West Bengal

South 24 Parganas

CC/445/2014

SRI AYAN ROY - Complainant(s)

Versus

RAHUL INTERNATIONAL - Opp.Party(s)

20 Aug 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _445_ OF ___2014___

 

DATE OF FILING : 16.9.2014     DATE OF PASSING JUDGEMENT:  20.8.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :   Sri Ayan Roy,s.o late Nitya Gopal Roy , Sahebpara, Sonarpur, Dist. South 24-Parganas, P.O & P.S Sonarpur, Kolkata – 150.      

 

-VERSUS  -

 

O.P/O.Ps                            : 1. Rahul International , Franchisee of Bluedart Express Limited, 4 Moore Avenue, P.S. Regent Park, Kolkata – 40.

                                             2.     Bluedard Express Limited,85/1, V.V. Yogasurabha Complex,Yeshwanthapur, Bangalore-560022.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            The short case of the complainant is that O.P-2 is a reputed Courier Company and O.P-1 is a franchisee of O.P-2 ,for which complainant sent self passport on 04.09.2013 through O.P-1 to deliver the same to Safaryz Travels, Bangalore, Pin-560003 for attending in an international business seminar at Bangkok. The passport no is K7368104 and docket no is 14002607382. But the said material was not received by Safaryz Travels through the said Courier at their Bangalore office. On query it was informed that the said courier was delivered to the addressee on 7.9.2013 but the same was not received there. Thereafter, on repeated enquiry O.P-1 reported him on 19.9.2013 that the said consignment has lost , misplaced and not able to trace out. Complainant has lodged a GD Entry at Sonarpur P.S. on 19.9.2013. It has claimed that O.P has admitted the fact and one Mr. Thammanna Gowda also swear an affidavit on behalf of the O.P no.2 on 20.9.2013 to that effect. But ultimately complainant failed to attend the business seminar at Bangkok ,for which he suffered huge business loss for the same. Hence, this case with a prayer to pay Rs.10,000/- for business loss suffered by the complainant and to pay Rs.5 lacs as compensation for harassment and mental agony and to pay Rs.3000/- towards cost of the instant case.

            O.P-1 contested the case by filing written objection and has denied all the allegations leveled against it.

            It is the positive case of the O.P no.1 that the consignment of Passport was lost and not delivered to the consignee at Bangalore. So, cause of action arose at Bangalore. Hence, the case is not maintainable within the jurisdiction of this Forum. It has also denied that the O.P-2 has any office at 4, Moore Avenue, Kolkata – 40  does not arise. Accordingly, O.P-1 prays for dismissal of the case.

            O.P-2 also filed written version and has denied all the allegations leveled against O.P-2 and also claimed that the complainant is not a consumer and complainant has filed this case suppressing the material facts to grab the money from O.P-2.

            It is the positive case of the O.P-2 that they are engaged in a business of Courier /Cargo Services and is considered as the leading companies in the said industry. It has further stated that complainant has approached O.p-1 with respect to sending his passport to one Safary6z Travels , Bangalore. The said packet was sent vide AWB no.14002607382 dated 4.9.2013. It has further stated that in case this consignment contains anything of value the company recommends insurance of the same. The company’s liability on this shipment is limited to Rs.5000/- of cost of reconstruction whichever is lower for shipments, which are not insured  . The said things were mentioned on the face of the Air Way Bill. It has stated that clause 9 of the Air Way Bill clearly speaks that “BDE shall not be liable in any event for any consequential or special damages or other direct or indirect loss ,howsoever, arising whether or not BDE has knowledge that such damage might be incurred, including but not limited to loss, income, profits, interest, utility or loss of market. It has also mentioned that the proposition of law contended in the landmark judgement delivered by three judge bench of the Hon’ble Apex Court  in the matter of Bharathi Knitting Company V/s DHL Worldwide Express Couriers reported at 4 SCC (1996) 704. Accordingly O.P-2 prays for dismissal of the case.

            Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.

                                                                        Decision with reasons

            At the very outset it must be stated that complainant has admitted at para 8 of the complaint petition that he fails to attend the business seminar at Bangkok on the schedule date and has suffered huge business loss for the same. This admission clearly suggests that the tour was a business tour and it was a profit motive. The complainant did not say in his written complaint that the said business is only his livelihood. Thus, he fails to prove himself as a consumer for the purpose of Consumer Protection Act, 1986.

            For argument sake, if he is a consumer then also his consignment was not insured. So, on the basis of the reported decision which is identical to this case, passed by the Special Bench of the Hon’ble Supreme Court on 9.5.1996 , we find that the Hon’ble Apex Court affirmed the findings of the Hon’ble National Commission by observing that liability undertaken under the contract between the parties should be limited to extent undertaken.

            We have perused the documents i.e. Air Way Bill where clause 8.1 clearly suggests that limitation of liability Without prejudice to section 9 and 10 the liability of BD for any loss or damage to the shipment ( such term shall include all documents or parcels consigned through BD ) shall be the lowest of Rs.5000/- or the amount of loss or damage to the document or parcel actually sustained for shipment.

            Thus prayer of the complainant for Rs.10 lacs for business loss is un-heard  in the C.P Act because this procedure is not a profit motive ,for which the compensation as claimed for does not arise as well as the litigation cost.  It is sorry to say that when it was a business trip and itr was not mentioned in the four corners of the complaint that this is for his livelihood, this complaint cannot be adjudicated by this Forum. It should be mentioned here that the contention of O.P-1 that there is no cause of action arisen within the jurisdiction of this Forum as already decided vide order no.9 dated 16.1.2015 and that order is binding upon the O.Ps.

            Apart from that , cause of action is a bundle of acts and it will run as and when the consignment is booked. So, the contention of the O.P-1 has no legal value.

            In the above circumstances, we are very sorry to say that we are unable to pass any order at least for Rs.5000/- since the complainant is not a consumer within the purview of section 2(d)(ii) of the C.P Act ,wherein it has stated that That does not include a person  of such services for any commercial purpose.

            So, this service is a profit motive which appears from the body of the complaint petition as well as from the prayer portion of the complaint that is business loss and it was not mentioned that this service is exclusively for the purpose of his maintaining livelihood by means of self employment.

            Accordingly,   It is

                                                                        Ordered

That the case is dismissed but in the sorry state of affairs, without cost and compensation.

 

Let a plain copy of this order be served upon the parties free of cost.

 

 

 

Member                                               Member                                               President

 

 

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

Ordered

That the case is dismissed but in the sorry state of affairs, without cost and compensation.

 

Let a plain copy of this order be served upon the parties free of cost.

 

 

 

Member                                               Member                                               President