National Consumer Disputes Redressal
M/S. State India Express (Regd.) vs M/S. Ranutrol Ltd. on 18 November, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.780 of 2006 (From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the State Consumer Disputes Redressal Commission, Delhi) M/s. State India Express (Regd.) 20-1, Hansraj Damodar Wadi, Near Kennedy Bridge, Mumbai-400004 .. Appellant Vs. 1. M/s. Ranutrol Ltd. F-85, Okhla Industrial Area, Phase-I New Delhi-110020 2. New India Assurance Co. Ltd. Bajaj House, Fourth Floor, Nehru Place, New Delhi ..Respondents AND FIRST APPEAL NO.116 of 2007 (From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the State Consumer Disputes Redressal Commission, Delhi) M/s. New India Assurance Co. Ltd. Jeewan Bharti Building Connaught Place, New Delhi-110001 .. Appellant Vs. 1. M/s. Ranutrol Ltd. F-85, Okhla Industrial Area, Phase-I New Delhi-110020 2. M/s. State India Express (Regd.) 1619, Madrasa Road, Kashmere Gate, Delhi-110006 ..Respondents BEFORE: - HONBLE MR. JUSTICE D.K. JAIN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Appellant in FA No. : Mr. K.S. Singh and Ms. 780/06 and Respondent No.2 Tripta, Advocates in FA No.116/07 For the Appellant in FA No. : Mr. Nitesh, Advocate 116/07 and Respondent No.2 in FA No.780/06 For the Respondent No.1 in : Mr. Aditya Kumar, both the Appeals Advocate O R D E R
(Pronounced on 18th November, 2013) D.K. JAIN, J., PRESIDENT These two appeals under section 19 of the Consumer Protection Act, 1986 (for short the Act) are directed against common order dated 03.11.06, passed by the State Consumer Disputes Redressal Commission, Delhi (for short the State Commission) in Complaint Case No. C-213/96. By the impugned order, the State Commission has awarded to the Complainant, a compensation of `4,54,272/- for the actual loss suffered by them due to the negligence of M/s. State India Express (Regd.), (for short, the Courier), the appellant in F.A No. 780/2006, on account of non-delivery of the goods booked with them to the consignee. The State Commission has also directed that the amount of compensation as also the cost of proceedings, quantified at `10,000/-, would be shared equally by New India Assurance Co. Ltd. (for short, the Insurance Company), the Appellant in F.A No. 116 of 2007, with the Courier.
2. The complainant Company, engaged in the manufacture of various goods including thermostats, booked a consignment of 50 boxes, containing 6000 pieces of thermostats, with the Courier on 09.06.1994 vide receipt No. 7824, on door delivery basis at Bombay. The consignee was M/s Godrej GE Appliances. As per the goods receipt the goods were valued at `4,54,272/-. The courier charges were `8,000/- on FOR basis. Admittedly, the consignment was insured with the Insurance Company.
3. On being informed by the consignee about non-receipt of the goods, the Complainant vide letter dated 26.6.1994 requested the Courier to look into the matter and take steps to trace the consignment. Having failed to get any response, vide letter dated 04.07.1994, the Complainant again asked the Courier to arrange for immediate delivery of goods, urgently required by the consignee. The Courier was also warned that in the event of any claim by the consignee due to non-delivery of the goods, they would be responsible.
4. Responding to letter dated 04.07.1994, the Courier, vide their letter dated 13.07.1994, informed the Complainant that one, Anil Sharma, an employee of the Complainant, had personally taken the delivery of the consignment on 11.06.1994 by producing the original goods receipt (GR) issued at the time of its booking, after making cash payment of `8,500/- towards cargo charges. It was alleged that being fully aware of delivery of the consignment to the said Anil Sharma, the complainant had never enquired from their delivery office about the whereabouts of the goods, which showed some conspiracy at the end of the Complainant. Thus, the Courier denied their liability towards the consignment.
5. By letter dated 04.08.1994, the Complainant again advised the Courier to trace out the consignment and deliver it to the consignee or in the alternative pay a sum of `4,54,272/- being the value of the goods. It was stated that if they do not get response from the Courier within 20 days of the receipt of the letter, the Complainant would be compelled to initiate legal proceedings against them. On 12.08.1994, the Complainant addressed yet another letter to the Courier asking them to make good the loss of `4,52,272/-, being the value of the consignment. Legal action for wrong delivery of consignment was also threatened. Since, the said communication has some bearing on the case, relevant portion of the same is reproduced below:-
In this context, please refer our letter no. RL: 94-95/ 1515 dt.
4th August 94, wherein it has been made abundantly clear to you that we have not authorized you to make delivery of the consignment to any person and it was not at all appropriate on your part to deliver the goods on the basis of a telephone call. You are, therefore, solely responsible for wrong delivery to an unauthorized person, and as such liable for consequent damages and loss. Accordingly, we once again advise you to make good our loss and send us your cheque for Rs.4,54,272/- being value of the consignment without any further delay, failing which we shall be left with no other alternate but to proceed against you in the Court of Law.
As has already been conveyed, we reserve our right to lodge further claim/damages due to wrong delivery of the consignment by you.
Having failed to get any response from the Courier, a complaint u/s 17 of the Act was filed by the Complainant. Since the copy of the complaint placed on record is undated, from the verification it is clear that the complaint was filed on or after 12.08.1996.
6. The complaint was resisted by the Courier. The para-wise written statement filed on their behalf was one of total denial. It was reiterated that the consignment was delivered to Anil Sharma as there was a specific endorsement of transfer in his favour on top of the G.R. at the request of the Complainant. Objection regarding territorial jurisdiction of the State Commission of Delhi was also raised. The Insurance Company chose not to file reply to the complaint.
7. As noted above, the stand of the Courier has not found favour with the State Commission. The State Commission has observed that admittedly, the consignee was Godrej G.E. Appliances and the stand of the Courier that the consignment was delivered to Anil Sharma on production of the Goods Receipt, could not be accepted because they have failed to place on record any delivery report. According to the State Commission mere possession and production of GR was not sufficient to establish that the consignment was actually received by Anil Sharma; as per the terms of the contract between the Complainant and the Courier, which is binding on the parties, the consignment had to be delivered directly to M/s Godrej G.E. Appliances and any endorsement on the original GR to deliver it to Anil Sharma was of no consequence.
Accordingly, finding the Courier guilty for deficiency in service, the State Commission has awarded the afore-stated compensation. Being aggrieved, both the Courier as well as the Insurance Company are before us in these two appeals.
8. We have heard Ld. counsel for the parties. Ld. Counsel appearing for the Courier contended that the complaint was time-barred inasmuch as, vide their letter dated 13.07.1994, while informing the Complainant about the delivery of the consignment to Anil Sharma on 11.06.1994, the Courier had denied their liability qua the Consignment. Yet, the complaint was filed only on 12.08.1996, i.e. beyond the period of two years from the date on which the cause of action had arisen. It was also urged that in absence of any evidence on record, the State Commission has erred in assessing the loss to the complainant to the tune of `4,54,272/-.
9. Ld. Counsel appearing for the Insurance Company submitted that since the services of the Courier were availed of by the Complainant for commercial purpose, the Complainant was not a Consumer within the meaning of Section 2(1)(d) of the Act and, therefore, the Complaint under the Act was not maintainable. The issue of territorial jurisdiction of the Delhi State Commission was also raised.
10. Ld. Counsel appearing for the Complainant, on the other hand, supported the decision of the State Commission. Written submissions on behalf of the Complainant have also been filed.
Dealing with the issue of limitation, it is pleaded that the cause of action in the matter arose and continued to arise from 11.06.1994, i.e. the date on which the consignment was allegedly delivered by the appellant to Anil Sharma. Thereafter, the complainant was engaged in correspondence with the Courier for a significant period and in any case till 12.08.1994, when the Courier was once again called upon to make good the losses suffered by the Complainant. It is thus asserted that even if the said letter is considered to be the last correspondence, the complaint filed on 12.08.1996 was within the period of limitation, as prescribed in Section 24A of the Act. On merits, it is urged that the contract between the Complainant and the Courier was for delivery of the goods to the consignee on door-delivery basis and, therefore, the alleged handing over of the consignment to Anil Sharma and that too without any contractual or otherwise understanding between the contracting parties was a clear case of gross deficiency in service. Controverting the stand of the Courier that the evaluation of quantum of loss is without any basis, it is pointed out that the value of the goods declared in the invoice, i.e. `4,54,272/-
which formed part of the complaint, was never disputed by the Courier or the Insurance Company.
Contesting the stand of the Insurance Company that they could not be made liable for the negligence of the Courier, it is urged that the consignment under transit being fully insured with them, its non-delivery to the consignee in violation of the terms of the contract makes the insurer equally liable under the transit insurance policy.
11. Thus, the first and the foremost question for consideration is whether on facts at hand, the complaint preferred by the Complainant was barred by limitation?
12. Before dealing with the question, it is necessary to note that neither in the written statement filed on behalf of the Courier nor during the course of hearing before the State Commission, objection as to the Complaint being time-barred was raised. Hence, the State Commission had no occasion to deal with the question. Nevertheless, the question of limitation being a question of law which can be raised at any stage of pending proceedings, we are of the opinion that in light of the provision in Section 24A of the Act, it is obligatory on our part to examine the issue irrespective of the fact as to whether such a plea had been raised before the State Commission. Moreover, there is no dispute on facts, material for determination of the question of limitation.
13. Section 24A of the Act prescribes limitation period for admission of a complaint by the Consumer Fora as under:-
[24A. Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay].
14. The aforesaid provision bars any fora set up under the Act, from admitting a complaint, unless the complaint is filed within two years from the date on which the cause of action has arisen. The provision expressly casts a duty on all the fora not to entertain a complaint which is filed beyond the period prescribed in the Section, unless the complainant satisfies the consumer forum, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.
15. In State Bank of India Vs. B.S. Agriculture Industries (I) (2009) 5 SCC 121 explaining the mandatory nature of Section 24-A of the Act, the Supreme Court has opined thus:-
11.
It would be seen from the aforesaid provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, shall not admit a complaint occurring in Section 24-A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within the limitation period prescribed thereunder.
12. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24-A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.
(Emphasis supplied by us)
16. Recently, in V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes (2011) 1 SCC 53, the Supreme Court has again explained the nature and scope of Section 24-A of the Act. Referring to its earlier decisions in State Bank of India Vs. B.S. Industries (I) (Supra) and Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr. (2009) 7 SCC 768, the Court held as under:-
15. Section 24-A(1) contains a negative legislate mandate against admission of a complaint which has been filed after 2 years from the date of accrual of the cause of action. In other words, the Consumer Forums do not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the Complainant, who can seek condonation of delay under Section 24-A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24-A(1). If the complaint is per se barred by time and the Complainant does not seek condonation of delay under Section 24-A (2), the Consumer Forums will have no option but to dismiss the same. Reference in this connection can usefully be made to the recent judgments in SBI Vs. B.S. Agriculture Industries (I) and Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd.
17. Therefore, as a matter of law, Section 24-A of the Act mandates that before admitting a complaint, all the forums, constituted under the Act, must examine whether or not the complaint under the Act has been preferred within two years from the date on which the cause of action has arisen.
18. The term cause of action has not been defined in the Act. Therefore, the term has to be interpreted keeping in view the context in which it has been used in the Act and the meaning assigned to it by judicial pronouncements. In Kandimalla Raghavaiah & Co. Vs. National Insurance Co. Ltd. & Anr. (supra) explaining the meaning and import of the term cause of action the Supreme Court has observed as follows:-
18. The term cause of action is neither defined in the Act nor in Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual or right to sue. Generally, it is described as bundle of facts, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, cause of action means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit.
19. Thus, the term cause of action is cause of action which gives occasion for and forms the foundation of the suit, which obviously has to be decided on the facts of each case. It has now to be seen as to when, on the facts of the instant case, the cause of action accrued.
20. As already noted, in response to Complainants letter dated 04.07.1994, the Courier informed them that one Anil Sharma, an employee of the Complainant, had taken delivery of the consignment on 11.06.1994. In unequivocal terms they told the Complainant that having delivered the goods on production of GR and payment of cargo charges, they had no liability qua the subject consignment. In so far as the Courier was concerned, for them the matter stood closed on the date of delivery. It is evident from the Complainants letters dated 04.08.1994 and 12.08.1994 (extracted above) that the substratum of their complaint against the Courier was delivery of goods to an unauthorised person viz. Anil Sharma and not the delivery at all. In this regard, it would be useful to reproduce paragraph 9 of the complaint filed by the Complainant with the State Commission, which reads:
9.
That the complainant resisted and objected against the conduct of respondent No. 1 for making delivery to an individual without proper authorization and without obtaining the booking receipt issued by respondent No. 1 and told them that you are fully responsible morally and legally for non-delivery of the consignment to the rightful consignee i.e. M/s Godrej, GE Appliances, Bombay. A copy of this letter dt. 04.08.1994 was also sent to the respondent No. 2- stressing and lodging claim under open policy No. 2131060200556 and certificate No. 73233 dated 17.06.1994. A copy of letter dt. 04.08.1994 is enclosed herewith and marked as Annexure H.
21. It is clear from the afore-extracted averment in the complaint and letters written by the Complainant to the Courier that cause of action on the basis of which the complaint was filed, was the alleged default on the part of the Courier in allegedly delivering the goods to Anil Sharma. Hence, the cause of action arose on that date and the period of limitation for the purpose of Section 24-A of the Act began to run from 11.06.1994.
Even if it is assumed for the sake of argument that the Complainant gained knowledge of delivery of consignment to Anil Sharma only on the receipt of letter dated 13.07.1994 from the Courier, even then the complaint having been filed on or after 12.08.1996 was clearly barred by time.
22. We are convinced that on facts at hand the complaint preferred by the Complainant on 12.08.1996, was clearly barred by limitation and in the absence of an application for condonation of delay in filing the same in terms of Sub-Section (2) of Section 24-A of the Act, it could not be admitted for adjudication. We are conscious of the observations of the Supreme Court in V.N. Shrikhandes case (Supra) that before dismissing the complaint as time-barred, an opportunity of hearing should be given to the Complainant, who can seek condonation of delay under Section 24-A (2) of the Act by showing that there was sufficient cause for not filing the complaint within the prescribed time. However, neither in the written submissions filed by the Complainant nor during the course of hearing such a prayer was made as the Complainant still believes that the cause of action arose only on 12.08.1994, when the Courier was threatened of legal action by them. Therefore, the question of grant of an opportunity to the Complainant to seek condonation of delay in filing the complaint does not arise.
23. In view of our above conclusion, it is unnecessary to deal with the questions relating to territorial jurisdiction or the quantum of compensation.
24. In the result, both the appeals are allowed, the impugned order of the State Commission is set aside and the complaint is dismissed. No costs.
25. The amount(s) deposited in terms of the second proviso to Section 19 of the Act shall be refunded to the respective Appellants.
.. . . . . .
(D.K. JAIN, J.) PRESIDENT . . . . . . . . . . . . . . . .
(VINEETA RAI) MEMBER . . . . . . . . . . . . . . . .
(VINAY KUMAR) MEMBER Yd /* NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.780 of 2006 (From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the State Consumer Disputes Redressal Commission, Delhi) M/s. State India Express (Regd.) 20-1, Hansraj Damodar Wadi, Near Kennedy Bridge, Mumbai-400004 ..
Appellant Vs.
1. M/s.
Ranutrol Ltd.
F-85, Okhla Industrial Area, Phase-I New Delhi-110020
2. New India Assurance Co. Ltd.
Bajaj House, Fourth Floor, Nehru Place, New Delhi ..Respondents AND FIRST APPEAL NO.116 of 2007 (From the Order dated 03.11.2006 in Complaint Case No.C-213/96 of the State Consumer Disputes Redressal Commission, Delhi) M/s. New India Assurance Co. Ltd.
Jeewan Bharti Building Connaught Place, New Delhi-110001 .. Appellant Vs.
1. M/s.
Ranutrol Ltd.
F-85, Okhla Industrial Area, Phase-I New Delhi-110020
2. M/s.
State India Express (Regd.) 1619, Madrasa Road, Kashmere Gate, Delhi-110006 ..Respondents Dear Brother, The draft order in above cases is enclosed herewith for your kind perusal, suggestions and approval.
With regards, .. . . . . . . . . . . .
. . .
(D.K. JAIN J.) PRESIDENT 11.11.2013 Honble Mrs. Vineeta Rai Member Honble Mr. Vinay Kumar Member
18. Tested on the touchstone of the above-noted principle, we are of the opinion that the complaint preferred by the Complainant on 12.8.1996, was clearly barred by limitation and in the absence of any application for condonation of delay, in filing the same in terms of Sub-Section (2) of Section 24 A of the Act, it could not be admitted for adjudication.