DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 68 of 17.2.2016
Decided on: 9.11.2016
M/s Manu Enterprises through its Prop. Sh.Abhimanyu Saagar,Village Sher Majra, Maine Road, Patiala.
…………...Complainant
Versus
- Nitco Roadways, Nitco House, Talab Tillo Road ,Jammu-180002 through
- Local Branch Office/second address-Nitco Roadways through its authorized agent,Saifabadi Gate, Patiala.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Abhimanyu Saagar,Prop. of the complainant.
Sh.Ravinder Singh,Advocate, counsel for
Opposite Party No.1.
Opposite Party No.2 Ex-parte.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh. Abhimanyu Saagar Proprietor of M/s Manu Enterprises has filed this complaint under Section 12 of the Consumer Protection Act, 1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) praying for the following reliefs:-
- To refund Rs.360/-taken by the O.P. at the time of consignment which it failed to deliver
- To pay Rs. 15,086/- , the cost of the machinery part, lost by the O.Ps
- To pay Rs.2.00 lac as compensation on account of deficiency in service, unfair/deceptive trade practice
- Rs.50,000/- as litigation expenses
- Any other relief, which this Forum deem fit.
2. In brief, the case of the complainant is that it deals in making fuel oil from the waste plastic. It purchased a machinery part from M/s Smithson Hydraulics, RZ-60 Ravi Nagar Exten.,New Delhi-110018 vide invoice bearing No.101 dated 23.7.2015 for an amount of Rs.15,086/-. The said machinery part was booked by the consignor i.e. M/s Smithson Hydraulics at Lohan Mandi branch office of the OP at New Delhi to be delivered to it at Patiala. A goods receipt bearing No.LMD1E724001 dated 24.7.2015 was issued at the time of booking, by the Delhi branch office of the OP. It approached local branch office of the OP at Patiala for delivery of the consignment, who issued a gate pass bearing No.0199 dated 29.7.2015, after accepting the delivery charges of Rs.360/- but till date the product has not been delivered by the O.Ps. It made multiple phone calls to the local branch office as well as head office of Ops at Jammu but all in vain. Finally, it wrote a letter dated 11.9.2015 to the O.P. for refund of amount of Rs.360/- and also for the payment of Rs.15,086/-, the cost of the product. On the direction of Jammu head office of the O.Ps., the local branch office issued a certificate dated 11.9.2015 stating therein that the consignment is untraceable. The O.Ps. refused to compensate it. There is thus deficiency in service as well as unfair trade practice on the part of the O.Ps. for which it suffered from mental agony and physical harassment. Hence this complaint.
3. On being put to notice, OP No.2 failed to come present despite service and was accordingly proceeded against exparte. Whereas OP No.1 appeared and filed its written version taking preliminary objections that the booked goods were meant for commercial purposes, thus the complaint is not maintainable; that the complainant has no cause of action to file the complaint against it; that the complainant has not made Nitco Roadways, New Delhi as party to the complaint and that the complaint being not signed and verified by authorized person is liable to be dismissed. On merits , it is denied that the complainant had purchased a machinery part from M/s Smithson Hydraulics at New Delhi for an amount of Rs.15,086or that the said machinery part was booked by the consignor with its Loha Mandi Branch office at New Delhi to be delivered to the complainant at Patiala. It is also denied that the complainant wrote letter or made telephonic calls to the local branch as well as its head office at Jammu. It is stated that it has not received any delivery and as such it has rightly issued certificate dated 11.9.2015 to the effect that the consignment is untraceable. There is no deficiency of service or unfair trade practice on its part.The complainant is not entitled for any relief.After denying all other averments made in the complaint, it is prayed to dismiss the complaint with cost.
4. In support of the complaint, the Prop. of the complainant tendered in evidence Ex.CA, his sworn affidavit,Ex.C1, copy of retail invoice,Ex.C2 consignment copy, Ex.C3 copy of gate pass,Ex.C4 copy of letter dated 11.9.2015,Ex.C5 copy of certificate, Ex.C6 copy of Declaration, and closed the evidence.
On the contrary, the Ld. counsel for OP no.1, tendered in evidence Ex.OPA, sworn affidavit of Anil Kumar Bali, and closed the evidence.
5. We have heard the Prop. of M/s Manu Enterprises, the Ld. counsel for OP No.1 and have also gone through the written arguments filed by the O.P. and also gone through the record of the case, carefully.
6. At the outset, the Ld. counsel for the O.P No.1 has raised the objection that the goods which were booked were purchased for commercial purpose. As such, complaint is not maintainable. To this effect, the prop. of M/s Manu Enterprises has submitted that he is doing the business of manufacturing fuel oil from plastic waste, in the name and style of M/s Manu Enterprises at small scale, for earning his livelihood. Therefore, the present complaint is maintainable before this Forum.
No document has been placed on record by O.P No.1. to corroborate the fact, that the booked goods were meant for commercial purpose. Thus, in the absence of any documentary evidence, we do not find any substance in the objection raised by O.P. No.1.hence rejected.
7. The next objection raised by the ld. Counsel for OP No.1 is that the complainant has not impleaded Nitco Roadways ,New Delhi as party, as such the complaint is liable to be dismissed. The prop. of M/s Manu Enterprises submitted that since the delivery of the consignment was to be given by the Nitco Roadway at Patiala, and he has already impleaded the Nitco Roadway ,Jammu i.e.Head Office and Nitco Roadways ,Patiala Branch Office, therefore, this objection raised by the OP may not be considered.
It may be stated that the complainant has impleaded the Nitco Roadways, Jammu i.e. the Head office as O.P. No.1 and Nitco Roadways, Patiala i.e. branch office,as O.P. No.2, in the array of the O.Ps. Even if, the complainant has not impleaded Nitco Roadway, Delhi as OP in the array of the O.Ps. then for this reason only, the complaint can not be dismissed. Therefore, the objection raised by the O.P No.1 is not tenable, hence rejected.
8. The next objection raised by the Ld. Counsel for OP No.1 is that the complaint has not been duly signed and verified by the authorized person and the same is liable to be dismissed on this score also. The Prop. of M/s Manu Enterprises has submitted that since he himself has drafted the complaint and was not aware of this fact that the complaint should have been verified, as such it is a procedural lapse and the Hon’ble Forum may ignore this mistake which has been committed by him inadvertently.
It may be stated that the law has already been settled that every lis should normally be decided on merits than resorting to hyper- technicality. When hyper-technicality and the substantial justice are pitted against each other then the later shall prevail over the former. The procedure is ultimately meant to advance the cause thereof than to thwart the same. As such, even this objection raised by OP No.1 is also not tenable, hence rejected.
9. On merits, the Prop. of M/s Manu Enterprises submitted that the consignment which was duly booked by Smithson with Nitco Roadway, Delhi for delivering the same to the complainant at Patiala, has not been delivered by the O.Ps. He further submitted that as per CRA Section 9(4) Read with Rule 12(1) of CRR, the GR has to be issued by the common carrier at the time of acceptance of consignment, shall include an undertaking by the common carrier regarding its liability under Section 10 or under Section 11 of the said Act. Since the Ops neither have handed over the consignment nor paid the cost thereof i.e. 15,086/-, as such, they are deficient in providing service and also indulged in to Unfair Trade Practice . Therefore, they be directed to compensate it, as prayed for in the complaint.
10. The Ld. Counsel for OP No.1 has submitted that the consignor i.e.; Smitson Hydraulics has booked a consignment with Nitco Roadways Loha Mandi, branch New Delhi to deliver the same to the complainant/ consignee at Patiala. OP No.1 has not received any delivery and it has rightly issued certificate dated 11.9.2015 to the effect that consignment is untraceable. As such OP No.1 is not deficient in providing services, therefore, the complaint filed qua it be dismissed with costs.
11. From the copy of retail invoice dated 23.7.2015,Ex.C1, it is evident that the same has been issued by Smithson Hydraulics, in favour of M/s Manu Enterprises, village Shermajra, Main Road, Patiala (Punjab) for sale of machinery part SD8/3(With LCB)(Make Walvoil) for Rs.15,086/-.In order to send the machinery part to the complainant, the Smithson Hydraulics booked a consignment with the Nitco Roadway, branch office, Delhi, as is evident from copy of Goods Receipt, Ex.C1.On perusal of the said GR, it is evident that the consignor i.e. Smithson Hydraulics booked the Machinery Parts worth Rs.15,086/-on 24.7.2015 for delivering the same to complainant at Patiala. The grievance of the complainant is that it has not received the machinery parts in question as yet. The O.P. No.2 has issued short certificate dated 11.9.2015, Ex.C5. Even OP No.1, in its written version in para No.5 has admitted the factum of issuance of untraceable certificate. Even otherwise also the Ops have failed to prove that it has delivered the consignment to the complainant. Thus as per term No.13 of Terms and Conditions of Carriage, annexed alongwith Ex.C2, which reads as under:
“Where the goods have been lost, destroyed or damaged or have deteriorated, the compensation payable by the Transport Operator shall not exceed the value declared.”
From the copy of Good Receipt, Ex.C2, it is evident that the declared value of the machinery part in question is Rs.15,086/-.Therefore, as per the said term no.13, the Ops are liable to pay the declared value of Rs.15,086/-. The Ops are also liable to refund Rs.360/-, which the Nitco Roadways, Patiala has charged from the complainant, on account of fee for gate pass issued on 29.7.2015. It may be stated that the complainant is also entitled for compensation on account of financial loss. 12. In view of the aforesaid discussion, we allow the complaint and direct the O.Ps in the following manner:
- To refund Rs.360/- charged on account of Gate Pass
- To pay Rs.15,086/- cost of the machinery parts
- To pay Rs.5,000/- as compensation.
- To pay Rs.3,000/- as litigation charges.
The O.Ps No.1&2 are further directed to comply the order within a period of 45 days from the date of the receipt of the certified copy of this order. The certified copies of this order be sent to the parties free of cost under the rules. Thereafter, the file be indexed and consigned to the record room.
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
DATED: 9 .11. 2016
