State Consumer Disputes Redressal Commission
M/S Harmeet Toys Agency vs Decan Queen Transport Co. on 4 December, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 04.12.2014 First Appeal-419/2009 (Arising out of the order dated 26.05.2009 passed in Complainant Case No. 273/2008 passed by District Forum Consumer Disputes Redressal Forum, (North) Room No. 2 Old Civil Supply Building; Tiz Hazari, New Delhi) In the matter of: M/s Harmeet Toys Agency Prop. Sh. Daljit 35-A, Swadeshi Market,, Sadar Bazar, Delhi-110006 .Appellant/Complainant Versus Decan Queen Transport Company Kamla Market, Ajmeri Gate, Delhi-110006 .Respondent/OP CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member 1. Whether reporters of local newspaper be allowed to see the judgment? 2. To be referred to the reporter or not? S.A.Siddiqui, Member (Judicial) JUDGEMENT
1) This is an appeal under Section 15 of the Consumer Protection Act 1986 (in short the Act) against the order dt. 26.05.2009 passed in Complaint Case No. 273/08 M/s Harmeet Toys Agency Vs Decan Queen Transport Company.
2) The complainant/appellant filed a consumer complaint alleging that the complainant is the stockist and sole proprietor of M/s Harmeet Toys Agency and the OP/respondent is a transport company having its registered office at Kamla Market, Delhi. A consignment of toys (four bundles) were booked with the OP vide GR No. 236659 dt. 20.12.2006 for carriage and safe delivery of the consignment at Porvorim. Complainant was the consignor and the owner of the value of the goods booked was Rs. 20,145/-. The OP gave the delivery of the goods without realising the G.R. as in the G.R. consignment was mentioned as self. OP thus misappropriated the goods and was guilty of deficiency of service as defined under Section 2(1)(g) of the Act.
3) Later on OP sent a letter to the Complainant for making payment, but the Complainant refused. A legal notice dt. 26.09.2007 was also sent to the OP. OP for the first time informed the complainant that the goods were received but were delivered to someone else without collecting the G.R.
4) After filing the complaint notice was issued to the OP, who filed their reply contesting the claim of the complainant.
It was maintained that the matter was a purely commercial dealing. Besides, Sh. Daljeet Kumar was not the sole proprietor but was one of the partners.
It was further maintained that OP has duly delivered the consignment to M/s Ganpati Agencies at Porvorim, Goa on 30.12.2006. The OP submitted its bill No. 032 dt. 09.01.2000 towards applicable freight charges of Rs. 2963/- along with copy of the delivery note, but the complainant deliberately kept the bill pending on the ground that it was excessive. It was alleged that the word self read with M/s Ganpati Agencies, Goa as consignee in tax invoice would mean that the consignee was the authorised representative of the complainant to accept the consignment at Goa. It was further alleged that there was some internal dispute between the consignor and the consignee and therefore the complainant has filed this consumer complaint to wrongfully gain invoice amount from the OP.
It was also contended that complaint was barred under Section 10 of the Carriers Act, 1865, as not notice was given by the complainant. It was also contended that consignee was also a necessary party.
5) Complainant filed rejoinder reiterating the complaint version and denying the contention raised in the written statement. Both the parties led evidence including documentary evidence. Complainant filed photocopy of the tax invoice, which was in the name of the M/s Ganpati Agencies and also a copy of the G.R.
6) The Ld. District Forum after perusing of the evidence on record dismissed the complaint on a technical ground that mandatory notice under Section 10 of the Carriers Act was not given by the complainant to the OP. The complainant felt aggrieved and hence filed the present appeal against impugned order dt. 26.05.2009.
7) This appeal was filed mainly on the ground that the Ld. District Forum (North) neither considered the evidence on record nor notice given to the OP. The impugned order dt. 26.05.2009 was thus erroneous besides being illegal. Serving notice under Section 10 of the Carriers Act is not mandatory in all cases under Carriers Act. Section 10 of the Carriers Act requires that notice before filing a suit against common carrier is to be issued if there is a loss of goods or an injury caused to the goods entrusted for carriage. Thus section 10 of the Carriers Act is only attracted when goods are damaged or the carriage losses the goods and informed about the such loss of goods to the consignor. In this case, the carrier failed to deliver the goods to the consignee at destination station and failed to collect G.R. and original G.R. was lying with the complainant. So it is a case of non delivery of goods/deficiency of service by OP; therefore, there was no need of serving notice under section 10 of the Carriers Act. But the Ld. District Forum failed to apply its judicial mind and passed the impugned order in a mechanical manner. The impugned order therefore could not be sustained and is liable to be set aside.
8) During the course of hearing of the appeal Sh. Kamal Kishore Harbola, Counsel for the respondent appeared once on 15.05.2014 and thereafter he left the proceedings. No reply was filed nor anyone appeared during the proceedings. Therefore only appellant/counsel was heard.
9) The complaint was dismissed only on the ground that serving of notice under Section 10 of the Carriers Act is mandatory. Since the complainant/appellant failed to serve any such notice to OP/respondent therefore complaint was not maintainable.
Now it has to be examined whether service of notice under Section 10 of the Carriers Act is mandatory in all cases of Carrier disputes. Section 10 of the Carriers Act, is therefore extracted below:-
10. Notice of loss or injury to be given within six months-No suit shall be instituted against a common carrier for the loss of, or injury to, goods (including containers, pallets or similar article of transport used to consolidate goods) entrusted to it for carriage, unless notice in writing of the loss or injury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.
10) Section 10 requires a notice in the manner set out therein, for initiation of proceedings against a common carrier for loss of goods or injury to goods entrusted for carriage. The notice need not say specifically that it is issued under Section 10 of Carriage Act, 1865. A notice under Section 10 will certainly be required when the common carrier delivers the goods in a damaged condition, or where common carrier loses the goods entrusted for carriage and informs about such loss to the consignor/consignee/owner.
In the case of M/s Transport Corporation of India Ltd. Vs Veljan Hydrair Ltd. 2007(2) Civ. C.R. 691 (S.C.), the Honble Supreme Court held that there was no need to issue a notice under Section 10 and non issue of notice would not invalidate the claim or complaint, if it was not a case of loss or injury to goods and that information of the same has not been given by the carrier. Therefore the requirement of law relating to notice within six months under Section 10 will not apply to claim based on non delivery of goods or a wrong delivery of goods. In the present case, the OP/respondent never informed the complainant/appellant regarding any loss or injury caused to goods entrusted to it. The complainant/appellant had no knowledge of any loss of goods. The OP delivered the goods to someone other than the complainant without collecting G.R. from him. Some invoice in the name of M/s Ganpati Agencies will not entitle to it to collect the goods from carrier unless M/s Ganpati Agencies surrenders relevant G.R. before Carriers and such G.R. must have been endorsed in the name of M/s Ganpati Agencies. Therefore, we are of the considered view that service of notice under Section 10 of the Carriers Act was not mandatory requirement in all cases except loss or damage to the goods under information by the carrier.
11) The Ld. District Forum did not bother to examine these aspects. It also failed to examine, if there was any kind of deficiency of service committed by the OP in the light of the definition of the Deficiency given u/s 2(1)(g) of the Act. The Ld. District Forum was deciding a consumer complaint and therefore examination of these aspects of the matter was essential before reaching to a final conclusion of maintainability of the complaint or otherwise.
12) From the facts and circumstances of the case and from the pleadings of both the parties, we are of the considered view that respondent/OP had been deficient in providing services to the appellant/complainant and had unnecessarily forced the appellant/complainant to file consumer complaint by not paying them their due amount on account of their deficiency in providing services.
13) Consequently, the appeal is to be allowed, as the impugned order dt. 26.05.2009 is erroneous in as much as service of notice under section 10 of the Carriers Act, 1865 was not necessary in all cases as discussed earlier. To this extent impugned order suffers from illegality. The impugned order is therefore not maintainable and is to be set aside. It is accordingly set aside.
14) For the purpose of consumer Protection Act, the word compensation has a wide connotation as has been provided by the Supreme Court in Ghaziabad Development Authority V/s Balbir Singh (2004) 7 CLD 861(SC). The word compensation appearing in section 14(i) (d) of the Act has been explained by the Supreme Court as under:-
The word compensation is of a very wide connotation.
It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The commission/forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers.
Such compensation is for vindicating the strength of law.
15) We have further extended the concept of compensation to the extent that those service providers who force a consumer to seek remedy before Consumer Forum or before any other legal forum to have their rightful claim are liable to pay in addition to what a consumer is otherwise entitled to, as, now a days the legal remedy is becoming costlier day by day and it is not only time consuming but at times tortuous also. Rich and powerful business and other service providers drag the poor consumer to the last forum i.e. Supreme Court by filing one appeal after other as Consumer Protection Act provides for appeal upto the Supreme Court and it is after so many years that one poor consumer gets a final decision after 10 years or so.
16) Accordingly, taking into consideration the entire facts & circumstances of the case, we order respondent/OP to pay Rs. 20,145/- towards costs of goods sent by the appellant through them and respondent/OP is further directed to pay a compensation of Rs.
10,000/- to the appellant/complainant towards mental agony, harassment and for providing deficient service.
17) The above order be complied with by the respondent/OP within 30 days from the receipt of the order and if respondent/OP fails to comply the order the appellant/complainant shall be at liberty to approach concerned District Forum Under Section 25/27 of the Consumer Protection Act.
18) Copy of the order be made available to the parties free of costs as per law and one copy be sent to the concerned District Forum and thereafter case file be consigned to record room.
(S.A.SIDDIQUI) MEMBER (JUDICIAL) (S.C.JAIN) MEMBER FATIMA