Delhi

StateCommission

CC/11/230

THE NATIONAL TRUST - Complainant(s)

Versus

ON DOT COURIER AND CARGO LTD. & ORS. - Opp.Party(s)

20 Aug 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:20.08.2019

                                                                                                              

                                                                   Date of decision:22.08.2019

 

Complaint No.230/2011

 

 

IN THE MATTER OF

 

The National Trust

Ministry of Social Justice &

Empowerment, Govt. of India

16 B, Bada Bazar Marg,

Old Rajinder Nagar,

New Delhi-110060….Complainant

 

VERSUS

 

On Dot Courier and Cargo Ltd.

Through its Managing Director

H-128/2, Mohammad Pur,

Near Bhikaji Cama Place,

New Delhi                                                  

 

Shanti International

Through its Proprietor

WZ-415, B-1,2^nd floor,

Naraina, New Delhi

 

M R S International Cargo Ltd.

Through its Managing Director

2171/1, Akshaya Chamber,

Main Road, Patel Nagar,

New Delhi                                                                      ….Opposite Parties

 

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Devanshu Yadav, Counsel for the complainant

                   None for the OPs. None appeared on their behalf after 18.01.2016

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           The National Trust, a statutory body of the Govt. of India constituted under the National Trust Act 1999 has filed this complaint before this Commission, for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against the On Dot Courier and Cargo Ltd., Shanti International and M R S International Cargo Ltd., hereinafter referred to as OPs 1 to 3 respectively, alleging deficiency of service on the part of the OPs they having not delivered the material for the campaign Badhte Kadam II to various State Governments as agreed to despite having received the requisite payment in this behalf and praying for relief as under:-

 

The complainant, therefore, humbly submits and prays that the quantum may be quantified under the following heads:-

1. The opponents may be directed to pay to the complainant an amount of Rs. 25,53,046/-;
2. The cost of these proceedings may please be allowed to the complainant from the opponents; and
3. This Hon’ble Commission may pass any other order, which this Hon’ble Commission may feel necessary and expedient in the peculiar circumstances of the present case.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant having conceptualized and planned a national event in the name Badhte Kadam II in 28 states and 2 union territories for creation of wide awareness about the different aspects involved with the issue on 16.11.2010 at New Delhi and in other states on 19.11.2010, invited the Tender for sending the requisite material for the said campaign in 28 states and 2 Union Territories. The OP-1 bid, being most favourable was accepted. The OP-2 was engaged for rendering services of courier. The said OP-2 was to handle the transactions. The OP-1 was requested to undertake the job of delivering the requisite material vide letter 24.09.2010, with the condition as indicated in the following words:-

 

“Please note that this material is very essential for our Badhte Kadam Program and any loss or damage and undue delay in its delivery may cause irreparable loss to us.”

 

4.           The respondent no. 1 was handed over the entire material to be sent to 28 states and 2 union territories with the instruction to ensure safe delivery without any delay. The requisite payment of Rs. 25,000/- was also made by the complainant. However the complainant received a letter dated 11.11.2010 from the OPs stating therein that the material to be delivered was still lying with the OP-3. The complainant was asked to make the immediate payment of Rs. 1,35,000/- for its delivery. The complainant given the time constraint and the relevance of the material for the event made the payment of Rs. 1,35,000/- to ensure no hiccups in the matter of delivery. However the OP-3 despite being paid the advance money did not deliver the material at 11 destinations and thereby rendered the entire efforts at those 11 destinations to be meaningless for want of the awareness material. In these circumstances, the complainant has alleged that the OPs were not only deficient in rendering service, but it indulged in unfair trade practices.
5.           The complainant having suffered an irreparable loss due to the non delivery of the material served a legal notice on OPs on 12.04.2011 requiring them to make the payment of Rs. 25,53,046/- within 15 days from the receipt of this notice. However since no response was forthcoming the complainants have approached this Commission for the redressal of their grievances.
6.           OPs were noticed and in response thereto only OP-1 has filed the reply resisting the complaint both on technical ground and on merit. OP-2 and OP-3 having not responded to the notice have been ordered to be proceeded ex-parte vide proceeding recorded on 09.08.2016.
7.           The OP-1 in their defence while denying the contents raised in complaint have stated that the complaint qua them is not maintainable since there exists no privity of contract between them. Secondly the complaint is liable to be dismissed as no notice as statutorily required under Section 10 of the Carrier Act was issued. Thirdly the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986 in which case they cannot raise a consumer dispute before this Commission.
8.           The complainant has filed rejoinder rebutting the contentions raised by the OPs in the reply and reiterating the averments contained in the complaint. Evidence by affidavit has also been filed by the complainant in support of the pleadings.
9.           This matter was listed before this Commission for final hearing on 20.08.2019 when the counsel for the complainant appeared and advanced his arguments. None appeared for OPs. Infact none appeared on their behalf after 18.01.2016. Arguments concluded. The matter being of the year 2011, no useful purpose would be served to adjourn the matter for the appearance of the OPs. I have read and re read the records of the case.
10. I may in the first instance advert to the defence of the OPs as contained in their reply. There objection that no cause of action qua them subsists since there exists no privity of contract between OP-1 and the complainant is unsustainable since as per record there was contract and the consideration amount was paid. Their second objection that before approaching this Commission the complainant was required to issue notice under Carrier Act cannot sustain as the remedy under the Consumer Protection Act 1986 as per Section 3 of the Act is in addition to and not in derogation of the provisions of any other law for the time been in force. The Hon’ble Apex Court in the matter of National Seeds Corporation Ltd. vs. M. Madhusudhan Reddy and Anr as reported in (2012) 2 SCC 506 is pleased to hold that remedies provided under the Consumer Protection Act are in addition to and not in derogation of other laws in force. Their third objection that the complainants are not consumer is also not sustainable relying on Section 12(1)(d) of the Act which enables the Central Govt or State Govt. to approach the fora either in individual capacity or in group. Having regard to this the preliminary objections raised by the OPs in the facts and circumstances of the case are sequentially rejected.
11. Having reached to this conclusion the point for consideration is whether the OPs were deficient in rendering service to the complainant as assured and as agreed to after receipt of the consideration amount in this behalf.
12. The State Commission in the matter of Lakhvinder Singh Bhamra vs. Cholamandalam M/s General Insurance Co. Ltd. and anr as reported in II [2012] CPJ 109 (Chhat) has held that it cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be performed by person in pursuance of contract or otherwise in relation to any service.
13. Coming to the facts of the case, it is an undisputed fact that the complainant and Ops did enter into contract for the delivery of items required for the occasion. It is also undisputed that the items were not delivered causing agony and harassment to the complainant. This establishes deficiency on the part of the complainant as contemplated under Section 2(1)(g) of the Act.
14. Having reached to this conclusion the point that remains unanswered is as to how the complainant can be compensated. The complainants have claimed compensation of Rs. 25 lakh (approx.)
15. The Consumer Protection Act 1986 empowers the consumer to claim and the Consumer Forum to award compensation in the event of deficiency of services, causing harassment, mental agony and the prayer has been made for the compensation of Rs. 25 Lakhs. It is a settled position of law that there exists no straight jacket formula to decide and determine the compensation as that would depend upon facts and circumstances of each case. As per the authority in the matter of Glen Appliances Pvt. Ltd. and Anr. Versus Col. A.S. Vaid as reported in I [2012] CPJ 289 CHD the compensation on account of mental agony and harassment has to be commensurate with loss or injury. The Hon’ble NCDRC in the matter of Vijay Kumar Burman versus Baghela Gas service as reported in IV [2014] CPJ 362 (NC) is pleased to hold that the compensation has to be fair and equitable, to make good, as far as money can do, loss suffered by the family due to the alleged inaction and not as bonanza or largesse. The Hon’ble Supreme Court of India has discussed in the matter of Malay Kumar Ganguly versus Sukumar Mukherjee (Dr) as reported in III [2009] CPJ 17 (SC) the principles providing that a person is entitled to damages as nearly as possible, sum of money which would have been if he had not sustained wrong. Finally the Hon’ble NCDRC in the matter of Surender Kumar Tyagi versus Jagat Nursing Home as reported in IV [2010] CPJ 199 (NC) is pleased to hold that the compensation has to be reasonable. It is not meant to enrich the consumers.
16. It is also an established law that under the Act, the consumer fora has jurisdiction to award compensation depending upon established facts and the circumstances of the case. While dealing with such contention in Charan Singh vs. Healing Touch Hospital & Ors (2000) 7 SCC 668, their Lordships observed that the consumer Forums are required to make an  attempt to serve the purpose of recompensating the individual but which also at the same time aims to bring about the qualitative change in the attitude of service provider. It was observed as under:-

 

"It is not merely the alleged harm or mental pain, agony or physically discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue - it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence."

 

17. Keeping in view the facts and circumstances of the case and the legal position explained above I am of the considered view that the ends of justice would be met if compensation of Rs. 15 lakhs is awarded in favour of the complainant and against the OPs jointly and severally. The awarded amount be paid by the OPs to the complainant within three months from the date of receipt of this order failing which simple interest at the rate of 6% shall accrue from the date three months would be over till the realisation.
18. Ordered accordingly. 
19. A copy of this order be forwarded to the parties to the case free of cost as statutorily required.
20. File be consigned to record.

 

(Anil Srivastava)​

Member