Kerala

Idukki

CC/112/2021

Gamal P A - Complainant(s)

Versus

Professional corer - Opp.Party(s)

13 Feb 2023

ORDER

DATE OF FILING : 10.8.2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  13^th  day of  February, 2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.112/2021

Between

Complainant                                           :    Jamal P.A., S/o. Abdul Kareem,

                                                                    Puthenpurackal House,

                                                                   Karunapuram, Udumpanchola,

                                                                   Idukki.

          (By Adv: K. Hussain)

And

Opposite Parties                                     : 1. The General Manager,

                                                                   Professional Couriers, No.123A,

                                                                   Bhoomiraj Coastarica, Plot No.192,

                                                                   Sector 18, Sunpada,

                                                                   Navi Mumbai – 400 705.

      2. The Regional Manager,

                                                                   Professional Couriers,

                                                                   Kurisupalli Road, Ravipuram,

                                                                   Ernakulam – 682 016.

           (Both by Adv: V.C. Sebastian)

      3. The Franchisee Manager,

Professional Couriers,

Kettunkal Building, Opp. SBI Branch,

Central Junction, Munnar-Kumili Road,

Nedumkandam – 685 553.

 (By Advs: V.C. Sebastian

& Sasikumar S.N.)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

          1. This is a complaint filed under Section 35 of the Consumer Protection Act of 2019 (the Act, for short).  Complainant’s case is briefly discussed hereunder :

 

          Complainant is a small trader who indulges in multiple small scale business operations and is residing within the jurisdictional limits of this Commission.  1^st opposite party is General Manager of Professional Couriers, a carrier service, having its Head Office in Navi Mumbai, 2^nd opposite party is its Regional Manager having its                                                                                                                     (cont…2)

• 2  -

office at Ernakulam and 3^rd opposite party is franchisee of the carriage company represented by opposite parties 1 and 2, doing business at Nedumkandam.  Complainant had, after being attracted by the advertisement with regard to prompt and quick delivery of parcels effected by the carriage company represented by opposite parties 1 and 2,  entrusted a parcel for delivery to a consignee in Bangalore through 3^rd opposite party, on 12.3.2021.  At the time of delivery, 3^rd opposite party had assured the complainant that delivery will be effected within 3 or 4 days.   Trusting this, complainant had delivered a parcel of 11 kg. of cardamom, total weight of parcel inclusive of covering, being 11.5 kg, as mentioned earlier, on 12.3.2021 in the office of 3^rd opposite party for delivery to one Mr. Manaf in Kenkeri, within the limits of Bangalore in Karnataka State.  For this, 3^rd opposite party had given a receipt bearing No.NED 57525376.  Same is produced along with the complaint.  Complainant further submits that the parcel was not delivered as promised and was lost in transit.  He alleges that after waiting for a reasonable time, he had approached 3^rd opposite party and made enquiries about the parcel.  He had also contacted 2^nd opposite party.  Unfortunately, there was no reply from them.  They had also not taken any effort to trace out the parcel or to recover the same.  When lastly approached, 3^rd opposite party had, in a very discourteous manner, dared/challenged complainant to take legal proceedings.  Complainant submits that he had entrusted the parcel for delivery to 3^rd opposite party, believing that carriage company represented by opposite parties was giving good, efficient and accurate service to its customers.  Opposite parties had assured  him that parcel should reach its address on 15.3.2021 or by 16.3.2021.  This promise was not kept by opposite parties.  Due to non-delivery, complainant had lost his business connections with said Manaf, which had caused  him a loss of more than Rs.1 lakh.  During Covid pandemic period, complainant was doing business in cardamom for the purpose of his livelihood.  Negligence on the part of opposite parties and their lack of efficiency in service had also caused severe mental agony to complainant, apart from financial loss. Complainant had alleged deficiency in service against opposite parties.  He claims that on 8.7.2021, he had sent a registered lawyer notice to opposite parties 2 and 3.  Though they were in receipt of notice, there was no response from them.  Hence complainant prays for damages of Rs.2 lakhs for financial loss and mental agony, from opposite parties.  He also seeks reliefs of Rs.18,500/-, being the value of parcel lost and Rs.10,000/-  towards litigation costs. 

 

          2.  Complaint was admitted and upon notice, opposite parties have appeared and filed written versions.

 

          Opposite parties 1 and 2 have filed a joint written version.  According to them, complaint is not maintainable in law or upon facts.  No cause of action is disclosed against 1^st opposite party.  Opposite party No.1 has no liability or responsibility in the conduct of business of opposite parties 2 and 3.  It is admitted that complainant had entrusted an article for delivery, but he has not disclosed the nature or value of the article.  Opposite parties had taken weight of the article and based upon the same,                                                                                                                          (cont….3)

• 3  -

carriage charges were collected from him.  At the time of issuing bill, conditions incorporated in it, were brought to the notice of complainant.  As per those  conditions, any parcel which has a value of more than Rs.2,000/- is to be insured at the expenses of consignor.  In case of any article which is lost or not delivered, responsibility of opposite party cannot be in excess of Rs.2,000/-.  That apart, claim will be sustainable only if there is a notice within 3 months with regard to the same.  Here the lawyer notice is issued only on 7.7.2021.  Contents of the package entrusted were not brought to the notice of opposite parties as mentioned earlier.  Package / parcel was in a sealed condition and nor was its value declared.  In order to avoid insurance charges, complainant had not disclosed its value.  Therefore, opposite parties are absolved from all liability with regard to the article lost or damaged.  Claim of Rs.2 lakhs as compensation is highly excessive and fanciful.  In case of  breach of contract, loss can be claimed only on the basis of a reasonable estimate of actual loss caused.  Opposite parties 1 and 2 would again submit that they are not liable to pay the value of consignment as per terms of contract.  Hence complaint is liable to be dismissed with costs. 

 

          3.  Third opposite party had filed separate written version.  His contentions are briefly discussed hereunder :

 

          According to 3^rd opposite party, complainant is not a consumer as defined in the Act and therefore complaint is not maintainable before this Commission.  To the knowledge of 3^rd opposite party, complainant indulges in several business activities.  Carrier company represented by opposite parties is active in business for many years.  3^rd opposite party is only it’s franchisee having its office at Nedumkandam.  Complainant had, on several occasions, entrusted parcels for delivery with the 3^rd opposite party.  Hence contentions that complainant was attracted by the advertisement effected by opposite parties and having been misled by the same, entrusted a particular parcel for delivery to 3^rd opposite party was not at all correct.  No assurances were given by 3^rd opposite party with regard to prompt and correct delivery.  Upon enquiry by complainant, opposite parties have only informed him that, the parcel will be delivered within 2 or 3 days.  All other parcels taken for delivery along with the parcel of the complainant were delivered to their respective consignees.  Parcel entrusted by the complainant, which is the subject matter of this proceeding, alone was not delivered.  It is incorrect to say that 3^rd opposite party had not made any enquiries or put in any efforts to trace out the lost parcel.  Upon enquiries by opposite parties 2 and 3, it was revealed that the parcel had reached regional office of 2^nd opposite party at Ernakulam.  It was despatched to the consignees address from Ernakulam and was lost in midway.  Matter was informed to  complainant as soon as information was received by 3^rd opposite party.  It is incorrect to say that no action was taken by 3^rd opposite party or that he had not responded to the enquiries made by complainant.  Complainant is doing business in the same locality.  He has a textile shop there.  It is true that complainant had sent a lawyer                                                                                                         (cont…..4)

• 4  -

notice.  Upon receipt of lawyer notice, 3^rd opposite party had met complainant in person and updated him about   details of enquires made regarding lost parcel.  There is no deficiency in service on the part of 3^rd opposite party.  There is a specific condition in receipt that articles worth  more than Rs.2,000/- should be compulsorily insured by the consignor.  It is also mentioned in it that liability of opposite parties will not be in excess of Rs.2,000/- in case of loss or damages of the parcel.  When complainant was informed about the necessity of insuring articles worth more than  Rs. 2000/-,   to avoid spending more and on his own risk he had decided to consign the parcel paying ordinary freight charges.  Such a consignment is always at the risk of consignor.  There is no deficiency in service from the part of 3^rd opposite party.  Price of cardamom fluctuates frequently.  Loss claimed is excessive.  If at all there were any latches, it was on the part of complainant in not insuring the parcel.  Hence complaint is to be dismissed with costs.

 

          4.  After filing of written version, case was posted for steps and then for evidence.  On the side of complainant, he himself was examined as PW1 and Exts.P1 to P6 were marked.  On the side of opposite parties 1 to 3, manager of 3^rd opposite party was examined as RW1.  No documents were marked on the side of opposite parties.  Evidence thereafter closed and both sides were heard.  Now the points which arise for consideration are :

1)  Whether the complainant is trading in cardamom exclusively for the purpose of earning his livelihood by means of self-employment ?

2)  Whether purpose of trade is commercial ?

3)  Whether complaint is maintainable ?

4)  Whether there was any deficiency in service on the part of opposite parties 1 to 3 ?

5)  Whether complainant is entitled for the reliefs prayed for ?

6)  Final order and costs ?

 

5.  Point Nos.1 to 3 are considered together :

 

Learned counsel for complainant would submit that complainant is a petty trader.  He was indulging in small trading activities for the purpose of earning his livelihood.  Counsel pointed out that trading in cardamom was during Covid period, when business activities were dormant in the entire country.  The shop of complainant in the locality had shut down and there were no other means of livelihood for complainant or his family.  That being so, it cannot be said that, trading in cardamom by complainant was for a commercial purpose.  It was a trade only for the purpose of earning his livelihood.

 

Able counsel appearing for 3^rd opposite party would submit that complainant has not succeeded in proving that he is trading in cardamom exclusively for the purpose of earning his livelihood. It is admitted in complaint that complainant has several businesses. He was specifically cross examined with regard to the textile shop owned by him within walking distance from the office of 3^rd opposite party.  Complainant had                                                                                                      (cont…..5)  

• 5  -

admitted this.  When the complainant admits of running several business concerns, it cannot be said that he is indulging only in trade of cardamom exclusively for the purpose of earning his livelihood.

         

          Thus these are the rival contentions.  In this context, it would be apposite to advert to the pleadings addressed by complainant.  He has specifically stated in 1^st paragraph itself that he is conducting multiple business operations though  small scale, in pursuit of his livelihood.  However, we notice that he has not specified which are these business operations so conducted by him, apart from his trade in cardamom.  3^rd opposite party has stated in his written version that complainant is running a textile shop in the locality which is at a distance of about 100 meters from his office.  This aspect is admitted by complainant during his cross examination.  Though he has a case that owing to Covid pandemic, he was unable to conduct his other business activities and had resorted to business of this kind, indicating cardamom trade, again for lack of specification in this regard, these arguments / contentions are also not convincing.  As mentioned earlier, complainant has not stated what are the business operations conducted by him apart from cardamom trading and textile shop. We notice that there is no mention of textile shop in complaint. He has not mentioned the nature of such businesses, except of textile business in his evidence, turn over involved in each business and earnings derived there from.  As per explanation to Section 2(7)(ii)(a), trading in cardamom can be excluded from the term commercial purpose contained in sub-section 7, clause 1, only if the goods brought and used by complainant are exclusively for the purpose of earning his livelihood by means of self-employment.  When the complainant himself admits of having  multiple business operations, it cannot be gainsaid that he is trading in cardamom alone as such exclusively for earning his livelihood or as means of self-employment.  His case that several business operations were in loss or were shut down during Covid pandemic period, is also not specific and hence not convincing.  The  dates when the business activities were stopped or account details of business are running to loss are not pleaded or deposed by complainant.  Evidence reveals that  trade in cardamom is only one amongst his multiple business operations.  Therefore, complainant cannot be given the benefit of explanation to Section 2(7)(ii).  Admittedly, trade involves resale of cardamom purchased from farmers.  Therefore, we are of the view that trade is for commercial purpose as the complainant had not succeeded in proving that this solitary trade  as meant exclusively for earning his livelihood as a means of self-employment.  In the case of Laxmi Engineering Works, (1995 SCC(5) 583) Hon’ble Supreme Court has explained the dimensions of the explanation given in the Old Act which is identical to the explanation given to Section 2(7)(ii) of the New Act.  Burden was upon the complainant to prove that trading activity as such was meant exclusively for earning his livelihood as a means of self-employment.  He has not discharged this burden.  Even in the said case and other decisions which followed, instances were of only a single trade or activity wherein finer distinctions of the terms ‘Commercial Purpose’, ‘exclusively for livelihood’ and ‘means of self-employment’                                                                                                                  (cont….6)

• 6  -

were given, whereas in the instant case, where there are admittedly multiple business operations undertaken by complainant, his case that he is solitarily relying upon  cardamom trade for his livelihood, under the circumstances mentioned in the complaint, false short of requisite proof.  That being so, we find that the complainant is a trader and not a consumer.  Hence his complaint as such will not be maintainable.

 

          Yet another contention addressed by learned counsel for opposite party is that the quantum of compensation paid is mentioned in the Carriers Act of 1865. As mentioned  therein, compensation should be as per  the conditions mentioned in Ext.P1 receipt. Hence claim for compensation in excess of said amount is not maintainable. These contentions are sustainable.  In the Act, transport is also included in the definition of term service as per Section 2(42) of the Act. As per Rule 2(b) r/w Rule 3 of The Consumer Protection (General) Rules, 2020 public utility services are establishment within the meaning of the term ‘Establishment’ u/s 2(19) of the Act. Carriers Act was repealed by Section 22 of Carriage by Road Act of 2007 which had come into effect in 2010.  Though Section 16 of Central Act 41 of 2007 provides for 180 days of notice for institution of suit or other proceedings with regard to loss or damages in consignment, we are of the view that the proceedings before this Commission can be maintained without the said notice for the reason that Section 100 of the Act clarifies that the provisions of this Act are in addition to and not in derogation of provisions of any other law in force. Hence a complaint against a carrier establishment for deficiency in service will be maintainable.

 

          However, as we already found that complainant does not fit into the definition of the term consumer, we are of the view that complaint filed by him is not maintainable before this Commission.  Point Nos.1 to 3 are answered accordingly. 

 

6.  Point Nos.4 and 5 are considered together for the sake of convenience :

 

          With regard to merits of the case, counsel for complainant has contended that the parcel was admittedly lost.  Hence it is the duty of opposite parties as carriers, to compensate the complainant for the loss.  Loss itself indicates prima facie, negligence on the part of opposite parties and deficiency in rendering services for which they are  liable.  Able counsel submits that parcel contained cardamom which was worth Rs.18,500/-, complainant is entitled to realize this amount along with courier charges paid as per Ext.P1 receipt, since there is proof of deficiency in service.  He is entitled for the damages occasioned by loss of trade, which according to him would come to Rs.2 lakhs along with Rs.10,000/- towards litigation costs.

 

          Learned counsel for opposite parties would contend that as per conditions mentioned in Ext.P1, complainant was bound to insure the parcel, if it were to be worth more than Rs.2,000/-.  He had opted for  cheaper transport and hence booked the parcel                                                                                                           (cont…..7)

• 7  -

without insuring it.  Terms containing in the receipt were explained to him.  As per the same, loss of  goods payable cannot be more than Rs.2,000/-.  Claim for Rs.2 lakhs towards damage or deficiency in service is fanciful.  There is no evidence in support of this claim.  Moreover, loss can be only in accordance with the conditions mentioned in Ext.P1.

 

As per Section 8 of Carriage by Road Act 2007, consignor should mandatorily give a goods forwarding note in the prescribed form including a declaration about the value of the consignment.    Consignor is responsible for the correctness of the article given in the forwarding note.  He will be bound to indemnify the customer carrier against any damage caused due to incorrect or incomplete particulars of goods given in forwarding note.  Complainant does not even have case that he had given a goods forwarding note containing all the particulars.  What is produced here is only Ext.P1 receipt, as per Section 9 of the Carriage by Road Act of 2007.  Section 10 mentions the liability of customer carrier in case of delay in transit, loss or damage of the consignment.  Except in the case of coming under Section 11, liability for loss or damage to any consignment is to be limited to such amount as may be prescribed having regard to the value, freight and nature of goods.  As per Section 9, goods receipt is prima facie evidence of weight or measure and other particulars of goods.  It should also contain an undertaking by the customer carrier about the liability under Section 10 or Section 11.  There are conditions in Ext.P1 limiting the liability to Rs.2,000/-.  It is also mentioned therein that any parcel for more than Rs.2,000/- should be insured by consignor.  However, in view of S.100 of the Act, we are of the view that commissions have powers to grant compensation for deficiency in service which cannot be limited by provisions of other statutes.  Liability cannot be confined to limits mentioned in Carriage by Road Act of 2007.  Since this Commission has powers in addition to and not in derogation of provisions of other Act as provided under Section 100, it can certainly grant more compensation if deficiency in service is proved.  However,  complaint itself is not maintainable and therefore we are of the view that complainant is not entitled for the reliefs claimed in the complaint. 

 

          Complainant has claimed Rs.2 lakhs as compensation for trading loss as he had lost business of the consignee herein to whom cardamom  could not delivered.  As mentioned earlier, turn over of the business, especially previous transactions with the said consignee are not mentioned.  Therefore, his claim for Rs.2 lakhs as compensation for the loss appears to be highly excessive.  Complainant has prayed for grant of Rs.18,500/- towards value of consignment. To prove this copy of a computer print out of an invoice i.e., P3 is produced. In the absence of forwarding note , which is the best evidence to prove nature of article consigned and it’s value, without any reasonable explanation, we find that P3 cannot be relied upon in this regard. His entitlement is  only in accordance with the conditions in P1 receipt and damages proved to an approximate for deficiency in service.  However, we have already found that the complaint itself is                                                                                                          (cont….8)

• 8  -

not maintainable and hence quantification will be beyond our jurisdiction. No reliefs are to be granted, in view of our earlier findings. Point Nos.4 and 5 are answered accordingly. 

 

7.  Point No.6 :

 

          In the result, this complaint is dismissed, under the circumstances, without costs.

 

                    Pronounced by this Commission on this the  13^th  day of February, 2023

 

 

                                                                                         Sd/-

       SRI. C. SURESHKUMAR, PRESIDENT

                               Sd/-

   SMT. ASAMOL P., MEMBER

                     Sd/-

 SRI. AMPADY K.S., MEMBER

 

 

 

             Forwarded by Order,

 

 

 

       ASSISTANT REGISTRAR