Haryana

Yamunanagar

CC/1095/2011

M/s Shiv Shakti Engineering Works - Complainant(s)

Versus

The Manager,First Flight Couriers Ltd. - Opp.Party(s)

Sanjeev Kumar

17 Mar 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No. 1095 of 2011.

                                                                                          Date of institution: 20.10.2011     

                                                                                          Date of decision: 17.03.2017

 

 

M/s Shiv Shakti Engineering works, through its authorized signatory/partner Sh. Sanjay Bansal, Plot No.15-16, RK Puram, village Jorian, Near Police Check Post, District Yamuna Nagar.

 

                …Complainant.

                                    Versus

1. The Manager, First Flight Couriers Ltd, Near JP Hospital, Railway Road, Yamuna Nagar.

 

2. The Manager, First Flight Couriers Ltd.,Plot No.406A, Industrial Area, Phase II, Chandigarh.

 

3. The Manager, First Flight Couriers Ltd. Corporate Office, Andheri East, Mumbai.

                                                                                                                         ...Respondents

 

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

 

Present:           Sh. Sanjeev Kumar, Advocate for complainant.

                        Sh. Anuj Jain, Advocate for OPs.

 

ORDER (Ashok Kumar Garg, President)

 

1                      The present complaint has been filed by M/s Shiv Shakti Engineering work through its partner Shri Sanjay Bansal under section 12 of the Consumer Protection Act 1986 amended upto date.

2.                     Brief facts of the present complaint, as alleged in the complaint, are that complainant Firm is a partnership firm which is duly registered vide Registration No.36 dated 04.08.2010. The complainant firm is doing the business of manufacturing of railway coaching items and supplying the same to the Indian Railways as per their requirements and the complainant firm is duly registered with the National Small Industrial Corporation Ltd. The complainant firm had booked a consignment with the respondent No.1 (hereinafter referred as OP No.1 Courier Agency) on 03.12.2010 for supply of 1380 numbers mirror assembly which were to be supplied to East Coast Railway Bhubneshwar (Orissa). Prior to booking the said goods, the complainant had told to the OPs that the said goods had to reach to its destination within/upto 10.12.2010 positively in a safe and sound condition and further it was also told to the OPs that if in case they remain failed to supply the goods in that eventuality the complainant will have to pay penalty of @2 percent of the billing amount to railways and then the official of the OP assured that goods would be delivered prior to 10.12.2010. Accordingly, the OP Courier Agency demanded a amount on account of freight i.e. Rs.26,555/- and the complainant have got ready to pay the same on the assurance of OPs and a cheque bearing No.970885 dated 06.12.2010 drawn on Punjab National Bank, Branch Saharanpur Road, Yamuna Nagar was paid to OP No.1. The complainant also paid another cheque bearing No.970889 dated 13.12.2010 drawn on Punjab National Bank to the OPs to the tune of Rs.3875/- on account of entry tax in Orissa. In this way, the complainant has hired the service of the OPs and as such there exists a relationship of consumer and supplier.

3.                     After that, the official of the OPs visited the premises of the complainant on 03.12.2010 and packed the said material in 345 plastic bags containing 4 mirror assembly in one bag and assured the complainant that the said goods is packed safely and it will reach to its destination without any damage, however, OPs courier agency have remained failed to supply the goods in time and said goods reached to its destination on 15.12.2010, but while receiving the goods, it was found by the receiver of the said goods that the entire material was 100 percent damaged. The official of railway had refused to accept the said goods due to the act and conduct of the OPs courier agency, the complainant have suffered a huge damages because a penalty of @ 2 percent on the billing amount i.e. Rs.3,87,504/- has been imposed upon the complainant by the railways. Furthermore, the railways have refused to accept the same and the complainant was compelled to supply the entire goods once again to the tune of Rs.3,87,504/-. After coming to know the above said facts that the said goods had been supplied to the railways in broken condition, the complainant had stopped the payment against the above said cheque, however, he is ready to make the payment of cheque against freight and entry tax provided that the OPs must make payment of damages caused to the goods of complainant which was booked through the OPs courier agency. The complainant had made various oral requests to the OPs Courier Agency to indemnify their claim and also sent representations in this regard on 28.01.2011 and then on 04.05.2011, but all in vain. Rather the OPs are threatening to the complainant that they will present the cheque of the freight for encashment and implicate the complainant in case under Section 138 of Negotiable Instrument Act and lastly prayed for directing the OPs to indemnify the loss of goods to the complainant to the tune of Rs.3,87,504/- and to pay compensation as well as litigation expenses.

4.                     Upon notice, OPs appeared and filed its written statement taking some preliminary objection such as complainant is not maintainable; there is no relationship of consumer and supplier between the parties; this Forum has no jurisdiction to hear and decide the present complaint; complainant has not come with clean hands and has concealed the true and material facts from this Forum and on merit it has been denied that prior to booking the said goods, the complainant had ever told to the OPs to deliver the goods to its destination upto 10.12.2010, as alleged. Further, it has been submitted that goods were booked by complainant themselves and it was their duty to pack the goods in such a way so that it may not be damaged in transit as per terms and conditions of clause No.36. Further, the complainant did not opt to insure the goods during the period of transit. As such, it is complainant who is at fault and now he has filed the present complaint on false and frivolous grounds. Moreover, the complainant did not make even a single penny on account of freight and the cheque No.970885 dated 06.12.2010 for Rs.26,555/- drawn on Punjab National Bank and another cheque bearing No.970889 dated 13.12.2010 for Rs.3875/- drawn on Punjab National Bank on account of entry tax were dishonoured. Hence, the complainant did not make any payment on account of freight and entry tax to the OPs. As per clause No.11 of the terms and conditions, no claim for loss or damage will be entertained until all charges and levies payable in respect of consignment had been packed. Even, otherwise, also the liability of the OPs Courier Agency for any loss or damage, if any, is limited to Rs.1,000/- as per clause No.27 of the terms and conditions. Further, it has been submitted that goods were delivered to s destination within the period, which is required in due course of routine business. However, sometime was consumed in the State of Orissa because the complainant issued the cheque on account of entry tax in Orissa on 13.12.2010. The goods were delivered to the consignee in the same position in which the complainant had booked with the OPs Courier Agency. Rest contents of the complainant have been specifically denied being based upon false and frivolous grounds with mala fide intention and lastly prayed for dismissal of the complaint.  

5.                     In support of his case, learned counsel for the complainant tendered into evidence affidavit of Shri Sanjay Bansal as Annexure CW/A and photocopy of purchase order as Annexure C-1, photocopy of registration of Firm as Annexure C-2 and C-3, photocopy of partnership deed as Annexure C-4, photocopy of bill dated 03.12.2010 as Annexure C-5, photocopy of courier receipt along with report made on back portion courier receipt as Annexure C-6 and C-7, copy of representation dated 28.01.2011 as Annexure C-8, photocopy of representation dated 21.05.2011 as Annexure C-9, copy of postal receipt as Annexure C-10 to C-21 and closed the evidence on behalf of complainant.

6.                     On the other hand, OPs Courier Agency tendered into evidence affidavit of Shri Dalip Singh, Branch Supervisor of the OP Courier as Annexure RW/A, copy of authority letter as Annexure R-1, photocopy of cheque dated 06.12.2010 amounting Rs.26,555/- as Annexure R-2, photocopy of memo of bank for payment stop as Annexure R-3, photocopy of cheque dated 13.12.2010 amounting Rs.3875/- as Annexure R-4, photocopy of Bank memo as Annexure R-5, photocopy of entry tax receipt as Annexure R-6, Blank copy of courier receipt mentioning the terms and condition as Annexure R-7 and R-8 and closed his evidence.  

7.                     We have heard the learned counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

8.                     It is not disputed that complainant firm booked the material with the OPs Courier Agency which is duly evident from photocopy of Courier Receipt (Annexure C-6) dated 03.12.2010. It is also not disputed that material in question booked by the complainant was received at depot material of railway, Bhuwneshwar (Orissa) on 16.12.2010 which is duly evident from copy of receipt report (Annexure C-7) endorsed itself on the back portion Courier receipt (Annexure C-6). The only grievances of the complainant is that it was promised by the OPs that consignment booked by the complainant on 03.12.2010 will reach to its destination upto 10.12.2010 positively in safe and sound condition but the same reached it its destination on 15.12.2010 and the entire material was in 100 percent damaged conditions due to which complainant firm suffered huge amount on account of penalty imposed by railways as well as cost of material amounting Rs.3,87,504/- which constitutes the deficiency in service and unfair trade practice on the part of the OPs. Learned counsel for the complainant draw our attention towards the consignment order (Annexure C-1), and copy of representation (Annexure C-8 and C-9)  argued that complainant firm is entitled to get the loss caused by the OPs to the tune of Rs.3,87,504/- also compensation as well as litigation expenses.

9.                     On the other hand, learned counsel for the OPs Courier Agency argued at length that complainant has totally failed to prove his case and the present complaint has been filed just to save the skin from the proceeding under Section 138 Negotiable Instrument Act as the cheques handed over by the complainant on account of freight as well as entry tax of Orissa State were dishonoured. Learned counsel for the OPs further argued that from the facts stated above, it is duly evident that the service of the OPs Courier Agency has been hired for Commercial purpose by the complainant firm so the complaint of the complainant is also liable to be dismissed on this ground. learned counsel for the OPs further argued that no cogent evidence has been placed on file by the complainant to prove that it was promised by the OPs Courier Agency that consignment would be delivered upto 10.12.2010 and further the complainant has also failed to prove that the entire consignment was delivered in damaged condition. Learned counsel for the OPs referred the case law titled as “Herman Mit Singh Vs. Speedman Express and Anrs., 1999(2) CPR, Page 46, Chandigarh, Bharathi Knitting Co. V. DHL Worldwide Express Courier Divn. of Airfreight Ltd., AIR 1996, 2508 (SC), Airpak International Private Limited Vs. KP Nanu and another, 1997(1), CPC, Page No.229, Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Limited, 1997(2) CPC Page No.64. Lastly, prayed for dismissal of the complaint. 

10.                   After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OPs as the complainant has totally failed to prove his version that the OPs will deliver the consignment to its destination upto 10.12.2010 positively. Further the complainant has also failed to prove that the consignment/the entire material was delivered in 100% damaged condition as no such evidence has been placed on file. We have perused the courier receipt (Annexure C-6) and delivering report endorsed on the back portion of the courier receipt (Annexure C-7). But it is no where mentioned that consignment in question was to be delivered dated 10.12.2010 as alleged in the complaint and further the entire material was delivered in damaged condition, except this documents, no other cogent or documentary evidence has been placed on file to prove the version alleged in the complaint. Hence, we are of the considered view that complainant has totally failed to prove his version. On the other angle also from the contents of the complaint, it is duly evident that complainant firm is doing the business to earn the profit and booked the consignment with the OPs courier Agency to deliver the same, which is purely in commercial nature. As the complainant firm has hired services of the OPs for commercial purpose which is out of preview of the Consumer Protection Act 1986 upto date. Hence, the complaint of the complainant is liable to be dismissed on this ground also.

11.                   Resultantly, in the circumstances noted above and after going through the law referred above, we are of the view that neither there is any merit in the present complaint nor the complaint of the complainant is maintainable before this Fora. Accordingly, the present complaint is hereby “dismissed” with no order as to cost. However, complainant is at liberty to approach the Civil Court, if so advised. Copies of this order be supplied to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Pronounced in open court: 17.03.2017.

                                                                                          (ASHOK KUMAR GARG)

                                                                                           PRESIDENT

                                                                                           DCDRF Yamuna Nagar

 

                     

(S.C.SHARMA)

 MEMBER