Appeal No. 355/2009

Date of Decision 12.1.2010.

In the matter of:

Tiirtha Traders Authorized Distribution of Andslite

& Andsbag through its Manager Sales, Bhardwaj

Niwas, Lane-1, Sec. II, Opp. Post Office, New Shimla, HP.

… … Appellant.

Versus
1. Blaze Flash Courier Ltd. Balsan House Near Aukta Niwas,

Upper Khalini, through its Manager;
2. Jagdamba Trading Co. In front of English Wine Shop Mehre

Badsar, Distt. Hamirpur, HP through its proprietor.

… … Respondents.

Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.

Whether approved for reporting? Yes.

For the Appellant.: Mr. S.S. Roach, Advocate.

For the Respondents. Mr. Digvijay Singh, Advocate.

O R D E R

Per Mr. Chander Shekher Sharma, Member.


This appeal is directed against the order passed by District Forum, Shimla, in Consumer Complaint No. 415/2007, decided on 18.8.2009 whereby the complaint of the appellant was partly allowed and respondent No.1 was directed to indemnify the appellant to the extent of Rs. 100/-, besides litigation cost of Rs. 1000/- within a period of 45 days, after the receipt of copy of the order.



2. Facts of the case as they emerge from the record are, that appellant had booked a parcel containing led torch light, BL-2 of the value of Rs. 13,821/- by courier, respondent No.1 on 25.9.2007. This was to be delivered to the consignee, respondent No.2 at Hamirpur. For rendering this service respondent No.1 charged a sum of Rs. 200/- from the appellant as per Annexure C-1. Further averments in the complaint were that the said consignment was not delivered to the consignee thereafter the appellant repeatedly contacted the respondent No.1 and apprised him of non receipt of consignment, but that was of no avail, as such there was deficiency of service on the part of respondent No.1. In this background complaint under Section 12 of the Consumer Protection Act, 1986 was filed wherein direction was sought, that respondent No.1 be directed to pay the sum of Rs. 13,821/- being value of the goods/parcel to the appellant with interest @ 12% per annum w.e.f. 25.9.2007. In addition to this damages to the tune of Rs. 2000/- and litigation cost at the rate of Rs. 5000/- was also sought from respondent No.1.



3. Brief resume of the unrebutted evidence led by the appellant in the present case is, that the appellant in support of its case has filed affidavit of its manager. He has reiterated what is mentioned in the complaint. Annexure C-1 is the consignment note, Annexure C-2 the invoice of the led torch light indicating its price. On the other hand the respondent No.1 did not file any evidence. Even reply is not supported with the affidavit.



4. Respondent No.1 filed its written version and then did not appear, so it was set ex-parte. Respondent No.2 was already ex-parte. Stand of respondent was that best the appellant is entitled to Rs. 100/- only. Deficiency of service was denied. No proof of the article sent by speed post having been delivered to the addressee was placed on record by respondent No.1. A vague plea is also raised that it may have been lost in transit.



5. We have heard learned counsel for the parties and have also gone through the record of the case file minutely.



6. Mr. S.S. Roach, learned counsel for the appellant argued, that the District Forum below fell into error when it allowed only Rs. 100/- to his client after placing reliance on the terms and conditions contained in the consignment note. Per him these terms and conditions are not binding upon the appellant, since Annexure C-1 does not bear signatures on behalf of the appellant. As such the appellant is entitled for the relief claimed in the complaint. In support of his contention, he placed reliance upon decision of this Commission in Manish Thakur Prop. of M/s Galaxy Enterprise Vs. M/s Blaze Flash Courier Ltd. & Ors., Latest HLJ 2008 (HP) 1117. As will be seen from the subsequent paras of this order, this decision fully covers this case and the order of the District Forum below is liable to be set aside.

7. On the other hand Mr. Digvijay Singh, learned counsel for respondent supported the order of the District Forum below.



8. After hearing the learned counsel for the parties, as well as after going through the record of the case, we are of the view that the order of the District Forum below is not legally sustainable. Reason being that the District Forum below had wrongly placed reliance on terms and conditions contained in consignment note Annexure C-1, while indemnifying the appellant to the extent of Rs. 100/- only. As these terms and conditions contained of Annexure C-1 are not binding upon the appellant, for want of signatures of the appellant/sender on it. Thus there is no concluded contract between the parties. Thus the District Forum below had wrongly given undue weight to the terms and conditions of Annexure C-1. Relevant potion thereof is extracted hereinbelow:-

“………………………………………….…………….that liability of Blazeflash for any loss or damage to the consignment in transit or for any delay in delivery of the consignment shall be strictly restricted/limited to Rs. 100/- for each domestic consignment and Rs. 1,000/- for each international consignment…………...……………………………..”



9. Another fact also evident from the perusal of Annexure C-1 is, that it is in very fine and thin print and there is nothing on record to suggest that the terms and conditions contained in Annexure C-1 were explained by the respondent No.1 to the appellant. Legal position in this behalf has been laid down by the National Commission in case Tata Chemicals Ltd. Vs. Sky Pack Couriers Pvt. Ltd. and National Commission Consumer Lal Cases (1996-2005) 558. National Commission held that conditions printed in fine and small print which is meant to limit the liability of one of the parties should be construed strictly that a very small and the thin print should be clearly discernible and should draw the pointed attention of the consumer.



10. In the present case it is proved on record from Annexure C-2 and the affidavit filed on behalf of appellant, that the value of the consigned article was Rs. 13,821/-. This is unchallenged and unrebutted evidence, as such we have no option, but for accepting the same. Hence there is cogent and convincing evidence to prove that there is gross negligence/deficiency of service on the part of the respondent No.1, when it failed to deliver the article sent through it to addressee, i.e. respondent No.2. As a result of which the respondent is liable to indemnify the appellant the value of the consigned article which is Rs. 13,821/-, for deficiency of service on its part, along with interest at the rate of 7.5% form the date of filing of the complaint till deposit/payment whichever is earlier.



11. No other point was urged.



In view of the aforesaid discussion, while allowing this appeal, order of the District Forum Shimla, in Consumer Complaint No. 415/2007, decided on 18.8.2009 is modified thereby holding that in addition to Rs 1,000/- as litigation cost, appellant is further entitled to Rs. 13,821/- along with 7.5% interest from the date of filing of the complaint, i.e. 6.12.2007 till the date of deposit/payment whichever is earlier. Appeal is disposed of subject to this modification.



Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules.

To

Consumer court

Sir,

My envelope was sent from Kanpur to Parel Mumbai on 14.11.09 by
Blaze Flash courier consignment no.297576184
Tracking consignment showing at Mahim . No response on phone. I
have not my mail yet.Kindly help.

R.C.Sharma
Vamshi Chemicals Limited
46/47 Jerbai wadia road
Behind Mahatama Plule Technical School
Bhoiwada ,Parel ,Mumbai 400012

Hope any responsible person would do something over this.Details are
mentioned below in the mail for the courier booked on 25th Nov 2009.It
was clearly told to the Shakkarpur,New Delhi office that the packet
consists of medicines and needed urgent delivery.To utter surprise ,as
per Online details the booking date is 26th Nov and in Type has been
mentioned as D ( i suppose its for documents)

The medicine was worth Rs 3100/ which has been stolen from Blazeflash
courier and has been delivered to Jamshedpur after taping it again with
the costly medicine out.

I contacted the Shakarpur Office,some Manoj is there who is Branch
Manager and of no help.Further i spoke to Mr Amit Gupta thinking he
might be responsible person as you have advertised on the
site.Shamefully he was not better than a dumb person handling any issue.

If your courier company wants to generate money by stealing from the
packets i am sure you will be billionaire in a week before the company
gets closed.

I need my medicines back,its upto you how you find it out and who the
real thief is ? Do not know if the same is happening that on higher
levels you receive some type of commission for every steal done at lower
levels.

I need my medicines back.Do not steal,dirty work on your part.


Blazeflash Couriers Ltd. Tracking Report version
10.2008.01.30
To track your consignment, please enter C/note Number.

Consumer Complaint No: 16/2008

Date of presentation: 28.03.2008

Date of decision: 22/01/2010.

Smt. Amita Kumari W/o Sh. Dalip Singh,

R/o House No. 36, Devi Nagar, Paonta Sahib, District Sirmour.


… Complainant.
Versus

1. M/s Blazeflash Couriers Limited,

Through its Manager, at B.F. C.

Lachmi Nagar, Delhi.
2. M/s Blazeflash Couriers Limited,

Through its Manager,

Sh. Kehar Singh near Vishwa Karma Chowk,

Main Road, Paonta Sahib H.P.

3. M/s Blazeflash Couriers Limited,

Through its General Manager,

Blaze Flash House 2E/8 Jhandewala Ext. New Delhi/55.

…Opposite Parties.

For the complainant: Mr. Pankaj Khanduja, Advocate.

For the Opposite Parties: Mr. Devinder Singh, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- This instant complaint, has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that he purchased World Class R.O. Water Purification system from Kcone Filtration Private Limited, for a consideration of Rs.14,950/- It is averred, that, this product was booked with the OP, for onward delivery to the addressee, on, 22.01.2008, who charged a sum of Rs.300/-, and promised to deliver the product to the addressee, on 23.01.2008. The complainant further proceeded to aver that firstly the OPs, failed to deliver the product to the addressee and when it was delivered, it was found in broken condition. Hence, feeling dissatisfied and aggrieved by the act of the OPs, the complainant avers that there is apparent deficiency in service on the part of the OPs, and, accordingly, the relief to the extent, as detailed in the relief clause, be awarded in favour of the complainant.

2. The OPs in its written version to the complaint raised preliminary objection vis-à-vis maintainability of the complaint, inasmuch, as, limited liability of Rs.100/-. On merits, it is admitted that one parcel was booked on, 22.01.2008, which has been admittedly delivered on, 25.01.2008. It is further contended that at the time of booking, no assurance was given to the complainant that the parcel would be delivered to the addressee within 24 hours. However, the OPs, has undertaken to deliver the booked parcel to the consignee, which contractual obligation the OP, has fulfilled. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

3. We have heard the learned counsel for the parties at length and, have, also thoroughly scanned the entire record of the complaint.

4. The complainant, is, aggrieved by the act of the OPs, in, not having delivered the consignment to the consignee, in safe and proper condition, in which condition, it was booked by the complainant. The OPs resist, the, above grievance and in a detailed reply, has, contended that theirs liability, is, limited only to the extent of Rs.100/- , as per the terms and conditions.

5. The OPs have contended in its reply that the consignment, so booked with it, by the complainant, was delivered to the addressee, intact and in the same condition, especially, when the complainant avers, its, delivery to the addressee, in a broken condition, as is proved from the existence of affidavits of Smt. Amita Kumari and Dalip Singh, who have unequivocally deposed, that, the parcel was delivered to the addressee, in, a, broken condition. The OPs have not been able to repulse or rebut the aforesaid affidavits by adduction of cogent, convincing and apposite evidence, hence, for lack of rebuttal to the above, it cannot be said that the OPs, have discharged their liability by delivering the parcel to the addressee, rather, it was their bounden duty to have delivered the parcel in a safe and proper condition.

6. The complainant claims compensation from the OPs, on account of the fact that the consignment was not delivered to the addressee in a safe and proper condition. However, the OPs, is, deriving the benefit from the courier receipt, hence, seek to restrict their liability, to the extent of Rs.100/-. However, in the light of the case law as reported in 2004(1) Judicial Reports Consumer (NC) in case Osuri Devendra Phanikar versus Desk to Desk Couriers and Cargo Ltd., we are not in agreement with the submission as put forth by the OPs, that, theirs liabilities, is, restricted, only to Rs.100/-, as detailed in the courier receipt, for, the reason that their does, not, exist any proof qua the fact that the terms and conditions, of, the courier receipt were explained to the complainant and, who then, came to sign the said receipt. Moreover, we, have not been apprised of any condition which interdicted the OPs from opening the parcel, for determining the value of, its, contents, hence, when, it, was open for the OP, to, have taken recourse to open the parcel for determining the value of its, contents, theirs, not, having chosen to do so, gives fillip, to, the inference, that, the value as quantified by the complainant on affidavit, which has remained un-controverted, is, truthful. Hence, the OPs, cannot derive any benefit from the receipt detailing the fact that theirs liability is restricted only to the extent of Rs.100/-, especially when the parcel has not been, delivered to the addressee, in a safe and proper condition, & despite the invoice accompanying the consignment implying the fact both of its fragility and of its being in an unbroken condition. Hence, when the fact of its having been delivered in a safe and proper condition, no cogent proof has been adduced, hence, leaving, open scope for the inference, of, its being broken as proved by affidavits aforesaid after, its, entrustment to them, by, the complainant.

7. Resultantly, the complaint is allowed and the OPs, jointly and severally, is, directed to refund the cost of the parcels, amounting to Rs.14,950/- along with interest at the rate of 9% per annum, with effect from the date of filing of the complaint, i.e. 28.03.2008, till actual payment is made. The litigation cost, is, quantified at Rs.1000/- payable by the OPs, to the complainant. This order shall be complied with by the OPs, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. In the above terms, the complaint stands disposed of. The file after due completion, be consigned to record room.

The following are the details of the consignment :
Consignment No. 217399225
Date of Booking : 20.04.2010
Place of Booking : B.DEOGHAR (JHARKAND)
Type of Courier : LETTER
Recivers Full Address :
RAKESH KUMAR
C/o SHRI SUBHASH CHOWHERY
HANUMAN TIKRI
B.DEOGHAR
JHARKAND

Plz help me. Pl. repley me & call me.

SANJIT KUMAR
9958379999
sanjit_12000@yahoo.com.