National Consumer Disputes Redressal
M/S. Gati Ltd. vs H.C. Saxena on 26 April, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2031 OF 2010 (Against the Order dated 16/03/2010 in Appeal No. 1702/2005 of the State Commission Haryana) 1. M/S. GATI LTD. 1-7-293, M.G. Road Secunderabad - 500003 Andhra Pradesh 2. GATI LTD. Godown No. 11, Phase-II Chandigarh 3. GATI LTD. 1720, Jaggi Complex, Model Town, Near Kingfisher Hotel Ambala City Haryana ...........Petitioner(s) Versus 1. H.C. SAXENA M/s. International Biological Laboratories Cross Road No. 8 Ambala Cantt. Haryana ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER For the Petitioner : Mr. S.K. Jha, Advocate For the Respondent : Mr. Vivek Gupta, Advocate Mr. Mrinmay Bhattmewara, Advocate Mr. Nikhilesh Bhagi, Advocate Dated : 26 Apr 2019 ORDER HON'BLE MR. DINESH SINGH, MEMBER
1. Heard learned counsels for the revision petitioners - courier co. and the respondent - complainant, and perused the material on record.
2. The rival contentions have been succinctly articulated by the District Forum in paras 2 and 3 of its Order dated 05.08.2005:
2. The brief facts of the present compliant are that complainant booked 95 boxes of scientific goods on 14.1.04 for delivery at Guwahati of the value of Rs. 5,28,201-44 Paise. Complainant vide letter No.IBL/GL/04 dated 14.01.2004 gave instructions to the respondents to release the goods to the consignee as under:-
i) That the goods are glassware and are of breakable nature, thus take due care of the goods and ensure that they are not dropped or mishandled.
ii) That the goods be released to the consignee only on receipt of demand draft payable to M/s. International Biological Laboratories, Ambala Cantt. for Rs. 2,28,201/- and cheque for Rs. 3,00,000/- payable not later than 15.02.2004 in favour of M/s. International Biological Laboratories, Ambala Cantt. duly certified by the issuing bank confirming that the cheque is good for payment."
Inspite of above instructions, respondents released the goods to the consignee against a demand draft of Rs. 228201/- and has also violated the instructions of the complainant, and have failed to receive the cheque of Rs. 3,00,000/- payable not later than before 15.02.2004 as instructed by the complainant. Complainant also sent a notice dt. 2.2.04 upon the respondents to comply the instructions of the complainant in toto. OPs handed over to the complainant bogus and forged cheque on which the date is unreadable and the complainant refused to receive the same. Hence, the present complaint.
3. After issuing the notice, OPs appeared through his counsel and filed a detailed written statement with several preliminary objections alleging that present complaint is maintainable; complainant is not a consumer. Total transaction is of commercial nature, in case of dispute, matter shall be referred to an Arbitrator. This Forum has got no jurisdiction to entertain and try the present complaint. There is no deficiency in service on the part of the OPs and further prayed for dismissal of the present complaint.
(paras 2 and 3 of the District Forum's Order)
3. The District Forum heard both sides, appraised the evidence, and, vide its Order dated 05.08.2005, allowed the complaint:
6. Counsel for complainant vehemently argued that Ops have not delivered the goods as per the terms & conditions issued by the complainant in his letter No. IBL-GL-4 dt. 14.1.2004. OPs handed over a draft of Rs.2,28,201/- to the complainant but has not handed over the cheque amounting to Rs. 3,00,000/- duly certified by the issuing bank confirming this cheque is good for payment. Complainant also issued a legal notice to the OPs through his counsel but to no effect. Respondents are liable to pay amount of Rs. 3,00,000/- with interest @ 18% P.A. as compensation for harassment and mental agony. On the other hand, counsel for the OPs strongly contended that a cheque amounting to Rs. 3,00,000/- was handed over to the complainant but the complainant has not accepted the same, on saying that this cheque is not issued after confirming the Bank Manager that this amount is lying in the account of the OPs. At the time of booking, complainant issued the directions to the OPs as per letter annexure C.7 which has not been complied by the OPs. Counsel for Opp. parties relied upon citation in 1996 (1), ACJ, page-60 S.C. Indiat it ledas Rajiv Metal Works & Ors. Vs. The Mineral & Metal Trading Corporation of India Ltd. which is held as under:-
"Consumer Protection Act, 1986, S. 2(1)(d) - Consumer - when the goods are exchanged between a buyer and the seller for commercial purpose or for re-sale, such a commercial transaction is excluded from the purview of the Act."
Consumer for complainant has also referred another citation in CLT-2002(2) page-428 passed by National Commission, New Delhi titled as Tata Chemicals Ltd. Vs. Skypak Couriers Pvt. Ltd. which is held as under:-
"Contracts in standard form-Reasonable sufficiency of notice-When there is a condition in a contract signed by both the parties that condition printed in small and fine print is meant to limit the liability of one of the parties - it should be construed strictly - Small and fine print should be clearly discernible and should draw the pointed attention of the consumer - If, however, there is no such contract entered into by both the parties, there must be proof that the terms which are printed on the reverse are otherwise notified elsewhere have been brought to the notice of the consumer or at least that all could be reasonably done in that regard has been done by the opposite party to bring the same to the notice of the consumer - such a term could be in bold print and it should be easily readable so that a consumer can not miss reading it and understand it - A small print would amount to a communication only when attention of consumer could be specially drawn on it."
Counsel for complainant relied upon citation referred in 1993 (1) CLT - 179 N. C. titled as Synco Textiles Pvt. Ltd. Vs. Economic Transport Organisation and others. Counsel for complainant has also referred in 1995(1) CLT - 481 S.C., Delhi in case titled as Ahuja Traders Vs. Canara Bank.
7. We have heard the Ld. counsel for both the parties and have also gone through the record on file with carefully.
8. It is pertinent to mention here that OPs have not handed over the cheque of Rs.3,00,000/- to the complainant as per the terms & conditions issued at the time of booking which is annexure C.7. At the time of booking, OPs received the same and after receiving the terms & conditions the representative of the OPs signed the same which is on the file. During the pendency of the complaint, OPs wants to hand over the cheque to the complainant but the complainant refused to receive the same on the ground that this cheque is not properly verified by the issuing Bank. OPs never tried to submit writing of the issuing bank regarding sufficient amount in the account of OPs.
9. We are of the considered opinion that the deficiency in rendering services on the part of the OPs is clearly established without any hesitation. Complainant is a senior citizen and carrying the supply of scientific goods national & international level.
10. With the above detailed discussions, we are of the considered view that the complainant has been able to bring home the deficiency in rendering services on the part of the OPs. Hence, the present complaint succeeds; liable to be accepted and the same is hereby allowed with costs. OPs are jointly and severally directed to comply with the following directions within a period of 30 days after the receipt of this order:-
i) To pay Rs. 3,00,000/- with interest @ 15% P.A. from the date of filing the complaint till its payment.
ii) To pay Rs. 1,00,000/- as compensation for harassment and mental agony.
iii) To pay Rs. 500/- towards costs of proceedings.
(paras 6,7, 8, 9 and 10 of the District Forum's Order) (emphasis supplied)
4. The courier co. appealed in the State Commission. The State Commission heard both sides, (again) appraised the evidence, and, vide its Order dated 16.03.2010, concurred with the findings of deficiency in service, and partially modified the award by reducing the compensation from Rs. 1 lakh to Rs. 50 thousand:
We have gone through the impugned order and taken into consideration the facts and circumstances of the case and are of the view that in the instant case the stand of the opposite parties was that booking was commercial one, therefore, complainant cannot be treated as a consumer. In the answer to the above plea, the District Forum has relied upon the citation of the Hon'ble National Commission in case Tata Chemicals Limited (supra). Even otherwise also, the opposite parties were service provider for delivery of the goods to its destination as per the agreement entered into between the parties. Therefore, any booking made with the service provider under the agreement cannot be termed as commercial one. Admittedly, in the present case, on account of negligent and deficient service on the part of the opposite parties, complainant has suffered the financial loss of its payment of delivered goods. In this view of the matter, the deficiency in service on the part of the opposite parties cannot be denied and for that reason the District Forum was justified in accepting the complaint. At the same time granting of compensation amount of Rs. 1,00,000/- by the District Forum appears to be on the higher side, hence, the same is reduced to Rs. 50,000/-.
With the above modifications in the impugned order, the appeal is disposed of without any further alternation in the relief granted by the District Forum.
(extract of the State Commission's Order) (emphasis supplied)
5. The instant revision petition has been filed before this Commission by the courier co. against the said Order dated 16.03.2010 of the State Commission.
6. The facts of the case are simple. The complainant booked goods through the courier co. for delivery to a consignee at Guwahati; the complainant vide its letter dated 14.01.2004 gave clear written instructions to the courier co. to deliver the said goods only on receipt of (a) demand draft of Rs. 2,28,201/- payable in its favour and (b) cheque of Rs. 3 lakh payable in its favour issued not later than 15.02.2004 and duly certified by the issuing bank that the same is good for payment; the goods were delivered in violation of its written instructions apropos (b) afore; the courier co. delivered the goods to the consignee without ensuring, one, that the cheque of Rs. 3 lakh was issued before the said stipulated date (15.02.2004), and, two, that it was duly certified by the issuing bank that the same was good for payment; the courier co. handed over a "bogus and forged" cheque of Rs. 3 lakh on which the date of issue was not readable and neither was it established (or establishable) in any way that sufficient funds were available in the account of the consignee so as to make good the payment of the cheque to the complainant.
7. We find the impugned Order of the State Commission to be well-appraised and well-reasoned. The State Commission concurred with the District Forum. We note in particular the extracts of the respective appraisals / observations made by the two fora, quoted, verbatim, in paras 3 and 4 above. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
8. Deficiency in service within the meaning of section 2(1)(g) and 2(1)(o) of Act 1986 has been clearly determined against the courier co. by the two fora below, and we see no reason evident to interfere with their findings. And we find the modified award made by the State Commission to be just and equitable.
9. The dispute relates to 2004, we are in 2019. It is quite evident that the courier co., after its deficiency in service, (then) agitated, unsuccessfully, in one, two, and now three, consumer fora, needlessly wasting public time and monies. The complainant has been unnecessarily and unwarrantedly made to suffer for about one and a half decades. It is seen that the time and resources of this Commission have (also) been thus wasted, in such manner.
10. The revision petition, being misconceived and devoid of merit, is dismissed with stern advice of caution to the courier co. through imposition of cost of Rs. 50,000/- to be deposited in the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of this Order. The impugned Order dated 16.03.2010 of the State Commission is upheld and affirmed.
11. Needless to add that the District Forum shall undertake execution as per the law.
12. Let a copy of this Order be sent to the District Forum by the Registry within ten days of pronouncement of this Order.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER