1. Respondent/Complainant was carrying on cloth business under the name of Bhagwati Boutique. She engaged the services of the Petitioner/Opposite Party for carrying her consignment to different parts of the country. The Complainant booked a consignment containing seven bundles of cloth from Kolkata to Bangalore through the Petitioner on 06.12.2017. Out of the seven bundles of cloth that she booked, the Complainant received six bundles. Complainant sent letters dated 15.12.2017 and 19.12.2017 to the Petitioner requesting delivery of the undelivered bundle, but in vain. Thereafter, she filed a complaint case before the District Forum with the following prayer: -
“a. To direct to return one undelivered bundle booked under consignment Note No.1508758 dated 06.12.2017 to your complainant otherwise to pay Rs.1,25,000/- towards cost of the goods contained in the bundle in para 4 of the plaint.
b. To direct to pay Rs.30,000/- as compensation for mental agony and harassment.
c. To direct to pay Rs.5,000/- as litigation cost.
To pass such order or orders as your Honour may deem fit and proper.”
2. The Complaint was contested by the Opposite Party by filing written statement that the Complainant was not a consumer as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. Further, the Respondent/Complainant had booked uninsured consignment and had not disclosed the value of goods. The liability of consigner, in a case of uninsured consignment, was limited. There was no deficiency in service and/or unfair trade practice on the part of the Opposite Party and, therefore, the complaint case be dismissed with cost.
3. After hearing both the parties and perusing the record, the District Forum allowed the complaint case and ordered as follows: -
“That the Complaint case be and the same is allowed on contest against the OPs with litigation cost of Rs.3,000/- (Rupees Three thousand) only.
OPs are directed to return one undelivered bundle booked against consignment No.1508758 dated 6.12.2017 to the complainant within 30 days from the date of this order, in default, the OPs shall have to pay Rs.1,25,000/- towards cost of the goods contained in the undelivered bundle to the complainant within the stipulated period.
OPs are directed to pay compensation of Rs.10,000/- (Rupees Ten thousand) only to the complainant as compensation for causing mental agony within the stipulated period.”
4. Against the order of the District Forum, an Appeal was filed before the State Commission. The State Commission after hearing both the parties concurred with the order of the District Forum and dismissed the appeal with a cost of Rs.10,000/- payable by the Appellant to the Respondent/Complainant. Against the order of the State Commission, Revision Petition has been filed by the Petitioner/Opposite Party. The present Revision Petition has been filed against these concurrent findings of the Fora below.
5. Heard the learned Counsel for the Parties and carefully perused the record. The Complainant booked a consignment containing seven bundles of cloth from Kolkata to Bangalore through the Petitioner on 06.12.2017. Out of the seven bundles of cloth, the Complainant received six bundles. Complainant sent letters dated 15.12.2017 and 19.12.2017 to the Petitioner requesting delivery of the undelivered bundle, but there was no response from the Petitioner. Learned Counsel for the Petitioner contended that both the Fora below have wrongly treated a commercial transaction as a consumer dispute and had not appreciated the limited liability of the consigner and failed to ascertain the actual value of the lost article.
6. The Complainant was carrying on boutique business for earning her livelihood by means of self-employment. She booked the consignment and received the same herself.
7. Section 2 (1) (d) of the Consumer Protection Act, 1986 defines the expression “Consumer.” It reads thus: -
“(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) 12 [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 12 [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 13 [but does not include a person who avails of such services for any commercial purpose]”
8. State Commission observed that the photocopies of the consignment notes did not bear any official address of the Respondent in Bangalore. The consignee had been shown as “Self.” The goods were received by the Respondent herself in Bangalore and the Respondent hired the services of the Appellant on payment of due charges and, therefore, she was definitely a bona-fide consumer as defined under Section 2 (1) (d) of the Act. It is clear that she is covered by the exception clause in the definition of Consumer under Section 2 (1) (d) of the Act.
9. Regarding value of the missing bundle of Rs.1,25,000/-, Complainant clearly stated that she had purchased the cloth from different persons and stitched them in her boutique. She, therefore, could not assess the exact value of the missing bundle. Further, the Petitioner claimed in the written version that the consignment was booked through Railways but no record had been placed which could prove that the claim made by the Respondent was exaggerated one.
10. So far as limiting the liability of the Petitioner/Opposite Party to Rs.100/- is concerned, it is based on a contract in a standard form and not a specific contract between the two contracting parties. Hon’ble Supreme Court in Central Inland Water Transportation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr., 1986 SCR (2) 278 held that such a contract/clause is void under the Indian Contract Act. More so, it is necessary to mention that the terms & conditions of the consignment being unsigned, are not binding upon the Complainant.
11. Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the petitioner succeeds in showing that the Fora below has wrongly exercised its jurisdiction or there is a miscarriage of justice. It was so held by the Hon’ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 has held as under: -
“13. 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.”
12. Same principle has been reiterated by Hon’ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon’ble Supreme Court has held as under:-
“23. The National Commission h
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as to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.” 13. Both the Fora below allowed the Consumer Complaint against the Petitioner/Opposite Party. I find no reason to interfere with the concurrent findings of both the Fora below. Petitioner has failed to point any illegality or irregularity in the order passed by the State Commission, warranting interference in exercise of revisional jurisdiction under Section 21 (b) of the Consumer Protection Act, 1986. Revision Petition is accordingly dismissed.