upon to make payment of Rs.20,000/- and Rs.2,070/- towards freight charges in total Rs.22,070/- with 24% p.a. interest besides compensation.  But the opposite party failed to respond to the same, but issued a reply notice on 23.08.2012 stating that he will pay only freight charges of Rs.990/-.  The acts of the opposite party clearly shows deficiency in service on their part, hence, this complaint to direct the opposite party;

a)      to pay an amount of Rs.22,070/- with 24% p.a. interest from 27.03.2012

b)      to pay Rs.50,000/- towards compensation besides costs. 

2.       On the otherhand, the opposite party filed its counter and denied all the material allegations mentioned in the complaint and pleaded that the complainant is a Proprietary concern i.e., M/s Battery Centre hence, he is not a consumer.  The transaction between consignor and consignee is commercial in nature.  As per the terms and conditions, the dispute between the parties shall refer to the arbitrator,  hence, the Forum has no jurisdiction and the terms and conditions of the consignment are binding on the parties.  The opposite party admitted about the material booked by the complainant vide docket No.458612088 on 27.03.2012 and also admitted about actual date of delivery is 02.04.2012.  But denied that the complainant has paid the freight charges of Rs.2,070/- to the opposite party pleaded that the complainant paid Rs.990/- only towards freight charges.  As per the policy of the opposite party, in case of any delay in delivery in consignments, the opposite party offers to return the freight charges to its customers.  Here in this case, the consignment is delivered on 23.04.2014 with some delay due to reasons beyond its control and the delay is neither negligence on the part of the opposite party nor due to wanton but due to unavoidable technical errors in the system.  Hence, the opposite party intimated the complainant and asked him to collect the refund of freight charges of Rs.990/- but the complainant denied to take that money and approached the Honourable Forum by suppressing the material facts.  The opposite party further pleaded that the complainant has cooked up story of deduction of Rs.20,000/- by the consignee only to gain wrongfully and he has not filed any document before the Honourable Forum to substantiate his pleadings. 

3.       The opposite party pleaded that there is no damage to the consignment and the same is delivered intact condition to the consignor only there was some delay in delivery.  Hence, there is no deficiency in service on its part and the amount paid by the complainant is Rs.2,070/- includes freight charges, service tax, risk on value, non metro charges, octroi duty etc., As there is no deficiency in service on the part of the opposite party it is not liable to pay any amount.  Hence this complaint is to be dismissed.

4.       At the time of enquiry, the complainant filed affidavit along with documents which are marked as Exhibits A1 to A4.  The complainant also filed written arguments.  On the otherhand, the opposite party filed its counter, evidence affidavit, and written arguments along with documents which are marked as ExB1 to B3.  Both the counsels were heard who reiterated their versions.

5.       In view of the respective contentions, the point that would arise for determination is:-

Whether there is any deficiency in service on the part of the opposite party, if so can the complainant entitle for the reliefs prayed for?

6.       As per Ex.A3 i.e., receipt issued by the opposite party on 27.03.2012 regarding the delivery of the materials to the consignee at Mumbai and the receiver name was mentioned as Controller of the Ware House Material Organization, Mumbai and the sender’s name was mentioned as Battery Centre, 75 feet road, Visakhapatnam and there was no individual name as Prahlada Krishna Murhty i.e., complainant.  Exhibit A1 is the Lawyer’s notice issued by the complainant on 07.08.2012 and Ex.A2 is the postal receipt on the same date.  As per the versions of the complainant he booked some materials to the Controller of Ware House, Mumbai through opposite party, but the opposite party failed to deliver the material in time and there was delay of 20 days in delivering the material.  Because of late delivery the consignee deducted Rs.20,000/-.  But here, the complainant failed to establish his plea regarding the deduction of Rs.20,000/- by filing any document.  Ex.A4 is the reply lawyer’s notice issued by the opposite party on 23.08.2012 and accepting their delay of 20 days and they are ready to refund Freight charges of Rs.990/-.  As per the complainant’s version the freight charges collected from him by opposite party were Rs.2,070/-, but Ex.A3 clearly shows that the freight charges are Rs.990/- and the balance amount is for ROV charges, basic charges, handling charges, service tax etc.,

7.       The version of the opposite party is that the complainant is not a consumer as the transaction between the consignor and consignee is commercial in nature.  The opposite party expressed its willingness to repay the consignment charges to the complainant as there is delay.  Ex.B1 is the Authorisation Letter dated 01.07.2013 and Ex.B2 is the interim reply by the opposite party on 09.08.2012 and Ex.B3 is the final reply issued by the opposite party to the complainant.

8.       The Forum is of the view that the complainant booked some material worth of approximately declared as mentioned in Ex.A3 is Rs.62,738/-.  At the time of oral arguments made by the counsel of the complainant stated that the material booked by the complainant is batteries. 

9.       It is to be noted that the complainant himself is proprietary concern i.e., M/s Battery Centre and Ex.A1 also mentioned the address of the complainant is M/s Battery Centre only.  The complainant booked materials as Proprietary concern, hence he is not a consumer as per the definition under Consumer Protection Act 1986. The transaction between the complainant and consignee is commercial in nature, hence the complaint is not maintainable under Consumer Protection Act.  Hence, the complainant cannot claim the amount of Rs.20,000/- as prayed by him and also the compensation. 

          Accordingly, this point is answered.

10.     In the result, the complaint is dismissed.  No order as to the costs.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 22^nd day of July, 2014.

   Sd/-                                                                                 Sd/-

Member                                                                          President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Party:

NIL

    Sd/-                                                                                Sd/-

  Member                                                                         President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam