National Consumer Disputes Redressal
M/S. Gati Ltd. vs M/S. Synergetic Automation ... on 8 February, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1320 OF 2006 (Against the Order dated 28/02/2006 in Appeal No. 794/2005 of the State Commission Delhi) 1. M/S. GATI LTD. 10/8-9 CHALTI SADAN OLD DELHI GURGAON ROAD SAMALKHA NEW DELHI 37 ...........Petitioner(s) Versus 1. M/S. SYNERGETIC AUTOMATION TECHNOLOGIES N-150 SECTOR 12 TEACHER COLONY PRATAP VIHAR GHAZIABAD UP ...........Respondent(s) REVISION PETITION NO. 3436 OF 2006 (Against the Order dated 28/02/2006 in Appeal No. 794/2005 of the State Commission Delhi) 1. M/S. SYNERGETIC AUTOMATION TECHNOLOGIES THROUGH ITS , SHRI G. S. SAINI SOLE PRORIETOR NOW CARRYING ON BUSINESS FROM RESIDENCE - CU - OFFIC B-64. C, SHYAM PARKEXTENSION SAHIBABAD . GHAZIABAD U.P ...........Petitioner(s) Versus 1. M/S. GATI LIMITED 10/8-9. GHALTISADAN OLD DELHI GURGAON ROAD , SAMALKHA NEW DELHI -110037 ...........Respondent(s)
BEFORE: HON'BLE DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. PREM NARAIN,MEMBER For the Petitioner : Mr. Sanjeev Kumar Sharma, Advocate for For M/s Gati Limited For the Respondent : Mr. G.S. Saini, A.R. for For M/s. Synergetic Automation Technologies Dated : 08 Feb 2017 ORDER PER DR. B.C. GUPTA, MEMBER These two revision petitions filed under section 21(b) of the Consumer Protection Act, 1986 have arisen out of the impugned order dated 28.02.2006, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as 'the State Commission') in Appeal No. 794/2005, "M/s. Gati Limited Vs. M/s. Synergetic Automation Technologies", vide which, while partly allowing the said appeal, the order dated 18.08.2005, passed by the District Forum New Delhi in consumer complaint No. 406/2005, filed by the present respondent, allowing the said complaint, was modified.
2. Briefly stated, the facts of the case are that the complainant M/s. Synergetic Automation Technologies, booked a parcel of goods with the opposite party (OP), M/s. Gati Limited at Ghaziabad, U.P. on 26.06.99 for delivery at Bhopal, M.P. to M/s. Pacific Marketing as per invoice 0120 (Challan No. 009, dated 26.06.99). The value of the goods was ₹1,73,521.92/-. It has been alleged in the consumer complaint that the OP M/s. Gati Ltd. failed to bring receipt from the consignee and hand over the same to the complainant in token of the consignee having accepted the said goods after delivery. The consignee was also liable to give C-Form to the complainant, which was to be submitted by the complainant to the Authorities of the Sales-Tax Department. The complainant filed the consumer complaint, in question, seeking directions to the OP to make payment of ₹4,14,532.92ps. alongwith interest @9% p.a. which included the amount of goods mentioned in the invoice as well as compensation for business loss, expenses incurred and mental pain and agony suffered.
3. In the reply to the complaint filed by M/s. Gati Ltd. before the District Forum, it was stated that the District Forum at New Delhi, did not have the territorial jurisdiction to deal with the complaint. Moreover, the complaint was time-barred, having been filed beyond the statutory time prescribed under the Consumer Protection Act, 1986. The complaint was also bad for non-joinder of the parties, because the consignee M/s. Pacific Marketing had not been impleaded as a party. The OP maintained that there was no deficiency in service on their part. The OPs denied the allegations against them in the consumer complaint.
4. A perusal of the record indicates that the complaint No. 280/2002 was filed before the District Forum on 08.05.2002. It was dismissed by the said forum vide order dated 10.10.2002 on the ground that the District Forum had no territorial jurisdiction to entertain the complaint. The complainant challenged the said order by way of an appeal before the State Commission, which was allowed vide order dated 08.09.2003 and the District Forum was directed to decide the case afresh. Vide order dated 11.02.2005, the complaint was allowed by the District Forum. The OP M/s. Gati Limited preferred an appeal against the said order, which was allowed by the State Commission vide order dated 04.05.2005, and the matter was again sent to the District Forum for a fresh decision. Accordingly, the District Forum again decided the complaint vide order dated 18.08.2005 and the operative part of the order passed by the District Forum is as follows:-
"We, therefore, direct the OPs to pay to the complainant value of the goods booked, i.e., a sum of ₹1,73,521.92ps. or to make it round figure ₹1,73,520/- alongwith interest @12% from 26.6.1999 (date of booking of the goods with the OPs) till the date of payment. The OPs are, furher, directed to pay a sum of ₹20,000/- to the complainant as compensation for mental tension, agony and harassment and ₹5,000/- as litigation expenses."
5. Being aggrieved against the above order of the District Forum, the OP challenged the same before the State Commission by way of an appeal which was decided vide impugned order dated 28.02.2006. The State Commission stated in their order as follows:-
"In the result we allow the appeal partly by maintaining the refund of ₹1,73,521.92ps. and ₹20,000/- as compensation which shall include the cost of litigation for deficiency in service and set aside rest of the order. The aforesaid payment shall be made within one month."
6. Being aggrieved against the said order, the complainant as well as the OP are before this Commission by way of the present revision petition. This single order shall dispose of both these revision petitions and a copy of the same be placed on each file.
7. Both the parties have filed their written arguments on record as well as led their oral arguments. The Ld. Counsel for the petitioner/OP M/s. Gati Limited, stated that the orders passed by the Consumer Fora below were not in accordance with law, as the consignment having been booked at Ghaziabad UP, the cause of action had arisen over there and hence, the Consumer Fora at Delhi could not take cognizance of the matter. The Ld. Counsel also stated that the Consumer Complaint was barred by limitation under section 24A of the Consumer Protection Act, 1986. Moreover, it was not a case of continuing cause of action, as the complainant did not have any contact with the OP for a long time and had suddenly approached them to get proof of delivery. There was no letter on record from the consignee that the material had not been received by them. The complaint was barred for non-joinder of necessary parties as the consignee had not been impleaded as a party. The Ld. Counsel has also stated that it was mandatory on the part of the complainant to send notice under section 10 of the Carriers Act, 1865 before proceeding against the OP. Further, the complainant having been engaged in a large scale business in manufacturing, marketing and sale of goods, did not come under the category of consumer vis-à-vis the petitioner/OP. The complaint, therefore, deserved to be dismissed.
8. Per contra, the respondent who appeared in person argued that there was a clear deficiency in service on the part of the OP in the case. The non-delivery of the goods to the consignee had been admitted by the OP, as was evident from their letter dated 18.03.2002 in which it was stated that the consignee was not giving signatures in lieu of having received the goods. Regarding the issue of limitation, the complainant has stated in his written arguments that it was a case of continuing cause of action, as the goods were not delivered to the consignee at all. Referring to section 10 of the Carriers Act, 1865, the stand of the complainant is that notice to the OP under that section was not required to be issued in view of the Judgment of the Hon'ble Supreme Court in "Transport Corporation of India vs. Veljan Hydrair Ltd." [(2007) 3 SCC 142]. It is further stated by the complainant that the consignee was not a necessary party in the case, as the goods had not been delivered to them.
9. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
10. The basic issue that requires our consideration is whether the goods in question were delivered to the consignee at all and whether there is any evidence on record to say so. However, before doing so, it shall be worthwhile to have a look at other issues concerning limitation, jurisdiction etc.
11. The issue of territorial jurisdiction has been discussed in detail in the order of the District Forum. The District Forum observed that with the amendment in section 11(2) of the Consumer Protection Act, 1986 made effective from 18.06.1993, the words, "Carries on business or has a branch office or the..........." were added. The complaint could, therefore, be filed at Delhi, because the petitioner had a branch office at Delhi. The case of the petitioner, however, is that in the judgment made by the Hon'ble Supreme Court in "Sonic Surgical vs. National Insurance Co. Ltd." [(2010) 1 SCC 135], a case could be filed only at the place, where the petitioner had its branch office and also the cause of action had arisen. The Hon'ble Court observed in their order as below:-
"In our opinion, the expression "branch office" in the amended Section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity. (Vide G.P. Singh's Principles of Statutory Interpretation, 9th Edn., 2004, p 79.)"
12. The Hon'ble Court observed that taking such a view would be departing from the plain and literal words in the section, but such departure is sometimes necessary as it was in that case. In the case, "Sonic Surgical vs. National Insurance Co. Ltd." (supra) it was a case of fire that broke out at Ambala, the insurance policy was taken at Ambala and the claim for compensation was also made at Ambala. Hence, no part of the cause of action had arisen in Chandigarh, so as to file the complaint over there. In the present case, it is revealed from the memo of parties attached with the revision petition that the petitioner/OP has given its address of New Delhi, while filing the petition. The appeal was also filed before the State Commission by the Delhi office of M/s. Gati Limited. In their written statement filed before the District Forum as well, the opposite party M/s. Gati Limited stated in the opening paragraph that Sh. R. Udai Mishra, serving as Manager (Legal) at the Divisional Office of the Principal at Delhi was the legally appointed power of attorney of the OP to file the written statement. It is clear from these facts that the petitioner/OP has been contesting the case from New Delhi and hence, it shall not be appropriate for the petitioner to take the position that the case could not be handled by the Consumer Fora at Delhi. The observation made by the Hon'ble Apex court in "Sonic Surgical vs. National Insurance Co. Ltd." (supra) is at best "Obiter," depending upon the facts in that case. The orders passed by the Consumer Fora below are, therefore, not bad in the eyes of law on the issue of territorial jurisdiction.
13. In so far as the limitation in filing the case is concerned, the petitioner/OP have not stated anywhere categorically that the goods were delivered to the consignee on a particular date. We have no reason to disagree with the findings of the Consumer Fora below that this is a case of continuing cause of action, as no proof of the delivery of the goods is available.
14. Now coming to the requirement of notice under section 10 of the Carriers Act, 1865. It has been stated in the case of "Transport Corporation of India vs. Veljan Hydrair Ltd." (supra), as follows:-
"The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously Section 10 will not apply. Similarly, where the common carrier informs the person entitled to delivery (consignor/consignee/owner) that the consignment is being traced and process of tracing it is still going on and requests him to wait for the consignment to be traced and delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor/consignee, will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in Section 10 will not apply to a claim based on such non-delivery. In fact Section 10 does not use the word "non-delivery" of goods, but uses the words "loss of, or injury to, goods". A case of "non-delivery" will become a case of "loss" of consignment, only when the common carrier informs the consignor/consignee about the loss of the consignment."
15. A plain reading of the above order indicates that there is no requirement to issue notice under section 10 of the Carriers Act, 1865, in a case involving the non-delivery of goods. In the present case as well, the case of the complainant is that the goods were never delivered to the consignee at Bhopal. It is, therefore, a case of non-delivery of goods.
16. We also have no reason to agree with the contention of the petitioner/OP that the case is bad for non-joinder of the necessary parties. There is no proof of the goods having been delivered to the consignee, and hence, he does not become a necessary party in the case.
17. Now coming to the main issue about the delivery of goods, it becomes abundantly clear from the material on record, including the replies made by the OP before the Consumer Fora and the position taken by them in the Memo of Revision Petition or Memo of Appeal that they have nowhere stated that the goods were delivered to the consignee on a particular date. They have also not produced any receipt or documents etc. in support of the contention that the goods were delivered to the said consignee. The challenge made by the petitioner is confined only to the issues regarding jurisdiction, limitation etc., but they have not been able to establish anywhere that they delivered the goods to the consignee. The concurrent findings recorded by the Consumer Fora below, therefore, that the OP, M/s. Gati Limited is liable to compensate the complainant for the non-delivery of goods, do not require any interference in the exercise of the revisional jurisdiction. Hon'ble Supreme Court have taken the view in the case of "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. (2011) 11 SCC 269" that the powers of revisional jurisdiction could be exercised only, if there was a patent error of jurisdiction or miscarriage of justice in the orders passed by the Consumer Fora below.
18. The District Forum directed the OPs to pay to the complainant the value of the goods, i.e., ₹1,73,521.92ps. alongwith interest @12% p.a. from the date of booking, i.e., 26.06.99 till realisation. They also directed them to pay compensation of ₹20,000/- for mental tension, agony etc. and ₹5,000/- as litigation cost. The State Commission, however, modified this order by saying that the compensation of ₹20,000/- and interest could not be given simultaneously. In their wisdom, the State Commission directed the OP, M/s. Gati Limited, to pay only a sum of ₹20,000/- as compensation and not interest on the amount awarded.
19. Keeping in view the facts and circumstances of the case, when the complaint itself was filed after a long time of the consignment having been booked with the carrier, we do not find any reason to disagree with the conclusion arrived at by the State Commission. It is held, therefore, that there is no infirmity, irregularity or jurisdictional error in the order passed by the State Commission and the same is ordered to be upheld. Both the revision petitions are accordingly dismissed with no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER