FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that complainant is presently residing at Ahmadabad   Gujarat for the purpose of serving his office and due to such reason   above referred complainant had contacted the op no.1 through telephone to transfer his used Bike   vide no. GJ-1-JC-928 to his present address at Ship Building   near Municipal Market C.G.Road   Navaranga   Ahmadabad   Gujarat   Pin-380009.  It is hereby mentioned that the complainant had searched throughout the web about packers and Movers in Kolkata   where he found out the op no.1 as the packers and movers.  After various discussions   the complainant decided to appoint the op no.1 for delivering his used bike from his permanent residential unit to his present address Ahmedabad   Gujarat and after being satisfied with the discussions in between parties   the complainant on 30.05.2019 had paid the entire amount of Rs.4720/- by cash which was the transportation charge for carrying the above referred motor bike of the complainant from Kolkata to Ahmedabad as per their Bill/ C.N No-504.  It is also to be mentioned here that the money receipt vide no.505 dated 30.05.2019 was provided to the complainant   which was countersigned by OP and it was initially agreed between the parties that the consignment of the bike would be delivered on 8^th June 2019.  But the bike was not delivered accordingly on 15^th June 2019   the OP on behalf of TCI packers and Movers sent an email  to the complainant confirming that the consignment would be delivered within 4 to 5 days and it is to be noted here that on 19^th June 2019  OP on behalf of the OP no.1 had sent a text message to confirm that the delivery would take place on 20^th July 2019.  But the bike was not delivered as per the promise of OP and being frustrated and heckled by these false promises   the complainant contacted with op and he eventually promised to send docket number.  But he failed to do so.  Again on 29^th June OP wrote through whatsapp message that the consignment of Bike would be delivered on 5^th July but the said incident did not occur and continuing the harassing attitude and behavior   OP had conveyed the complainant that the bike should be delivered on 5^th July.  Expectedly that had not be happened and the complainant had sent various emails on 17^th June 2019   6^th July 2019 and lastly on 8^th July 2019.  But the OP never turned up and after going through a dark phase   the complainant knocked the door of law and went to his Ld. Advocate to get proper legal advice.  Thence   the LD advocate on behalf of the complainant had sent a legal notice dated 12.7.2019 regarding the deficiency of service to the OP no.1 and they had received the said letter.

After getting the legal notice from the complainant   the OP no.1 had delivered the impugned consignment of Bike by OP no.2 to the petitioner’s present official address at  Ahmedabad   Gujarat.  But the said vehicle was in damaged condition.  The left back indicator was broken   left back portion had scratches.  The fuel tank was also harmed and had different scratch mark over it.  At the time of handing over the possession of the said impugned bike the complainant was subjected to not to put any remark over the delivery and the condition of the bike.  It was also to be mentioned here that the complainant was forced to take the vehicle in damaged condition and without helmet and Bike’s key.  But the fact is that the key of the said impugned bike and the helmet was handed over to the op no.1 by wife of the complainant at the permanent residence of the complainant.

It was also found by the complainant that the looking  glasses of the impugned vehicle were not attached to the bike   even there was no sign of the said glasses in the said consignment.  It was also found that the ball bearing frame of handle was damaged and apart from  the above mentioned scratches   there were different scratches in the body of the said bike.  Seeing such vulnerable condition of the bike the complainant intimated op no.1 over telephone the entire scenario.  But the op kept mum.  It is also to be mentioned here that the complainant would not be able to use his vehicle without the key and the helmet   which were not deliberately handed over to the complainant by the op.

Another legal notice was sent to the ops describing the entire incident on 26.7.2019 and the ops were called upon to make good of the loss suffered by the complainant.  But the ops decided to remain silent and the complainant had informed the entire scenario to the OPs about the deficiency in service regarding the delivery of vehicle through various mails   whatsapp even through phone calls   only with a hope to get relief from the harrassive and intolerable situation.  OPs did not give any fruitful reply to such communications.  They are even so adamant in nature   they did not pay any heed to the Advocate’s letters dated 12.7.2019 and 26.7.2019 sent by the complainant.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs. 35  000/- for the entire repair of the scratches   broken looking glass and left back indicator   scratches in the fuel tank and to return the key of the vehicle and the helmet and to pay a sum of Rs.2  00  000/- for harassment   mental agony and litigation cost.                                                                                                                                                                 

Defense Case:-  The opposite party Nos. 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that it is pertinent to note that the nature of the business carried out the op no.2 op o.2 is a logistic industry that is engaged in transportation of goods of the consignor or customer to the consignee’s place.  The op no.2 has no direct contract or interaction with the consignee.  It just acts like a carrier of goods assigned to it by the consignor to transport it to the destination.  It is further submitted that the consignor entrusts the goods to the opno.2 to deliver the same to its destination.  However   the consignor at the time of assigning the goods to the op no.2 for delivery   undertakes and ensures to make proper   true fair correct and factual declaration on the consignment note regarding description and value of the products/ goods. And the OP no.1 approached the answering opno.2 on 16.7.2019 and made an offer to the opno.2 to deliver one consignments bearing consignment number 8000887918 containing 1 bike from Kolkata to Ahmedabad.  The Opno.2 upon receipt of the offer from the op no.1 accepted the same and agreed to deliver the consignment to the complainant’s place in Ahmedabad and it is humbly submitted thereupon the op no.2 received the bike and arranged to deliver the same carefully to the destination point.  Thereafter the OP no.2 carefully delivered the goods to the destination point.  The op-2 has carried out proper due diligence and taken all precautions as per its course of business to deliver the goods to the final point.  The op-2 has worked within the scope of its authority and transported the goods and hence cannot be made liable for the loss caused to the goods.  That upon delivery of the goods at the complainant’s premise   the complainant issued a clean proof of delivery to the representative of the op-2.  The OP-1 at the time of booking the OPno.2 for transporting the packages to Ahmedabad agreed to the Terms and conditions of the op no.2.  As per the terms and conditions   the opno.2 is only liable to transport the goods assigned to it.  Even otherwise without prejudicing the submission that the op no.2 is not responsible for the damaged caused to the goods   the op-2 has agreed to deliver the goods on consignor’s risk.  The complainant has filed this false   bald complaint against the op-2 without application of mind.  The complaint is liable to be dismissed at the outset.

It is submitted that as per clause 1 of the terms and conditions of the op-2  the op no.1 entrusted the goods with the op no.2 on a   Said to Contain Basis  .  It was further stated in the terms and conditions and agreed by the complainants and the op-1 that the answering op-2 would by under no obligation and not expected to verify the descriptions and contents of the goods declared on the consignment note and it is further submitted that as per the terms and conditions of the op -2 in case the consignment is insured by owner   the liability of Rivigo for loss   damage caused shall be 0.1% of the total value of the consignment or the value of the actual loss whichever is lower.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party no. 2.

            The answering opposite party no. 2 filed a petition on 2.8.2022 for treating their W/V as their evidence on affidavit.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party no. 2 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party no. 2 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite party no. 2 in the written version has only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Serampore   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover cause of action of this case arose at Serampore and so this case is maintainable and this District Commission has jurisdiction u/s 11 of Consumer Protection Act   1986. Moreover   this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover   u/s 11 of the Consumer Protection Act   1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act   1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   1986. Complainant is a consumer in the eye of law.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:  

1. It is admitted fact that the complainant has his motor cycle being no. GJ-1-JC-928.
2. It is also admitted fact that the complainant is engaged in a job at Ahemedabad   Gujrat.
3. There is no controversy over the issue that the complainant used to reside at Ship Building   near Municipal Market C.G.Road   Navaranga   Ahmadabad   Gujarat   Pin-380009.
4. There is no dispute over the issue that  the complainant intended to shift the above note motor cycle from his residence at Serampore to Ahemedabad   Gujrat.
5. It is admitted fact that in the matter of shifting the motor cycle to Ahemedabad   Gujrat the complainant was searching for packers and movers in Kolkata.
6. It is also admitted fact that the complainant had come across with op no. 1 who engaged in  the business of packers and movers.
7. There is no controversy over the issue that the op no. 1 had taken delivery of the above noted motor cycle for sending the same at the address of the complainant at Ahemedabad   Gujrat.
8. There is no dispute over the issue that the op no. 1 had claimed Rs. 4  720/- as charge of shifting of the said motor cycle from Serampore to Ahemedabad   Gujrat.
9. It is admitted fact that the complainant had to pay the said amount of Rs. 4  720/- by cash which was transportation charge for carrying the above noted motor cycle from Kolkata to Ahemedabad   Gujrat against bill no. C.N. no. 504.
10. It is also admitted fact that the op had issued money receipt vide no. 505 dt. 30.5.2019.
11. There is no controversy over the issue that the op no. 1 assured to deliver the said motor cycle at Ahemedabad   Gujrat within 8.6.2019.
12. There is no dispute over the issue that op no. 1 had failed to deliver the said motor cycle within the schedule date.
13. It is admitted fact that the op no. 1 on his behalf had engaged op no. 2 for carrying the said motor bike to the complainant at Ahemedabad   Gujrat.
14. It is also admitted fact that the op nos. 1 and 2 had not delivered the said motor bike to the complainant at the address of Ahemedabad   Gujrat inspite of giving several dates as a result of which the complainant had to send a legal notice to the op no. 1.
15. There is no controversy over the issue that after getting the legal notice from the complainant   the op no. 1 had delivered the impugned consignment of the bike to op no. 2.
16. There is no dispute over the issue that the said bike was handed over to the complainant in damaged condition.
17. It is admitted fact that the complainant thereafter had sent several massages and letters to the ops for making payment for the said damages but the ops remained silent.
18. It is also admitted fact that ultimately the complainant had sent a legal notice to the ops for making payment of the damage caused to the said motor cycle of the complainant.
19. There is no controversy over the issue that inspite of receiving notice the ops failed to pay any money of compensation to the complainant for the delivery of the motor cycle in damaged condition.
20. There is no dispute over the issue that ultimately the complainant has filed this case with a prayer for passing direction to the ops to pay  a sum of Rs. 35  000/- for entire repair of the damaged motor cycle and also prayed compensation and litigation cost in this case.         

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is claiming that the ops handed over the said motor cycle and/ or delivered the said motor cycle of the complainant at his address at Ahemedabad   Gujrat in extremely damaged condition and so the ops are entitled to pay damages but it has not been paid by the ops which indicates that there is negligence and deficiency of service on the part of the ops but on the other hand   the ops in their written statement has totally denied this issue and claimed that this case is not maintainable and ops are not responsible for the damage for which there is no deficiency on the part of the ops.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that there is no controversy over the issue that the above noted motor bike of the complainant delivered at the address of the complainant at Ahemedabad   Gujrat in extremely damaged condition. When the complainant proved his case by way of giving proper evidence regarding the delivery of the motor bike in damaged condition   it is duty of the ops to submit prayer for expert examination of the motor cycle by appointing expert but the ops due to the reason best known to them has failed to do so. This factor is clearly indicating the ops have their negligence and deficiency of service in the matter of delivery of the motor cycle of complainant at the address of the complainant at Ahemedabad   Gujrat.

All these factors are clearly reflecting that the complainant has also proved his case in respect of points of consideration nos. 4 and 5. So   the complainant is found entitled to get the relief which has been prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 149 of 2019 be and the same is allowed on contest but in part against the ops.

it is held that the ops are jointly and severally liable to pay the damages/ compensation of Rs. 35  000/- to the complainant and litigation cost of Rs. 5000/- to the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party nos. 1 and 2 are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.