DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC.No.137of 19-6-2009 Decided on: 22-9-2009 Madh Mittal wife of Sh. Vinay Kumar, Sole Prop. of M/s Fabricon India, Insustrial Estate Ltd., Near ITI, Bathinda. ……….Complainant. Versus 1. Transport Corporation of India Ltd., (TCI). 69, Industrial Area Sector, Gurgaon, through its M.D./Chairman. 2. Transport Corporation of India Ltd., (TCI), Branch Bathinda, through its Branch Manager. …….Opposite parties. Complaint under section 12 of the Consumer Protection Act,1986. Present:- For the complainant : Sh. Ramesh Kumar, counsel for the complainant. Opposite parties No.1 &2. already ex-parte. QUORUM Sh. George, President. Sh. Amrajeet Paul, Member. ORDER GEORGE, PRESIDENT:- 1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as ‘Act’) with allegations against the opposite parties that complainant is running the business under the name style of M/s Fabricon India, 23103, Industrial Estate Old, Bathinda. She booked the Sample of Safety Lock for 16 mm wire rope a consignment with opposite parties vide bilty No. 108622566 on 5-12-2008 containing the abovesaid Sample of Safety Lock vide bill No. 151 dt. 4-12-2008, worth Rs. 1,04, 000/- including 3% CST/ST Rs. 3120/- total amount Rs. 1,07,120/- in the name of M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat; the sample was booked with opposite parties for delivering the same to M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat and paid an amount of Rs. 250/- to opposite parties and opposite parties assured her to deliver of the said consignment to the consignor within a period of seven days but to his utter dismay and surprise, the opposite parties have failed to deliver the said consignment to the consignee till date nor the same has been returned to her. She continued to visit the office of the opposite parties and inquired about the said consignment but the opposite parties have not answered her satisfactorily and opposite parties kept the matter off under one or the others pretext and have failed to deliver the said consignment at the destination till date although a period of more than 6 months has already been lapsed and the where abouts of the said consignment are not known. She has suffered a loss to the tune of Rs. 1.07,120/- as the consignment is not traceable due to negligence on the part of opposite parties, due to deficiency in service on their part, due to act and conduct of the opposite parties. She had to suffer mental tension, agony, harassment, botheration and inconvenience for which she is entitled to compensation to the tune of Rs. five lakh i.e. Rs. two lakh on account of mental tension, agony, harassment etc., Rs. two lakh on account of loss of business and one lakh on account of loss of her reputation with M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat besides cost of above said consignment i.e. 1,07,120/- and also cost of litigation to the tune of Rs. 5500/-. 2. Opposite parties despite due service, firstly, did not appear to contest the allegations. However, at a later stage, they moved an application for setting aside ex-parte proceedings which was found to be without any sufficient cause and as such the same was dismissed. Complainant has led ex-parte evidence, complainant brought on record her own affidavits dt. 8.9.2009 and dt.19-6-2009 Ex.C-3 and Ex.C-5 and also brought on the record, copy of bill dt. 4-12-2008 Ex.C-1; copy of bilty Ex.C-2 and copy of letter dt. 5-1-2009 received from M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat with regard to non-delivery of Urgently required SAMPLES of Safety Locks, against their P.O. No. 1129 dt. 24-11-2008 Ex.C4. 3. Complainant has proved on the record that consignment was booked with opposite parties containing Sample of Safety Locks to be delivered to M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat. This consignment was booked as per bilty dt. 5-12-2008 as per bill dt. 4-12-2008; it was duly received by opposite parties for its onwards transmission to M/s Simplex Infrastructure Ltd., within seven days. However, opposite parties failed to deliver the consignment at the destination with M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat. 4. The point that falls for consideration in this complaint is whether there is any deficiency of service on behalf of the opposite parties and if, the complainant is entitled to the relief sought for in the complaint. 5. The facts as pleaded in the complaint have been fully proved by complainant by filing her affidavits Ex.C-3 and Ex.C-5 wherein all the facts pleaded in the complaint have been reiterated, bilty and bill Ex.C-2 and Ex.C-1 have also been brought on the record and letter dt. 5-1-2009 Ex.C-4 received from consignee also proves that the consignment was not delivered to consignee. In the present case, complainant has booked the consignment not for commercial purpose and therefore, she is a consumer under Section 2 (1) (d) of the ‘Act’. We are of the considered view that the consignment perse booked by the complainant were not for sale but used as a sample for exhibiting to obtain further order, therefore, the transmission can not be termed as a commercial purpose and falls within the ambit of Section 2(1)(d) of the Act. We are supported for taking this view, as per law laid down by Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in case Arovi Granites (P) Limited Versus Blue Dart Express Limited & Anr and Section I (2008) CPJ61 wherein under similar facts, the Hon’ble State Consumer Disputes Redressal Commission, Hyderabad has taken the similar view. 6. Taking into consideration, the totality of the facts and circumstances, we are of the opinion that complainant has definitely entitled for following relief:- i. She is entitled for the total sum of Rs. 1,07,120/- the cost of the consignment along with interest @ 9% p.a. from 5-12-2008 till the amount finally paid. ii. The complainant is entitled for an amount of Rs. 50,000/- on account of loss of business, she had to suffer due to non delivery of the said consignment to the consignee. iii. The complainant is entitled for an amount of Rs. 50,000/- as compensation on account of mental tension, agony, harassment and inconvenience, she has under gone for the loss of her consignment and inaction on the part of opposite parties. iv. The complainant is also entitled to cost of the litigation to the tune of Rs. 5000/- 7. The compliance of this order be made within 45 days from the date of receipt of copy of this order. 8. The copy of this order be sent to the parties concerned free of cost and file be indexed and consigned. Pronounced (GEORGE) 22-9-2009 PRESIDENT (AMARJEET PAUL) MEMBER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA.

CC.No.137 of 19-06-2009

Decided on 23-10-2013

Madhu Mittal W/o Sh. Vinay Kumar, Sole Prop. of M/s Fabrication India, Industrial Estate Old, Near ITI, Bathinda.

........Complainant

Versus

1.Transport Corporation of India Ltd., (TCI). 69, Industrial Area Sector, Gurgaon, through its M.D./Chairman.

2.Transport Corporation of India Ltd., (TCI), Branch Bathinda, through its Branch Manager.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt.Vikramjit Kaur Soni, President.

Sh.Amarjeet Paul, Member.

Smt.Sukhwinder Kaur, Member.

Present:-

For the Complainant: Sh.Ramesh Kumar Mittal, counsel for the complainant.

For Opposite parties: Sh.S.M Goyal, counsel for opposite parties.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. This case has been remanded back by the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh to this Forum vide order dated 29.5.2013 with the direction to decide this complaint fresh on merits, the same is re-registered at its old number. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is running the business under the name & style of M/s Fabricon India, 23103, Industrial Estate Old, near ITI, Bathinda that is only source of the livelihood for herself and her family. The complainant booked the consignment containing sample of safety lock for 16 mm wire rope with opposite parties vide builty No.108622566 on 5-12-2008; bill No. 151 dated 4-12-2008, worth Rs. 1,04,000/- including 3% CST/ST Rs. 3120/-, total amount Rs. 1,07,120/- to deliver the same to M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat and paid an amount of Rs.250/- to them. The opposite parties assured the complainant to deliver the said consignment to the consignor at its destination within a period of seven days but to his utter dismay and surprise, the opposite parties neither delivered the said consignment to the consignee at its destination till date nor the same has been returned to her. The complainant time and again visited the office of the opposite parties and inquired about the said consignment but they have not answered her satisfactorily and kept the matter off on one or the other pretext and have failed to deliver the said consignment at its destination till date although a period of more than 6 months has already been lapsed and the whereabouts of the said consignment are not known. The complainant has suffered a loss to the tune of Rs.1,07,120/- as the said consignment is not traceable due to negligence on the part of opposite parties, thus deficiency in service on their part. Due to this act of the opposite parties, she had to suffer mental tension, agony, harassment, botheration and inconvenience for which she is entitled to compensation to the tune of Rs.5 lacs i.e. Rs.2 lacs on account of mental tension, agony, harassment etc., Rs. two lakh on account of loss of business and Rs.1 lac on account of loss of her reputation with M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat besides cost of above said consignment i.e. Rs.1,07,120/- and also cost of litigation to the tune of Rs.5500/-.

2. Notice was sent to the opposite parties. The opposite parties after appearing before this Forum have filed their joint written statement and pleaded that the builty is in the name of M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat as consignee and M/s Fabricon Indian, Government order supplier and contractors, Bathinda as consignor, whereas the complaint has been filed by Madhu Mittal W/o Vinay Kumar but her name is not mentioned in the builty. Thus the complainant legally cannot file the present complaint in her own name. The case of the complainant is that the firm booked the abovesaid consignment from Bathinda to Adani Port Site Mundra (Kutch) wherein consignor is M/s Fabricon India, 23103, Industrial Estate Old, Opposite Microwave, near ITI, Bathinda and consignee is M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat. The abovesaid transaction was the commercial transaction, thus does not fall within the definition of 'Consumer'. The complainant has no concern with M/s Fabricon India firm nor she is is the sole proprietor. The opposite parties denied that they ever assured to deliver the said consignment within 7 days or they have charged Rs.250/-, rather the consignee was to pay transport/freight charges at the time of delivery of the goods. No mandatory notice under section 10 of the Carriers Act was served by the complainant or by the aforesaid consignee regarding the loss or non-delivery of the abovesaid consignment. The value of the abovesaid consignment was not Rs.1,07,120/- as alleged by the complainant and the same was never disclosed by the consignor, as such the liability if any cannot exceed to Rs.200/-. As such the opposite parties are not liable to pay any amount to the complainant. No such fact was ever disclosed by the complainant to the opposite parties that she had ever negotiated with the consignee or she has any concern with the consignor.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. The legal objection taken by the opposite parties is that the builty is in the name of M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat as consignee and M/s Fabricon Indian, Government order supplier and contractors, Bathinda as consignor, whereas the complaint has been filed by Madhu Mittal W/o Vinay Kumar but her name is not mentioned in the builty. The other objection taken by the opposite parties is that the abovesaid transaction was done for the commercial purpose, the complainant does not fall under the definition of consumer under the 'Act'.

Regarding the first objection of the opposite parties the complainant submitted that Madhu Mittal is sole proprietor of M/s Fabricon India firm, she has given an affidavit to this effect vide Ex.C1. In this regard the complainant has also produced certificate dated 4.9.2013, Ex.C2, issued by Canara Bank showing her proprietor of the firm and also produced Ex.C4 to Ex.C6, income tax return verification form assessment year 2009-10; 2008-09 and 2007-08 respectively. Besides this she has particularly mentioned in the very first para of the complaint that she is running the abovesaid firm for earning the livelihood for herself and her family. All these documents are sufficient to prove that the complainant Madhu Mittal is a sole proprietor of M/s Fabricon India firm. Thus the first objection of the opposite parties is not tenable.

The second objection of the opposite parties is that the abovesaid transaction was done for the commercial purpose, at the cost of repetition we observed that the complainant in the very first para of her complaint specifically mentioned that the abovesaid business is the only source of the livelihood for herself and her family. The opposite parties have produced nothing on file to prove their version that the abovesaid transaction was done for the commercial purpose or how many employee are employed by her for carrying on her business. Hence this objection of the opposite parties is also not tenable.

6. The allegations of the complainant is that she booked the consignment containing sample of safety lock for 16 mm wire rope with opposite parties vide builty No.108622566 on 5-12-2008; bill No. 151 dated 4-12-2008, worth Rs. 1,04,000/- including 3% CST/ST Rs. 3120/- total amount Rs. 1,07,120/- to deliver the same to M/s Simplex Infrastructure Ltd., Adani Port Site Mundra (Kutch) Gujrat and paid an amount of Rs.250/- to them. The opposite parties assured the complainant to deliver the said consignment to the consignee at its destination within a period of seven days but till date the said consignment had not reached at its destination. The complainant has also placed on file bill dated 4.12.2008, Ex.C2, through which the abovesaid items has been purchased. The abovesaid consignment has not reached at its destination, this fact is proved vide letter dated 5.1.2009, Ex.C10, written by M/s Simplex Infrastructure Limited to M/s Fabricon India that the abovesaid consignment has not reached at its destination till date.

7. The opposite parties have specifically submitted that the complainant has not given a notice under section 10 of Carriers Act which was mandatory notice to be served by the complainant or by the aforesaid consignor regarding the loss or non-delivery of the abovesaid consignment. To support their version the opposite parties have cited the law laid down by Hon'ble Supreme Court of India reported in 2004 AIR (SC) 5147, the case titled as Arvind Mills Ltd. Vs. M/s Associated Roadways, wherein it has been held:-

“Consumer Protection Act, 1986, Section 12-Carriers Act, 1865, Section 10-Common carrier-Complaint-Notice-Mandatory-Notice under section 10 of 1865 Act mandatory-In absence of it complaint cannot be entertained-Summary procedure of 1986 Act does not in any way warrant the abrogation of requirement to serve notice under section 10 of Act.”

On the other hand the complainant has relied upon the law laid down by the Hon'ble Supreme Court of India in case titled as Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd., II (2007) CPJ 35 (SC), wherein it has been held:-

“(i) Consumer Protection Act, 1986-Section 2(1)(g)-Carries Act, 1865-Section 10-Deficiency in service-Notice for initiation of proceedings for loss of goods-Consignment cost-Failure in delivery of-Non-payment of freight put forth as ground to avoid liability-Section 10 of Carriers Act, 1865-Not applicable in initiation of action for non-delivery when common carrier wrongly or illegally refuses to deliver goods-Words used, 'loss of, or injury to, goods' and not 'non-delivery of goods'-Case of 'non-delivery' will become case of 'loss' of consignment only when common carrier informs consignee about loss of consignment-No intimation about loss even when legal notice demanding cost issued-Claim not invalidated for non-issuance of notice under Section 10.”

As per the above settled law the claim of the complainant cannot be invalidated for non-issuance of the notice under Section 10 of Carriers Act. The relevant portion of abovesaid judgment is reproduced hereunder:-

“13) In Patel Roadways Ltd. V. Birla Yamaha Ltd., III (2000) SLT 554=II (2000) CLT 83 (SC)=I (2000) CPJ 42 (SC)=2000 (4) SCC,91, this Court held that loss of goods or injury to goods or non-delivery of goods, entrusted to a common carrier for carriage, would amount to a deficiency in service and, therefore, a complaint under the Consumer Protection Act, 1986 would be maintainable. When a person entrusts a goods to a common carrier for transportation and the carrier accepts the same, there is a contract for 'service', within the meaning of CP Act. Therefore, when the goods are not delivered, there is a deficiency of service. It is no doubt true that 'service' for purposes of CP Act does not include rendering of service free of charge. Where the contract for transportation is for a consideration (freight charge), the mere fact that such consideration is not paid, would not make the service 'free of charge'. There is difference between contract without consideration, and contract for consideration, which is not paid. If there is non-payment of the freight lawfully due, the carrier may sue for the charges, or withhold the consignment and call upon the owner/consignor/consignee to pay the freight charges and take delivery, or on failure to pay the freight charges, even sell the goods with due notice to recover its dues, where such right is available. But where the common carrier has misplaced or lost the goods and, therefore, not in a position to deliver the goods, it obviously cannot demand the freight charges, nor contend that non-payment of charges exonerates it from liability for the loss or non-delivery. When the carrier informs that the consignment is not traced and is under the process of being traced, obviously the owner/consignment is not traced and is under the process of being traced, obviously the owner/consignor/consignee cannot be expected to pay the freight charges. In the circumstances, the third point is also answered against the appellant.

14) The State Commission ought to have awarded the entire cost of the consignment. It committed an error in deducting the freight charges from the amount payable to the respondent. There was no liability to pay the freight charges where the consignment is lost or where there is non-delivery. Be that as it may. As there was no appeal by the respondent on this issue, there is no question of increasing the amount awarded.”

Thus as per the law laid down by the Hon'ble Supreme Court of India in case titled Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd. (Supra), there is no necessity of issuing the notice under section 10 of the Carriers Act as non-delivery of the consignment at its destination is deficiency in service.

8. Thus in view of what has been discussed above and law settled by the Hon'ble Supreme Court of India as the consignment has not reached at its destination, the complainant is entitled for the compensation on account of deficiency in service as well as for the value of goods of the consignment. The complainant has placed on file the bill No.151 dated 4-12-2008, worth Rs. 1,07,1200/- in the name of M/s Simplex Infrastructure Ltd. regarding the purchase of the articles sent in the consignment vide Ex.C7. Moreover the complainant has paid consideration of Rs.250/- to the opposite party No.1 but till date the abovesaid consignment has not been reached at its destination.

9. Therefore in view of what has been discussed above there is deficiency in service on the part of the opposite parties. Hence this complaint is accepted with Rs.20,000/- as cost and compensation. The opposite parties are directed to pay the amount of the abovesaid consignment i.e. Rs.1,07,120/- to the complainant.

10. With utmost regard and humility to the authorities relied upon by the learned counsel of the opposite parties, have distinguishable facts and circumstances.

11. The compliance of this order be done within 45 days from the date of receipt of the copy of this order.

12. In case of non-compliance the interest @ 9% per annum will yield on the amount of Rs.1,07,120/- till realization.

13. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum

23-10-2013

(Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member

(Sukhwinder Kaur)

Member