P & M LOGISTIC CO. PVT. LTD vs GARHWAL MANDAL NIGAM LTD. & ANR

Challenge in this First Appeal under Section 19 of the Consumer Protection Act (for short the "Act") by the Complainant, is to order dated 3.11.2009 in Complaint Case No. 126 of 2002, passed by the State Consumer Disputes Redressal Commission, Delhi (for short the "State Commission"). By its impugned order, the State Commission has allowed the Complaint directing the Opposite Party to refund the charges paid, i.e. 95,374/-, the value of the consignment i.e. 38,000/- and further pay compensation of 10 lakhs together with costs of 20,000/- to the Complainant.

Briefly stated, the material facts are: that the Complainant Government of Uttaranchal engaged in the business of promoting tourism in the State of Uttaranchal was permitted to participate in the International Tourism Boursel 2002 (hereinafter referred to as ''ITB 2002'') which was to be held at Germany from 16 th to 20 th March, 2002. As per the Government of India, Ministry of Tourism directive/letter dated 12.2.2002, each Partner State wanting to participate in the said ITB 2002, was required to make a total payment of 21.20 lakhs. The Complainant pleaded that permission was sanctioned for a four Member delegation to Berlin and it was absolutely necessary for the Complainant to take publicity material required for promoting Tourism in Uttaranchal and, therefore, decided to send the entire publicity material by AIR through the first Opposite Party. The Complainant vide their letter dated 7.3.2002 had asked the first Opposite Party to despatch the material weighing about 245 kgs. by air to Berlin on the condition that the consignment should reach Berlin by 12 th March, 2002 and paid an amount of 95,373.75/- for the same.

The Complainant averred that while the four Member delegation had reached Berlin on 14.3.2002, they found that the publicity material had not yet reached the Pavilion at ITB. On 16.3.2002 a fax was sent to the Regional Director, Government of India, Frankfurt to get in touch with the second Opposite Party and expedite the delivery of the consignment. The consignment finally reached Berlin on 19.3.2002. As the ITB-2002 was ending on 20.3.2002, the Complainant refused to accept the consignment as it was of no use. The Complainant pleaded that loss and damage suffered by them cannot be easily quantified in terms of money as there was business loss on account of non-availability of the publicity material and further the participation of the Complainant in the said ITB 2002 was ineffective besides the acute embarrassment, the participating delegation had to face in the said circumstances. Hence, they got issued a legal notice to the Opposite party on 12.4.2002 demanding payment of 19,00,374/- towards compensation for the business loss incurred. As there was no response from the Opposite party, the Complainant approached the District Forum seeking direction to the first Opposite party to pay 19,00,374/- with interest, compensation and costs.

The first Opposite Party in their reply before the State Commission stated that they were never apprised of the full facts, relating to the transaction and that they were not aware of the urgency or of the objectives of ITB 2002. They pleaded that they had fulfilled all the obligations as required by a Shipping Agent/Air Cargo Agent and that they had delivered the shipment on 8.3.2002 to the second Opposite Party, i.e. Fed Ex. and that from 9.3.2002 onwards there were holidays beginning with the weekend and on 13.2.2002, there was Shivratri holiday and the consignment was cleared only on 13.3.2002 and despatched through Paris and Frankfurt to reach Berlin. The consignment reached Frankfurt on 16.3.2002, which was a Saturday and therefore, customs authorities cleared the consignment only on 18.3.2002 and hence, there is no deficiency of service on their behalf.

The State Commission allowed the Complaint holding that the Complainant delegation could not properly participate in the Fair because of non-delivery of the publicity material and directed the first Opposite party to refund the charges of 95,374/-, the value of the consignment amounting to 38,000/- together with compensation of 10,00,000/- and costs of 20,000/-.

Aggrieved by the said order, the first Opposite Party preferred this Appeal.

The second Respondent, i.e. Fed Ex has been deleted vide order dated 10.1.2014.

Learned Counsel for the Appellant submitted that all possible measures were taken to get the consignment to Berlin at the shortest possible time but due to improper packaging, the shipment in question could not be cleared at the customs and was given to them only on 9.3.2002. As 10.3.2002 was a Sunday, they could get it cleared only on 13.3.2002, as 12.3.2002 was Maha Shivratri holiday. The consignment was lifted to Berlin via Paris and Frankfurt and the shipment in question reached Frankfurt on 16.3.2002 which was a Saturday and 17 th being a Sunday was a holiday for customs and therefore, the shipment was cleared on 18.3.2002 for Frankfurt and despatched to Berlin on 19.3.2002. He submitted that they cannot be held responsible for any delay taking into consideration the holidays involved and further contended that the urgency of the shipment was never explained to them.

Learned counsel for the Complainant justified awarding of 10 lakhs towards compensation on the ground that the delegation faced a lot of embarrassment as they are all senior Government officials participating in ITB 2002 with a single motive of attracting tourists to Uttaranchal and without publicity material the very nature and purpose of participating in such a Fair was defeated. Unless a tourist is shown the various destinations by way of all possible material, the objective of promoting tourism cannot be achieved. ITB Fair was from 16 th to 20 th March, 2002 and as the publicity material reached only on 19.3.2002, they refused to accept it as it was of no use to them.

It is an admitted fact that ITB 2002 was held from 16 th to 20 th March, 2002 and that the publicity material which was extremely important for such a Fair promoting tourism, reached only on 19.3.2002. The letter dated 7.3.2002 filed before the State Commission evidences that the consignment was booked on 8.3.2002 and an amount of 95,374/- was paid to the Appellant herein on the condition that the consignment should reach Berlin on 12.3.2002. If the first Opposite Party could not have delivered the consignment at Berlin by 12.3.2002, which was clearly stipulated in the letter dated 7.3.2002, it ought not to have accepted the consignment and now turn around and plead that there were several holidays in the interim period.

While we agree with the finding of the State Commission with respect to deficiency of service on behalf of the Appellant herein, in not delivering the consignment on time, however, we observe from the record that there is no substantial basis for awarding an amount of 10,00,000/- towards compensation. Having regard to the fact that publicity material is extremely important in a tourism Fair and that participating in an exhibition without the relevant brochure and material causes immense embarrassment; at the same time it cannot be convincingly stated that every such participation would translate into tangible promotion of tourism. No mathematical calculation can be made with respect to the actual number of tourists who would have visited Uttaranchal, had the delegation received the publicity material on time. Therefore, quantifying business loss to the extent of 10,00,000/- is on the higher side. However, keeping in view all the facts and circumstances of the case, particularly the element of guess work, we are of the considered opinion that awarding an amount of 5,00,000/- towards compensation would meet the ends of justice.

In the result, this Appeal is allowed in part modifying the order of the State Commission and reducing the compensation from 10 lakhs to 5 lakhs while confirming the rest of the order of the State Commission. No order as to costs.

The statutory amount of 35,000/-, deposited by the Appellant at the time of filing of the Appeal, shall stand transferred to the Consumer Welfare Fund.