Tamil Nadu

North Chennai

177/2014

OA Mukundan,Rep by A/R OA Varadadesigan - Complainant(s)

Versus

The Manager,Sea Shell Logistics - Opp.Party(s)

O.A.Varadadesigan

23 Feb 2022

ORDER

                                                                  Complaint presented on : 11.08.2014

                                                                    Date of disposal            : 23.02.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. J. JUSTIN DAVID, M.A., M.L.      : PRESIDENT

THIRU. S. BALASUBRAMANIAN, M.A., M.L.          : MEMBER

 

CC. NO.177/2014

 

DATED THIS WEDNESDAY THE 23^rd DAY OF FEBRUARY 2022

                                

O.A.Mukundan,

Rep.by it’s A/R,

O.A.Varaddesigan,

18/ old 37, Krupa Sankari Street,

West Mambalam, Chennai – 03.

                                                                                                   .. Complainant.                                                                   ..Vs..

 

1.The Manager, Sea Shell Logistics,

Flat No.42, 4^th Floor,

BBC Villa Complex, Broadway,

Chennai – 108.

 

2.Mr.Kamesh Kumar,

Local Agent for Mediterranean Shipping Company SA,

C/o MSC Ageney India  Pvt Limited,

1^st Floor, KGN Towers,

No.62, Ethiraj Salai,

Egmore, Chennai – 600 105.

                                                                                        ..  Opposite parties.

 

 

Counsel for the complainant                           : Party in person

Counsel for the 1^st opposite party                : Ex-parte (17.03.2015)

Counsel for the  2^nd opposite party                         : M/s.V.Aravambudan

ORDER

THIRU. J. JUSTIN DAVID, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to  pay a sum of Rs.5,150/- towards extra expenses, and to pay a sum of Rs.1,100/- towards cleaning charges, to pay a sum of Rs.2,050/-  repair charges with cost of this complaint.

1.THE COMPLAINT IN BRIEF:

          The opposite parties are clearing and forwarding agents in the city port, and are further handlers of container loading and unloading. The complainant engaged for clearing form the Chennai Port to his residence personal domestic equipments for which the rates in detail were quoted by them as  per their letter referred by Salalah in this business. It was countered with the ideal rates obtaining in out country. However in order to obviate confrontation the standard rates prevailing were evidently quoted to iron out any difference of opinion before entrusting the work for which a caution deposit of Rs.70,000/- was demanded and obtained by the 1^st opposite party. The said 1^st opposite party has engaged a sub contractor, hired for the purpose of clearance of shipment on arrival in India and the further transportation to residence without an inkling to this complainant, contrary to discussion held in person. The expense  and advance were made precisely for the work to be executed by the 1^st opposite party the balance of deposit collected would be refunded after defraying on actual basis they sold their conscience subcontracting to subvert from the realities obtaining in breach such that an amount of Rs.24,250/- has not been accounted for or settled since excess charges had been collected in advance. The entire caution amount as having been accounted and consumed and that was how they billed with and without vouchers and what is more with the substituted sub contractors bill which is against all cannons of principle and understanding to devour the entire amount to be wiped out as expenses in the process, this is sheer dishonesty, disloyalty and breach of faith. The excess charged of Rs.24,250/- is refundable. The 2^nd opposite party illegitimately claimed washing and cleaning charges repair facilitation charges which led unwarranted in this case but the complainant released payment under protest through seashell shipping in order to avoid in clearance and consequent demurrage. Inspite of it a 2 days delay in clearance was witnessed incurring additional charges which is not debit able. The extra expenses through this opposite party’s transaction, had cost a sum of Rs.5,150/-  In the above circumstances it is prayed that the opposite parties are liable to refund an amount of Rs.24,250/- to pay a sum of Rs.1,00,000 compensation/-.  Hence this complaint.

2.WRITTENVERSION FILED BY THE 2^nd  OPPOSITE PARTY  IN BRIEF:

            The present complaint filed purportedly under the provisions of the Consumer Protection Act, 1986 is beyond the purview of the Act. According to the provisions of the Consumer Protection Act 1986 the complainant above named does not qualify to be a Consumer as per section 2 (d). The complainant has availed the services of this opposite party for a commercial purpose/in furtherance of a business transaction and not for his personal use. If the services availed are in furtherance to a business transaction, then the provision of the Consumer Protection Act, 1986 will not apply. The complainant as well as its agents namely the 1^st opposite party agreed to the terms offered by this opposite party and did not at any time dispute the rates quoted by this opposite party and willingly paid the rates offered by this opposite party. Hence there was a concluded contract which cannot be challenged by the complainant after a prolonged delay. If really the terms of the service offered by this  opposite party were not acceptable either to the complainant or his custom house agent, he could have rejected the services of this opposite party and could have chosen any other party for the alleged terms as mentioned in the complaint. There is nothing in the market which has a fixed tariff for certain services as done by this opposite parties and there  is no statutory rate fixed, which has been violated by this opposite party. Hence, this opposite party states that there is no breach of contract or any act which was violative of the principles of natural justice. The 1^st opposite party on behalf of the complainant, who has the full authority to enter into contract with this opposite party, cannot at this stage state that the amounts claimed were excessive and the same shall be refundable. Therefore the question of refund of Rs.5,150/- will not arise nor maintainable in law. Whatever charges that have been claimed are within the purview of the contract with the complainant represented by the agent namely, the 1^st opposite party. There is absolutely no proof or evidence that there was damage when the goods were in custody of this opposite party. The claim is vexatious, highly exaggerated and deserves to be dismissed with exemplary costs.

3. POINTS FOR CONSIDERATION:    

1. Whether the complaint is maintainable under section 2(d) of the   

     Consumer Protection Act 1986?

2. Whether there is deficiency in service on the part of opposite  

     parties?

3. Whether the complainant is entitled  for refund of Rs.24,250/- compensation and cost from the opposite parties?
4. To what other relief, the complainant is entitled?

4. POINT NO.1

          The 2^nd opposite party in their written version contended that the complaint is not maintainable under the provision of Consumer Protection Act 1986 and the complainant does not qualify to a ‘Consumer’ as per section 2(d) of the Consumer Protection Act 1986  and the complainant has availed the service of the 2^nd opposite party for a commercial purpose in furtherance of a business transactions and therefore this complaint is not maintainable.

          05. The complainant filed Ex.A1 to Ex.A36 and most of the exhibits are copies or correspondence between the complainant and opposite parties. The complainant in Ex.A18 admitted that this is first business and therefore it is a business transaction. Further, the 2^nd opposite party filed Ex.B5 original intimate bond executed by the complainant and the southern clearing and forwarding agent to the 2^nd opposite party. In Ex.B5 also it is clearly stated that the complainant was engaged for doing business.

          Consumer under section 2 (d) means  any person who

1. 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

 

2. ‘(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 promised, or partly paid or 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):

3(Explation – For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his live hood by means of self employment).

Therefore the complainant is not comes under the definition of consumer under section 2 (d) of the Consumer Protection Act 1986. Under these circumstances the complainant is not maintainable.

06. POINT NO.2 & 3

          The case of the complainant that  the complainant is engaged for clearing  of  personal domestic equipments from Chennai port to his residence  for which the rates were quoted by the opposite parties but in contra the opposite parties demanded excess charges of Rs.24,250/-  in violation of the rates quoted already.  The 2^nd opposite party contended   that the complainant as well as his agent namely 1^st opposite party agreed to the terms offered by the 2^nd opposite party and the contract  was concluded and there is nothing in the market  which has fixed tariff for certain services as done by the 2^nd opposite party and there is no statutory rate fixed, which has been violated by the 2^nd opposite party and therefore the 2^nd opposite party not violated the terms of contract.

       07.The  complainant’s clearing agent namely, the 1^st opposite party entered into a contract with the 2^nd opposite party. As per the contract the 2^nd opposite party has every right to fix the tariff and as per contract the 2^nd opposite party demanded amount from the complainant. There is no violation of contract on the part of the 2^nd opposite party.  Hence there is no deficiency in service on the part of the opposite parties and complainant is not entitled for refund of amount Rs.24,250/-compensation and cost.

08.POINT NO.4

          It is decided that the complainant is not a consumer within the meaning of ‘Consumer’ as defined in the Consumer Protection Act, and there is no deficiency in service on the part of the opposite parties the Complainant is not entitled for any relief and the complaint is liable to be dismissed.

          In the result, this complaint is dismissed. No costs.                  

Dictated  by the President to the Assistant taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Commission on this the 23^rd  day of February 2022.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF COMPLAINANT:

Ex.A1 Muneera Al Balushi To Cargo control Muscat June 25, 2014

 

Ex.A2 Khuram Shajhad To Muneera Al balushi June 26, 2014

 

Ex.A3 Muneera Al Balushi to Khuram Shanjad June 26, 2014

 

Ex.A4  Khuram Shajhad To Muneera July 06,  2014 10.50 A.M

 

Ex.A5 Khuram Shajhad To Muneera Al balushi July 06,  2014 8.28 A.M

 

Ex.A6 Al Balushi to Khuram Shajhad July 2014 11.58 A.M

 

Ex.A7 Muneera Al Balushi to Khuram Shanjad July 07 2014 09.50.10 a.m

 

Ex.A8 Khuram Shajhad to Mukudan July 2014 9.50.10 am

 

Ex.A9 Mukundan to Khurram July 08 2014 09.20 am

 

Ex.A10  Mukudan to Meena July 08, 2014 09.20 am

 

Ex.A11 Mukudan to Khuram Shajjad 06.34 pm

 

Ex.A12 Meena to Mukundan July 09,2014

 

Ex.A13 Mukundan to Kamesh Kumar July 23, 2014

 

Ex.A14 Mukundan to kamesh kumar July 14, 2014

 

Ex.A15 Mukundan to Kamesh Kumar July 14, 2014 08.23 pm

 

Ex.A16 Meena to Mukundan July 14, 2014 05.37 pm

 

Ex.A17 Meena to Mukundan July 14, 2014 12.47 pm

 

Ex.A18 Mukundan to Meena July 15, 2014 02.22 pm

 

Ex.A19 Kamesh Kumar to Mukundan July 15, 2014 09.43 am

 

Ex.A20 Mukundan to Meena July 16, 2014

 

Ex.A21 Meena to Mukundan July 17, 2014

 

Ex.A22 Sumathy Mukundan to Meena July 18, 2014 04.00 pm

 

Ex.A23 Sumathy Mukundan to Kamesh Kumar July 18, 2014 11.19 pm

 

Ex.A24 Sumathy Mukundan to Meena July 18, 2014 11:12:39 pm

 

Ex.A25 Meena to Mr. and Mrs.Sumathy Mukundan July 19, 2014 01.26 pm

 

Ex.A26 Sumathy Mukundan to Meena July 19, 2014  & 53-54

Ex.A27 Mukundan to Meena July 20, 2014

 

Ex.A28 Kamesh Kumar to Sumathy Mukundan July 21, 2014 09:44:25 am

 

Ex.A29 Mukundan to Kamesh Kumar July 21, 2014 10.11 pm

 

Ex.A30 Kamesh Kumar to Sumathy Mukundan July 21, 2014 06.18 pm

 

Ex.A31 Kamesh Kumar to Mukundan July 22, 2014

 

Ex.A32 Mukundan to Kamesh Kumar July 23, 2014

 

Ex.A33 Khuram Shahjad to Mukundan July 24, 2014 03.45 am

 

Ex.A34 Meena to Mukundan July 24, 2014 08.41 am

 

Ex.A35 Block listed intimation

 

Ex.A36 Response for the above

 

LIST OF DOCUMENTS MARKED ON THE SIDE OF 2^nd OPPOSITE PARTY

Ex.B1 dated 20.05.2012                   Board Resolution

 

Ex.B2 dated 15.07.2014                   Delivery order

 

Ex.B3 dated 15.07.2014                   Letter to M/s  Sanco Trans Ltd.,

 

Ex.B4 dated 14.07.2014                   Provissional Debit Note

 

Ex.B5  dated 04.07.2014                  Bill of lading

 

Ex.B6 dated 15.07.2014                   Indemnity Bond

 

 

MEMBER – I                                                               PRESIDENT