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2008 DIGILAW 272 (JK)

Jet Airways (India) Ltd. v. Hi-Tech Computers

2008-07-03

MOHAMMAD YAQOOB MIR

body2008
1. With the consensus of the appearing counsel for the parties, the petition is taken up for final adjudication at its admission stage. 2. Precisely factual background giving rise to the instant lis is that respondent no. 1 is running the business under the name and style of Hi-Tech Computers situated at Fair Deal Shopping Complex, Residency Road, Srinagar. Respondent had to supply computer parts to M/s Sun Shine Public School of the value of Rs. 2 lacs, components worth Rs. 50,000/- were supplied and the components worth Rs. 1, 50,000/- were to be supplied upto 16.1.2002. Respondent no. 1 used to purchase the computer items from a business concern M/s Rajman New Delhi so had placed the order for supply of requisite computer items worth Rs. 1,50,000/- with instruction for sending the same by airway. Accordingly, respondent no. 2 M/s Rajman Company dispatched the required computer items costing to Rs. 1,50,000/- under Airway bill no. 589142977-4161 under invoice cash memo no. 317 dated 14.1.2002 by Jet Airways through their agent M/s JAC Air service on 14.1.2002. The petitioner had some outstanding arrears with the agent M/s JAG Air service, in view of which, petitioner did not send the consignment but after settlement did send the consignment on 30.1.2002, reached Srinagar on the same day. Respondent no. 1 was informed, who refused to receive the consignment as according to him, delay in dispatch and receipt has rendered the items useless for him as the same were required to be supplied to the Sun Shine Public School upto 16.1.2002 failure on his part in not supplying the items to the M/s Sun Shine Public School well within the time fixed has affected his reputation as he could not keep his commitment, resultantly, cost of components worth Rs. 50,000/- already supplied could not be realized and the items cannot now be supplied as not required, therefore, the items have no utility for him, so the consignment remained with the petitioner. 3. In the backdrop of the aforesaid facts, respondent no. 1 lodged a complaint before the Divisional Consumer Forum, claiming compensation to the tune of Rs. 4,50,000/- on the following counts: 1. Cost of goods booked Rs. 1,50,000/- 2. Loss of profit caused in the business due to non supply of goods Rs. 0.50 lacs. 3. 3. In the backdrop of the aforesaid facts, respondent no. 1 lodged a complaint before the Divisional Consumer Forum, claiming compensation to the tune of Rs. 4,50,000/- on the following counts: 1. Cost of goods booked Rs. 1,50,000/- 2. Loss of profit caused in the business due to non supply of goods Rs. 0.50 lacs. 3. Compensation for the price of components already delivered to the owner of Sun Shine Public School at the time of accepting the offer of supply Rs. 0.50 lacs. 4. Damage caused to the reputation of the business Rs. 1 lac. 5. Compensation for mental agony and suffering Rs. 1 lac. The Divisional Forum vide its judgment dated 8.4.2005 concluded that non delivery of the goods for sixteen days has caused loss, therefore, awarded Rs. 30,000/- as compensation to the complainant payable within one month, in default 6% interest shall be chargeable. Complainant (respondent no. 1 herein) dissatisfied with the award of compensation assailed the order of the Divisional Forum by medium of appeal before the Jammu and Kashmir State Consumer Dispute Redressal Commission, hereinafter referred to as the "State Commission". The State Commission vide its judgment dated 12.6.2007 has held complainant entitled to the tune of Rs. 2,97,298/- payable within a period of two months, in default interest at the rate of Rs. 9% p.a has been allowed. 4. The learned State Commission after appreciating the whole gamut of the matter has come to the conclusion that the agent shipper of the petitioner M/s JAC Air Service Delhi had received an amount of Rs. 2,298 as freight charges and the computer items Rs. 1,50,000/- were supplied on 14.1.2002 and were booked with the petitioner through Air bill no. 589-71429774161. The delivery should have been made within two days. M/s Rajman had admitted to have received Rs. 1,50,000/-from the complainant and sales tax liability amounting to Rs. 15,000/- was to be received. According to the learned State Commission, the complainant/ respondent had suffered loss of Rs. 2 lacs i.e., Rs. 50,000/- on account of items supplied to the Sun Shine Public School and Rs. 1,50,000/- as costs of the items which remained with the petitioner. The break up of the awarded amount is as under: 1. Rs. 50,000/- as costs of the supplied items. 2. Rs. 1,50,000/- as costs of the consignment. 3. Rs. 2,298/- as freight charges. 4. Rs. 50,000/- on account of items supplied to the Sun Shine Public School and Rs. 1,50,000/- as costs of the items which remained with the petitioner. The break up of the awarded amount is as under: 1. Rs. 50,000/- as costs of the supplied items. 2. Rs. 1,50,000/- as costs of the consignment. 3. Rs. 2,298/- as freight charges. 4. Rs. 25,000/- as profit as would have been reasonably earned by the respondent on a consignment of Rs. 2 lacs capital. 5. Rs. 40,000/- on account of mental and physical torture. 6. Rs. 30,000/- as costs of litigation. 5. Petitioner aggrieved by the award of the learned State Commission has invoked the writ jurisdiction of this Court seeking quashment of the entire proceedings. 6. The first contention raised by the appearing counsel for the petitioner is that the learned State Commission has exercised the jurisdiction contrary to the basic object of the J&K Consumer Protection Act, hereinafter referred to as "the Act". The contention at the very outset has to be repelled because the object of "the Act" is to promote and protect the rights and interests of consumers by providing simple speedier mode for redressal of the grievances. The object of sending the consignment by airway had a definite object of dispatch and receipt with reasonable promptitude. The petitioner was duty bound to render the services with reasonable speed. The petitioner had dispute with its own agent which could be sorted out by the petitioner by having resort to different modes. The petitioner has exhibited negligence in not dispatching the consignment immediately on receipt that is 14.1.2002. Internal dispute of the petitioner and its agent could by no means stand in the way of the consumer in getting the proper service that too against the proper cost. The consignment admittedly has been received by its agent on 14.1.2002, there was no occasion for the petitioner to withhold service in not delivering the consignment to respondent no. 1 well within a day or two. 7. It is true that the consignment had been sent by the petitioner on 30.1.2002, received at Srinagar on the same day, intimation also given to the respondent on the same day but the respondent was right in refusing the consignment as the same had become useless for him. 1 well within a day or two. 7. It is true that the consignment had been sent by the petitioner on 30.1.2002, received at Srinagar on the same day, intimation also given to the respondent on the same day but the respondent was right in refusing the consignment as the same had become useless for him. He had to supply the same upto 16.1.2002 to M/s Sun Shine Public School, when he could not do so, he lost the contract with M/s Sun Shine Public School. The consignment i.e., computer components worth Rs. 1,50,000/- were for a specific purpose. Same purpose had been defeated by delay. It cannot lie in the mouth of the petitioner to say that there was no contract or stipulation to deliver the consignment at Srinagar within two days. The sending of the consignment by airway has an implied connotation of urgency and reasonably it is expected that the consignment would reach to Srinagar from Delhi by airway within two days which fact has been testified when the consignment was sent from Delhi on 30.1.2002 on the same day reached to Srinagar. The implied object of sending the consignment with promptitude cannot be defeated by saying that there was no stipulation for delivering the goods within one or two day at Srinagar. 8. It was contended that as per Regulation no. 6 of Jet Airways (1) Ltd. Non- International Carriage of Cargo (Other than baggage and mail) Regulations 1993, does not prescribe any fixed time limit for completion of the carriage. Regulation 6 reads as under: "There shall not be any time limit fixed for the completion of the carriage hereunder and that the carrier may without notice substitute alternate carriers or aircraft. The carrier doesnt assume any obligation to carry the goods by any specified aircraft or over any particular routes or to routes or to make connections to any point according to any particular schedule, and. the carrier is authorized to select or deviate from route or routes of shipment, not withstanding that the same may be stated on the face of the Air Waybill. The shipper shall guarantee the payment of all charges and advances." 8. From plain reading of the Regulation it is clear that there shall be no time limit for completion of the carriage but it is not to be understood in a narrow sense. The shipper shall guarantee the payment of all charges and advances." 8. From plain reading of the Regulation it is clear that there shall be no time limit for completion of the carriage but it is not to be understood in a narrow sense. If it is interpreted the way it is projected, then the object of sending carriage by airway will become meaning less, sending of carriage by airway has a definite meaning of reaching its destination with all promptitude. The regulation in effect has the object of protection. It is not meant for protecting the negligence and avoidable situation. If the regulation is interpreted to mean that there shall be no time for the completion of the carriage, then service by airway shall be absurd. Its object can never be to shield negligence but its object is to provide protection against the un avoidable and unforeseen situations. 9. Next it was contended that the learned State Commission was not justified in enhancing the award from Rs. 30,000/- to Rs. 2,97,298/- when there was no material available on record. The computer items have not become completely useless. Same position has been ignored. This submission is only to be rejected because re-appreciation of evidence by the writ court is not permissible. Jurisdiction is confined to correct the errors of law or procedural error, which may result in manifest miscarriage of justice or violation of principles of natural justice. Judicial review does not permit re-appreciation of the evidence as is permissible for the appellate authority. I am fortified by the judgment reported in 2006(2) SCC page 373, it shall be quite relevant to quote para 11 of the said judgment as under: "By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage or justice or violation of principles of natural justice. Juridical review is not akin to adjudication on merit by re appreciating the evidence as an appellate authority". 10. Next it was contended that the learned State Commission has drawn presumption about sufferance of loss to the tune of Rs. Juridical review is not akin to adjudication on merit by re appreciating the evidence as an appellate authority". 10. Next it was contended that the learned State Commission has drawn presumption about sufferance of loss to the tune of Rs. 2 lacs when the goods were not rendered useless nor it was proved that the market value had completely diminished when the respondent no.1 of its own refused to take delivery. This submission is without substance. The learned State Commission has appreciated this aspect when the items for a specific purpose were not delivered in time automatically, those have become useless for the respondent no.1. "The Act" is a benevolent piece of legislation. Its sole object is to protect the interests of the consumers when the items (consignment) could not reach in time, its utility has vanished for respondent no. 1 and he had to loose Rs. 50,000/- i.e., cost of items already supplied to M/s Sun Shine Public School. Though the appearing counsel while placing reliance on the judgment reported in AIR 2002 SC Page 2148 contended that the findings are perverse, therefore, re-appreciation of the evidence is permissible. Further added while taking support of AIR 2003 SC Page 3329 contended that the non-application of mind is quite visible as the findings are arbitrary and interference is warranted. Both the judgments are of no help to the petitioner. Firstly no perversity is noticed. Meticulous application of mind on the perusal of the file is found in tune with the circumstances of the case. There is no occasion for re-appreciation of the evidence. No illegality is noticed in the proceedings. 11. Next it was contended that Rs. 25,000/- awarded on account of profit is un-warranted but the submission is without any logic. When a person invests Rs. 2 lacs, he is expected to earn the profit, so Rs. 25,000/- granted by no stretch of imagination can be termed to be excessive or un reasonable. 12. Next it was contended that respondent no. 1 had not to suffer any financial loss neither harassment, so enhancement of the compensation was un-called for. This submission on scrutiny is found without any force. Admittedly respondent no. 1 had to supply computer items to M/s Sun Shine Public School worth Rs. 2 lacs upto 16.1.2002, it supplied items worth Rs. 50,000/- but could not supply the items worth Rs. This submission on scrutiny is found without any force. Admittedly respondent no. 1 had to supply computer items to M/s Sun Shine Public School worth Rs. 2 lacs upto 16.1.2002, it supplied items worth Rs. 50,000/- but could not supply the items worth Rs. 1,50,000/- as the same were not received upto 16.1.2002 so naturally respondent lost Rs. 50,000/- already invested by supply of items and also lost the contract which has been fully established. The matter has been appreciated in its right direction by the learned State Commission and justified award has been passed. 13. Next it was contended that respondent no. 1 had refused to accept the consignment on 30.1.2002 so has no right to claim the compensation. The submission is illogical, when the respondent no. 1 was required to receive the consignment up to 16.1.2002, its receipt on 30.1.2002 had no meaning for him as it had become waste for him so what for he had to receive the same. Question of estoppel from claiming compensation is beyond imagination. 14. Next it was contended that the interest granted @ 9% is un reasonable but it is a hard fact that business concerns are dependent on banking transactions, any amount of loan drawn is to be repaid alongwith interest, if that scale is applied then even 12% can be on lower side. It is in view of the compensatory object of the Act only 9% has been awarded, which is quite reasonable. But, however, shall be now chargeable from the date of this order until realization. 15. The learned counsel as a last ditch effort projected that respondent does not fall within the category of the "Consumer" so complaint was not maintainable. Elaborating the submission, submitted that the complainant had purchased the computer items not for personal consumption, he had to resell the same, as he deals in such business. The argument is misdirected, had it been a claim/ complaint against the supplier i.e., M/s Rajman, the decision could be some what different. It is not complaint against the supplier who had taken due care in booking the consignment well within the time in keeping with object of its supply. The grievance of respondent no. 1 is against the deficiency of service on the part of the petitioner, so for the purpose of that service, respondent is a consumer. It is not complaint against the supplier who had taken due care in booking the consignment well within the time in keeping with object of its supply. The grievance of respondent no. 1 is against the deficiency of service on the part of the petitioner, so for the purpose of that service, respondent is a consumer. As per section 2(d) (i) of "the Act" Consumer does not include a person who obtains goods for resale or for any commercial purposes, but as per Section 2(d) (ii) includes a person who hires any services and a person who is beneficiary of such service. Further more, as per explanation attached for the purpose of sub clause(i) "Commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood. In the instant case, admittedly respondent had bought the goods for purpose of earning his livelihood as he deals in such business, that apart he is the beneficiary of the services hired by M/s Rajman Company, so he falls within the definition of the Consumer as defined under Section 2(d) of "the Act". 16. Cumulative effect of the aforesaid discussion leads to inescapable conclusion that the award passed by the learned "State Commission" is well with the confines of law and by every standard is found to be reasonable. 17. The consignment i.e., computer items worth Rs. 1.50.000/- which are lying with the petitioner shall vest to the petitioner and it shall be open for the petitioner to auction the same or utilize the same reasonably. 18. The award passed under challenge does not suffer from any illegality or perversity, hence is upheld. Amount of award shall be paid to respondent no. 1 within one month, in default amount shall be recoverable alongwith interest @ 9% from the date of this order. Writ petition accordingly dismissed.