State Consumer Disputes Redressal Commission
M/S Saree Mandir vs M/S Gati Limited on 28 January, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.4 OF 2012 AGAINST C.D.No.677 OF 2010 DISTRICT FORUM-I HYDERABAD Between: M/s Saree Mandir rep. by its Proprietor Sri Jogesh Sadh H.No.4-5-475, Badi Chowdi, Sultan Bazar Hyderabad Appellant/complainant A N D M/s Gati Limited Rep. by its Manager Regd.Off:1-7-293, M.G.Road Secunderabad Respondent/opposite party Counsel for the Appellant M/s Gopi Rajesh & Associates Counsel for the Respondent M/s A.Venkatesh QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER WEDNESDAY THE TWENTY EIGTH DAY OF JANUARY TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant. The appellant filed complaint claiming an amount of `27,550/- towards cost of 29 handloom sarees along with interest @24% from 2.12.2009 and `50,000/- towards compensation for suffering mental agony and loss and `3,000/- towards costs.
2. The case of the appellant is that the appellant is a proprietary concern and the proprietor of the appellant firm has to maintain huge family. The appellant firm is engaged in doing business in sale of sarees under the name and style Saree Mandir at Sultanbazar locality of Hyderabad city. The respondent is a courier having its branches across the country and one branch at Secunderabad in Anhdra Pradesh. The appellant placed order with M/s Hirawat, Jaipur for sending 128 handloom sarees worth of `1,12,650/-
M/s Hirawat had sent two parcels on 02.12.2009 weighing 92.3 kgs containing 128 handloom sarees worth of `1,12,650/-.
The consignment reached destination on 7.12.2000009 and was delivered to the appellant on 12.02.2009.
3. The consignment was received by the appellant in bad condition and the appellant got is weighed which did indicate 69kgs out of 92.3kgs and there was loss of 29 sarees worth of `27,550/-.The appellant lodged complaint with the respondent on its toll free number 18002804284 at 4.30 PM on 12.12.2009 and the respondent registered complaint number 10332150 and promised the appellant that enquiry would be conducted in the matter. The appellant for several times requested the respondent to refund the amount of `27,550/-
and it had lodged complaint with the police, Sultanbazar, Hyderabad on 7.05.2010 who registered complaint in FIR No 182 of 2010 and the appellant got issued notice dated 10.04.2010 to the respondent for which the respondent had given reply on 10.05.2010.
4. The respondent resisted the claim on the premise that the complaint is not maintainable in view of arbitration proceedings and in view of the transaction between the appellant and the respondent being commercial in nature. The respondent contended that they had carefully transported the consignment and delivered the consignment to the appellant in intact condition. The appellant verified the consignment and having satisfied as to its condition acknowledged receipt of the consignment. It is contended that the appellant with malafide intention and in collusion with M/s Harawath at Jaipur and with M/s Patel Couriers, Secunderabad had filed the complaint . It is contended that the appellant is not entitled to the amount and the respondent prayed for dismissal of the complaint.
5. The proprietor of the appellant-firm filed his affidavit and the documents, ExA1 to A10. On behalf of the respondent-courier, its Assistant Manager, Legal filed his affidavit and the documents, ExB1 and B2
6. The District Forum dismissed the complaint holding the appellant not entitled to any relief on the premise of lack of jurisdiction and it had dismissed the complaint directing the appellant to pay costs to the respondent.
7. Aggrieved by the order of the District Forum, the complainant firm has filed appeal contending that the complaint is maintainable as the proprietor of the appellant firm is doing the business to eke out his livelihood and that in the Diary it is noted that the respondent has to pay costs while in the order communicated to the appellant the appellant is directed to pay the amount of `25,000/- to the respondent and that on application filed by the appellant in IA No. 205 of 2011, the District Forum had corrected the docket order and the entries in A diary were corrected showing the direction to pay costs in favour of the respondent.
8. It is contended that the consignment note contains recital to the effect that the consignment contains 128 handloom sarees and that the respondent despite its promise to see the consignment reach destination safe , delivered the consignment in bad condition. It is contended that the appellant lodged complaint and addressed letter to the respondent to pay the cost of 29 sarees a sum of `27,550/-.and the appellant also lodged complaint with the police Sultan Bazar, Hyderabad. It is submitted that the District Forum has failed to see that the respondent had delivered the consignment with shortage of sarees.
9. The point for consideration is whether the order of the District Forum suffers from misappropriation of facts or law?
10. The admitted facts are that the appellant had received consignment containing sarees sent by M/s Hirawat, Jaipur on 12.12.2009 through the respondent. The appellant contends that it had not received 29 sarees and the consignment by the time it received weighed 69 kgs whereas the consignment sent by Ms Hirawat was of 92 kgs and the appellant requested the respondent to pay the cost of 29 sarees. The respondent denied its liability on the premise that the appellant accepted the consignment in good condition and there was no shortage of any sarees in the consignment.
11. The respondent questioned the maintainability of the complaint on the premise of arbitration clause in consignment note and in view of the nature of transaction between the appellant and the respondent with the appellant receiving the sarees for the purpose of its business activity. The learned counsel for the appellant has contended that the proprietor of the appellant firm has been doing the business to eke out his livelihood. The District Forum opined that the appellant is not consumer and held the complaint not maintainable. The learned counsel for the respondent has contended that the transaction between the parties is a commercial transaction and the complaint is not maintainable.
12. The learned counsel for the respondent has relied upon the decisions of the Honble Supreme Court in Rajiv Metal Works and others vs Metal Trading Corporation of India Ltd (1996)1 CPC 11SC and Birla Technologies Ltd vs Neutral Glass and Allied Industries Ltd CDJ 2010 SC-1177.
13. In Rajiv Metal Works Ltd(supra), the question fell for consideration of Honble Supreme Court is whether the goods purchased for resale are amenable to jurisdiction of Consumer Forum. The opposite party failed to supply the entire indented canalized items to the appellant and requested the complainant to receive 20% of the indented items which were refused to be received by filing complaint before the National Commission. The National Commission dismissed the complaint holdling the transaction involving resale of purchased goods a commercial transaction. Supreme Court held that the complainant would not come under Section 2(1)(d) of the Consumer Protection Act and confirmed the order of the National Commission.
14. In Birla Technologies (supra) the Apex Court held that the service rendered for commercial purpose would not be amenable to jurisdiction of Consumer Forum. The Honble Supreme Court held:
that the goods sold by the appellant to the respondent/complainant amounted to `goods' and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. On the one count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobody's case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondent's livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto
15. There is no dispute of the proposition that dispute in respect of goods purchased for resale and the service rendered for commercial purpose cannot be made before Consumer Forum. The exception carved out of the proposition is eking out ones livelihood for the purpose of self-employment. The respondent has not denied nor disputed the statement of the proprietor of the appellant firm that he has been carrying on the business to eke out his livelihood by means of self-employment.
16. The District Forum held that the proprietor of the appellant is carrying on business not only for the purpose of eking out his livelihood and also for the purpose of earning more profits. The District Forum has arrived at the conclusion on the premise that the appellant shop is situated at prime commercial area. In 3rd paragraph of Page 5 of the order, the District Forum observed that :
The complainant has categorically stated in the complaint and in his evidence affidavit that he has been doing sari business under the name and style Sari Mandir situated at Sulthan Bazar, Hyderabad. It is not in dispute that the complainant is a big shop situated at prime commercial area of Hyderabad i.e., Badichowdi, Sultan Bazar. The situation of shop discloses that the volume of business and turnover of the complainant is very huge. From the above facts it is clear that the complainant is doing the business not only for eking out his livelihood but also for commercial purpose of earnings more profits.
17. The District Forum accepting the version of the proprietor of the appellant firm carrying on business to eke out his livelihood and proceeding to hold that in view of location of the appellant shop the appellant has been carrying on business to earn more profit befitting the nature of commercial purpose is not sustainable. Once the District Forum has come to conclusion that the proprietor of the appellant firm has been running it for the purpose of eking out his livelihood, the District Forum ought not to have held that the appellant is also earning profits by virtue of the prime location where the appellant has been carrying on the business. We do not agree with the view that the appellant has been carrying on the business for earning by means of self-employment and also for the purpose of earning more profits.
18. The District Forum having decided issue in favour of the respondent that the complaint is not maintainable in view of the business fetching more profits to the appellant, it had proceeded to decide the other issue whether there was deficiency in service on the part of the respondent and held that there was no deficiency in service on the part of the respondent as also M/s Herawat was held to be a proper and necessary party to the complaint.
19. The learned counsel for the respondent has contended that the appellant has not lodged complaint with its head office at Secunderabad and lodged complaint with the police after six months as also that the appellant had got weighed the consignment by M/s Patel Carriers and not with the respondent. The learned counsel for the appellant has contended that immediately after finding that there was shortage of sarees, the appellant reported the matter to the respondent and filed complaint with the police and as the police has not taken action it had approached the higher official in the month of May whereon the complaint was registered.
20. M/s Hirawat, Jaipur issued invoice dated 2.12.2009 in favour of the respondent in respect of 128 handloom sarees which are of four categories with slight difference in their cost.46 handloom sarees worth `43,700/-, 18 handloom sarees worth `16,650/-, 36 handloom sarees worth `30,600/-
and 28 handloom sarees worth `21,700/-
were sent thorough the respondent on the following terms of sale:
TERMS OF SALE v Any complaint for goods should be made within 7 days. No complaint will be entertained after that.
v Goods once sold will not be taken back or exchanged.
v Interest will be charged @ 24% p.a., if payment not received within 30 days from the bill date.
v Our responsibility ceases immediately after the goods are handed over to the freighters.
v We shall not be responsible for any loss or damage of goods during transit.
v All subject to Jaipur jurisdiction.
21. It is not the case of any party that the consignment was not weighing less than 92.3kgs mentioned in the invoice at the time it was handed over to the respondent by M/s Hirawath, Jaipur. In the light of condition no.4 the responsibility of M/s Hirawath would cease the moment it handed over the goods to the respondent. As such it cannot be said that M/s Herawath is necessary or proper party to the proceedings.
22. M/s Patel Carriers had issued certificate on 12.12.2009 showing the weight of consignment as 69 kgs. The learned counsel for the respondent has contended that M/s Patel Carriers is the competitor of the respondent and as the head office of the respondent is situate at Secunderabad, the appellant ought to have taken the consignment to the respondents head office. The contention of the counsel has acceptable force, for the consignment was taken to the respondents competitor but for the fact that the appellant failed to take the consignment to the respondents head office even after it had got weighed the consignment by M/s Patel Carriers and found shortage of sarees in the consignment.
23. The appellant lodged complaint with the respondent on 14.12.2009 and with the police on 7.05.2010 and it got issued notice through its advocate on 10.04.2010 demanding for payment of cost of 29 handloom sarees for which the respondent had issued notice denying its liability and showing that the complaint lodged by the appellant was in regard of non-receipt of the consignment and not as regards of any shortage of the sarees of the consignment. The reply dated 10.05.2010 of the respondent reads as under:
This is with reference to your notice Dt.10/04/2010, claiming shortage for the consignment delivered on 12/12/2009 sent from M/S.Hirawat Manufactures of fancy and designers sarees, Jaipur booked on 02/12/2009 vide docket/delivery challan no.532274974. Our inquiries revealed that the consignments were picked up by our people on 03/12/2009 and delivered the same on 12/12/2009 in intact condition without any shortage/damage. In the mean while your client has called up to our Nagpur call center with regard to non delivery of the consignment and our call center people registered a complaint bearing no.10329314 on 10/12/2009 but, the same was contended in your notice claiming shortage of consignment which is false in toto.
The consignments were delivered on 12/12/2009 to the /your client at 15.16 hours with intact condition and your client/consignee has signed the POD (proof of delivery) without any remarks. The allegations made by you on behalf of your client claiming shortage to the consignments are false and baseless.
24. It may be that the appellant had not brought to the notice of the respondent on 12.12.2009 of the shortage of sarees as contended by the respondent. However, the telephone calls made to Jaipur have been pressed into service by the appellant in support of its contention that there was shortage of 29 sarees in the consignment. The date, time and particulars of the called phones mentioned in the telephone bill issued in favour of the appellant read as under:
Date time called phone called place 10/12/09 15:58 01412571492 JAIPUR 12/12/ 19:44 09314093586 JAIPUR RIL CMT 12/12/09 15:36 01412573590 JAIPUR 12/12/09 15:41 01412573590 JAIPUR 12/12/09 16:26 01412573590 JAIPUR 12/12/09 17:28 01412571492 JAIPUR 12/12/09 17:32 01412571492 JAIPUR 14/12/09 17:20 01412573590 JAIPUR 14/12/09 17:32 01412573590 JAIPUR 16/12/09 11:10 09811396685 Delhi Vodafone
25. We, however are not prepared to accept that the number of telephone calls made by the appellant would by itself establish loss or shortage of 29 sarees from the consignment in the light of acknowledgment issued by the appellant without making any protest or objection at the time the consignment was received . In the circumstances, we subscribe to the view that the appellant failed to establish deficiency in service on the part of the respondent. However, the District Forum imposing costs of Rs.25,000/- despite recording finding that it has no jurisdiction to entertain the complaint invites our interference and the relief to the extent is liable to be set aside.
26. The learned counsel for the appellant has contended that the District Forum directed the respondent to pay costs of `25,000/-
to the appellant and the copy of the order has direction to the appellant to pay the costs to the respondent. He has submitted that in the docket order and the A diary there is direction to the respondent to pay the costs to the appellant and contrary to it in the copy of the order furnished to the appellant the costs were directed to be paid by the appellant to the respondent and for correction of the mistake in the order, the appellant filed application I.A.No.205 of 2011.
27. The learned counsel for the appellant has contended that after filing of the application by the appellant for correction in the order, correction of the docket order and A diary proceedings were made. It is true there are corrections in the docket order and we cannot return finding as to the correction in the A diary as the Diary is not placed before this Commission. However, the correction made in the docket order would not make any difference as the appeal is held to be dismissed setting aside the costs imposed.
28. In the result, the appeal is allowed to the extent of setting aside the costs of `25,000/- directed to be paid by the appellant and confirming the order of the District Forum as to dismissal of the complaint. The parties shall bear their own costs.
MEMBER MEMBER Dt.28.01.2013 KMK*