1BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the  21^ST July 2014

PRESENT

     SMT. ASHA SHETTY           :   HON’BLE PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER                                         

COMPLAINT NO.59/2013

(Admitted on  8.3.2013)   

Mr.G.Ramakrishna  Pai,

So G.Madhava Pai,

Aged 63 years,

Proprietor of Gurupur Tyres,

Gollarkeri Road,

Casba Bazar Village,

Mangalore,

D.K. District.                                               …….. COMPLAINANT

(Advocate for Complainant: Sri M. Rajesh Kudva)

          VERSUS

1. The Manager,

    Sri Durgamba,

    Main Road, Kundapur.

2. The Manager,

     Sri Durgamba,

     Kudmul Ranga Rao Road,

     Near PVS Circle, Kodialbail,

     Mangalore.                                                ……OPPOSITE PARTIES

(Advocate for Opposite Party No.1 & 2: Sri Ganesh Salian)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. ASHA SHETTY:

I.          1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The complainant stated that, he is the wholesale and retail tyre seller under the name and style ‘Gurupur Tyres’ having its office at Gollarkeri Road of Mangalore and the Opposite Parties are transporter undertaking to deliver the parcel form Bangalore to Mangalore under parcel receipt WB No.734/23710.  It is stated that during the course of business, he has ordered certain books worth Rs.12,000/- from Book worm, M.G. Road, Bangalore and sent the same personally vide three bags  from Opposite Parties Bangalore office on 12.1.2013  vide parcel receipt No. WB 734/23 710 at 9.17 a.m and Opposite parties undertaken to deliver the same on or before 15^th or 16^th of January 2013.  But the said three box/consignment have not delivered to the complainant as on this day and complainant was made to run post to pillars for no fault on  this and it seems  that the Opposite party’s has misplaced or misused the parcel/consignment sent by the complainant which resulted in the financial loss to the complainant to the extent of Rs.12,000/- apart from the inconvenience and harassment which amounts to deficiency in service on the part of the opposite party, thereafter the complainant issued a legal notice dated 25.1.2013 but the Opposite Parties have failed to comply the demand made therein and  hence the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties  to pay a sum of Rs.12,000/- along with 18%  interest p.a. from 12.1.2013 till the date of payment along with compensation and cost of the proceedings

II.        1. Version notice served to the Opposite Party No.1 and 2 by R.P.A.D. Opposite Parties No.1 and 2 appeared through their counsel filed common version, stated that the complaint is false, frivolous, vexatious and is not maintainable either in law or on merits and stated that the complainant is a trader or businessmen and hence the complainant is not a consumer.  Further it is stated that the complaint is silent with regard to the details and description of the books  or their value.  Therefore, the books worth Rs.12,000/- is denied and contended that the condition of the parcel receipt specifically states  and warns the consignor that the company will not accept the goods more than Rs.1,000/-.  Therefore, the complainant is in the process of manipulating, getting up and concocting  invoice to boost up his otherwise false case to showing the loss of the goods worth Rs.12,000/-.  It is also stated that the complainant has never declared value nor he informed the Opposite Parties that the said parcel contain books worth Rs.12,000/- and also stated that there is no deficiency whatsoever and complainant is not entitled for any compensation and prayed for dismissal of the complaint.

III.       1.  In support of the complaint, Mr.G.Ramakrishna Pai (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced Ex. C1 to C7. On behalf of Opposite Parties one Sri. Rathnakar Kharvi, (RW-1) Manager- of Opposite Parties filed counter affidavit and answered the interrogatories served on him.

            In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant is a consumer?

2. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

                        We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                                Point No.(i) & (ii):  Affirmative

                           Point No.(iii) & (iv): As per the final order.        

REASONS

IV.       1.  POINT NO. (i):

    In the instant case, the facts which are admitted is that  the complainant who is the wholesale and retail tyre, seller under name and style ‘Gurupur Tyres’  sent a consignment from Opposite party Bangalore office on 12.1.2013 vide parcel receipt No.WB 734/23710 at 9.17 a.m. as per Ex C1.

Now the points are in dispute between the parties before this FORA is that, the complainant contended that he has ordered certain books worth Rs.12,000/- from Book Worm, Shringar Complex, M.G. Road, Bangalore and sent the same personally vide three box from the Opposite Parties  Bangalore office on 12.1.2013 vide parcel receipt o. WB 734/23 710 at 9.17 a.m  and the Opposite Parties office bearers have promised the complainant  that the opposite party will deliver the same on or before 15^th or 16^th of January 2013, but the opposite parties have not delivered the consignments to the complainant.  Hence came up with this complaint.

Opposite Parties on the contrary denied the entire allegation and contended that at time of packing the parcel the complainant has never declare its value nor as he informed the opposite parties that the said parcel contains books worth Rs.12,000/-. Had the complainant declared and disclosed the contents of the parcel  and its value the opposite parties would not have accepted such a parcel as they are not expected to accept parcel worth more than Rs.1,000/- and denied the deficiency.

On perusal of oral as well as documentary evidence available on record, we find that, Ex.C1 i.e. original parcel receipt bearing No.WB 734/23710  dated 12.1.2013 discloses that, the complainant sent certain consignment on 12.1.2013 and number of packages mentioned on 12.1.2013 and number of packages mentioned as three bags on the receipts. 

However, the first contention raised by the Opposite parties is that the complainant is not a consumer, no doubt the Section 2 (d) defines as under:-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) [hires or avails of] any services for a consideration which has been paid or promised  or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promises, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];

But in the instant case, just because the complainant  is running a wholesale and retail tyre business under the name and style Gurupur Tyres cannot be considered that he is not a consumer, because the opposite party has miserably failed to establish that the complainant availed the services from the Opposite parties for the commercial purpose.  When a person avails any service exclusively for the purpose of earning his livelihood by means of self employment is a consumer even though he is running a retail shop.  Therefore, we hold that the contention taken by the Opposite party in this case is not credible and convincing. Hence point No.(i)_ held in favour of the complainant.

POINTS NO. (ii) TO (iv)

As far as point No.(ii) is concerned, no doubt, admittedly the complainant sent certain consignment mentioned on the receipt i.e. Ex.C1 that would  goes to show that the Opposite Parties knowingly very well that there are three bags of packages, and accepted the parcel in this case.  In that event, the opposite party cannot contend that had the complainant declare and disclosed the contents of the parcel if the value is more than Rs.1,000/- then the opposite party would not have accepted such a parcel is not convincing.  Once the opposite Party has receipt the parcel unconditionally to deliver the same to the destiny or the addressee, under that circumstances the opposite party ceases to claim that they would not accepted the parcel.  It is the bounden duty of the opposite parties to enquire about the consignment before acknowledging the same.  But in the instant case inspite of taking the consignment for delivery taken a false contention in their version appears to be perverse and capricious.

However, in the instant case the Opposite parties knowingly accepted three bags from the complainant that it contains books worth Rs.12,250/-.  Further the Ex.C6 also discloses that the complainant genuinely purchased books worth Rs.12,250/- from one shop by name ‘The Book Worm”, Shringar Complex, situated in Brigade road, Bangalore. 

Since the Opposite Parties not delivered the consignment till this date shows their gross negligence and irresponsibility.  Therefore in a case of like this nature the adequate compensation should be paid by the opposite parties to the consumer herein complainant because they should not commit the same mistakes to other consumers as well.  However, the complainant produced the receipt wherein it shows that he had purchased Rs.12,000/- worth books from above said shop and Opposite Parties are liable to compensate the damages apart from the loss suffered by the complainant in this case, since the opposite parties not delivered the consignment till this date amounts to deficiency in service as well as unfair trade practice.  Therefore, the Opposite Parties are jointly and severally shall pay Rs.62,250/-  (Rupees Sixty two thousand two hundred fifty only) towards the loss of the goods and also damages for the inconvenience and harassment caused to the complainant and further pay Rs.2,000/- (Rupees Two thousand only) as costs of the litigations expenses.  Payment shall be made within 30 days from the date of this order.

            In the result, we pass the following:

ORDER

The complaint is allowed. Opposite Party No.1 and 2 are jointly and severally shall pay Rs.62,250/-  (Rupees Sixty two thousand two hundred fifty only) to the complainant as damages which included the cost of the books i.e. Ex.C6 and also pay Rs.2,000/- (Rupees Two thousand only) as costs of the litigations expenses.  Payment shall be made within 30 days from the date of this order.

In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Parties are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.

Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.

(Page No.1 to 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 21^st day of July 2014)

                        PRESIDENT                                        MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.G.Ramakrishna Pai – Complainant.

Documents produced on behalf of the Complainant:

Ex C1: 12.1.2013: Original parcel receipt.

Ex C2: Office copy of the legal notice with receipt.

Ex C3:Returned postal envelop with Ack.

Ex C4: Office copy of the legal notice with receipt.

Ex C5: Postal acknowledgment.

Ex C6:11.1.2013: Original bill of Rs.12,250/-

Ex C7: Notarized copy of the trade license.

Witnesses examined on behalf of the Opposite Parties:

RW-1: Sri. Rathnakar Kharvi, Manager -  of O.P.

Documents produced on behalf of the Opposite Parties:

- Nil -

Dated:21-07-2014                                         PRESIDENT