H.JULES And CO vs OVERNITE EXPRESS PRIVATE LTD

THIS is a complaint regarding the deficiency in the service of domestic and international Courier. The complainant is a registered partnership firm carrying on business of manufacture, sale and supply of Pharmaceutical products. The opponent is a limited company engaged in the business of domestic and international Courier. The complainant alleged that the services of opponents were hired for the delivery of a packet from Nagpur to New Delhi for a consideration. The complainant alleged that on 5.10.90, the opponents were handed over a packet containing the tender documents to be delivered at New Delhi before 8.10.90. However, it was delivered on 10.10.90. According to complainant he could not submit this tender in time due to the negligence in the service of the Courier and, therefore, he has suffered loss. The complainant, therefore, claim Rs. 2,00,000/- as compensation.

IN written version, the opposite parties raised several technical objections about the jurisdiction and maintainability of the complaint. The Opposite Parties (O.P.) also opposed the claim of complainant for grant of compensation. It is the case of the opposite parties that under the provisions of the INdian Contract Act, the object of the agreement being unlawful and void it is forbidden by law and hence be rejected. We heard Shri N.H. Shams, Advocate for the complainant and Shri Parmar, Advocate for the opposite parties.

We have also gone through the pleadings of both the parties and also perused the relevant record.

THE following points arise for our determination:- (1) Whether this Commission has jurisdiction to decide the complaint? (2) Whether this complaint is barred under Order 23 Rule 1 of the C.Pr. Code? (3) Whether the remedy of the complaint lies by way of a Civil Court? (4) Whether the contract is unlawful and void and unforceable in law? (5) Whether there was any deficiency in the service of opposite party? (6) Whether the complainant is entitled for grant of compensation?

As regards the point No.l, although the stipulation in a contract provide that the Delhi Court has jurisdiction, we find that the said stipulation is meant for filing a civil suit and is not about the maintainability of consumer dispute. In view of the provisions of Section 3 of the C.P. Act, the remedy under the C.P. Act is in addition to and not in derogation of the provisions of any other law for the time being in force. The facts clearly show that the opposite party No.l is having its Office of business at Nagpur and the services of the opposite parties were hired at Nagpur and the packet was also delivered at Nagpur. In view of these facts, part of the cause of action arose at Nagpur and, therefore, this Commission has jurisdiction to decide this consumer dispute.

FOR the reasons stated in the preceding paragraphs, the complaint is not hit under Order 23, Rule 1 of Civil Procedure Code. The aforesaid Order and Rule is not applicable to a consumer dispute. Moreover, the complaint from Distt. FORum Nagpur has been withdrawn by the complainant for filing it to this Commission and is not affected on account, of the aforesaid Rule. According to opposite parties due to their failure to deliver the packet within the agreed time, they are prepared to pay Rs. 100/- for the loss of the complainant. However, according to O.Ps. for the claim of complainant made in this complaint, the remedy is open for the complainant to approach the Civil Court by filing the civil suit and that therefore, this complaint is not maintainable. On going through the allegations made in the complaint, we find that the complaint contains the allegations as regards the deficiency in the service of the opposite party, and, therefore, the complaint is maintainable under the provisions of Consumer Protection Act. There is no need for the complainant to file a civil suit when he has opted to approach this Commission under the provisions of the C.P. Act. As regards the objection of the opposite party that the complaint is not maintainable in view of the unlawful object of the contract since the complainant could not take recourse to the couriers service for transmission of tender documents and therefore, forbidden by law also is not correct. The Consumer Protection Act provides a right to a consumer to approach this Commission if he finds any difficulty in the service of a Courier.

AS observed earlier in view of the provisions of Section 3 of the C.P. Act, this complaint is maintainable. In our view whether the packet contained tender documents or any other article forbidden under the India Post Office Act, 1898, we are concerned here whether the opposite party who agreed to render the service as a Courier for consideration. It was for the opposite party to examine at the time of entering into contract with the complainant to see and verify from the complainant the contents of the packet. It is not open for the opposite party now to raise the plea about the legal infirmity for carrying tender documents.

WE come to the crux of the complaint as regards the deficiency in the service of the opposite parties. The date of the receipt of the packet and the delivery of the packet on 10.10.90 instead of 8.10.90 is not in dispute. Apart from the fact that the opposite party agreed to deliver the packet on 8.10.90, there was specific instruction given by the complainant to the Delhi Office in writing. These instructions are found at Annexure III filed by the complainant. The opposite party No. 2 instructed its Delhi Office to arrange the delivery on Sunday if possible or contact the party on phone No. 5554554. It is written on the same document that the packet was delivered at 11.20 hrs on 10.10.90. Despite the undertaking and assurance given by the opposite party even failed to contact on the aforesaid phone about the packet. The instructions contained in Annexure III very clearly show that the opposite party agreed to deliver the packet on 8.10.90 or to contact on the aforesaid phone even on Sunday. The defence of the opposite party is that there was wide reservation agitation at Delhi during the period from 3.10.90 to 10.10.90 and, therefore, the packet could not be delivered as agreed. In support of this contention the opposite party filed on record paper cuttings of a Local Hindi paper from Nagpur. In our view, it is very unsafe to rely on the paper clippings to come to the conclusion that the opposite party was prevented from delivering the packet due to the anti-reservation agitation. According to opposite party, the packet was delivered on 10.10.90. WE fail to understand when the packet could be given on 10.10.90 why it could not be delivered on 8.10.90? WE are further surprised to know that despite the special instructions of giving a telephone call on a specific telephone Number, there was failure on the part of the opposite party to contact on telephone about the packet which they were carrying. In our considered view, there has been a deficiency in the service of opposite party in as much as they failed to deliver the packet in time. WE are also not impressed by the contentions raised by the opposite party that they were prevented to do the job due to Anti-Reservation agitation. There is nothing on record to believe that anti-reservation agitation was the real cause which prevented the opposite party to deliver the packet as agreed. Thus, we find that the complainant has proved the deficiency in the service of the opposite party. In view of our finding in the preceding paragraphs we also hold that the deficiency occurred in the service of the opposite party due to their negligence to deliver the packet in time or in the alternative to intimate on telephone about the carrying of the document so that somebody from Delhi and could personally collect the packet and the tender form could be placed before the relevant authority on scheduled. Thus, we find that the service of the opposite party was deficient as a result of the negligence in the performance of the service of the opposite party as agreed.

The complainant has claimed Rs. 2,00,000/ as the compensation which according to us is highly inflated claim. The claim for loss by the complainant due to non-submission of tender in time is hypothetical. There is no evidence before us that the tender of the complainant was lowest among the other tenders received; for the supply of medicines. Therefore, we cannot believe that complainant was put to loss of Rs. 2,00,000/-. At the same time, we are not convinced that the loss of the complainant can be compensated by payment of Rs. 100/- offered by the opposite party. In our view, it would meet the ends of justice if the loss of complainant is quantified at Rs. 10,000/- for meeting the expenses of litigation and for the inconvenience caused to complainant. Hence, we pass the following order;- ORDER The complaint is allowed. The opposite parties are directed to pay to the complainant compensation of Rs. 2,000 (Two Thousand) within a period of 30 days from the receipt of this order failing which the amount shall carry interest at the rate of 18% p.a. Complaint allowed.