M/s Aggarwal Packers vs. Alok Chaturvedi dated 2011-05-03
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
REVISION PETITION NO. 1026 OF 2011
AND I.A. NO.01 OF 2011
(From the order dated 21.12.2010 in Appeal No.345/2010 of the State Commission Union Territory, Chandigarh)
1. M/s Aggarwal Packers
220, Kabra Comple, 61 MG Road,
Through its Managing Director
2. DRS Logistics Pvt. Ltd.
Agarwal Packers and Movers,
Plot No.280, Phase-II,
Industrial Area, Panchkula,
Haryana ... Petitioners
RBI Officers’Colony, Sector-44-B,
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioners : Mr. Salil Paul, Advocate
For the Respondent : Mr. S.K. Ray, Advocate
PRONOUNCED ON 3rd MAY, 2011
PER JUSTICE V.B. GUPTA
By way of the present petition, there is challenge to the order dated 21st December, 2010 passed by State Consumer Disputes Redressal Commission, Union Territory Chandigarh (for short, “State Commission”) vide which the appeal filed by the petitioners was dismissed.
2. The brief facts are that Complainant-respondent who was earlier posted at Kochi was transferred to Chandigarh and had hired the services of petitioner No.1 for transportation of his car as well as other household luggage from Kochi to Chandigarh. The car and luggage were to be carried separately. One of the conditions on which the luggage was booked with petitioner No.1 was that the luggage would not be shifted from one vehicle to another during transit and petitioner had agreed to the said term.
3. The entire household luggage was loaded in a truck having closed container on 10.5.2009 and each and every item was compactly adjusted. Thereafter, complainant put his own lock on the door of the container as the luggage was to be transported in the same truck without there being any transshipment on the way. The complainant received the said luggage on 10.5.2009 and was utterly surprised to see that the luggage was contained in two trucks, as obviously transshipment was done on the way in most careless manner.
4. On unpacking the household luggage, complainant found that the items of crockery, furniture electronics etc. as mentioned in the list were found damaged and he got assessment done of these items which was to the tune of Rs.20,000/-. The other household items/clothes as mentioned in the list worth Rs.23,000/- were found missing.
5. The complainant immediately informed the petitioners about the damage caused to the furniture etc. and loss of items. Petitioners asked the complainant not to disturb the broken items till their employee visits his house to assess the loss. As such the articles remained scattered in the house for a long period of nearly three months but no steps were taken by petitioners to make good the loss suffered by the complainant.
6. Ultimately, respondent was asked to approach the insurance company with whom the said household luggage was got insured by the petitioners. Though there was no privity of contract between complainant and the insurance company, yet he approached the insurance company. The insurance company again asked the complainant not to disturb the broken items till the loss is assessed by the Surveyor and as such the household items remained lying scattered till the loss was assessed by the Surveyor appointed by the Company.
7. Thereafter, the insurance company asked the complainant to approach petitioners as compensation, if any, regarding loss of household luggage was to be reimbursed to the petitioners by the Company. After great persuasion, petitioners offered to pay either a sum of Rs.13,000/- in lump sum as compensation for the loss of items as well as damage caused to the furniture etc. or offered to pay Rs.40,000/- with the condition to return back the damaged items.
8. Both these options were not acceptable to the complainant as in the first option, meager amount was offered which would not have compensated for the loss. As per the second option, after returning the damaged articles, the complainant would have to purchase new items which were costly in the market as per the prevailing rates.
9. Thus, alleging deficiency in service on the part of petitioners, complainant filed complaint before the District Forum.
10. Notice of the complaint was sent to the petitioners but they did not appear despite service and were proceeded ex-parte.
11. District Forum allowed the complaint vide its order dated 11th February, 2010 and operative part of which reads as under:-
“This complaint is allowed with a direction to pay to the complainant a sum of Rs.43,000/- on account of broken and missing items. OPs are also directed to pay to the complainant a sum of Rs.40,000/- as compensation for causing discomfort and Rs.5,000/- as costs of litigation.
This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which the OPs shall be liable to pay Rs.83,000/- to the complainant alongwith penal interest at the rate of 18% p.a. from the date of failing of the complaint i.e. 13.08.2009 till its realisation besides costs of litigation.”
12. Being dissatisfied with the order of the District Forum, petitioners filed appeal before the State Commission which did not give any relief to the petitioners and dismissed the appeal being without merit with cost of Rs.2,200/-.
13. It is contended by learned counsel for the petitioners that there was no proper service of the complaint on the petitioners. M/s Aggarwal Packers & Movers Pvt. Ltd. being an artificial name has to act through its Managing Director/Principal Officer and the service of summons was to be effected at the registered office of the Company. In the present case, as per record, the service has allegedly been effected at Chandigarh, who is not the authorised representative of the Company.
14. Other contention is that there is no deficiency on the part of the petitioners and in support, learned counsel cited decision of Hon’ble Supreme Court in Ravneet Singh Bagga vs. KLM Royal Dutch Airlines and another (2000) 1 Supreme Court Cases 66, in which it was observed as under;
“The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it.”
15. Main contention of the learned counsel is that there has been no proper service on petitioner No.1. It would be fruitful to reproduce the relevant finding of the State Commission with regard to the service which reads as under: -
“We have given our thoughtful consideration to the submissions put forth on behalf of the parties and find the aforesaid point of arguments put forth on behalf of the appellants to be devoid of any merit, inasmuch as a perusal of the record shows that OP No.1 was duly served through registered post as there is acknowledgement due receipt duly signed by the representative of OP No.1 about having received the summons and copy of the complaint. Despite receiving summons, none entered appearance on behalf of OP No.1 before the District Forum, so it was rightly proceeded against ex parte. The summons sent out for service of OP No.2 had been refused by its representative Krishan Kumar and the plea of OPs that there was no employee with the name of Krishan Kumar is not supported by duly sworn affidavit of any responsible functionary of the company. Thus, there was no discrepancy in affecting service on OPs and as they did not turn up despite service, so they were rightly proceeded against ex parte. Further, OP No.2 a branch office of OP company is situated in Chandigarh and the material booked was delivered at Chandigarh, so the District Forum at Chandigarh had the territorial jurisdiction to try and adjudicate upon the dispute under the provisions of Consumer Protection Act.
The evidence adduced by the complainant before the District Forum has gone unchallenged and unrebutted as OPs did not bother to appear and contest the complaint before the District Forum. So, in the given facts and circumstances of the case the learned District Forum rightly granted a sum of Rs.43,000/- on account of broken and missing items and Rs.40,000/- as compensation for harassment etc. because complainant before filing the complaint had sent various
e-mails and even sent notice dated 23.7.2009 through registered post but OP company took no steps to redress the grievance of complainant.
16. In Ravneet Singh Bagga’s case (supra) it has also been laid down as that: -
“The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bona fides, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”
17. It is manifestly clear from the impugned order that respondent even before filing the complaint has sent notice by registered post to the petitioner and this fact find mention in para-16 of the complaint filed before the District Forum. The petitioners did not respond even to the notice which was sent to them by the respondent before filing of the complaint before the District Forum. It is apparent from the record that the petitioners have been pursuing this litigation in a very careless and negligent manner and when they had no defence, they have chosen to file the present revision petition just to deprive the respondent fruits of the decree. Moreover, there is no rebuttal to the averments made by the respondent with regard to the deficiency in service rendered by the petitioners and as such the District Forum rightly allowed the complaint of the respondent.
18. Present revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (for short ‘Act’).
19. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.
20. Recently, Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”
21. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors. 2010 (115) DRJ 601. Delhi High Court observed ;
“It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence. Under Article 227, this Court does not correct the mistakes of law or mistakes of facts. The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.”
22. It is well settled that no leniency should be shown to such type of litigants, who in order to cover up their own fault and negligence goes on filing meritless petitions in different foras.
23. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, Apex Court observed ;
“Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law’s delay and bringing bad name to the judicial system.”
24. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of the Act since, two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction. Thus, present petition is hereby, dismissed with cost of Rs.20,000/- (Rupees Twenty thousand only). Pending application also stand disposed of.
25. Petitioners are directed to deposit the cost of Rs.20,000/- in the Consumer Legal Aid Account of this Commission, within thirty days. In case, petitioners fail to deposit the said cost within the prescribed period, they shall also be liable to pay interest @ 9% p.a., till realization.
26. List on 8th July, 2011 for compliance.
(V.B. GUPTA J.)