State Consumer Disputes Redressal Commission
1. Anl Parcel Service vs 1. M.Venugopal, Hand Loom Pure Lace Silk ... on 8 February, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/201/2015 (Arisen out of Order Dated 10/09/2015 in Case No. CC/287/2013 of District Hyderabad-II) 1. 1. ANL Parcel Service Represented by its agent Naidu, ANL Agent, APSRTC Bus Stand,, Dharmavaram, Anantapur, District Pin No.515671. 2. 2. M/s.Alliy Nitrides Ltd., R.p.Ch.N.V.Krishna Rao, Managing Director, Office at 05.09.30,1,5 of B, Basheerbagh Road No.4, Colony, Hyderabad 500063. ...........Appellant(s) Versus 1. 1. M.Venugopal, Hand Loom Pure Lace Silk Sarees, Managacturres represented by its Proprietor, M.venugopal Son of Venkataramappa, Aged about 40 years, Resident of D.No.30.332, Kothapeta, Dharmavaram Town, Anantapur District. 2. 2. APSRTC, Represented by its M.D. Bus Bhavan, R.T.C.Cross Roads, Hyderabad 500063. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 08 Feb 2018 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD F.A.No. 201 OF 2015 AGAINST C.C.NO.287 OF 2013 DISTRICT CONSUMER FORUM-II HYDERABAD Between ANL Parcel Service Rep. y its agent Naidu ANL agent, APSRTC Bus Stand Dharmavaram, Anantapur Dist.-515671 M/s Alliy Nitrides Ltd., R/p Ch.N.V.Krishna Rao Managing Director 5-9-30/1/5/B, Basheerbagh Rd.-4 Colony, Hyderabad-500063 Appellants/opposite parties No.1 &3 AND M.Venugopal, Hand-Loom Pure Lace Silk Sarees Manufactuers rep. by its Proprietor M.Venugopal, S/o Venkataramappa Aged about 40 years, R/o D.No.30/332, Kothapeta, Dharmavaram Town Ananthapur District Respondent/complainant TSRTC Rep. by its M.D. Bus Bhavan, RTC Cross Roads Hyderabad-500 063 Respondent/opposite party no.2 Counsel for the Appellants M/s Koka Satyanarayana Rao Counsel for the Respondent No.1 Sri K.Parandhamachari Counsel for the Respondent No.2 Not pressed QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
THURSDAY THE EIGTH DAY OF FEBRUARY TWO THOUSAND EIGHTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** This is an appeal filed by the opposite parties no.1 and 3 aggrieved by the orders of District Consumer Forum-II, Hyderabad, dated 10.09.2015 made in CC No.287 of 2013 wherein it allowed the complaint directing the opposite parties no.1 and 3 jointly and severally to pay to the complainant a sum of Rs.1,26,300/- with interest @ 9% p.a. from 14.11.2011 till the date of realization together with compensation of Rs.5,000/- and costs of Rs.2,000/-. The complaint against the opposite party no.2 is dismissed.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainants, in brief, is that the complainant is engaged in the business of Silk Sarees and running a shop in the name and style of "M.Venugopal, Handloom Pure Lace Silk sarees Manufacturers" to eke out his livelihood. In pursuance of the order placed by Putchala Silks Guntur, the complainant had sent 29 Silk sarees worth Rs.74,300/- vide invoice No.78 dated 12.11.2011 and 21 Silk sarees worth Rs.78,550/- vide invoice No.80 dated 12.11.2011 in total 51 silk sarees worth of Rs.1,52,850/- in three parcels through the opposite party No.1 by paying Rs.442/-. The complainant received a letter addressed by the consignee stating that the opposite party no.1 has not delivered the parcels. On enquiry, the opposite party no.1 informed that one parcel out of three has reached to Guntur and whereabouts of other two parcels was not known. The area Manager of the 1st opposite party, Kurnool addressed a letter dated 22.11.2011 admitting the shortage of consignment out of booked parcels and returned the available parcel with them containing 5 sarees to the complainant. The 1st opposite party has also collected an amount of Rs.630/- from the complainant towards returning charges for delivering back the available parcel to the complainant. Due to the careless and negligent act of the opposite parties, the complainant lost goods worth of Rs.1,26,300/- Hence, the complaint praying to direct the opposite parties to pay Rs.1,26,300/- with interest @ 24% per annum from 12.11.2011 together with Rs.20,000/- towards compensation and costs.
4. The opposite party no.1 resisted the case contending that the complainant was doing business for profit purpose. The complaint is not maintainable as the complainant is not a consumer. Under one receipt the complainant booked three boxes and out of them one box was delivered. The complainant did not enclose invoice. The person who had signed on the consignment note has to abide by the terms and conditions of the company. As per terms and conditions, the liability of opposite party no.1 is Rs.5/- per Kg. Further, the Consumer Forum has no jurisdiction to decide the matter since the dispute subject to Hyderabad jurisdiction only. The Forum has no jurisdiction to entertain the complaint. The complainant has not paid an amount of Rs.442/- towards transport charges because as per the goods consignment note, the consignment was booked undertaking to pay the transport charges by the party at the destination. If the consignment value is on higher side, the complainant ought to have insured the parcel. As a normal procedure 3 parcels dispatched from Dharmavaram through APSRTC Bus and only one parcel has been delivered and other two boxes are not delivered and they are on their job for searching the other two parcels. Hence, the opposite party no.1 prayed for dismissal of the complaint.
5. The opposite party no.2 resisted the case contending that the complainant is doing business and the said Handloom Pure Lace Silk Sarees manufacturer is a commercial establishment. The Consumer Forum has no jurisdiction to entertain complaint. The opposite party No.1's business and the opposite party No.2's business both are totally different. The second opposite party is no way concerned to the opposite party No.1 hence the complaint is liable to be dismissed against the opposite party no.2. The complainant has booked parcel with opposite party No.1 and if the consignment is not delivered, the opposite party no.1 alone is liable to pay compensation to the complainant. The agreement made between complainant and the opposite party no.1 is nothing but a by-party agreement not tripartite agreement. There is no specific agreement between complainant and the opposite party no.2. The complaint is liable to be dismissed for misjoinder of necessary parties. There is no deficiency of service on the part of the opposite party no.2. Hence, the opposite party no.2 prayed for dismissal of the complaint.
6. The opposite party no.3 also resisted the case contending that the complainant does not fall under the definition of consumer as he has failed to establish that he is running the alleged business for the livelihood of himself and his family and contended that the complaint is liable to be dismissed with costs. Further, the opposite party though admitted that the complainant has booked the parcel under the invoice and that only one parcel out of three was returned back to the complainant. The missing of the other two was beyond their control and that it cannot be blamed for any loss. Further opposite party no.3 also contended that the parcels booked with their agent were under sealed boxes and the complainant has neither disclosed the contents nor had produced the invoices at the time of booking the parcel. Therefore, the actual content of the parcel and the value was highly objectionable to them and the complainant is put to strict proof of the same. The opposite party also contended that the alleged invoices filed by the complainant are invented for the purpose of the present complaint as the alleged invoices do not contain the VAT or excise registration numbers which is mandatory for any manufacturer. Hence, the opposite party no.3 prayed for dismissal of the complaint.
7. In proof of the case of the complainant, the Proprietor has filed his evidence affidavit and got Exs.A1 to A8 marked. On behalf of the opposite party no.3, the Legal Manager of M/s ANL Parcel Services filed his evidence affidavit and no documents have been filed.
8. The District Forum after considering the material available on record, allowed the complaint bearing CC No.287 of 2013 by orders dated 10.09.2015 granting the reliefs, as stated in paragraph No.1, supra.
9. Aggrieved by the said decision, the opposite parties no.1 and 3 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District forum failed to see that the complainant is running the business of Lace Silk Sarees and as such the complainant does not come under the definition of C.P.Act and the District Forum has no jurisdiction to adjudicate the matter. As per Ex.A3 the jurisdiction of the courts is subject to Courts and Tribunals at Hyderabad and therefore the complaint was returned to the complainant with the observation of the erstwhile State Commission that the complainant is a consumer. The District Forum ought to have returned the complainant to file the same before the District Forum Ananthapur. The judgment cited by the District Forum in Chema Engineering Services Vs Rajan Singhand 1977(1) SCC 121 and Lakshmi Engineering Works Vs PGI Industrial Institute 1995 (III) SC Cases 583 has no application to the facts of the present case. As per the terms and conditions in the consignment receipt the complainant is entitled to damages of Rs.100/- only. Hence, the appellants prayed to allow the complaint by setting aside the order of the District Forum.
10. Counsel for the appellant and Mr.M.Hari Babu, Advocate represents counsel on record for respondent no.1 present and were heard. The counsel for appellants and the respondent no.1 filed their respective written arguments.
11. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief ?
12. The complainant is proprietor of handloom pure lace silk sarees and manufactures of sarees at Dharmavaram and also supplies the sarees to various parts of the State. He had sent three consignments to Puchala Silks, Guntur, 29 silk sarees worth Rs.79,300/-, 21 silk sarees worth Rs.78,550/- through the opposite party no.1 by paying Rs442/-. Of the three consignments two consignments had reached destination at Guntur and one consignment reportedly not delivered to the consignee. The complainant claims for return of the consignment or value thereof on the premise that the consignment contained sarees worth Rs.1,26,300/- whereas the opposite parties contend that the contents of missing consignments were not disclosed nor the value of the contents.
13. The first contention of the learned counsel for the complainant is that he has been doing business in the business of manufacturing and sale of handloom pure lace silk sarees for the purpose of earning his livelihood and that of his family.
14. The complainant earlier filed the complaint before the District Forum Ananthapur and the District Forum dismissed the complaint observing that the complainant is not a consumer as he is running the business of manufacturing and sale of handloom sarees. Aggrieved by the said order the complainant preferred appeal F.A.No.585 of 2012 wherein the erstwhile Commission allowed the appeal directing the complainant to present the complaint before the forum having territorial jurisdiction. While returning the complaint the erstwhile commission has clarified the objection raised by the opposite parties with regard to the commercial purpose that stated to have been carrying out by the complainant. The erstwhile Commission cited the judgment of the Hon'ble Supreme Court in Cheema Engineering Works Vs Rajan Singhand 1997(1) SCC 131 wherein the Supreme Court has observed:
4. If any goods are purchased for consideration, paid or promised or partly paid or under any system of deferred payment including any user of such goods other than the person who by such goods for the consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person the purchaser is the 'consumer' within the meaning of the Act. But the Act provides for certain exceptions, namely, "does not include a person who obtains such goods for resale or any commercial purpose; or...
The Explanation to the definition of 'consumer' has been added by way of an amendment in 1993 which reads as under:
Explanation for the purposes of Sub-clause (i) "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.
In other words, the Explanation excludes from the ambit of commercial purpose in Sub-clause (i) of Section 2(1)(d) , any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is: whether the respondent has been using the aforesaid machine for self-employment? The word 'self-employment' is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self-employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but "merely earning livelihood in commercial business", does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside.
15. The erstwhile commission also relied on the judgement in Lakshmi Engineering Works vs PGI Industrial Institute 1995(III) SC cases 583 wherein, the Supreme Court has elaborately dealt with the concept of self-employment as follows:
The National Commission appears to have been taking a consistent view that where a person purchases goods "with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit" he will not be a "consumer" within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion the expression "large-scale" is not a very precise expression the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression "commercial purpose" - a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others' work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for "commercial purpose" would not yet take the purchaser out of the definition o expression "consumer". If the commercial use is by the purchaser himself for the purpose of earing his livelihood by means of self-employment, such purchaser of goods is yet a "consumer". In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self- employment, for earning his livelihood, it would not be treated as a "commercial purpose" and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a "commercial purpose", to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., "uses them by himself", "exclusively for the purpose of earning his livelihood" and "by means of self-employment" make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasis what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate with himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions "used by him", and "by means of self-employment" in the explanation. The ambiguity in the meaning of the words "for the purpose of earning his livelihood" is explained and clarified by the other two sets of words.
16. Therefore, on application of the ratio laid in Cheema Engineering Works and Lakshmi Engineering Works to the facts of the case on hand, we are of the considered opinion that the appellant can be considered as consumer within the meaning of sec.2(1)(d) of C.P.Act.
17. Not only that there is nothing to show that Handloom Pure Lace Silk Sarees Manufacturer is either a Limited or Private Ltd. Company. Therefore, even if it is assumed for the sake of argument that the consignment was indeed booked for commercial purpose, it is to be kept in mind that mere commercial nature of a transaction does not oust right to exercise the jurisdiction of Consumer Fora to adjudicate a consumer dispute. The Act clearly stipulates that "commercial purpose" does not include services availed by a person exclusively for the purposes of earning his livelihood by means of self-employment. The name of the organization, Handloom Pure Lace Silk Sarees Manufactures itself is suggestive of the fact that it is a Proprietorship concern. Therefore, to our mind, it leaves no scope for any kind of speculation that the instant dispute has rightly been filed before the District Forum by the Complainant. Objection of the appellants Parcel Service does not hold any water.
18. It is further argued by the appellants that no Court or Tribunal can go into or re-write the terms of a valid and enforceable agreement. Therefore, even if it is held liable for any sort of deficiency in service, compensation amount cannot go beyond what is stipulated in the Consignment Note. It is more often than not seen that in order to avoid computable liability for negligent services, Parcel/Courier Companies draft highly unfair, one-sided terms and conditions. It is done for the ostensible purpose of restricting the compensation amount, in case of non-delivery, to a ridiculously meagre sum that is totally disproportionate to the actual loss suffered by the consumer. This is totally against public policy.
19. The Hon'ble Supreme Court in its celebrity authority in Central Inland Water Transportation Ltd. & Anr. vs. Brojo Nath Ganguly & Anr., reported in 1986 SCR (2) 278 observed thus "Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. This principle is that the Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract entered into between parties who are not equal in bargaining power. The above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creating of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however, unfair unreasonable or unconscionable a clause in that contract or form or rules may be. This principle will not apply when the bargaining power of the contracting parties is equal or almost equal. this principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infrastructural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. The Court must judge each case on its own facts and circumstances when called upon to do so by a party under section 31(1) of the Specific Relief Act, 1963. [370 A-G] 290.
In the vast majority of cases, however, such contracts with unconscionable term are entered into by the weaker party under pressure of circumstances, generally economic, which results in inequality of bargaining power. Such contracts will not fall within the four corners of the definition of "undue influence" as defined by section 16(1) of the Indian Contract Act. The majority of such contracts are in a standard or prescribed form or consist of a set of rules. They are not contracts between individuals containing terms meant for those individuals alone. Contracts in prescribed or standard forms or which embody a set of rules as part of the contract are entered into by the party with superior bargaining power with a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable are injurious to the public interest. To say such a contract is only voidable would be to compel each person with whom the party with superior bargaining power had contracted to go to Court to have the contract adjudged voidable. This would only result in multiplicity of litigation which no Court should encourage and also would not be in public interest. Such a contract or such a clause in a contract ought, therefore, to be adjudged void under section 23 of the Indian Contract Act, as opposed to public policy. [[371 C-H].
The Indian Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, such expressions are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well-recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. The principles governing public policy must be and are capable on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become abnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declares such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority, Indian Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution. [372 A-D; 373 C-E] The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The types of contracts to which the principle formulated in this case applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the Court. They are opposed to public policy and required to be adjudged void. [373 F; 374 D-E]".
20. Be that as it may, it appears that the complainant cannot ascertain with certainty as to whether or not terms and conditions as stipulated in the Consignment Note was duly apprised to the Complainant before sending the consignment. It is the settled position of law that where there is no conscious agreement between the parties, the unilateral conditions incorporated in the Consignment Note will not be binding on the parties. Accordingly, the plea that the appellants cannot be held liable beyond the scope of terms and conditions as contained in the Consignment Note, is totally a misnomer.
21. The essence of contention, i.e., non-delivery of consignment is not in dispute. It appears from the copy of Invoices that the Complainant sent goods worth Rs. 1,52,850/- through the appellants after paying due service charge for that purpose. As a parcel service, the appellants were duty bound to ensure safe and timely delivery of the consignment to the addressee, which it could not ensure. Therefore, there is no reason, why a hapless consumer should bear the brunt of laxity on the part of the service provider for which they charge a consumer through the roof. Accountability can only be restored if we show zero tolerance towards acts of laxity. In our considered view that the appellants should be held liable to make good every penny of the loss suffered by the Complainant.
22. For the reasons given by the District Forum and some of the reasons given by this Commission, this appeal is devoid of merits and liable to be dismissed confirming the orders of the District Forum.
In the result this appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs. Time for compliance four weeks.
PRESIDENT MEMBER 08.02.2018 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER