State Consumer Disputes Redressal Commission
M/S Grismark Pharma vs M/S New Gupta Transport Corporation on 22 May, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.920 of 2007
Date of institution: 29.06.2007
Date of decision : 22.05.2012
1. M/s Grismark Pharma, Katra Sher Singh Furniture Market, Amritsar
through its partner Shri Ashok Kapoor r/o H.No.1834/11, Khoo
Bombaywala, Amritsar.
2. Sh.Ashok Kapoor s/o Sh.Om Parkash, partner of M/s Grismark
Pharma, Katra Sher Singh, Furniture Market, Amritsar r/o
H.No.1834/11, Khoo Bombaywala, Amritsar.
.....Appellants
Versus
M/s New Gupta Transport Corporation, Inside Sheranwala Gate, Amritsar
through its partner/Prop./Manager/Office Incharge/Principal Officer.
.....Respondents
First Appeal against the order dated 03.05.2007
passed by the District Consumer Disputes
Redressal Forum, Amritsar.
Before:-
Mr.Jagroop Singh Mahal, Presiding Judicial Member
Mr.Vinod Kumar Gupta, Member Argued by:-
For the appellants : Shri Updip Singh, Advocate
For the respondents : None
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER This is complainant's appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 3.5.2007 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short the District Forum) vide which the complaint was dismissed by the learned District Forum.
First Appeal No.920 of 2007 2
2. The present complaint was filed through Ashok Kumar who is the partner of the complainant firm and the business of the said firm was stated to be the main source of his livelihood which had been established for his self-employment. The case of the complainant is that they despatched 43 cases of medicines from Amritsar to Meerut through the OP, the value thereof was Rs.87,266/-. The freight charges were to be paid at the place of destination. According to them, the goods were required to be delivered at the place of destination within a reasonable period for its onward delivery to the consignee but when after a considerable period, those did not reach the said place, the complainant made enquiries but were put off on one pretext or the other. The goods comprised of medicines which were to be delivered in safe and sound condition and due to the delay in delivery, the same have become totally ineffective due to its expiry causing huge loss to the complainant. Earlier, a complaint was filed on 10.11.2004 but the same was dismissed in default on 20.6.2005. An application for restoration was moved on 11.7.2005 but the same was dismissed on 20.10.2005. Thereafter, the complainants filed another complaint on 31.10.2005. However, it had some technical defects and was withdrawn on 23.11.2005. Now a fresh complaint has been filed on 23.2.2006 claiming the payment of Rs.87,266/- along with interest @ 12% per annum and also compensation for mental torture and agony.
3. The complaint was opposed on the ground that earlier complaint having been dismissed, this complaint is not maintainable. It was contended that there is no fault or negligence on their part nor any damage to the goods because the same are lying in tact with the OP waiting for their person to take its delivery by making the payment of the charges. They claimed to have filed a complaint at Meerut and prayed for stay of this First Appeal No.920 of 2007 3 complaint. It was alleged that the complainants are not consumers because no consideration has been paid and further it is a commercial transaction which is excluded from the purview of the Act. The complainant was alleged to be esotpped by his act and conduct from filing the complaint. On merits, it was admitted that 43 cartons of medicines to be transported to Meerut were booked with the OP on 26.4.2004 and it was agreed that if the delivery is not taken within 15 days, they would pay storage charges @ Rs.200/- per day. According to them, the goods reached Meerut on 29.4.2004 but nobody came to take the delivery and the same were lying in their godown even inspite of several requests made by the OPs to take delivery thereof. It was denied if the goods have become totally ineffective due to the expiry or if any loss is caused to the complainant. Anyway, it was due to the fault of the complainants who failed to take delivery of the goods by paying storage charges. The OPs claimed to be entitled to Rs.48,000/- as storage charges. They prayed for dismissal of the complaint.
4. The OP-respondents moved an application before the learned District Forum to direct the complainants to lift the consignment upon which, the learned District Forum directed the complainant to take delivery of the consignment vide order dated 8.6.2006 which is in the following terms : -
"We have considered the rival contentions and have examined the scope of the prayer made in the application filed by the opposite party applicant. We are of the view that lifting of medicines by the consigner is not going to affect their case on merit as the allegations levelled in the complaint and counter First Appeal No.920 of 2007 4 allegations to be levelled by the applicant in its written version would only be examined and decided after both the parties bring on the record their respective evidence, oral and documentary. It is not disputed that medicines are perishable goods. We, therefore, dispose of the present application with directions to the complainant respondent to lift the consignment lying in the godown of the applicant opposite party and he would thereafter get these medicines inspected either in the presence of the Drug Inspector or any officer of the office of the Civil Surgeon and thereafter submit report by giving description of the medicines in this consignment, its manufacturers, its batch Number and also its expiry date. All this information should be type written on a fool scape paper and will have to be submitted by the applicant on or before the next date of hearing which is 29/6/2006.".
5. The complainant, however, did not take the delivery.
6. Both the parties were given opportunity to adduce evidence in support of their contentions.
7. After hearing the arguments of the learned counsel for the parties and perusing the evidence, the learned District Forum dismissed the complaint on the ground that the OPs have failed to comply with the order First Appeal No.920 of 2007 5 dated 8.6.2006. The complainants have challenged the same through this appeal.
8. A notice was issued to the respondents for 23.10.2007 but the same was not received back even after the expiry of 30 days. It was presumed to have been served on the OP. Nobody appeared on their behalf.
9. We have heard the arguments of the learned counsel for the parties and have perused the record.
10. The contention of the complainants is that they are running the firm in order to earn their livelihood by self-employment and, therefore, fall under the definition of a consumer. Complainant No.1 is a partnership firm and the question of partnership firm earning its livelihood through self- employment does not arise. Otherwise also, it is proved that the complainants are doing its commercial business at a large scale which is not only for the purpose of earning livelihood but to earn profit. Their contention is that 43 cases of medicines were sent by them through the OPs which were worth Rs.87,226/-. The complainant being the firm was doing commercial business at a large scale. It, therefore, cannot be said to be a consumer under the Act.
11. A perusal of the record shows that the complainants intentionally did not take delivery of the goods at the destination. There is no doubt about it that the consignee was the complainants itself and the delivery was to be taken at Meerut by paying freight charges. The contention of the OPs is that nobody came to their office to pay freight charges and to take delivery of the consignment. It is also their case that if the delivery is not taken within 15 days, then, the complainants were liable to pay charges @ Rs.200/- per day as godown rent/storage charges. The first letter issued by the complainants about the non delivery is 21.9.2004 i.e. after about 5 First Appeal No.920 of 2007 6 months and, thereafter, a notice dated 14.11.2004 was issued by the complainant. However, as per the OPs, they were always ready and willing to deliver the goods subject to payment of freight charges. The contention of the OPs that the complainants were not interested in taking delivery of the consignment is clear from the fact that when an order dated 8.6.2006 was passed by the learned District Forum to take delivery of the consignment even inspite of that, they did not take the delivery though it was made clear by the learned District Forum that lifting of medicines by the consignee would not affect their case on merit and after taking the delivery, they were to get the medicines checked from a Drug Inspector or any officials of the office of the Civil Surgeon. The contention of the complainants is that since no direction was issued either to the Drug Inspector or to the Civil Surgeon to check the goods, they were, therefore, not bound to check the same. We do not find any merit in this argument. In fact, the checking was to be done after the complainants had taken the delivery of the goods. They did not take the delivery of the goods and, therefore, the mere fact that no direction was issued to the Drug Inspector or the Civil Surgeon is of no consequence. The matter would have been different if the complainants had taken the delivery of the consignment and had, thereafter, requested the learned District Forum to send appropriate directions to the Drug Inspector or the Civil Surgeon but it was not so done. The learned District Forum therefore rightly came to the conclusion that the complainants were not interested in taking delivery of the goods and have, thereby, disobeyed the orders passed by it.
12. Otherwise also, the facts and circumstances coming on file fully suggest that there was no deficiency in service on the part of the OPs in giving delivery of the goods to the complainants. It was the deficiency on the part of the complainants in taking delivery of the goods and for their own First Appeal No.920 of 2007 7 negligence, they cannot blame the OPs. When there is no negligence of the OPs, the question of allowing the complaint and directing the OPs to pay compensation did not arise.
13. In view of the above discussion, we are of the opinion that the learned District Forum rightly dismissed the complaint. The impugned order is perfectly legal and valid. We do not find any ground to interfere in the same. There is, therefore no merit in the appeal and the same is, accordingly, dismissed.
14. Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER May 22, 2012.
Paritosh