Haryana

StateCommission

A/83/2017

SWADESHI TEXTILES AGENCIES - Complainant(s)

Versus

SHREE MARUTI COURIER SERVICES PVT.LTD - Opp.Party(s)

HARKESH MANUJA

08 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      83 of 2017

Date of Institution:    25.01.2017

Date of Decision :     08.08.2018

 

Swadeshi Textile Agencies through its Proprietor Vinod Gaba, 302/7, Shri Ram Mandir Marg, near Amar Bhawan Chowk, Panipat.

                                      Appellant-Complainant

Versus

1.      Shree Maruti Courier Service Private Limited through its Manager, near Hotel Mid Town, Sanjay Chowk, G.T. Road, Panipat.

2.      Chandresh Agency, Agent of Shree Maruti Courier Private Limited through its Manager, near Hotel Mid Town, Sanjay Chowk, G.T. Road, Panipat.

3.      Shree Maruti Courier Service Private Limited, Through its Director, 52/A, “Titanium” opp Prahladnagar Garden, 100 ft. Road, Ahmedabad, Gujarat-680015.

                                      Respondents-Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Raghav Goel, proxy counsel on behalf of Shri Rajesh Sharma, counsel for appellant.

Shri Bhisam Kumar, proxy counsel on behalf of Mrs. Meghna Singla, counsel for respondents.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This complainant’s appeal is directed against the order dated November 18, 2016 passed by District Consumer Disputes Redressal Forum, Panipat (for short ‘the District Forum’).

2.                Swadesh Textile Agencies-complainant (appellant herein) deals in the business of accessories of handlooms, jacquard and textile mills store near Amar Bhawan Chowk, Panipat. The complainant vide invoice bearing No.3693 dated October 19^th, 2013 sold machinery/shuttle less loom parts to Pitamara Hardware and Metal Export Private Limited, Gwalior on payment of Rs.1,14,472/-. After making payment of VAT, the items mentioned in the invoice No.3693 above were sent to the purchaser Pitamara Hardware and Metal Export Private Limited, Gwalior through courier service provider by the opposite parties. Shree Maruti Courier Service Private Limited near Sanjay Chowk, G.T. Road, Panipat-Opposite Party No.3. The total weight of consignment was 8.5 Kgs and an amount of Rs.420/- was paid to the opposite parties as freight charges. The above mentioned goods could not be delivered at its destination. The complainant time and again inquired from the opposite parties regarding status of the consignment and delivery of goods but the opposite parties avoided on one pretext or the other. Later on the opposite parties assured that the goods will be delivered very soon. Thereafter, the complainant requested the opposite parties to make payment of an amount of Rs.1,14,472/- being price of the goods as well as an amount of Rs.1,00,000/- on account of loss of business. The opposite parties refused to accept the claim of the complainant despite service of legal notice dated January 08^th, 2014.

3.                The complainant filed the present complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum with a prayer to direct the opposite parties to pay an amount of Rs.1,14,472/- price of the goods; to pay an amount of Rs.1,00,000/- regarding loss caused in the business of the complainant and to pay an amount of Rs.10,000/- on account of un-necessary harassment and mental agony with interest at the rate 18% per annum and to pay an amount of Rs.5500/- as litigation expenses.

4.                The opposite parties No.1 and 2 have taken plea in their written version that the complaint is not maintainable in the present form and that the complainant has no locus standi to file the present complaint. It is pleaded that the claim amount is baseless, exorbitant and without any calculation. As provided at point No.9 of the terms and conditions of Carriage in case of loss, theft, damage and mishandling of the booked consignment maximum liability of the company/franchisee shall not be exceeding to the sum equivalent to 10 times of freight charges for un-insured documents and five times of freight charges for un-insured parcels below Rs.5,000/- or the value of the consignment mentioned on the docket whichever is less.  It is pleaded that the complainant neither declared the assignment value of the goods nor got the assignment insured. In this situation, penalty can be imposed only up to five times of the courier charges. The complainant has mentioned the weight of the assignment as mentioned in courier slip only 6.00 Kgs. It is admitted that consignment of goods was sent by the opposite parties on payment of freight charges amounting to Rs.420/- vide invoice bill No.3693 on October 19^th, 2013. It is prayed that the complaint filed by the complainant be dismissed with cost.

5.                Opposite Party No.3 filed separate written version but taking the same pleas as taken in the written version of the opposite parties No.1 and 2.

6.                Parties led evidence in support of their respective claims before the District Forum.

7.                After hearing arguments, vide impugned order dated November 18^th, 2016 the complaint filed by the complainant was partly allowed directing the opposite parties to pay only an amount of Rs.2100/- to the complainant on account of loss of goods with interest at the rate of 9% per annum from the date of filing of the complaint and to pay an amount of Rs.8800/- on account of un-necessary harassment, mental agony and an amount of Rs.3300/- as litigation expenses. Prayer of the complainant regarding payment of the remaining amount claimed in the complaint was declined.

8.                Aggrieved with the impugned order dated November 18^th, 2016 passed by the learned District Forum, the complainant has filed the present First Appeal No.83 of 2017 with a prayer to modify the impugned order passed by the learned District Forum and to grant total relief as claimed in the complaint.

9.                We have heard learned counsel for the parties and perused the case file.

10.              During the course of arguments, it was common case of both the parties that vide invoice No.3693 dated October 19^th, 2013, Exhibit C-2 the complainant sold machinery/shuttle less loom parts to Pitamara Hardware and Metal Export Private Limited, Gwalior on payment of Rs.1,14,472/-. As per version of the complainant on the same date October 19^th, 2013 he booked a consignment of the above mentioned goods with the opposite parties Shree Maruti Courier Service Private Limited to be delivered to the purchaser of the goods mentioned above. It is admitted fact that the above mentioned consignment could not be delivered to the addressee. The opposite parties could not make it clear that due to what particular reason the consignment could not be delivered to the addressee. As per version of the complainant as the consignment could not be delivered, it is a clear case of deficiency in service on the part of the opposite parties and the complainant is entitled to receive the total value of the goods amounting to Rs.1,14,472/- as well as an amount of Rs.1,00,000/- on account of total loss caused to the business of the complainant and an amount of Rs.10,000/- on account of un-necessary harassment and mental agony with interest at the rate of 18% per annum as well as an amount of Rs.5500/- as litigation expenses.

11.              Version of the opposite parties in this case is that the complainant is not entitled to receive an amount as mentioned in the prayer clause of the complaint keeping in mind the terms and conditions of carriage in case of loss, theft, damage and mishandling of the booked consignment.  Learned counsel for the opposite parties argued that as per terms and conditions mentioned at point No.9 in case of loss, theft, damage and mishandling of the goods of consignment maximum liability of the company shall not exceed five times of the freight charges as it is a case of unsured parcel. Learned counsel for the opposite parties argued that the payment of an amount of Rs.1,14,472/- as prayed by the complainant cannot be made to the complainant as the complainant at the time of booking of the consignment did not declare the parcel value to the opposite parties. Apart from it booked consignment articles were not got insured before booking. Payment on the basis of value of the consignment of goods can be made only in case the goods are got insured or the consignment parcel value. In this case, there is also controversy regarding weight of the consignment. As per version of the complainant weight of the consignment was 8.5 Kgs whereas version of the opposite parties is that weight of consignment was only 6.0 Kgs. Anyhow findings can be safely given that weight of the consignment goods was only 6.00 Kgs as mentioned on the courier slip and much discussion is not needed on this point of controversy. Learned District Forum has also given findings on this point of controversy like this.

12.              Learned counsel for the opposite parties argued that prayer of the complainant that making payment of an amount of Rs.1,14,472/- should not be accepted as the complainant failed to prove value of the consignment goods. Neither parcel value was declared nor the goods were got insured. On this point of controversy learned counsel for the opposite parties placed his reliance upon case law a decision of the Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur Appeal No.386 of 2015 Shree Maruti Courier Service Private Limited and others versus Sanjay Mehta, decided on January 25^th, 2016.  Facts and circumstances of the case in hand are similar to the facts of the above cited case law. Cited case law above fully supports the version of the opposite parties. Apart from it, decision of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case law Indrapuri Express Courier Private Limited versus Allied Business Corporation, IV(2007) CPJ 165 (NC) also supports the version of the opposite parties.

13.              In case law referred above under the same circumstances, the consumer was awarded only an amount of Rs.2,000/- instead of claim of the consumer of an amount of Rs.1,07,200/- mentioning price of the consignment goods. In our view even if it be presumed that the complainant sold the goods as mentioned in the invoice No.3693 dated October 19, 2013 Exhibit C2 on payment of Rs.1,14,179/-, even then it will not be safe to give findings that the goods which were to be delivered after booking of the consignment were the same which were mentioned in Exhibit C-2 as neither the value of the goods was declared nor the insurance policy was obtained. On the basis of the decisions of both the cited case laws referred above, findings can be safely given in this case that the opposite parties can be imposed penalty only as five times of the total freight charges total amounting to Rs.2100/-.

14.              On this point of controversy learned counsel for the complainant argued that the opposite parties are liable to make payment of the total amount of Rs.1,14,472/- being value of the goods as mentioned in Invoice Exhibit C-2.  In support of his this contention learned counsel for the opposite parties placed his reliance upon a decision of the Hon’ble National Consumer Disputes Redressal Commission, New Dehi in case law Tata Chemicals Limited versus Skypak Couriers Private Limited, 2002(2) C.P.C. 107. We have closely perused the abaove cited case law. Facts and circumstances of the case in hand are quite different from the facts and circumstances of the above cited case law. As per facts of case law referred above, findings had already been given regarding value of the goods to be delivered through courier service by the Hon’ble Supreme Court Judge as arbitrator. As per facts of this case there was enough evidence on the file to give findings regarding the value of the goods to be delivered through courier service. Cited case law above is not of much help to the complainant in this case.

15.              In such a situation certainly the courier company is not supposed to know the exact value of the consignment goods. The terms and conditions are mentioned in the courier note slip Exhibit C-1 to meet out such a situation like in the case in hand. In this way, the complainant neither declared the value of the consignment goods nor got the same insured in such a situation, correct findings cannot be given regarding value of the consignment goods. Keeping in mind all these circumstances, as per terms and conditions mentioned in the courier note slip Exhibit C-1, the complainant is entitled to receive only five times of the freight charges. It is admitted fact that the freight charges regarding consignment were Rs.420/-. In these circumstances, findings can be given safely that the complainant is entitled to receive only five times of the total freight charges total amounting to Rs.2100/-. Keeping in mind un-necessary hardships faced by the complainant and amount spent in this litigation due to faults of the opposite parties, awarding of an amount of Rs.8800/- to the complainant on account of un-necessary harassment and an amount of Rs.3300/- as litigation expenses is also justified.

16.              As a result as per discussions above in detail, we find no illegality in the impugned order passed by the learned District Forum, Hence, findings of the learned District Forum stand affirmed and the appeal stands dismissed.

 

Announced: 08.08.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL