Date of filing : 18-10-2011
Date of order : 27-03-2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.264/2011
Dated this, the 27th day of March 2012
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT. K.G.BEENA : MEMBER
Gopalakrishnan.A, } Complainant
Progress Computer Centre,
Parappa.Po. 671533
Kasaragod.Dt.
(Adv.Nisha.K, Hosdurg)
Manager, } Opposite party
Professional Courier,
Nileshwaram Branch, Po.Nileshwaram.
Kasaragod.Dt.
(Adv.Shajid Kammadam, Kasaragod)
O R D E R
SRI.K.T.SIDHIQ, PRESIDENT
The case of the complainant in brief is that the consignment sent by ITEC, Thiruvananthapuram on 4-10-2011 has not delivered to him till 17-10-2011. The consignment contained certificates of students who undergone computer course and those were required for an interview on 10-10-2011. Since the certificates could not delivered to them they lost faith in the institution of the complainant and that affected its reputation. Therefore the complaint claiming compensation.
2. According to opposite party complainant is not a consumer since the complainant’s computer center is indulged in commercially oriented computer training and value added services that can’t be said to be rendering service. On merits the contention of the opposite party is that the consignor booked the courier without furnishing the actual nature of article and the said act amounts to suppression of material facts. The address and the contact number described in the envelope are misleading and not traceable, resulted in reaching the destination in shortest possible time. On receipt of the article opposite party has contacted complainant and he agreed to take the article from the opposite party. But he did not turn up. In the eventuality the opposite party has taken the article to complainant’s office on 12-10-2011 but the staff of the complainant refused to accept the article. Therefore on 18-10-2011 again approached the complainant with article but complainant declined to accept the same. In fact there was no privity of contract between the complainant and the opposite party as the consignment was given for transportation only by a third party ITEC, Thiruvananthapuram with whom the opposite party had customer relationship. The consigner signed the consignment note accepting the terms and conditions thereof and as per which the couriers liability is `100/- for any cause. There is no deficiency in service on the part of opposite party and the complaint is therefore liable to be dismissed.
3. After filing the version denying the allegations raised by the complainant. Complainant himself examined as PW1. Exts A1 to A2 marked on his side. On the side of opposite party Exts B1 & B2 marked. Both sides heard and documents perused.
4. Now the points arise for consideration are:
1. Whether the complainant is a consumer under CP Act 1986?
2. Whether the liability of the opposite party is limited to 100/- any cause?
3. Whether there is deficiency in service on the part of opposite party?
4. What order as to relief and cost.
5. Point.No.1: The learned counsel for opposite party contended that the complainant has neither paid any consideration to opposite party nor have any privity of contract and hence he cannot be treated as consumer. He also advanced another contention that complainant is running the computer institution for commercial purpose and hence on that ground also complainant is not a consumer coming under the purview of Consumer Protection Act. He invited our attention to the Judgments rendered by the Hon’ble National Consumer Disputes Redressal Commission in the case of KILLICK AIR COURIERS & FORWARDERS LTD V. Dr. MEENA VYTHILINGAM reported in 1993 STPL (CL) 317(NC) and in the case of MOHAMMED HASEEB AHMED V. Maharashtra State Electricity Board & Ors reported in 2010 STPL (CL) 1357 (NC). In the former the Hon’ble National Commission has held that since no evidence produced by the complainant that he made payment to opposite party he cannot be considered as consumer.
6 The facts & circumstances of the above case is not identical to the instant case. Ext.A1 is the photocopy of the consignment note issued from Professional Courier, Trivandrum to ITEC dated 4-10-2011. In Ext.A1 the receivers address is that of the complainant i.e. Gopalakrishnan Kasaragod. From Ext.A1 it is clear that consideration of `20/- as paid by ITEC, Thiruvananthapuram to Professional Couriers, Thiruvananthapuram. Therefore the decision cited by the counsel for opposite party is not applicable to this case.
7. The contention that there is no privity of contract between the complainant and opposite party and no service is availed by complainant also not sustainable. The service of the Professional Couriers is availed by ITEC, Thiruvananthapuram by paying consideration. The said service availed by ITEC would be complete only when the consignment is delivered to the consignee or receiver of the consignment in the appropriate time. The consignee is therefore a beneficiary of the service availed by the consigner. Hence he is a consumer.
8. The next contention that the complainant is indulging in commercial service and his computer training centre is running for commercial purpose and therefore the service availed by him will not come within the purview of CP Act 1986 is also not hold good. In view of the decision of the Hon’ble National Commission in the case of Harsolia Motors V. National Insurance Company Ltd reported in I(2005)CPJ 27(NC).
9. In the said case the Hon’ble National Commission has held that in the case of commercial purpose the service hired should be used in an activity directly intended to generate profit and in case where goods purchased and services hired in an activity which is not directly intended to generate profit then would not be a commercial purpose.
In this case complainant is running a computer institution. The complainant is generating income by imparting computer knowledge to the students. He is not generating any profit through the courier services. Therefore complainant being a beneficiary of the courier service availed by ITEC, Thiruvananthapuram can be treated as consumer.
10. Issue No.2 : The contention of the opposite party is that as per the terms and conditions agreed upon between the consignor and the opposite party the liability of the courier is limited to `100/- for any cause. But it is seen that there is no such agreement entered either between the complainant and opposite party or between the ITEC and opposite party. Ext.A1 shows that no agreement is signed by the ITEC (shipper) limiting the liability to `100/- for any cause. Further the Hon’ble Supreme Court in the case of Bharathi Knitting Company V. DHL world Wide Express Courier reported in I (1996)4 SCC 704 expressed doubt in limiting the liability of the carrier where the document(consignment note) is not signed, but being merely delivered to him.
In view of the above this issue is also found against opposite party.
11. Issue No.3. Deficiency in service
The opposite party taken a contention that the address of the complainant and the contact number described were misleading and not traceable which resulted in reaching the destination in shortest possible time. But to negate this contention complainant produced Ext.A2 the hard copy of detailed call report of his land line phone 2255345 from 1-10-10211 to 12-10-2011. In which it is seen that on 10-10-2011 complainant has made 4 calls to the telephone number of the opposite party. So if those calls were attended promptly, opposite party could have contacted the complainant and delivered the consignment atleast on10-10-2011.
12. Therefore it is clear that opposite party committed deficiency in delivering the consignment to opposite party in time though the consignment was received by them much earlier and there by caused hardships and mental agony to the complainant.
13. Issue No.4 Relief & Costs.
Complainant is running a computer institution. The consignment sent from ITEC, Thiruvananthapuram contained the certificates to be issued to the students who have undergone their course successfully in the institution of the complainant. Due to the deficient service the complainant could not issue the certificates to his students and the students thereby lost their opportunity to participate in interview. Thereby the good will and reputation of the institution of the complainant is affected. The opposite party is therefore liable to compensate the complainant.
In the result, complaint is allowed and opposite party is directed to pay a sum of `10,000/- as compensation together with a cost of `3000/-. Time for compliance is limited to 30 days from the date of receipt of copy of the order. Failing which the aforesaid amount `10,000/- will carry interest @ 12% from the date of complaint till payment.
MEMBER MEMBER PRESIDENT
Exts.
A1. Photocopy of receipt issued by OP.
A2.Detailed call report issued by BSNL
B1. Visiting card of the complainant.
B2. Cover addressed to Gopalakrishnan.
PW1. Gopalakrishnan
MEMBER MEMBER PRESIDENT
Pj/
