State Consumer Disputes Redressal Commission
Arora Registration Service vs Courier Hub And Ors. on 7 September, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.171 of 2021
Date of Institution : 29.04.2021
Date of Reserve : 24.08.2022
Date of Decision : 07.09.2022
Arora Registration Service, through its sole proprietor Kamal
Kishore Arora Advocate, E-407, Ranjit Avenue, Amritsar, Amritsar-
143001 (Pb.)
....Appellant/Complainant
Versus
1. Courier Hub-M/s Bhavya Enterprises, Shop No.3, National
Shopping Complex, Amritsar, Mob. No.98149-43385.
2. Overnite Express Ltd., Overnite House, 11099-C, East Park
Road, New Delhi-110005, Tel.+91-11-23510131, Fax:+91-11-
23516164 / 23634985, Email : [email protected]
3. M/s FedEx, Through : FedEx Authorized ShipCenter, Nation
Complex, Hide Market, Ranbagh, Amritsar-143001 (Pb.)
Alternatively through: FedEx World Service Centre Khasra
No.37/7/2,8,13min, Khankot Village, Near Veer Group, Outside
Garden Enclave Colony, Amritsar-143501 (Pb.), Tele No.0183-
2580082
4. The Registrar of Trade Marks, Boudhik Sampada Bhavan,
Antop Hill, S.M.Road, Mumbai-400037, Tele No.:022-24132735,
24123322, Email : [email protected]
........Respondents/Opposite parties
First Appeal under Section 15 of the
Consumer Protection Act, 1986 against the
order dated 04.03.2020 of the District
Consumer Disputes Redressal Forum (now
'Commission'), Amritsar.
First Appeal No 171 of 2021 2
Quorum:-
Mr.Harinderpal Singh Mahal, Presiding Judicial Member
Present:-
For the appellant : Sh.Gaurav Arora, Advocate For respondent No.1,2&4 : Ex-parte For respondent No.3 : Sh.Abhinav Punj, Advocate HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER This appeal has been preferred by the appellant/Complainant-Arora Registration Service against the order dated 04.03.2020 passed by the District Consumer Disputes Redressal Forum (now 'Commission'), Amritsar, whereby the complaint filed by the appellant/complainant was allowed and opposite parties No.1 & 2 were directed to provide proof regarding the delivery of documents to opposite party No.4 on 26.07.2018. They were further directed to pay compensation to the tune of Rs.25,000/- along with litigation expenses of Rs.10,000/-.
2. Briefly stated facts before the District Commission are that the complaint filed by Arora Registration Service through its proprietor Sh.Kamal Kishore Arora, on the averments that the complainant-firm is providing various and different varieties of legal services, such as help assistance and service for contesting / prosecuting for numerous varieties of legal rights of the people and other legal help throughout the country since 1979. For his communication and correspondence, the complainant availed the services offered by various different courier companies and postal departments for the fulfillment of various time bound duties/ First Appeal No 171 of 2021 3 directions as required under the law. On 23.07.2018, clerk of the complainant went to National Shopping Complex to avail the courier services of Blue Dart/ FedEx, renowned for delivering the consignment, containing some documents with a maximum period of 1-2 days to Mumbai at the address of opposite party No.4 i.e. Registrar of Trade Marks. The said clerk of the complainant-firm informed about the service of opposite party No.1 and also about its assurance of delivering the aforesaid consignment by evening of 24.07.2018 to opposite party No.4. The complainant got booked the aforesaid consignment to opposite party No.1. The copy of receipt dated 23.07.2018 is Ex.C-1. The opposite party No.1 also informed to the complainant that the process of delivering of consignment could be tracked through internet website of FedEx through consignment No.1609853313. On 24.07.2018 when the complainant tried to know the progress of the consignment but he could not find it on FedEx website, on which he contacted the opposite party No.1 who informed that this consignment was booked with one Overnite company i.e. opposite party No.2, to which the complainant objected but opposite party No.1 assured the complainant that the consignment will be delivered by 24.07.2018. Again on 24.07.2018, when the delivery of the consignment was not completed nor shown on the website, the complainant again contacted opposite party No.1 who informed that due to some unknown reason, the consignment could not deliver and further assured to deliver the same on 25.07.2018 as it First Appeal No 171 of 2021 4 is a priority service, meaning thereby, delivering the parcel by next date of booking. The detailed list of promises made by opposite parties No.1 & 2 as shown on the website is marked as Ex.C-2. On contacted opposite party No.1 again on 25.07.2018, the complainant was informed that consignment will definitely deliver on 26.07.2018 and on 26.07.2018, opposite party No.1 informed that consignment has been delivered and internet status will be duly updated confirming the delivery of the same, for which the complainant waited for opposite party No.4 to issue receipt of the documents contained in the consignment as they are bound to issue the official receipt immediately after delivery. After much awaited on 26.07.2018, the receipt was not issued by opposite party No.4 to which the complainant sought 'proof of delivery' from opposite parties No.1 & 2 confirming the delivery of consignment on 26.07.2018, who assured to give the proof of delivery on 27.07.2018. On various requests of the complainant, opposite party No.1 provided a copy of Docket List depicting the delivery of consignment mentioning there that the consignment was delivered on 26.07.2018 but despite that no receipt was issued by opposite party No.4 as it was the duty of opposite party No.4 to issue the receipt of documents received by them. However, on 31.07.2018, the complainant received back his consignment along with the documents with the communication dated 27.07.2018, Ex.C-5, whereby the documents sent by the complainant to opposite party No.4 were returned back mentioning being time barred, alleged to First Appeal No 171 of 2021 5 have been received on 27.07.2018 and not on 26.07.2018 as claimed by opposite parties No.1 & 2 that the same were delivered on 26.07.2018. When the complainant approached opposite parties No.1 & 2 to clear this fact and demanded the original proof of delivery they adamantly refused to give any explanation and also refused to show the original delivery proof. It is submitted that 26.07.2018 was the last date for submission of all those documents and due to the gross negligence and unfair trade practice, cheating, misrepresentation and misdeeds on the part of opposite parties No.1 & 2 and their failure to fulfill their commitments to deliver the documents within one day the complainant suffered a great loss. The complainant paid Rs.420/- towards the fee of the courier which much have than the normal courier but despite that the opposite parties No.1 to 3 failed to fulfill their commitments which causes harassment and loss to the complainant. The complainant in original complaint sought the following reliefs:
a) Opposite party No.1 be directed to indemnify the complainant upto the loss suffered and/ or would be suffered by him on account of gross negligence, deficiency in service, fraud, misstatement adopted by it in its regular business activities;
b) opposite party No.2 be directed to indemnify the complainant upto the loss suffered and/or would be suffered by him on account of gross-negligence, deficiency in service, fraud, misstatement unfair trade First Appeal No 171 of 2021 6 practice as well as by virtue of violation of its own terms of the 'Priority' services as booked by the complainant for his aforesaid consignment;
c) opposite parties No.1 & 2 be also directed to pay compensation to the tune of Rs.1,00,000/-;
d) opposite parties No.1 to 3 be also directed to reimburse the total amount incurred by the complainant for the delivery of the aforesaid consignment;
e) opposite parties No.1 & 2 be directed to provide satisfactory proof of their claims of delivery of the complainant's consignment on 26.07.2018;
f) opposite party No.3 be also directed to pay compensation to the tune of Rs.1,00,000/- to the complainant;
g) to declare that the consignment was delivered upon opposite party No.4 on 26.07.2018 contrary to its allegation of receipt of the consignment on 27.07.2018;
h) opposite party No.4 be directed to take on record the documents of which the aforesaid consignment comprised of and now returned to the complainant, vide letter dated 27.07.2018; and
i) to pay Rs.50,000/- as litigation expenses.
3. However, while disposing of the complaint of the complainant, the District Commission granted the following reliefs: First Appeal No 171 of 2021 7
"9. In view of the above discussion, we allow the complaint with costs and opposite parties No.1 & 2 are directed to provide proof regarding the delivery of documents to opposite party No.4 on 26.07.2018. Opposite parties No.1 & 2 are also directed to pay compensation to the tune of Rs.25,000/- as well as litigation expenses to the tune of Rs.10,000/- to the complainant......"
4. Now in appeal, the appellant/complainant has alleged that the relief granted by the District Commission is not appropriate as sought by him in the complaint and in the appeal he requests for the following reliefs:
a) Relief as sought vide paragraphs No.(g) & (h) of the complaint be awarded;
b) A declaration that the consignment was delivered upon opposite party No.4 on 26.07.2018 be issued;
c) Opposite party No.4 be directed to take on record the documents, which it returned to the complainant, vide letter dated 27.07.2018;
d) To pay Rs.50,000/- as costs and expenditure for litigation; and
e) As interim relief, opposite party No.4 be directed to take on record the documents, as directed by the District Commission, vide its order dated 10.08.2018.
5. Upon notice, opposite parties No.1 & 2 appeared before the District Commission through their counsel, however, opposite parties No.3 & 4 did not appear, despite their services and were First Appeal No 171 of 2021 8 proceeded against ex-parte vide order dated 10.04.2019 and 11.09.2018 respectively. Later on, opposite party No.4 appeared through its counsel, who was ordered to be permitted at that stage, vide order dated 12.10.2018.
6. In the written reply, opposite party No.1 submitted that no cause of action has arisen to the complainant to file the complaint against opposite party No.1 as he is only booking agent of opposite party No.2 and his duty is only to handover the parcels to opposite parties No.2 & 3 after its booking for its delivery. It is admitted that one person with a parcel came to him for booking and delivery of parcel to Registrar of Trade Marks, Mumbai and he was duly informed that opposite party No.1 books international parcels for FedEx Courier and domestic parcels for Overnite Express Ltd. and that is why the parcels were booked from Overnite Express Ltd. on 23.07.2018 but no urgency or contents of the parcel were disclosed to him. The parcel was delivered on the same date to opposite party No.2 in their office for further delivery at its destination. Opposite party No.1 denied that any such assurance was given to deliver the parcel on 24.07.2018 and also denied the fact about the tracking of the parcel. It was well within the knowledge of the complainant that the parcel was booked with Overnite Express Ltd. and opposite party No.1 is only a booking agent of the said courier service and is not running its own courier service. It is denied that at the booking of the parcel it was marked as priority service. It is alleged that the responsibility to deliver the packet at its destination First Appeal No 171 of 2021 9 was of opposite party No.2 and opposite party No.1 delivered the packet of the complainant to opposite party No.2 on the same date. It is admitted that the packet was delivered on 26.07.2018 and the delivery document was by opposite party No.2 to the complainant on his demand showing thereby the delivery date as 26.07.2018 and if there is any dispute, it is between the complainant and opposite party No.2. No explanation was ever sought by the complainant from opposite party No.1 on 31.07.2018 as alleged in the complaint. Other facts are also denied by the opposite party with the request for dismissal of the complaint.
7. In their written reply, opposite party No.2 alleged that opposite party No.1 is a private shop and has no concern or license of opposite party No.2 and it cannot be termed as Branch Office of opposite party No.2. It is a private dealer as per receipt Ex.C-1. The names of the companies for which opposite party No.1 is working is mentioned, whereas name and service of opposite party No.2 is not mentioned in that receipt which means that he is not their registered dealer. Although AWB number of opposite party No.2 is mentioned by hand. It is alleged that opposite party No.2 had three types of services which were available to the customer, to which parcel can be delivered and their products namely i) Overnite Priority ii) Overnite True 2 Time and iii) Ordinary Mail Service and all these services have different services provided to the customers. The Overnite Priority ensures the next day of delivery. The service Overnite True 2 times ensures the delivery First Appeal No 171 of 2021 10 but not next day delivery service. In this delivery the proof is provided, whereas the Ordinary Mailing Service, which takes its due course. It is alleged that there are many stations where the outreach is not possible even by using the fastest means of communication and in that case in order to convey the transparency to customer had dedicated chart which is with the dealer and also available on the website of the Company. So in view of this, the claim of the appellant/complainant against the answering respondent No.2 is totally false. It is specifically mentioned in the chart only two services; one is Overnite True 2 Time and other is Overnite Regular (ordinary) service is available for destination Pin Code -400037. It is nowhere undertaken and said that delivery will be made the next day as the service available is only True 2 time. Meaning thereby, assured delivery will be made against the receipt. The Service Catalogue is Ex.R-3 and Status of delivery is Ex.C-3. The booking type mentioned Priority is wrongly mentioned by opposite party No.2, where it has been mentioned that on the left side of Ex.C-3 'Delivery as on Thursday July 26, 2018' and the receiver might have opened it on 27.07.2018. The delivery was made after signatures and mentioning date as 26.07.2018, Ex.C-4. Opposite party No.2 cannot be held liable as the service available True 2 Time and ordinary mailing service and promises to deliver the goods on receipt. The other averments as averred by the complainant in his complaint were denied.
First Appeal No 171 of 2021 11
8. The complainant filed rejoinder along with documents to the reply of opposite party No.1 denying the averments of the opposite party No.1 and reiterated all the averments as averred by the complainant in his complaint. Further prayed for acceptance of the complaint.
9. Both the parties produced evidence in support of their respective averments before the District Commission.
10. Notice of the appeal was issued to the respondents through Registered post. The respondent No.3 appeared through its counsel, whereas respondents No.1,2 & 4 did not appear despite services and were proceeded against ex-parte, vide order dated 28.07.2021.
11. I have heard the contentions of the appellants and respondent No.3 and have also given my thoughtful consideration to the same.
12. Learned counsel for the appellant/complainant also filed the written arguments on the averments as mentioned in the complaint itself. He has also reiterated all the pleas as he mentioned in the complaint before the District Commission which are not required to be discussed as it will be repetition of the facts of the case. However, orally learned counsel for the appellant/complainant contended that it has been amply proved and admitted that the Clerk of the appellant booked one parcel for delivering to respondent No.1 on 23.07.2018, vide receipt Ex.C-1 and after number of communications and requests it was conveyed by First Appeal No 171 of 2021 12 respondents No.1 & 2 that the parcel were delivered on 26.07.2018, whereas the same parcel was returned by respondent No.4 i.e. M/s The Registrar of Trade Marks alleging that the same were received on 27.07.2018 and was time barred as received beyond the date fixed, which is not factually correct because as per the docket issued by respondents No.1 & 2 parcel was delivered on the back of 26.07.2018 as Ex.C-4, which clearly proves that delivery was made to respondent No.4 i.e. The Registrar of Trade Marks on 26.07.2018, whereas while rejecting the documents of the appellant they have mentioned that they received the same on 27.07.2018 i.e. after the expiry of requisite period and the same cannot be entertained and returned the documents on 27.07.2018, vide Ex.C-5, which were received on 31.07.2018, which is totally unfair and rejection of documents by respondent No.4 is against the law.
13. On the contrary, the respondent No.3 has not filed any written arguments. However, it has been contended that respondent No.1 is a private dealer and he is not registered with respondent No.3 nor has any concern with their business and the parcel was never delivered to their company. Also the company gave no assurance for delivery of the same on the next date and if any negligence is caused i.e. just by respondents No.1 & 2 and M/s FedEx, duly authorized has nowhere concerned with the dealing of the present case regarding delivery of the parcel nor the appellant/complainant was their customer.
First Appeal No 171 of 2021 13
14. Admittedly, respondent No.1 is a Courier Service Provider, which provides service of sending courier to the parties through other sources and the complainant booked a parcel on 23.07.2018 against Ex.C-1 with the alleged assurance that the parcel will be delivered on the very next date on priority basis. The place of destination was Mumbai. It is admitted by all the contesting parties that parcel was delivered on 26.07.2018 to respondent No.4, consignee. It is also an admitted fact that the parcel was returned by respondent No.4 on 27.07.2018, which was received on 31.07.2018, being delivered beyond the time.
15. Although while deciding the complaint certain observations were made by the District Commission while granting the relief to the appellant/complainant that respondents No.1 & 2 will provide the proof regarding delivery of documents to respondent/opposite party No.4 on 26.07.2018 and also directed to pay a compensation of Rs.25,000/- alongwith litigation cost of Rs.10,000/-. Feeling aggrieved by this relief, learned counsel for the appellant while arguing in the appeal has submitted that the main relief (g) & (h) has not been granted. The reliefs (g) and (h) are as under:
"(g) declare that the consignment was delivered upon the opposite party No.4 on 26.07.2018, contrary to its allegations of receipt of the consignment on 27.07.2018.
(h) additional/alternatively, direct the opposite party No.4 to take on record the documents, of which the aforesaid consignment comprised of, and now returned to the complainant, vide letter dated 27.07.2018. First Appeal No 171 of 2021 14
16. The perusal of these reliefs reveals that in relief No.(g), the complainant seeks declaration regarding the delivery of the documents and in relief (h) he wants a mandate to be issued by this Commission to respondent No.4 to accept the documents.
17. The question arise at this stage that whether these reliefs come under the ambit of the Consumer Protection Act because the Act was enacted just to safe guards the interest of the consumer who are purchasing or getting service from the opposite parties. The 'consumer' is defined under Section 2(1)(d) of the Act, which envisages as under:
"(d) "consumer" means any person who,--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for 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, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation -For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self- employment.]"
First Appeal No 171 of 2021 15
18. Careful perusal of the provision of definition of consumer reveals that only in case where a person purchases any goods from the opposite party or engaged them for any service for consideration it can be construed as 'consumer'. Now it is to be seen, whether the complainant has any relationship of consumer with respondent No.4? The facts of the case are that complainant wanted to send certain documents, the details of which has not been disclosed by him anywhere in his complaint or in the appeal. Meaning thereby that nobody was having the knowledge that what were the contents of the documents and how these are concerned with respondent No.4. Without the motive of sending any document it cannot be held that respondent No.4 was hired by the appellant to provide any service against consideration which is the basic requisite of the consumer definition. Despite knowing all these facts, the appellant who themselves is a law firm go for forum hunting and after choosing a Forum/Commission of their choice and convenience they filed the complaint before the District Commission for the reliefs which are otherwise not tenable and has also not bothered to go through the provisions of law.
19. As far as, from the name of respondent No.4 it can be gathered that it is the Registrar of Trade Marks which deals with the Registration of Trade Marks and it comes under the 'The Trade Marks Act, 1999', which itself is an independent body and is governed by the Trade Marks Act. As far as Section 127 of the First Appeal No 171 of 2021 16 Trade Mark Act reveals the Powers of Registrar, which are as under:
(a) the Registrar shall have all the powers of a civil court for the purposes of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents and issuing commissions for the examination of witnesses;
(b) the Registrar may, subject to any rules made in this behalf under section 157, make such orders as to costs as he considers reasonable, and any such order shall be executable as a decree of a civil court:
Provided that the Registrar shall have no power to award costs to or against any party on an appeal to him against a refusal of the proprietor of a certification trade mark to certify goods or provision of services or to authorize the use of the mark;
(c) the Registrar may, on an application made in the prescribed manner, review his own decision."
20. This Section provides that Registrar of Trade Marks have the powers of Civil Court and it cannot be engaged for any services for consideration. If any dispute arises, he himself is capable to deal with the same, if any application or petition moved to him and otherwise also there is an Appellate Authority as per Section 91 of 'The Trade Marks Act, 1999', which was the appropriate Forum for the appellant/complainant to put up his grievances before approaching the present Forum but no efforts has been made by the appellant/complainant to adopt the proper procedure and law as the appellant/complainant itself mentioned that they are dealing First Appeal No 171 of 2021 17 in providing the legal services to other persons then they must be aware of the fact that which is forum to be approached in such like matters.
21. Secondly, the complainant is asking for some declaration and mandate which in my opinion cannot be granted under the Consumer Protection Act because this Act is only enacted to safeguard the interest of the consumers and to give them protection against any unfair trade practices or deficiency in service and not to give declaration of any type which is the jurisdiction and prerogative of the Civil Court.
22. Thirdly, it is to be seen, if the transaction or service as required by the appellant qua respondent No.4 falls under the ambit of personal use or commercial purpose and whether it is covered under the provisions of Consumer Protection Act. The definition of 'consumer', Section 2(1)(d) of the Act is reproduced in para 17 above. The bare perusal of the wording of Section 2(1)(d) of the Consumer Protection Act, it can be seen that emphasis laid down for the purpose for which the goods are purchased though the use to which the goods are actually put would be helpful in deciding the purpose for which they have purchased.
23. As per Consumer Protection Act, as discussed above, no commercial transaction can be covered under the Consumer Protection Act and only for the services required for his personal use is covered. However, from the name of respondent No.4 it can be construed that it must be dealing with Trade Mark Act which First Appeal No 171 of 2021 18 concerns with the commercial firms and not for any domestic transaction as required under the Act.
24. Moreover, the pleas taken by the appellant are quite vague and secretive because he has nowhere disclosed the purpose for sending the papers to respondent No.4. He has also not disclosed the contents of the paper which he was sending and if it was required by respondent No.4 or respondent No.4 at any point of time asked for production of these documents. Without the answering of these queries it cannot be said that the appellant was doing these transactions for his personal use and when the transaction or any service is required for commercial purpose that definitely does not cover under the ambit of Consumer Protection Act.
25. Fourthly, the appellant is asking for certain reliefs, such as, declaration and mandate giving certain directions to respondent No.4 and also direct them to take the documents on record. It is quite surprising that the complainant has not disclosed the contents of the documents which he want to give to opposite party No.4 and he has not placed anything on the record if at any stage respondent No.4 asked them for production of these documents. In my opinion, in the absence of such like things no direction can be given to respondent No.4 to take the documents on the record, which are not in the notice of the court. Moreover, the Consumer Protection Act is only enacted to safeguard the interests of the consumers who were purchasing the goods and availing the First Appeal No 171 of 2021 19 service for personal use and to give them the protection against any unfair trade practice and deficiency in service and not to give any type of declaration which is the jurisdiction and prerogative of the Trial Court only.
26. In view of the above, I do not find any merit in the appeal and the same is hereby dismissed and the order of the District Commission is upheld.
27. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER September 07,2022 parmod