BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, RAMANAGARA

ORDER

BY SRI H.CHANNEGOWDA, HON’BLE PRESIDENT

1. The Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 against the Opposite parties praying for directing to pay a sum of Rs.2,00,000/- towards preparation of the documents, lease agreements etc., to have the dealership along with interest at the rate of 18% p.a. and Rs.10,00,000/- towards compensation for loss of future prospect of the unemployed Complainant along with costs of the petition.  
2. In a nutshell the case of the Complainant are as under:-

The Complainant is an unemployed M.Sc., graduate in Bio-Technology. He was searching for the suitable job or the self employment. During that time, MRPL, Mangaluru Company gave an advertisement in daily newspaper calling upon the interested to apply for the dealership of refined oil. He become one of the aspirants and applied for the dealership in the application Sl.No.224/2001.

3. Further it is alleged that in pursuance of his application there were several correspondences between him and the MRPL Mangaluru. The Complainant applied for the Dealership to the place Saraswathipura Panchayath area, Kadur Taluk in Chickmagaluru District. After Several correspondence, ultimately he was given an opportunity to submit all the documents along with initial security deposit within 20 days as per the letter sent by MRPL, Mangaluru dated 18.10.2021, directing him to furnish the initial security deposit along with such other documents within 20 days i.e., on or before 06.11.2021. As per the direction of MRPL, Mangaluru by letter dated 18.10.2021, he has handed over a closed cover keeping all the documents along with the demand draft for a sum of Rs.50,000/- and handed over the same to the respondents on 04.11.2021. The respondents have promised that it would be delivered within 24 hours and maximum within 48 hours. Further respondents also promised that latest by 06.11.2021 before evening closure of the office hours, the said courier i.e., envelop would be delivered to addressee MRPL, Mangaluru, by receiving a sum of Rs.280/- as a service charge. Inspite of such promise, the respondents failed to deliver on or before 06.11.2021. Whereas it was delivered on 11.11.2021 after the expiry of the last date.
4. Further it is alleged that the MRPL, Mangaluru has rejected the application of the Complainant on the ground that he has not submitted the documents and initial security deposit on or before 06.11.2021 before closer of the office. Though the Complainant handed over the envelope containing all the documents with necessary initial security deposit to the Opposite parties by paying necessary service charges of Rs.280/-. But respondents have completely failed to deliver the envelope to MRPL, Mangaluru on or before 06.11.2021. Whereas it was delivered to the MRPL Mangaluru on 11.11.2021. Due to the deficiency of the service rendered by respondents, Complainant has lost his bright future. The dealership has been skipped from his hand, due to the deficiency of service rendered by the Opposite parties.
5. Further it is alleged that the Complainant would expected prospective earnings to the tune of Rs.1,00,000/- to Rs.1,25,000/- per month if the dealership could awarded to him. That apart he remained as unemployed and still he has been made to depend on his parents for his livelihood.
6. Further it is alleged that for preparation of the documents Complainant has spent around RS.2,00,000/-. To have the agreement from the land owners he spent money. Therefore, due to the deficiency of service rendered by Opposite parties.

Mainly among these grounds it is prayed to allow the complaint as prayed for.  

7. After the service of notice the Opposite party No.3 remained absent. Hence Opposite party No.3 was placed exparte. The Opposite party No.1 & 2 have entered appearance through their counsel and filed their written version.
8. In the written version it is contended that they did not engage in direct contract with Complainant or had promised to deliver the consignment in the fixed time. Moreover the services engaged by the Complainant is for commercial purposes/activities for profit and gain. It is under these circumstances the Complainant does not come under the purview of definition of Consumer as defined under section 2(d) of the Consumer Protection Act, 1986. Hence the complaint filed by the Complainant has to be rejected by this Commission.
9. Further it is contended that no liability would arise against this Opposite parties in case of non-disclosure by the Complainant in respect of content of the consignment and of non-declaration of its value with supported documents at the time of booking. In the absence of any such declaration no liability would arise against Opposite party No.1 for the loss or damage caused to the consignment/shipment/parcel. In the instant case the Complainant had not disclosed the content of the consignment at the time of booking, though he was obligated to disclose the same. In absence of such declaration it cannot be presumed that the Complainant had sent alleged documents to the consignee.
10. Further it is contended that it is assumed and not admitted that the Complainant has taken hectic effort to deliver the consignment to consignee. But due to unavoidable circumstances beyond the control of Opposite parties that the consignment was delayed delivered to the consignee. Moreover the terms and conditions of the foot receipt of consignment clearly states that Opposite parties are not liable for any consequential loss.  
11. Further it is contended that the Opposite parties had not involved in deficiency of service had taken all measures in the delivery of consignment. It is the Complainant to prove evidence that there was negligence on the part of the Opposite parties. In turn the entire complaint has stated the prospective growth of the Complainant being immaterial and irrelevant and this complaint is liable to dismissed due to lack of credible information. It is further submitted that Complainatn will not be entitle to get any damages from the Opposite party as there is no negligence on the part of the Opposite party while delivering the consignment. Further he submits that the Complainant has every access to check the tracking the consignment and Opposite parties also had taken all the necessary efforts to deliver the consignment to its destination and any delay is beyond the control of Opposite parties.

Mainly among these grounds it is prayed to dismiss the complaint.

12. At the time of evidence, the Complainant has filed his affidavit evidence and got marked the documents as Ex.C.1 to C.24 and closed his side evidence. Opposite party No.1 & 2 have failed to adduce any evidence on their behalf. Then the case posted for arguments.
13. The learned counsel for the Complainant has filed the written argument. Heard the oral arguments of the learned counsel for the Complainant.
14. Now the points that would arises for our consideration are:-

1. Whether the Opposite party No.1 & 2 prove that the Complainant does not come under the definition of “Consumer” as defined under the Consumer Protection Act?
2. Whether the Complainant prove that there is deficiency in service on the part of Opposite parties?
3. Whether the Complainant is entitled for the reliefs as sought?
4. What order?

15. Our findings on the above points are as under.

Point No.1           :         In the Negative

Point No.2           :         In the Affirmative

Point No.3           :         Partly in the Affirmative

Point No.4           :         As per final order

                                    for the following;

REASONS

16. POINT NO.1:- In the written version the Opposite party No.1 & 2 have contended that the Opposite parties did not engage in direct contact with the Complainant or had promised to deliver the consignment in the fixed time. Moreover, the services engaged by the Complainant is for commercial purpose/activities for profit and gain. Under these circumstances, the Complainant does not come under the purview of the definition of Consumer as defined under the Consumer Protection Act and hence the complaint filed by the Complainant has to be rejected by this Hon’ble Forum.
17. The Consumer Protection Act, 2019 is a comprehensive enactment for speedy and simple redressal to Consumer disputes and for better protection of the interests of consumer.

After going through Section 100 of the Consumer Protection Act, 2019, it appears that the jurisdiction of Consumer Fora should not be curtailed unless there is an express provision prohibiting the Consumer Fora to take up the matter. The provisions of Section 100 clearly relates “In addition to” and not derogatory to any other law. So, this District Commission had vested the power to make award of compensation in favour of a bonafide Consumer who has missed an opportunity of getting dealership of refined oil due to deficiency of service or default on the part of the Opposite party No.1

18. In the present case it is seen that as per Ex.C.2 receipt issued by the Opposite party No.1, on 04.11.2021 the Complainant had sent courier / envelop through Opposite party No.1 to the Chief Regional Manager (Mangalore Region) MRPL Mangalore by paying service charges of Rs.280/-. It is seen that the Opposite parties are rendering services of courier and cargo to the different parts of Karnataka and other places by collecting service charges for the same.
19. As already stated, in this case the Complainant had sent courier / envelop through Opposite party No.1 by paying service charges of Rs.280/-. Having paid for the services, the Complainant was a “Consumer” within the meaning of Section 7(ii) of the Consumer Protection Act, 2019. Therefore, the above contention of the Opposite party No.1 & 2 has no force at all.

Hence in view of all these reasons we answer the above point accordingly.

20. POINT NO.2:- The main case of the complaint is that on 04.11.2021 he had sent courier / envelop through Opposite party No.1 by paying service charges of Rs.280/- to the addressee the Chief Regional Manager (MRPL Mangalore). According to him, as per Ex.C.1 E-mail / speed post dated 18.10.2021 sent by the Chief Regional Manager (MRPL), the said courier / envelop has to be reached the above said addressee on or before 06.11.2021 and in that regard the Opposite party No.1 had assured the Complainant to deliver the said courier on or before 06.11.2021, but the Opposite parties have failed to deliver the envelop on or before 06.11.2021, instead they delivered the said envelop on 11.11.2021 i.e., after the last date fixed by the addresses (06.11.2021) and thereby the MRPL Mangalore has rejected his application on the ground that the Complainant has failed to fulfill the conditions to obtain the dealership within the stipulated date. According to the Complainant due to the deficiency in service rendered by the Opposite parties, he has lost his bright future and the dealership has been skipped from his hand due to the deficiency of service rendered by the Opposite party No.1. In the affidavit evidence also the Complainant has reiterated the same.
21. If we peruse the written version filed by the Opposite party No.1 & 2 it is seen that in para No.7 of the written statement it has been stated as under:-

“7. It is assumed and not admitted that the Complainant has taken hectic effort to deliver the consignment to consignee. But due to unavoidable circumstances beyond the control of Opposite parties that the consignment was delayed delivered to the consignee. Moreover the terms and conditions of the foot receipt of consignment clearly states that Opposite parties are not liable for any consequential loss”.

22. If we analyse the contents of the written version particularly para-7 of the written version, it is seen that it is not much in dispute that as stated by the Complainant he had sent the courier / envelop through Opposite party No.1 on 04.11.2021 by paying service charges of Rs.280/- and the said envelop has to be delivered to the addressee the Chief Regional Manager, (MRPL Mangalore).
23. In the written version it is contented by the Opposite party No.1 & 2 that they have not involved in service deficiency and that they have taken all measure in the delivery of consignment. It is also stated in the written version that due to unavoidable circumstances beyond the control of Opposite parties the consignment was delayed delivered to the consignee. Even though the Opposite parties have filed their written version, but they failed to adduce any evidence on their behalf and not produced any documents in support of their contention.
24. As per Ex.C.1 E-mail / speed post letter dated 18.10.2021 the Chief Regional Manager (Mangalore Region) MRPL Mangalore has sent the said letter to the present Complainant by stating that he has to sent the security deposit with documents to them within 20 days from the date of this intimation i.e., 06.11.2021 and it is noted in the letter that Complainant’s candidature is liable for rejection in case he failed to submit the ISD and specified documents within the stipulated time without any further notice.
25. As per Ex.C.20 another E-mail/speed post letter dated 11.11.2021 the said Chief Regional Manager (MRPL Mangalore) has sent the said letter to the present Complainant and it is informed in the said letter that the Complainant’s candidature stands cancelled. However they have received the envelop on 11.11.2021 after the cut of date (06.11.2021) and thereby the envelop along with the DD, Canceled cheque and specified documents are being returned with MRPL terms and conditions to the Complainant.

The contents of Ex.C.1 & C.20 and the contents of the complaint shows that the Complainant had sent courier / envelop through Opposite party No.1 by paying service charges of Rs.280/- and according to him the Opposite party No.1 has assured that the said envelop would be delivered to the addressee on or before 06.11.2021 (before the cut of date fixed by the addressee), but the Opposite party No.1 has delivered the said envelop to the addressee on 11.11.2021 i.e., after the cut of date of 06.11.2021 fixed by the addressee and thereby there is deficiency in service on the part of the Opposite parties. 

26. Ex.C.2 receipt issued by the Opposite party No.1 shows that on 04.11.2021 they collected envelop from the Complainant and the same has to be delivered to the Chief Regional Manager (MRPL Mangalore) and that they collected a sum of Rs.280/- towards their service charges. But the said envelop was delivered to the addressee only on 11.11.2021 i.e., after a lapse of about 7 days from the date of receipt of the said envelop by the Opposite party No.1. In other words to say the said envelop was delivered to the addressee after a lapse of about 5 days from the cut of date (06.11.2021) as fixed by the addressee for receiving the security deposit along with documents from the Complainant. Even though, the Opposite party No.1 & 2 have filed their written version, but they failed to adduce any evidence on their behalf in order to rebut the evidence of Complainant.
27. The material on record clearly shows that the Complainant had sent courier / envelop through Opposite party No.1 on 04.11.2021. It was received / delivered to the addressee on 11.11.2021, after the last date fixed by MRPL Mangalore (06.11.2021) had elapsed, though timely receipt of the courier / envelop by the Complainant was essential. Belated receipt after 7 days of despatch and after 5 days of the last date fixed by MRPL Mangalore for which it was meant, materially impacts the whole gamut and evinces the loss and injury to the Complainant. In this case the Complainant missed an opportunity of getting dealership of refined oil.

That being as it is, the mere fact of courier / envelop being delivered after 7 days of despatch clearly, falls within the meaning of ‘deficiency of service’ under Section 2(11) and Section 2(42) of the Consumer Protection Act, 2019. Therefore, in view of the above reasons it is stated that there is a deficiency of service on the part of Opposite parties in delivering the courier / envelop to the addressee. Hence in view of all these reasons we answer the above point accordingly.

28. POINT NO.3:- In the relief coloum of the complaint the Complainant has sought for the following reliefs.

“(b) The Opponents are be directed to pay a sum of Rs.2/- lakhs with interest at the rate of 18%, which was spent by the Complainant towards preparation of the documents, lease agreements etc., to have the dealership.

(c) Further the Opponents are be directed to make good the loss of future prospect of the unemployed Complainant by awarding the compensation of Rs.10/- lakhs and such other reliefs.”

29. In the complaint the Complainant has stated that to prepare the documents to have the dealership and also to have an agreement with the land owners at Saraswathipura, Kadur Taluk, to establish the Petrol Bunk, he has spent around Rs.2,00,000/- towards preparation of the necessary documents and also to have the agreement from the land owners. He sustained loss of Rs.2,00,000/- due to the deficiency of service rendered by the Opposite parties. In the affidavit evidence also the Complainant has reiterated the same.
30. It is seen from the records that there is no clear mention by the Complainant as to how and in which manner he sustained loss of Rs.2,00,000/- due to the deficiency in service on the part of Opposite parties. It is seen that the Complainant has not examined the land owner who alleged to have agreed to provide the suitable land to the Complainant for establishment of dealership of the Petrol Bunk. The Complainant has not produced the alleged agreement executed by the land owner to provide a land to establish the Petrol Bunk by the Complainant. In this case the Complainant has produced and got marked the alleged affidavit of the land owner Kalleshappa to provide his land measuring 4050 Sqr. Mtr to the Complainant to establish the Petrol Bunk. As already stated, except the evidence of the Complainant there is no other positive evidence is found on record. Moreover the Complainant has not examined the owner of the said land Sri.Kalleshappa in order to prove the contents of Ex.C.4 affidavit. Except the evidence of the Complainant there is no other positive evidence is found on record to prove the fact that the Complainant had spent Rs.2,00,000/- towards preparation of necessary documents and also to have the agreement from the land owner and also to prove the fact that he suffered loss of future prospect of the unemployed Complainant in order to award compensation of Rs.10,00,000/- as sought in the complaint. Therefore, in view of the above reasons it is stated that the relief as sought by the Complainant in the prayer coloum at (b) & (c) cannot be granted for want of sufficient evidence.

The Complainant who being an unemployed M.Sc., graduate in Bio-Technology, due to the deficiency in service on the part of Opposite parties, he was deprived of getting dealership from the MRPL Mangalore in order to run the dealership of refined oil. On considering the fact that due to the deficiency in service on the part of the Opposite parties the Complainant was deprived of getting dealership of refined oil from MRPL Mangalore, it is just and reasonable to direct the Opposite parties to pay a sum of Rs.15,000/- as compensation to the Complainant for the loss caused to him due to the fault of the Opposite parties. Further the Opposite parties are directed to pay a sum of Rs.5,000/- to the Complainant towards litigation charges.

Hence in view of all these reasons we answer the above point accordingly  

31. POINT NO.4:- In view of our reasons as stated in Point No.1 to 3, we proceed to pass the following;

ORDER

The complaint filed by the Complainant under Section 35 of the Consumer Protection Act, 2019 is partly allowed as under:- 

The Opposite parties are directed to pay a sum of Rs.15,000/- to the Complainant as compensation within 45 days from the date of this order due to the deficiency in service on the part of Opposite parties. Further, the Opposite parties are directed to pay a sum of Rs.5,000/- to the Complainant towards litigation charges. In default the Opposite parties shall pay interest at the rate of 9% p.a. on the above said amount till realization of entire amount.

Furnish free copy of this order to both the parties.   

(Dictated to the Stenographer, got it transcribed, typed by him and corrected by me, then pronounced in the Open Commission on 14^th March 2023)

ANNEXURS

Witness examined on behalf of the Complainant/s by way of affidavit:

Sri Sharath Gowda S.P. –       Complainant

Witness examined on behalf of the Opposite party/s by way of affidavit:

- NIL -

*ctj*