State Consumer Disputes Redressal Commission
Naresh International vs Gati Cargo Management Services on 10 July, 2008
IN THE STATE COMMISSION: DELHI
IN THE STATE COMMISSION: DELHI
(Constituted
under section 9 clause (b) of the Consumer Protection Act, 1986)
Date of Decision: 10.07.2008
Complaint No.C-195/2000
Naresh
International
Complainant
Through its
Partner
Through
Mr. Naresh Chand
Mr. Rahul Malhotra,
Registered office
at: Advocate
497, Katra Ishwar
Bhawan,
Khari Baoli,
Delhi-110006.
Versus
Gati Cargo Management Services Opposite Party
A division of Gati Corporation Limited,
Head office at:
1-7-293 MG Road,
Secundrabad.
Also at:
AG-50, Sanjay Gandhi Transport Nagar,
G.T.
Karnal Road, Delhi.
CORAM:
Mr.
Justice J.D. Kapoor President
Ms.
Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. Sandaldwood oil costing Rs.7,24,468.00 was shipped through the OP vide Docket No.Bu 14607 from Salem in Tamil Nadu to the registered office of the complainant in Delhi, for a consideration of Rs.1980/-.
Complainant is a Partnership Firm engaged in the business of import and wholesale of gambier, betelnuts, sandal wood, sandal wood oil, spices, herbs and crude drugs.
2. OP is a courier company and is engaged in transporting goods from one place to another. The complainant had purchased 50 Kgs of sandalwood oil from the Sandalwood Product Factory, Tamilnadu Forest Plantation Corporation at Thekkutattu, PO Vellore District, Tamilnadu. The said oil was packaged in two drums. The complainant asked the Sandalwood Product Factory (consignee) to book the consignment of two drums containing 25 kgs net each of sandalwood oil with the OP to be transported by courier from Salem, Tamilnadu to the registered office of the complainant in Delhi.
The said consignment was booked on 15.05.1999. Consignment consisted of 2 drums of Sandalwood oil having declared value of Rs.7,24,468.00. The OP charged a sum of Rs.1980/-.
3. The complainant specifically informed the representative of the OP that the consignment to be delivered was of a total assessable value of Rs.7,24,468/- and contained 50 kgs. of sandalwood oil.
The drums were sealed and secured at the time of handing over to the OP and had been inspected carefully by the representative of the OP.
4. On 20.05.1999 when the said consignment was delivered at the registered address of the complainant at Delhi, it was found that there was a short delivery of 25 kgs of sandalwood oil and one drum was completely empty. The said fact was noted in Hindi on Receipt No.14607 by the representative of the OP who had delivered the consignment.
5. The complainant immediately wrote a representation dated 20.05.2000 to the OP and called upon the OP to arrange to send them a draft for Rs.3,63,224/- towards their claim for the loss of 25 kgs. of sandalwood oil and refund of the freight charge paid to the OP.
6. That complainant again vide representation dated 26.07.1999 informed that the OP had failed to take any action on the claim of the complainant and had even neglected to inform the complainant with regard to the said claim.
7. The complainant received a communication dated 19.8.1999 from the OP stating therein that they had received letter dated 26.07.1999 and assured that they would thoroughly investigate the matter and revert to the complainant. Till date the complainant has not received any communication or information. The OP had assured the complainant that they would be looking into/investigating the matter and would revert to the complainant soon.
8. That OP has miserably failed in providing satisfactory services to the complainant and has thus caused an irreparable loss to the complainant who had hired the services of the OP for a consideration.
Following amounts are prayed for to make good the loss:-
i) Cost of 25 Kgs of sandalwood oil. ..Rs.3,62,234.00
ii) Freight charges ..Rs.
990.00
iii) Interest @ 24% from 20.05.1999 Uptill 20.06.2000 ..Rs. 87,173.76
iv) Compensation for mental tension ..Rs.1,00,000.00 _______________ Total Rs.5,50,397.76 _______________
9. In its reply OP has raised preliminary objection that the complaint is not maintainable as there is no privity of contract between the complainant and OP as the complainant had not hired the services of the OP company. That as per Section 10 of the Carriers Act the complainant is required to serve notice prior to institution of suit and within six months of the time when the fact of loss came to the knowledge of the complainant.
10. That there is no deficiency in service by the OP. The consignor had done the packaging and the contents of the cargo were also known only to the consignor. The alleged loss is due to the insufficient packaging done by the consignor.
11. Admittedly a consignment of goods was booked at Salem vide Docket No.14607 to the registered office of complainant. The carrier does not have control over packaging. The carrier can know about the defective packaging only in cases where the defect is apparent.
12. That services of the OP were not sought by the complainant but by the consignor i.e. Sandalwood Products Factory, Thekkupattu District-Vellore, Tamilnadu. The complainants were the consignees of the goods sent through the OP by the said Sandalwood products Factory.
13. That as per Section 8 of the Carriers Act, the liability of the carrier arises only if such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servant. The OP does not have the power as well as means to open the packaging and check for the defects in packaging. The alleged loss of the goods, if any, is due to the defective packaging done by the consignor. The OP was aware of the nature of the goods only to the extent of declaration made by the consignee. Short delivery does not imply any deficiency in the services by the OP as the loss of the sandalwood oil was on account of defective packaging by the consignor and not due to any act of the OP company.
14. OP denied that the complainant ever sent any letter/representation dated 20.05.2000 to the OP company. The OP received a letter dated 26.07.1999, which was promptly replied vide letter dated 19.08.99.
15. That every consignment is insured and the complainant can claim from the insurance company, the amount for the alleged loss.
The present claim is an inflated claim and liable to be rejected.
16. That the complainant is not a consumer as the cargo containing sandalwood oil was for further sale and was thus for commercial purposes. The registered office of the OP is in Secunderabad.
17. The aforesaid conspectus of facts, and rival claims and contentions of the parties bring out certain admitted facts. There is no dispute that the complainant packaged 50 kgs. of sandalwood oil in two drums and both the consignments containing 25 kgs. net each of sandalwood oil were to be transported by courier from Salem, Tamilnadu to the registered office of the complainant in Delhi.
It was noticed that there was a short delivery of 25 kgs. of sandalwood oil and one drum was completely empty when it was delivered to the complainant.
18. As regards the objection of the OP that as per Section 8 of the Carriers Act, the liability of the carrier arises only if such loss or damage shall have arisen from the criminal act of the carrier or any of his agents or servant, has no substance as the remedy by way of Section 3 under the Consumer Protection Act is an independent and an additional remedy and not in derogation of the provisions of any other law for the time being in force and the liability u/s 8 of the Carriers Act may be a limited liability. So far as the remedy under the Consumer Protection Act which arises from the charge of deficiency in service entitles the consumer for a loss suffered by him for mental agony and harassment. In this regard the following judgments of the Supreme Court are relevant.
(i) Secretary, Thirumurugan Coo-operative Agricultural Credit Society Vs. M. Lalitha (Dead) through LRS and Ors.
Civil Appeal No. 92 of 1998 decded on 11-12-2003.
Reported in S.C. & N.C. Consumer cases (1996-2005).
10. In Section 3 of the Act in clear and unambiguous terms it is stated that the provisions of 1986 Act shall be in addition to an not in derogation of the provisions of any other law for the time being in force.
From the statement of objects and reasons and the scheme of 1986 Act, it is apparent that the main objective of the Act is to provide better protection of the interest of the consumer and for that purpose to provide better redressal, mechanism through which cheaper, easier, expeditious and effective redressal is made available to consumers. To serve purpose of the Act, various quasi judicial forums are set up at the district, State and National level with wide range of powers vested in them. These quasi judicial forums, observing the principle of a specific nature and to award, whenever appropriate compensation to the consumers and to impose penalties for non-compliance of their orders.
(ii) Fair Air Engineers Pvt.
Ltd. and Anr. Vs. N.K. Modi, 1996 (6) SCC 385.
It would, therefore be clear that the legislature intended to provide a remedy in addition to the consequent arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the Code of Civil Procedure.
In view of the object of the Act and by operation of section 3 thereof, we are of the considered view that it would be appropriate that these forums created under the Act are at liberty to proceed with the matter in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties. The reason is that the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action unless the forums on their own and on the peculiar facts and circumstances of a particular case, come to the conclusion that the appropriate forum for adjudication of the disputes would be otherwise those given in the Act.
(iii) Smt. Kalawati and others Vs. M/s United Vaish Co-operative Thrift and Credit Society Ltd. R.P. No. 823 to 826 of 2001, SC & NC Consumer Law Cases (1886-2005) 275, wherein the National Commission observed that
4. Section 3 is worded in widest terms and leaves no one in doubt that the provisions of CPA shall be in addition and not in derogation of any other law for the time being in force. Thus even if any other Act provides for any remedy to litigant for redressal by that remedy a litigant can go to Dist. Forum if he is a consumer under CPA. That remedy exists in any other law which creates the right is no bar to District Forum assuming jurisdiction.
18. However, another contention of the counsel for the OP is that the consignment was booked by the complainant and admittedly the complainant received both the two drums. It was subsequently that one drum was found empty. It also does not hold water as the statement or the claim of the complainant about one drum being empty inspires confidence and does not suffer from any infirmity and from element of falsehood. Had it been so, he would have claimed that both the drums were found empty.
19. The objection raised by the OP that consignor has not been made the party also does not hold water as the complainant comes within the definition of the Consumer as defined by Section 2(1)(d) of the Consumer Protection Act as he was the direct beneficiary of the services availed by the consignor. Section 2(1)(d)(ii) defines consumer as under:
consumer means any person who, -
[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 and 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] [Explanation For the purpose 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 purposes of earning his livelihood by means of self-employment;]
20. Counsel for the OP has stated that the complainant had agreed to settle the dispute with the consignor only irrespective of the fact whether the certificate is issued to the consignee or consignor. It is a settled law that the parties are governed by the terms of contract unless and until there is a contract between the parties as to the liability of the opposite party who may be a trader or service provider to compensate the consumer as to the actual cost of the consignment which ordinarily exists in the transportation of the goods by the transporters etc., the consumer is not entitled for the entire cost for the consignment. He may be entitled for the sufferings suffered by him for the mental agony or the reasonable loss as the consideration paid by the complainant for getting the services of courier is pea-nut as compared to cost of the goods or consignment. However, the complainant contended that he had informed the representative of the OP on the same day that the consignment was to be delivered at Delhi. Such an information was of no relevance.
21. There was no term of the contract between the parties that the OP shall be liable to pay the cost of the consignment in case of non-delivery, wrong delivery or mis-delivery and as such complainant cannot claim the entire cost of the consignment.
22. However, taking over all view of the matter and the short delivery being a deficiency in service on the part of the OP and the loss suffered by the complainant, we deem that lumpsum compensation of Rs. 50,000/- which shall include the cost, shall meet the ends of justice.
23. The payment shall be made within one month from the date of receipt of this order.
24. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
25. Announced on 10th day of July, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member ysc