Complaint presented on  :  08.02.2013

                                                                   Order pronounced on  :  28.03.2016

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,            :     MEMBER II

MONDAY THE  28^th   DAY OF MARCH 2016

C.C.NO.31/2013

Pacsmart Solutions Private Limited,

Rep. by its authorized Signatory,

No.134, Nagi Reddy Thottam,

Thiru-Vi-Ka-Industrial Estate,

Guindy, Chennai – 600 110.

                                                                             ..... Complainant

..Vs..

1.Parveen Express,

Represented by its Manager,

Having Head Office at,

No.148, Perambur Barracks Road,

Puraisaiwalkam,

Chennai 600 007.

2.Parveen Express,

No.118-B, Ponniaamman Medu,

GNT Road, Madhavaram,

Chennai – 600 110.

3.Parveen Express,

No.C-2, Flat 84, Kukattapalli,

Prasanthi Nagar, BSNL Quarters,

Hyderabad 500 072.

Date of complaint                                  : 08.02.2013

Counsel for Complainant                      :M/S.R.Saravanakumar

Counsel for   Opposite parties                  :M/S G.Perumal

O R D E R

BY PRESIDENT THIRU. K.JAYABALAN B.SC., B.L.,

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The Complainant is a dealer in medical equipments. The Complainant imports medical grade products like monitor of WIDE brand and film digitizer of VIDAR brand from Korea and USA and sells them to the Diagnostic centers and hospitals. The Complainant sold vide Tax invoice No.PACS/0017/2011-12 dated 28.03.2012 in the name of the buyer i.e Vijaya Diagnostic Centre Pvt.Ltd., the details of which are as follows.

1. Wide Medical Grade Monitor (IF2002MP) – Serial No.KT20PGHIS90004, with accessories costing Rs.1,61,905/-
2. Wide Medical Grade Monitor (CL 24) – Serial No.CL24CGFAS0011, with accessories costing Rs.1,14,286/-
3.  Wide Medical Grade Monitor (IF1911CP) – serial No.PA19PGF7S0010. with accessories costing Rs.52,381/-

The Complainant booked the consignment of three carton boxes containing three Medical Grade Monitor (Screens) through the Opposite Party travel services for delivering the same to the client of the Complainant at Hyderabad. The Opposite Party delivered only one box and the other two were not delivered to the client of the Complainant at Hyderabad. However he Opposite Party had negligently dispatched the goods wrongly to the other office of the Opposite Party and hereafter, the two carton boxes were not found and not delivered to the client of the Complainant at Hyderabad, resulting in loss and mental agony to the Complainant. The Complainant also paid a sum of Rs.770/- towards freight and other charges, vide receipt No.649090 dated 28.03.2012, issued by the Opposite Party for dispatching the consignment.  On receipt of acknowledgement of non delivery of two Medical Grade monitors, the Complainant immediately contacted the Opposite Party over phone and informed about the non receipt of two Medical Grade monitors i.e 2 CB and non delivery of the other two Medical Grade monitors to the purchaser. The Opposite Party orally informed the Complainant that the other two Medical Grade monitors are wrongly sent to the other office of the Opposite Party at Hyderabad and requested the Complainant to bear this inconvenience and that the Opposite Party is trying to locate the office to which the two Medical Grade monitors were sent. Finally the Opposite Party changed its version and informed the complainant that the two Medical Grade monitors were not traceable and further informed orally to the Complainant that the Opposite Party would pay Rs.5,000/- for each Medical Grade monitor even without considering the actual cost of the two Medical Grade monitors. The cost of the two Medical Grade monitors is Rs.2,14,286/-. There is deficiency in service on the part of Opposite Party in transporting and dispatching and in delivering the consignment and the Opposite Party is liable to pay the costs of Rs.2,14,286/- towards the loss and non delivery of the two Medical Grade monitors along with interest at the rate of 24% from the date of booking the consignment. Hence the Complainant filed this Complaint claiming the cost of the two lost goods for a sum of Rs.2,14,286/- with 24% interest and also compensation with cost of the Complaint.

2. WRITTEN VERSION OF THE OPPOSITE PARTIES IN BRIEF:

          The Complainant had booked the consignment in the course of his business activity and thus it squarely falls under the “Commercial Purpose” category thereby not attracting the provisions of Consumer Protection Act of 1986. The        Complainant had not declared the value of the goods either at the time of booking vide way Bill dated 28.03.2012 or at the time of issuance of Receipt No.5851 dated 29.03.2012. Thus it is evident that indicating the value of the goods lost as Rs.2,14,286/-   in the Complaint is only an afterthought purely with the oblique purpose of extracting unjust enrichment out of an unfortunate incident.  Had the goods consigned were of high value, the Complainant would have definitely insured the said consignment and the Opposite Parties also would have insisted on such insurance if the said value had been declared.  As per “Terms and Conditions” he is eligible to get only Rs.100/- in terms of the contract for the said consignment which was short delivered.  The Complainant instead of seeking a refund of Rs.770/- paid by them, have sought the imaginary sale price of Rs.2,14,286/- The Way Bill indicates the name of the consignee as  “SATHISH KUMAR” whereas in the Complaint it is mentioned as “Vijaya diagnostics Pvt. Ltd”. The quantum of compensation claimed for the Complaint. Hence the Opposite Parties prays to dismiss the Complaint.

3. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what relief?

4. POINT:1

          It is an admitted fact that the Complainant booked 3 carton boxes under Ex.A3 with each box containing a Medical Grade Monitors to deliver  at Hyderabad  Vijaya Diagnostic Centre  Pvt. Ltd. However out of 3 boxes in the consignment only one box was delivered to the addressee at Hyderabad and the other two boxes were missed by the Opposite Parties and even on the Complaint of the Complainant to the Opposite Parties they were unable to trace out the same, hence the Complainant issued Ex.A5, Ex.A6 legal notice to the Opposite Parties and even after that the Opposite Parties unable to trace and deliver  the two carton box goods.

          5. The Complainant is a dealer in a Medical Equipments.  Vijaya Diagnostic Centre Pvt. Ltd at Hyderabad placed an order under Ex. A1 with the Complainant to purchase 3 Medical Grade Monitors and the Complainant sold 3 monitors under Ex.A2 to the Vijaya Diagnostic Centre Pvt. Ltd for a value of Rs.3,45,000/- and the Complainant also  booked  the consignment of 3 carton box containing 3  Medical Grade Monitors through the 2^nd Opposite Party travels service for delivering at Hyderabad under Ex.A3. The Opposite Parties also admits under Ex.A3 the 3 monitors were booked and the Complainant also paid a sum of Rs.770/- towards service charges. However the 3^rd Opposite Party at Hyderabad delivered only one carton box. The consignee at Hyderabad also endorsed in Ex.A4 that he received one out of 3 carton boxes. In spite of several requests and even after issuing Ex.A5&Ex.A6 legal notices, the Opposite Parties have not traced and delivered the two carton boxes containing the monitors. Therefore failure to deliver  the two carton boxes with the product by the Opposite Parties to consignee at Hyderabad establishes that the Opposite Parties have committed Deficiency in Service.

POINT 2:

          6. According to the Complainant the loss of goods value is Rs.2,14,286/-. The cost of the 3 monitors is mentioned in Ex.A2 tax invoice. The loss of value of 1^st and 3^rd item monitors in Ex.A2 value put together comes to Rs.2,14,286/-. Therefore the carton box containing monitors 1^st and 3^rd item in Ex.A2 have been missed or lost in the custody of the Opposite Party and those two monitors were not delivered to the consignee at Hyderabad and the Complainants filed this Complaint  for the value of two monitors for a sum of Rs.,14,286/-. The Opposite Party contended in their written version in para 6 that as per the terms and conditions the Complainant is eligible to get only Rs.100/- in terms of contract for the said consignment which was short delivery. The counsel for the Complainant argued that though the Complainant booked 3 carton boxes under Ex.A2. The 2^nd Opposite Party has not obtained the signature of the Complainant/Customer in the Ex.A3 booking receipt and therefore the Complainant is not a party to the terms and conditions appended in the Ex.A3 receipt. The signature of the Complainant also not found in Ex.A3. Therefore, though the Complainant   booked a consignment with the Opposite Party, he has not agreed the terms and conditions in Ex.A3, in view of that the Opposite Parties have not obtained his signature in the terms and conditions. Therefore the contention of the Opposite Parties that the Complainant is eligible to get only Rs.100/- in terms of contract for  short delivery is not accepted and  on the other hand the Complainant is entitled for the value of the goods missed by the Opposite Parties referred  in Ex.A2. Failure to deliver the goods to the Complainant the Opposite Party suffered with mental agony is acceptable. Therefore, it would  be appropriate to order that the Complainant is entitled for the product cost of Rs.2,14,286/- and also a sum of Rs.25,000/- towards compensation for mental agony besides a sum of Rs.5,000/-  litigation expenses.

          In the result the Complaint is partly allowed. The Opposite Parties 1 to 3  jointly or severally ordered to pay a sum of Rs.2,14,286/- (Rupees two lakhs fourteen thousand two hundred and eighty six only)  towards cost of the product and also to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for mental agony, besides a sum of Rs.5,000/- towards litigation expenses. The above amount shall be payable to the Complainant within 6 weeks from the date of receipt of  the copy of this order failing which the amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 28^th day of March 2016.

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 26.03.2012                   Original  Purchase Order

Ex.A2 dated 28.03.2012                   Invoice No. PACS / 0017/ 2011- 12

Ex.A3 dated 28.03.2012                   Tax Receipt

Ex.A4 dated 29.03.2012                   Acknowledgement Receipt issued by the 3^rd

                                                Opposite Party

Ex.A5 dated 13.08.2012                   Legal Notice to the Opposite Parties with

                                                acknowledgement due

Ex.A6 dated 05.01.2013                   Legal Notice to the Opposite Parties with

                                                acknowledgement due

Ex.A7 dated 08.11.2013                   Authorization Letter

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

                                      …… NIL…….

MEMBER – II                                                               PRESIDENT