DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PURULIA
CONSUMER COMLAINT No. 17 OF 2009
Date of filing: 10th June 2009
Date of Order: 7th October 2009
Complainant Opposite Party
Riaz Ahmad, New Janta Transport Company,
Manager-cum-Proprietor, Represented by the Manager,
Raja Tyre,Paras Market, New Janta Transport Company,
Ranchi Road, Purulai, Purulia Branch,
Post Office: Purulia, Office At: Munsiffdanga, Purulia,
Police Station: Purulia (T), Post Office: Purulia,
District: Purulia (W.B.) Police Station: Purulia (T),
District: Purulia.
Present:
1.. Sri B. Das, President.
2. Sri A.K. Sinha, Member.
3. Smt. S. Sengupta (Santra), Member.
For the Complainant : Sri P. Roy, Adv.
For the O.P. No : Sri S.K. Banerjee, Adv.
Order No. 10, dated 07.10.2009/C.C.No. 17 of 2009
In essence, complainant has filed the present case stating that on 16.8.07 he handed over three auto defective batteries to the O.P. at Purulia for transporting to Kolkata and to deliver the same to Exide Industries Ltd, Kolkata on payment of Rs. 75=00 for transporting charge against each of the batteries. But he came to know that those batteries were not delivered to the authorized person of Exide Industries Ltd, Kolkata. The complainant then talk to the O.P. over phone and reported about non-delivery of the above goods. The O.P. gave assurance of delivery and in case of failure the O.P.
would pay the value of three batteries. Inspite of repeated persuasion the O.P. neither delivered the goods to the consignee nor settle the matter as per given assurance. The complainant then sent a lawyer’s letter to the O.P. on 03.4.2009 demanding Rs. 18,598=00 towards the value of said batteries with interest @ 10% from 16.8.2007 but the O.P. did not pay heed to give any reply to the notice although the said notice was duly acknowledge by him giving rise to the instant proceeding for the reliefs mentioned in the petition of complaint.
The O.P. contested the case by filing written version denying the claims of the complainant which were unfounded, baseless and misconceived one. The O.P. has also claimed that the complaint itself was defective under the law for non- compliance of the conditions of consignment rules, terms and conditions as have been noted down in the consignment note and therefore, liable to be rejected.
The following points seems to be reasonable for effective disposal of the case.
1) Whether the complainants is a ‘consumer’ in terms of Sec. 2(1)(d) of C.P.Act ?
2) Whether the Forum has got jurisdiction to entertain the complaint ?
3) Whether the service of the O.P. suffers from deficiency ?
4) Whether the complainant is entitled to the reliefs as prayed for ?
-:Decision with reasons:-
Point No. 1:
According to the Sec. 2(1)(d) of the C.P.Act ‘Consumer’ means any person who hires any services for consideration. ‘Service’ means service of any description which is made available to potential users as defined in Sec. 2 (1)(d) of the Act. In the instant case the complainant has sent three auto batteries addressed to the Exide Industries Ltd, Kolkata on payment of consideration as in evident from Exbt. “1”, “1(a)” and Annexure “1”.
Thus having regard to the facts and circumstances of the case there can be no dispute that the complainant hired the services of the O.P. for a consideration and in that view of the matter the complainant be termed as ‘Consumer’ in view of Sec. 2 (1)(d) of the Act.
This point is thus disposed of affirmative.
Points No. 2:
The pertinent question is to be disposed of at this stage whether this Forum has jurisdiction to entertain the complaint on question of non- compliance of statutory provisions as laid down u/S. 10 of the Carriers’ Act 1865 which has been raised by the O.P. in the written argument, as well as, in the written version.
Let us look into the Sec. 3 of the C.P.Act which specifically provides that “ the provision of Act shall be in addition to and not in derogation of the provision of any other law for the time being in force”. We also take the opportunity to quote the relevant lines from the observations appearing in B. Ratnakar Rao Vs. Automative Manufacture Ltd. Bombay (1991) CPJ-562(1) 1991 CPR 312 (317) A.P. ‘Any consumer can file a complaint under the provision of the Act seeking appropriate relief if the goods purchased by him suffers from any fault, imperfection or shortcoming in the quality or as a result of any unfair trade practice adopted by the trader. The complainant having suffered damage is entitled to seek appropriate relief under the Act.
Further with regard to binding of Carriers’ Act 1865 Sec. 10 as referred to by the Ld. Advocate of O.P., this Forum finds opportunity to quote the relevant portion of the observation in a case of Indian Telephone Industries Ltd Vs. Balughat Transport Co. appearing in (1994) 1 CPR-48 (57,58) W.B “ As transport service is included under Section 2 (1)(o) of the Act, the State Commission has full authority and jurisdiction, to award relief u/S. 3 of the Act as addition means and it was not in derogation of the Carriers Act 1970”.
Thus having regard to the facts and circumstances of the case it can safely be said that this Forum has jurisdiction to entertain this complaint.
This points is thus disposed of in favour of complainant.
Point No. 3:
It appears from the record that the complainant has filed his complaint with affidavit, also filed his affidavit-in-chief and has filed two of the original consignment notes dated 16.8.2007 for one piece defective auto battery No. DG 150/AVG/0701050915 and one piece defective auto battery No. MHD 880/3AG/85120 to be delivered to Exide Industries Kolkata which are marked Exbt. “1” & “1(a)”. The complainant also filed Xerox copies of above consignment notes along with another dated 16.8.2009 for one piece defective auto battery No. MF 702/716/6324127 as Annexure “1(a)”. It can definitely be said that when there is specific terms of the contract which is the case before us, the parties are barred by the terms of contract. In the instant case the complainant stated that he handed over three auto batteries to the O.P. on 16.8.2007 for transporting the same to Exide Industries Ltd. Kolkata and it is in the evidence of the O.P. that it failed to deliver the goods to the consignee. It further appears from the cross-examination of O.P.W. who deposed on behalf of the O.P. that this O.P.W. has been contrained to admit “I signed the documents of the O.P. as D.N.Bharti. The complainant served a lawyer’s notice on us prior to filing of the case. We did not give any reply to the said notice”. The complainant has filed the copy of lawyer’s notice dated 03.4.2009 mentioning the type, value of each battery against its consignment note number and claimed Rs. 18,598=00 in all towards loss due to non-delivery which is marked as Exbt. “3”.
In view of above without entering into the other intricate questions of laws and facts and keeping in mind that the batteries were taken by the O.P.W. for transporting to Kolkata for delivery at Exide Industries Ltd. Kolkata on 16.8.2007 and to act according to the terms of contract. Admittedly, the batteries (3 nos.) did not reach to the consignee and it appears to be a clear violation of the terms of contract and that cannot but be said to be deficiency in service.
The point is thus disposed of in the affirmative.
Point No. 4:
The claim of complainant in respect of the loss is required to be determined in this point. The complainant has not filed purchase memo and the warranty card of each of the defective batteries but he has filed only the price lists dated 27.10.2007 which are marked as Exbt. “2” series. In absence of above two documents it will be difficult to assess the actual loss. The total loss likely to have been sustained by the complainant for non-receipts of consignment within a reasonable period. This Forum having given anxious consideration has come to the conclusion that each battery shall contain demurrage @ 30% and therefore total loss of complainant is assessed to Rs. 5,582=00 (Rs. 18,607=00 @30%).
As this Forum on consideration of different angles, assessed the compensation and there appears no need for grant of separate compensation.
In view of the above this Forum is of considered opinion that the complainant is entitled to compensation of Rs. 5,582=00.
Proper fees have been paid.
Hence,
O r d e r e d
That Purulia C.C. No. 17/2009 is decreed on contest against O.P. (New Janta Transport Company, represented by the Manager, New Janta Transport Company, Purulia Branch, Munsiffdanga, Purulia, P.O., P.S. & Dist. Purulia) with no order as to costs. The complainant do get compensation of Rs. 5,582=00 (Rs. Five Thousand Five Hundred Eighty Two) only. The O.P. do pay the aforesaid compensation within a period of 30 (thirty) days from date failing which, the awarded amount will carry interest @10% p.a. till its final realization.
Let certified copy of this order be given to both the parties free of charge.
Sd/- Sd/- Sd/-
Sri A.K.Sinha Smt. S. Sengupta Sri B.Das
(Member) (Member) (President)