DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.333/2011
Ali Enterprises
A-104, 1st Floor, Paryavaran Complex
IGNOU Road, New Delhi-110030 ….Complainant
Versus
1. Mr. Rajeev Nagar
Shop No.B-8/5, Sadul Ajab,
IGNOU Road, New Delhi-110058
2. Tracon Courier (P) Ltd.
C-143, Phase-1.
Naraina Industrial Area,
New Delhi-110028. ….Opposite Parties
Date of Institution : 07.09.11 Date of Order : 04.01.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
As per the averments made in the complaint, the Complainant which a proprietorship concern of Ms. Nuzhat Farzana, booked its designed samples of tradition work through the OPs to a customer at Kolkata on 23.12.10. The total weight of the goods was 1kg and 200 grms. containing dress material worth Rs.22,700/- and the same was handed over to the OP 2 alongwith material list vide bill No.220824998. When the same did not reach to Kolkata, the Complainant made enquiry from the OPs on 26.12.10 and on various other dates but the OPs kept postponing the matter on one pretext or the other and ultimately in the last of March, 2011 the OPs refused to do anything. According to the Complainant, the Complainant lost a good customer and also lost a good business opportunity and, hence, the Complainant pleading deficiency has filed the present complaint for issuing the following directions to the OPs:
- Direct the OPs to pay Rs.22,700/- i.e. the original value of the material sent by the parcel,
- Direct the OPs to pay a sum of Rs.20,000/- towards business loss because of the OP’s carelessness and irresponsible attitude,
- Direct the OPs to pay a sum of Rs.20,000/- for the lost of valuable art work of the Complainant,
- Direct the OPs to pay a sum of Rs.30,000/- towards the physical strain and mental agony suffered by the complainant,
- Direct the OPs to pay a sum of Rs.5,000/- towards cost of this petition.
The OPs in the written statement have inter-alia pleaded that the Complainant had booked the consignment with the OPs on 23.12.2010 without declaring the contents of consignment to the OPs and the consignment had been booked in an ordinary way and the Complainant did not declare the contents of the valuable dress materials. It is further submitted that the Complainant had sent the goods/materials/samples to one of her customers with a view to earn profit and not for personal use and that the same was a commercial transaction and hence the complaint is not maintainable. It is stated that the claimed value cannot in any circumstances exceed Rs.2000/- for parcels and Rs.100/- for packet of documents and hence the OPs are not liable to pay the amount of Rs.22,700/- to the Complainant. Other averments made in the complaint have been denied. It is prayed that the complaint be dismissed.
In the rejoinder complainant has inter-alia stated that she is living separately from her husband for the last 8 years and the business was only meant for earning bread and butter for her and three children dependent upon her and she had no intention to hide about her business in her complaint also.
Affidavit of Ms. Nuzhat Farzana, Prop. of the Complainant has been filed in evidence on behalf of the Complainant while affidavit of Sh. Shyam Lal, Branch Manager has been filed in evidence on behalf of the OPs.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the material placed before us.
Undisputably, Smt. Nuzhat Farzana was/is the prop. of the Complainant firm. Neither it is the case of the Complainant nor is the case of the OP that she had employed any assistants or workers in assisting her work or that the Complainant has been doing the business in question for commercial purposes. Merely doing a business in dress materials by the Complainant on a national basis does not give rise to a presumption that she has been doing the same for commercial purpose and that she is not doing the same for earning her livelihood. There is no denial to the fact that she has been living separately with her husband for a long time and that she has 3 children who are dependent on her for their livelihood. Therefore, we do not find any weight in the contention raised on behalf of the OP that this was a commercial transaction and, hence, the Complainant is not a ‘consumer’ as defined under the Consumer Protection Act.
It is an admitted fact that the complainant had booked a parcel weighing 1 kg and 200 grms. with the OPs for sending it to her client at Kolkata. It is also an admitted fact that the parcel could not reach to its destination and the OPs also could not give any satisfactory reply to the complainant in this regard. According to the complainant, the said parcel contained dress material worth Rs. 22,700/- and the complainant had handed over the parcel alongwith the list of material. However, the version of the OPs in this regard is that no such list of goods contained in the parcel had ever been given to the Ops and that the consignment had been booked in an ordinary way. The Ops must have some liability for loss of the parcel. According to them, the value of the claim in any circumstances cannot exceed Rs. 2,000/- for parcels and Rs. 100 for packet documents. However, the Ops have not filed copy of any rule or regulation in support of this contention. The Ops have not brought any evidence on the record which may even suggest that the claim of the complainant is not genuine or the complainant has claimed an exaggerated amount in the complaint. Therefore, we hold that the complainant has proved that the complainant had in fact booked a parcel containing dress material worth Rs. 22, 700/- with the OPs for sending it to its client at Kolkota and the parcel could not reach its destination due to the fault on behalf of the Ops. Therefore, we also hold the OPs guilty of deficiency in service.
In view of the above discussion, we allow the complaint and direct the Ops jointly and severally to pay Rs. 22,700/- as the cost of the material and Rs. 20,000/- in lum sum towards mental pain and agony and cost of litigation etc. to the complainant with 30 days from the date of receipt of the copy of this order failing which the Ops shall be liable to pay interest @ 9% p.a on the amount of Rs 22,700/- to the complainant from the date of filing of the complaint till the date of realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 04.01.17
