Andhra Pradesh

East Godwari-II at Rajahmundry

CC/45/2015

Kommuru Rama Krishna - Complainant(s)

Versus

Sheik Karimulla - Opp.Party(s)

B. Chinna Babu

26 Apr 2016

ORDER

                                                                                                          Date of filing:   06.08.2015

                                                                                                         Date of Order:  26.04.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                          PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                 Tuesday, the 26^th day of April, 2016

 

C.C.No.45 /2015

Between:-

 

Kommuru Rama Krishna, S/o. Brahmachari,

aged 45 years, business, Shop No.44,

Municipal Shopping Complex, Kambala Cheruvu,

Rajahmundry, E.G. Dt.                                                                          …        Complainant

 

                                    And

 

1)  Shaik Karimulla, aged 50 years, Proprietor,

     M.R. Enterprises, A.S. Rao Nagar, E.C.I.L.,

     Hyderabad.

 

2)  Komitla Logistics, (Organisation of Komitla

     Services), # 21, Ground Floor, Azeema Building,

     T.S.R. Road, near A.V. Road, Kalasipalyam,

     Bangalore, rep. by its M.D.

 

3)  Komitla Logistics, D.No.1-1/2, MIG-53,

     A.P.H.B. Colony, Phase-9, Lalacheruvu,

     Rajahmundry, rep. by its Manager.                                             …        Opposite parties

                                   

 

            This case coming on 11.04.2016 for final hearing before this Forum in the presence of Sri Ch.A.S. Vasu, Advocate for the complainant and Sri S. Kumar, Advocate for the 2^ndopposite party and the opposite parties 1 & 3 having been set ex-parte, having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Sri A. Madhusudana Rao, Member] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to pay an amount of Rs.1,86,222/- being the expenses incurred by the complainant; to pay Rs.1,00,000/- towards damages and pay Rs.2,00,000/- for causing mental agony and for costs.

2.         The case of the complainant is that he placed an order with the 1^st opposite party for various soft drinks flavours for conducting business in recent Pushkarams for selling flavoured soda with different flavours like Orange, Grape etc. with a view to gain some profits in recent Pushkarams by selling flavoured soda. The complainant placed the order with the 1^st opposite party on 13.7.2015 and the 1^st opposite party has to supply the material ordered by 14.7.2015. In view of the said business, the complainant also incurred heavy expenses in purchasing considerable quantity of sugar, Gas cylinders for making soda, paper glasses for supply of soft drinks, water tins, a batter for power supply to the soda making gadget and also took the soda making machine on lease from the Pedamurthi Vignan Kumar of Seethanagaram Mandal, East Godavari District for a period of 16 days from 11.7.2015 to 26.7.2015 on a daily rent of Rs.3,500/- per day, total amounting Rs.56,000/- for 16 days and paid an advance of Rs.30,000/- as advance and the balance has to be paid at the end of lease period i.e. on 26.7.2015 and the same was reduced to writing under a Lease Agreement dt.10.7.2015. Accordingly, the complainant paid the amounts to the said person. The complainant also paid an amount of Rs.19,000/- to the 1^st opposite party for sending the flavoured essence packets through bank i.e. State Bank of India, Tirumalagiri Branch dated 13.7.2015. While so, the complainant did not receive the consignment as ordered by him by 14.7.2015 and even did not know the reason why they were not supplied to him and the opposite parties did not assign him any reason for not sending the concerned articles by due date i.e. 14.7.2015.  Recently, on 31.7.2015, the 3^rd opposite party on enquiries made by the complainant through a phone call stated that he received the goods on 31.7.2015 and to come and collect by 2.8.2015 else he will return the goods immediately, the complainant approached the 3^rd opposite party and enquired about the matter and the 3^rd opposite party informed the complainant that by mistake the consignment of the articles was sent to Tirupathi and therefore they could not be delivered to the complainant by relevant time and that recently the same were re-directed to the 3^rd opposite party. The complainant submits that he ordered the said articles for the purpose of doing business during Pushkarams by incurring heavy expenses on various items and due to deficiency of service by the opposite parties, he sustained heavy loss. Hence, the complaint.

3.         The 2^nd opposite party filed its written version and denied all the allegations made by the complainant. There is no privity of contract between this opposite party and the complainant and consequently the complaint is liable to be dismissed against this opposite party. This opposite party is not aware about the complainant placing an order with the 1^st opposite party or that it was intended to make some profit by selling flavoured soda. Similarly, this opposite party has no knowledge about the complainant demanded the 1^st opposite party to supply the material by 14.7.2015. The alleged lease agreement is not admitted to be true and correct and it must have been prepared for the purpose of this complaint. This opposite party submits that in the pushkarams, the vehicle were not allowed into Rajahmundry and consequently, the stock could not be uploaded at Rajahmundry and the vehicle had to proceed to Tirupathi where the goods were unloaded and after completion of Pushkarams when the vehicle were allowed inside Rajahmundry, they were delivered. Therefore, there is absolutely no fault on the part of this opposite party. In any view of the matter, this opposite party has no idea about the urgency or the nature of use for the product by the complainant. Because of the circumstances beyond the control of this opposite party, the goods could not be delivered. It is specifically stipulated on the reverse of the bill that this opposite party is not liable for any compensation for non-supply of goods within time. It is specifically mentioned that timings for departure and arrival are not guaranteed. This Forum has also no jurisdiction since the consignor of this opposite party agreed that the court at Nellore alone has jurisdiction. In view of the said conditions, the present complaint is not maintainable. As the complainant did not take delivery, this opposite party called upon the consignor and he gave it in the handwriting that in the event the consignee i.e. the complainant fails to take delivery he asked in writing by letter dt.9.8.2015 to return the goods to him. Therefore, there is absolutely no deficiency of service and the present complaint is not maintainable. Hence, this opposite party prays the Hon’ble Forum to dismiss the complaint with costs.

4.         The 1^st & 3^rd opposite parties remained ex-parte and the notices issued to them by this Forum were returned unserved and so, they were set ex-parte.

5.         The proof affidavit filed on behalf of the complainant and Exs.A1 to A10 have been marked for the complainant. The proof affidavit filed on behalf of the 2^nd opposite party. Written arguments filed on behalf of the complainant and the 2^nd opposite party.

6.         Heard both sides.

7.         Points raised for consideration are:

 

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

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

 

8.  POINT Nos.1 & 2:  As per the record, the complainant is a resident of Rajahmundry running a shop selling fancy items, cool drinks and other food items. The complainant placed an order in view of the Godavari Maha Pushkarams from 14.07.2015 to 25.07.2015 with the 1^st opposite party M.R. Enterprises, Hyderabad for flavoured essence powders used for making soda, soft drinks and for the supply of the same, the complainant paid an amount of Rs.19,000/- through State Bank of India on 13.7.2015 to the 1^st opposite party vide Ex.A2 bank counterfoil.  We further observed that the complainant purchased considerable quantity of sugar vide Ex.A5, gas cylinders for making soda vide Exs.A3 & A4, paper glasses vide Ex.A6 & A7, water tins vide Ex.A8, battery for power supply to the soda gadget vide Ex.A9 and took a soda machine on lease for a period of 16 days from 11.7.2015 to 26.7.2015 on a daily rent basis vide Ex.A10 lease agreement.

            The 1^st opposite party sent the above said flavoured essence powders amounting to Rs.19,000/- as per Ex.A2 through the 2^nd opposite party transporter by name Komitla Logistics, Bangalore and the above said essence powders should be delivered on 14.7.2015 through the 3^rd opposite party branch office of the 2^nd opposite party Komitla Logistics, Lalacheruvu, Rajahmundry as per the L.R. No.012857 dt.13.7.2015 from ECIL, Hyderabad to Rajahmundry and the complainant herein has to pay the transport charges of Rs.780/- as per the bill vide Ex.A1.  

But as per the complainant, the above said items were not transported by the 2^nd opposite party through the 3^rd opposite party to the complainant by 14.7.2015 and the complainant was put in dark as to why the items were not supplied on 14.7.2015 by the transporters 2 & 3.  The complainant received a message from the 3^rd opposite party on 31.7.2015 to come and collect the above said items sent by the 1^st opposite party by the date of 2.8.2015 else the goods will be returned to the sender. When enquired about the delay in delivery, the 3^rd opposite party informed that the consignment of the articles were sent to Tirupathi by mistake and the same were redirected to Rajahmundry and so, they could not deliver the items  to the complainant at relevant time which amounts to deficiency in service on the part of the 2^nd opposite party and is liable to pay all the amounts incurred by the complainant for conducting the business during Pushkarams. 

 

The 2^nd opposite party contended that in the Pushkarams, the vehicle were not allowed into Rajahmundry and consequently, the consignment could not be unloaded at Rajahmundry and so, the vehicle proceeded to Tirupathi where the goods were unloaded and after completion of Pushkarams, when the vehicles were allowed inside Rajahmundry, they were delivered to the complainant. So, there is absolutely no fault on the part of the opposite party and this opposite party has no idea about the urgency or the nature of use of the product by the complainant. Further, because of the circumstances beyond the control of this opposite party, the goods could not be delivered and further, it is specifically stipulated on the reverse of the bill that this opposite party is not liable for any compensation for non-supply of goods within time. If that is the contention of the 2^nd opposite party that the vehicles were not allowed into Rajahmundry, they should not accept the transaction to transport the said items to the complainant at Rajahmundry from the 1^st opposite party at Hyderabad during the time of Pushkarams.   

It is a fact that the Municipal and Police authorities put some restrictions on vehicular traffic during the time of Pushkarams to avoid traffic congestion within the limits of Rajahmundry Town and the heavy vehicles like transport etc. were not allowed into the town, but they were allowed through the newly constructed bridge bypassing Rajahmundry and the vehicles were allowed up to outskirts of Rajahmundry and from there the consignments were allowed through smaller vehicles engaged by the a transporters at certain intervals by the authorities. So, the contention of the 2^nd opposite party that they could not deliver the consignment to the complainant is not justifiable and there is every kind of deficiency in service in non-supply of items ordered by the complainant and sent by the 1^st opposite party through the 2^nd opposite party transporter and the 2^nd opposite party transporter is liable to pay for deficient in service.     

The opposite party further contended that this Forum has no jurisdiction to entertain this complaint, but we are in the considered opinion that this Forum has jurisdiction to entertain the present complaint and the condition that only Nellore has jurisdiction is not binding upon this Forum.           

 

With the above said discussion, under the facts and circumstances of the case, as per the Consumer Protection Act, there is no provision for granting compensation for business loss or expenses incurred to do the business purpose through self employment.  So, we are not considering the expenses incurred by the complainant. However, we are in the considered opinion that the complainant is entitled for claiming damages for mental agony and for costs of this complaint.  

               

9.   POINT No.3:  In the result, the complaint is allowed in part, directing the 2^nd opposite party to pay an amount of Rs.10,000/- towards compensation for mental agony and we further direct the 2^nd opposite party to pay an amount of Rs.1,000/- towards costs of this complaint to the complainant. Time for compliance is two months from the date of this order.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the           

26^th day of April, 2016.

    

               Sd/-xxx                                                                                       Sd/-xxx

              MEMBER                                                                              PRESIDENT(FAC)

         

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

 

Ex.A1    dt/13.07.2015    Luggage slip of Komitla Logistics.

Ex.A2    dt/13.07.2015    State Bank of India counterfoil.

Ex.A3    dt/12.07.2015    Bharani Enterprises receipt for Rs.10,000/-.

Ex.A4    dt/12.07.2015    Bharani Enterprises receipt for Rs.6,840/-.

Ex.A5    dt/13.07.2015    Sri Anantha Lakshmi Traders for Rs.18,742-50ps.

Ex.A6    dt/14.07.2015    Teja Enterprises receipt for Rs.20,160/-.

Ex.A7    dt/13.07.2015    Gaja Kesari Poly Pack receipt for Rs.19,800/-.

Ex.A8    dt/13.07.2015    Varun Water supplies bill for Rs.24,000/-.

Ex.A9    dt/11.07.2015    Sree Kumar Agencies for Rs.11,500/-.

Ex.A10 dt/10.07.2015    Lease deed.

 

 

 

 

FOR OPPOSITE PARTIES:-       - Nil -

 

 

                Sd/-xxx                                                                                      Sd/-xxx

              MEMBER                                                                              PRESIDENT(FAC)