Consumer Case No.889/2008

Between
E. Ram Reddy,
S/o. Ganga Reddy, 73 years
Practicing Advocate, R/o. HoNo.3-4-760/1,
Barkatpura, Flat No.303, Amrit Chaya Apartment,
Hyderabad-500 027. . ……Complainant

And
M/s. Professional Couriers,
68 Paigah Colony, S.P.Road,
Secunderabad-500 003,
Rep by its Manager. …..Opposite party

This case coming on 07- 04-09 for final hearing before this Forum in the presence of Party –in-Person for the complainant and Sri.M/s. Eranki Phani Kumar, Advocate for the opposite party having stood over till this day for consideration, this Forum pronounced the following:-

O R D E R

(By Sri. D.Mahesh Kumar, Member on behalf of the bench)

1. This complaint under Section 12 of Consumer Protection Act, 1986 was filed by the complainant for a direction to the opposite party to award a compensation of Rs.16,500/- with interest at 9% per annum from the date of filing the complaint till the date of full and final realization and to award cost of the suit at rupees two and half thousand only in the ends of justice.


2. The brief facts of the case:- The complainant booked a consignment containing 2 sheets affidavit to be signed and notarized by the consignee at Nizambad through the opposite party located at Narayanaguda on 28-3-2008. The opposite party informed the complainant that the booked cover will be delivered to the consignee at Nizambad on the next day i.e, 29-03-08. It is the say of the complainant that the opposite party failed to deliver the said cover on the next day or even on 30-3-08. Thereafter the complainant contacted the opposite party they promised to delivered the same positively on 31-3-2008. Again the complainant contacted the opposite party on 31-3-08 the opposite telephone to the Nizambad Branch where the Nizambad Branch informed to the opposite party that consignee’s house was locked. When the complainant gave the cell number of the consignee the opposite party Branch at Nizambad changed their stand in of locking the door and said that their computer system was not working on 31-3-08 and they will revert to Narayanguda branch their the consignment was booked, when it found where about the cover. The opposite party’s Branch Manager enquired with the Nizambad Branch people and promised to deliver the cover as a special case before 10.00 a.m on 1-4-2008. Meanwhile the complainant made false to the consignee at least 10 to 12 times and and suffered mental torture caused of the non delivery of cover by the opposite party within reasonable time. It is the say of the complainant that the hosts at Chicago-USA who were enquiring to send a fax of assigned and notary attested copy as the complainant schedule to fly on 04-04-2008. The opposite party has not delivered the cover even by 1.30 p.m on 1st April,2008 immediately the complainant got issued a legal notice claiming Rs.16,500/- as damages, mental torture. It is further submitted that the complainant he had paid 500% extra money comparatively to Government of India postal services for which they have charging only Rs.5/-.
That the above contents the complainant seeks this Forum to direct the opposite party’s to pay Rs.16,500/- with interest at 9% p.a. from the date of filing of the complaint till realization towards deficiency of service and mental torture and also award costs.



2. The opposite party filed his Counter/written version contended that the complainant had booked a cover on 28-3-08 bearing consignment note No.HYD o7735237. However the opposite party contents that its unaware of the contents placed in the cover and also in has not given any assurance that the said cover would be delivered to the addressee at Nizambad on the next day i.e, 29-03-2008. It is the say of the complainant that the addressee’s house was locked as such it could not deliver the said cover . The opposite party received the legal notice and enquired and contacted the complainant and came to know since the cover has been received by the addressee. The opposite party did not reply for the above said legal notice. The opposite party contents that the complainant has gone by the terms and conditions printed and consignment note. It is the say of the opposite party that its liability is limited to Rs.100/- in case the consignment is not delivered to the addressee. If the above contentions the opposite party seeks this forum to dismiss the complaint with exemplary costs.
Both the parties filed their affidavit and written arguments, the complainant filed some documents insupport of his case which are marked as Exhibits A1 to A4.
After going through the material available on the record the

Points for consideration:-.
1.Whether the opposite party committed in deficiency of service if so to
what relief the complainant is entitled to?
Points No.1 &2:-
It is an undisputed fact that the complainant had booked consignment vide Exhibit A1 through opposite party on 28-3-08 and that the consignment to be delivered to the consignee as early as possible that is say within 24 or 48 hours. The intention of the complainant for booking in consignment through courier service is to deliver the consignment within the above said stipulated time and for that purpose he paid Rs.25/- towards courier charges. Admittedly, the consignment was not delivered to the consignee as mentioned Supra. The record discloses that the consignment was delivered to the consignee after more than 5 days. The opposite party has not com- forward to say that the consignment was delivered within the reasonable time. Non-delivering the consignment within the reasonable time even after collecting higher charges i.e., Rs.25/-, amounts to deficiency of service. It is rightly contended by the complainant that in order to deliver the consignment as quickly as possible, booked the consignment through courier service.

In the light of our above discussion we are of the opinion to allow the complaint by limiting the amount to Rs.100/- as per the terms and conditions mentioned on Ex.A1. Points No.1&2 are answered accordingly.
Point No.3;- In the result, the complaint is partly allowed directing the opposite party to pay Rs.100/- (Rupees one hundred only) as compensation and Rs.500/- (rupees five hundred only) as costs to the complainant within one month from the date of receipt of this order.

Giddappagari Krishna Reddy,

S/o. Sriramulu Reddy,

Hindu, aged about 70 years,

Residing at 15-860, B.P. Agraharam,

Srikalahasthi, Chittoor District. …. Complainant



And

1. The Professional Couriers,

Domestic & International,

Rep. by its Branch Manager,

7/977, Kothapet (Opp. to Murali Medicals),

Srikalahasthi – 517 644.



2. The Professional Couriers,

Rep. by its Branch Office at D.No.14-2-158A,

(Branch cum Circle office),

T.P. Area, Chalukya Complex,

Tirupati.



3. The Professional Couriers,

Domestic & International,

Rep. by its Branch Manager,

Having its Regional Office at No.501, 5th floor,

Jade Arcade, Opp. to Hotel Paradise,

M.G. Road, Secunderabad - 500 003.



4. The Professional Couriers,

Domestic & International,

Rep. by its Branch Manager,

Having its Regd. office at No.51/52/53, Sai Chambers,

1st floor, Plot No.44, Sector II, CBD Belapur,

NAVI Mumbai – 400 614. …. Opposite parties



ORDER



This complaint is filed under Section 12 of Consumer Protection Act, 1986 to pass an order directing the opposite parties 1 to 4 to pay a sum of Rs.1,52,060/- with further interest at 24% per annum from 28.08.2008; to pay Rs.2,00,000/- towards damages caused for the mental agony; to pay the costs of this complaint and to pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.


2. The factual matrix leading to filing of this complaint is set out as here under:


(a) It is the case of the complainant that he is doing business in kalamkari under name and style of G. Krishna Reddy – kalamkari crafts man at Srikahalashti and serving materials on order to his customers throughout. The first opposite party is doing business of courier service under the head of Professional Couriers, the second opposite party is the circle office of first opposite party, the third opposite party is the regional office and 4th opposite party is the Regd. office located at the respective addresses mentioned above.

The complainant herein is regularly sending order based material to the concerned customers and in that wise an order from Farham, Hyderabad, he sent the material worth Rs.1,52,000/- weighing 12 kgs to the address of M/s. Khallelluddin of Khaleel Traders, 21-2-311/2, Lad Bazaar, Near Shiva Datthi High School, Hyderabad – 2 through the first opposite party on 28.08.2008 along with the original bill and to that effect, the first opposite party has given a receipt with customer code No. SHT 45903 and collected a sum of Rs.350/- towards the courier charges and promised the complainant that the said courier will be delivered to the consignee on the next day. To the utter surprise even after three days, the courier is not delivered to the consignee and the complainant is regularly coming to the office of the first opposite party to enquire about the same and the 1st opposite party at one time replied that he has sent the courier to Tirupati office, i.e., the second opposite party.

The complainant made a call to the office of the second opposite party, but there was no response from the 2nd opposite party. When the complainant told the same to the 1st opposite party, the 1st opposite party sent back the complainant without complying his demand and more so showing very negligent behaviour towards the complainant and also giving very careless answers. This shows clearly their negligent attitude towards the customers like the complainant. When the complainant visited the 1st opposite party’s office along with his daughter Mrs.Lakshmi, the 1st opposite party adamantly replied by using filthy language and replied carelessly in this way “do whatever you want. No courts will come to rescue you as I am having large following in all the fields”. This shows very clearly their highhandedness towards the complainant. The complainant has reserving right to proceed against the opposite parties 1 to 4 in a court of law.



(b) The complainant further submitted that because of all this the complainant has caused mental agony as he has borrowed heavy finance on interest basis from outside to meet the purchase of raw materials for the material which was couriered and the financers are also pressurizing the complainant about the given finance and this leads to great mental agony to the complainant for which all the opposite parties 1 to 4 are jointly and severally liable. The complainant though made it known to all the opposite parties over phone, no proper response from their side. That the opposite parties No.1 to 4 being courier service lenders, they are bound to convey the material couriered by the complainant to the consignee.

There should not be such delay in service and this shows clearly deficiency of service on their part towards the complainant in doing the service. When the complainant made several calls to the office of the second opposite party, the staff of the opposite party are also not responding and made the complainant to wander around the office of the opposite parties No.1 and 2 without complying the request of the complainant at his old age of 70. The complainant with a hope that material would reach promptly to the consignee, the complainant made a courier through the first opposite party, but due to the deficiency of service on their part, the complainant has to suffer like anything both financially and by causing mental agony. They are not justified to cause so much delay and it is still not known to the opposite parties 1 to 4 as to what happened to the material worth of Rs.1,52,060/-. At last the complainant has issued legal notice to all the opposite parties, dt.01.10.2008 and having received the said notice, none of the opposite parties have compiled except by the opposite parties 1 and 2.

The opposite party No.1 has admitted that he lost the material and hence he has sent a reply and a D.D. of Rs.450/- towards the return of delivery charges to the counsel of the complainant. The same is not accepted by the complainant and returned to the first opposite party and the postal receipt is herewith filed as one of the document as the loss of good s is worth Rs.1,52,060/- which is bound to pay by the first opposite party as has admitted the lost of the goods. Hence, the complaint.


3. The first opposite party resisted the complaint and filed written version and the same was adopted by the second opposite party by filing a memo before this Forum. The first opposite party also filed affidavit stating the contents in written version are adopted and the same in all material particulars. The first opposite party admitted booking of consignment by the complainant on alleged date, i.e., on 28.08.2008 to FARHAM, Hyderabad weighing 12kgs under SHT 45903 on payment of courier charges of Rs.350/-, but no promise was given that courier will be delivered on the next day and no declaration of the value was given at the time of booking the parcel by the complainant. But the other allegations in the complaint are denied by the first opposite party in paras 4 and 5 of his written version.

According to the first opposite party has mentioned in its written version that it is true that the complainant got issued a legal notice dated 01.10.2008 as alleged in para 6 claiming damages for Rs.1,52,060/- and it is also admitted that the opposite parties No.1 and 2 gave reply stating that the consignment was lost during the transit beyond their control and as such the refund of Rs.450/- being the courier charges of Rs.350/- plus the loss of liability under Clause 4, Rs.100/- and the same was returned to the opposite party No.1 as not accepted. The first opposite party is not liable to pay the alleged cost of Rs.1,52,060/- with interest at 24% per annum from 28.08.2008 and also Rs.2,00,000/- as compensation for mental agony for the reason stated here under. In para 8 of the written version, it is stated that the complainant himself admitted that he is doing business in Kalankaries under the name and style G. Krishna Reddy Kalankari Crafts and that he is supplying the materials to his customers through out by availing courier services. According to the CP Act any services availed for commercial purpose do not attract as defined in the consumer law. As per the terms and conditions of the courier services, it is specifically mentioned as follows:


i. Clause 4 – the consigners are advised to insure parcels containing valuables


ii. Clause 5 – the liability in case of any law or damages shall not exceed Rs.100/-


iii. Clause 6 – the company shall not be liable for any loss incurred due to the causes beyond its control such as floods, accidents, fire and theft etc.


So, in view of the submissions by the 1st opposite party, the complainant is not entitled the reliefs. Hence, it is to be dismissed with costs.


4. In support of the averments made in the complaint, the complainant filed 6 documents which are marked as Exs.A1 to A6. Ex.A1 is the courier receipt dated 28.08.2008 with customer code No.SHT 45903 Ex.A2 is the Xerox copy of bill dated 27.08.2008 with description of the things send through the Professional courier and its value is Rs.1,52,060/- Ex.A3 is the office copy of legal notice dated 01.10.2008 issued by the complainant’s advocate to the opposite parties 1 to 4. Ex.A4 is the office copy of reply notice issued by the learned counsel for the opposite parties NO.1 and 2 to the learned counsel for the complainant along with a D.D for Rs.450/-, dt.16.10.2008 issued in the name of the complainant. Ex.A5 is office copy of legal notice, dt.05.02.2009 issued by the learned counsel for the complainant to the counsel for the opposite parties 1 and 2 Ex.A6 is the postal acknowledgement (3 Nos)


5. In support of the averments made in the written statement / written version, the Branch Manager, Professional Couriers, Srikalahasthi filed 3 documents which are marked as Ex.B1 to B3. Ex.B1 is the Xerox copy of the terms and conditions of the first opposite party. Ex.B2 is the original certificate issued by the Sub-Inspector of Police, Srikalahasthi Urban Police Station, Chittoor District dated 31.08.2008. Ex.B3 is the office copy of legal notice dated 05.02.2009 issued by the learned counsel for the complainant to the learned counsel for the opposite parties 1 and 2 accompanying the original DD for Rs.450/- dated 16.10.08 issued in the name of the complainant. Ex.B4 is the reply notice dated 19.02.2009 issued by the learned counsel for the opposite parties 1 and 2 to the learned counsel for the complainant and Ex.B5 is the acknowledgement card in receipt of Ex.B4.



6. The complainant and the first opposite party have filed their sworn affidavits in proof of the averments contained in the complaint as well as written version. Both of them have filed their written arguments in support of their case.


7. Basing on the pleadings, documentary evidence filed before us for determination and consideration, the points that arise for deciding this consumer case are:


1. Whether the opposite parties have committed deficiency of service towards the complainant?


2. Whether the police certificate (Ex.B2) issued by the Sub-Inspector of Police with regard to the alleged parcel is a genuine one and is it after enquiry and investigation?


3. Whether the complainant is entitled to reliefs prayed for, if so to what extent?


3. To what result?


8. Point No.1:- (a) The basic facts of this consumer case are not disputed. Booking of the consignment is not disputed and admitted by the first opposite party. The learned counsel for the complainant Sri Thota V. Ramesh has vehemently argued that the complainant is regularly sending the order based material for concerned customers through the first opposite party to different locations in and around the District and also State.

He further argued that the facts which are contained in the complaint are once again reiterated. While arguing on behalf of the complainant, the above said learned counsel for the complainant alleged that the first opposite party has intentionally suppressed about the theft or loss of the alleged parcel till 16.10.2008. The complainant has no knowledge about it till 16.10.2008. He also further argued that the first opposite party did not take any necessary steps to recover the alleged loss of parcel by submitting a complaint to the Inspector of Police, Srikalahasthi and also did not inform the complainant about it immediately on 28.08.2008 for the reasons best known to the first opposite party. It clearly shows the careless attitude and negligence on the part of the first opposite party towards the complainant. It is a valuable parcel worth Rs.1,52,060/-. When the complainant is enquiring about the delivery of the parcel to the consignee at Hyderabad with the first opposite party and also the second opposite party office at Tirupati, they did not reveal the true facts about the misplacement of parcel and also non-delivery of it, which is beyond their control.

Both of them kept quite in spite of several approaches of the complainant to the offices of the first opposite party and also second opposite party. Both of them have taken sufficient time and concealed about the fate of the parcel till 16.10.2008. If at all really, the first opposite party obtained a certificate from the Sub-Inspector of Police, Srikalahasthi on 31.08.2008 as not traceable, why it was not informed to the complainant? For that, there is no explanation from the first opposite party for the reasons best known to him. The learned counsel for the complainant further argued that Ex.B2, i.e., Police certificate is purposefully created to get out from the clutches of law and thereby escaping their liability. It really creates suspicion about the bona fides of the first opposite party. The above said learned counsel for the complainant further argued that the 1st opposite party has come with a false story i.e., material (parcel) was lost and hence police has given a certificate of not traceable is utter falsehood and if at all the material was lost and it is known to the 1st opposite party, what prevents the 1st opposite party in telling the same either to the complainant immediately after he came to know that the material was lost. It is clearly goes to show that taking undue advantage of terms and conditions printed on the backside of courier receipts, justice will not be done to any aggrieved persons who are approaching this Hon’ble forum for reliefs as the case may be.

He also cited decisions in support of complainant’s case for its applicability to the facts of this consumer case on hand. They are namely (1) 2008 CPJ 307 NC in a case between Singh India Export Vs. Fobes Cokak Ltd., wherein National Commission has held that it is a case of carriers services – cargo – breach of contract – value of goods delivered back to complainant in damaged condition payable with interest. In another case between Sai Transport and Courier Private Ltd., Vs. Rupesh & Ors. which is reported in 1 (2008) CPJ 162 NC, where in the National Commission has held that the consignment of laptops through courier service - Non-delivery of laptops sent through Ops Transport and Courier Private Ltd., - Never delivered to the consignee - Deficiency in service proved – complaint allowed – Forum directed the opposite party to pay cost of computes along with interest - Costs awarded. Finally, he argued that the complainant is entitled to all reliefs prayed for in the complaint. Hence, the complaint may be allowed with exemplary costs.


(b) In response, as usual, the counsel for the opposite parties 1&2, Sri G. Ramaiah Pillai reiterated the averments made in the written version while arguing a case in support of the 1st and 2nd opposite parties. In that process, the learned counsel for the opposite parties 1 and 2 further argued that the complainant is doing business in kalamkari crafts. The complainant has not given declaration of value of goods at the time of booking of the parcel. If the goods are valuable, they should be insured as per clause 4 of Courier services. If it is not done, the courier liability is limited to Rs.100/- as per clause 5. Under Clause 6, the company shall not be liable for any loss incurred due to the causes beyond its control such as floods, accidents, fire and theft etc. He also further argued that the alleged parcel was lost in transit for which a police complaint was given at Srikalahasthi and reported as not traced. The above said learned counsel for the opposite parties 1 &2 further argued that complainant is not a consumer as he availed the services of the 1st opposite party for commercial purpose.

To support his contention of the fact that goods booked by the company and availing service for commercial purpose – complainant is not a consumer. He cited a decision rendered by Delhi State Commission which is reported in IV (2004) CPJ 80 in the case of Panvij Biotech Nigeria Limited Vs. National Container Line & Ors. He also cited another decision reported in IV (2007) CPJ 165 (NC) in the case of Indrapuri Express Courier Pvt. Ltd., Vs. Allied Business Corporation wherein National Commission has held that parcel – non-delivery - Value of parcel not pre declared at the time of booking and terms contained in the receipt constitute contract between parties – liable for loss of booked parcel limited to Rs.50/- only - Amount of Rs.47,000/- awarded by Fora below modified - Reduced to Rs.50/- - interest allowed 18% p.a. and accordingly revision petition dispose of Finally the above said learned counsel for the opposite parties 1&2 argued that the consumer case is subject to law declared by Supreme Court, National Commission and various State Commissions on the subject of courier’s liability. Their liability is limited according to the terms and conditions as per Ex.B1 and not the reliefs sought for by the complainant. Hence, the complaint is liable to be dismissed with costs. The complainant is entitled to get the legitimate amount as stated in Ex.B3, i.e., Rs.450/- only and not more than that as per law on courier’s liability.



8. Point No.2:- To decide this consumer case, Ex.B2 police certificate issued by the Sub-Inspector of Police, Srikalahasthi Urban Police Station, Chittoor District relating to the loss of parcel containing their courier booking No.45903 weighing 12kgs on 28.08.2008 near Super Bazaar (Srikalahasteeswar Swamy Vaari Information Centre) near bridge while waiting for bus to travel to Tirupati is important one. Ex.B2 document also contains the information about the complaint made to the Srikalahasthi Urban Police Station on 30.08.2008 and report is given on 31.08.2008. Ultimate result is that efforts have made to trace out the missing courier booking No.45903 parcel, but in vain.

This is the sum and substance of Ex.B2, Police certificate. This is the vital document to decide the whole issue. Till 16.10.2008, the complainant or the learned counsel for the complainant has no knowledge about the alleged parcel booked in the name of the consignor / complainant by the 1st opposite party at Srikalahasti was missed and theft by unknown persons. The learned counsel for the opposite parties 1&2 did not choose to file the Photostat copy of the original complaint made to the Sub-Inspector of Police, Srikalahasthi for our verification and consideration. In the written arguments of the opposite parties 1&2 in para 7, it is stated as “in the above case the booked parcel was lost in transit for which a police complaint was given at Srikalahasti and reported as not traced”. As per the record, it clearly goes to show that the first opposite party did not inform to the complainant about the loss of parcel on 28.08.2008 itself. The first opposite party for the reasons best known to him suppressed this fact without bringing to the knowledge of the complainant. If really, Ex.B2 document is obtained on 31.08.2008, what prevented the first opposite party from not disclosing it to the complainant or to the learned counsel for the complainant till 16.10.2008. Inference can be drawn from the circumstances to hold that it is completely after thought and perhaps it might have been obtained after filing of this complaint before this Forum to escape the liability by the 1st opposite party.

Moreover the complainant / consumer is a regular customer of the first opposite party. The first opposite party is well aware of the contents of the parcel as per Ex.A1, knowingly or unknowingly misplaced or lost beyond the control of the first opposite party. Whatever may be loss occurred cannot be repaired and satisfied to the complainant by showing different reasons and referring the clauses mentioned in Ex.B1 or Ex.A1. That will not satisfy the consumer who paid the courier charges of Rs.350/- and presumed that the parcel will be reached to the destination / consignee safely, but it otherwise happened.

The question is who is to be blamed? Within a day, the police of Srikalahasti issued a certificate to that effect as parcel not traceable. Is it possible? No record as such crime No. and FIR No. contained in Ex.B2. Even without mentioning the crime no. or FIR no. or the copy of the complaint referred to them by the first opposite party as the case may be not filed before us. Under these circumstances of the case, it can be inferred and presumed that Ex.B2 is not genuine document and it is issued at the instance of the first opposite party only. We are of the opinion that this document is after thought by the first opposite party in order to escape the liability on his part towards the complainant. This point is answered accordingly.

Forum’s observations

This consumer case is filed by the complainant against the opposite parties 1 to 4 herein for deficiency in service. We have heard the learned counsel for the parties at considerable length. On perusal of the record, it is crystal clear as per Ex.B2, i.e., police certificate that the alleged parcel weighing 12 kgs on 28.08.2008 booked according to receipt NO.45903 (Ex.A1) by the complainant with the 1st opposite party, while it is in the process of shifting to 2nd opposite party at Tirupati from Srikalahasthi, the said parcel is missed near Super bazaar while waiting for bus to travel to Tirupati by the 1st opposite party. It is missed on 28.08.2008 itself. Ex.B2 does not contain the particulars such as Crime No., FIR No. It is simply lacking for the reasons best known to the 1st opposite party. As per the pleadings of the parties, that fact is not brought to the notice of the complainant immediately.

There is no complaint with the police of Srikalahasti as soon as the parcel is missed at bus-stop. Leisurely, the 1st opposite party preferred a complaint with police of Srikalahasti on 30.08.2008. According to the contents of Ex.B2, it is quite clear that inspite of best efforts have been made to tract out the missing parcel by the police but it is proved in vain. All these things happened did not find place in the written version / counter of the 1st opposite party. We can safely come to the conclusion that he suppressed the real facts according to the circumstances as the case may be. The 1st opposite party did not file any copy of the complaint addressed to the police of Srikalahasti for our perusal. He did not approached with correct version before this Forum for appreciation and consideration. It is clearly revealed in Ex.B2.



That is the reason why this Forum framed an issue whether police certificate is genuine or not. An issue of law or fact not raised by the parties can be framed by the Court (AIR 1978 AP 442) Every material proposition affirmed by one party and denied by the other party shall form a distant issue. A party is expected and is bound to prove his case as alleged by him and as covered by the issues framed. In civil cases, the question on whom the burden of proof vests depends upon the pleadings. Presumption is an inference drawn by the court as to the truth of a particular fact from other known or proved facts. A presumption is not in itself evidence but only makes a prima facie case for party in whose favour it exists. It is a rule concerning evidence. It indicates the person on whom the burden of proof lies.


The general principle of law is “Secundum allegata et probatae” meaning that a party can succeed according to what was alleged and proved. The object of pleadings is to give fair notice to each party of what the opponents case and to place the court in such a position to be able to ascertain with precision, the points on which the parties agree and those on which they differ and thus to bring the parties to a definite issue. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.



Where a person is proved to have suppressed any species of evidence or to have defeated or destroyed any written statement, a presumption will arise that it would have been against his interest and that his conduct is attributable to his knowledge of the circumstances. The court may presume that if a man refused to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him. Both on general ground and by reason of Section 114 of Indian Evidence Act, 1872, the burden is one which shifts easily as the evidence is developed. A party can ask the help of the court to have produced in court by the other party such documents as it would like to be used in evidence. If the party does not produce the document, the court has power to draw any presumption against such a party or to penalize it in accordance with the provisions of law.

Adverse inference against a party is usually drawn during the course of trial, if he deliberately abstains from adducing better evidence, which he is in a position to adduce. Since the important documents were within the knowledge and possession of the first opposite party herein. If the 1st opposite party is careless and negligent by not producing document at earlier stages, when it was within his knowledge / possession, he must pay for his negligence. Negligence on any one’s part cannot be rewarded. More so in cases before Consumer Forums where the parties are unevenly placed, as far as the reasons are concerned and it has been the common pretext among the resourceful people to engage in delaying tactics and delay the matter and harass the poor complainant as much as they can.


It is true that proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs. For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and common sense and shroudness must be brought to bear upon the facts elicited in every case to arrive at a satisfaction as regards good faith, the court is empowered to make such enquiry as it deems proper. In the process of decision making, appreciation of evidence assumes utmost importance. Appreciation of evidence involves appreciation of documentary as well as oral evidence adduced by either party. The proceedings before the Consumer Forum are inquisitorial but not adversary.


Both the learned counsels on behalf of their parties referred case-law on the question of couriers liability towards customers. Facts of this consumer case are entirely different and it requires its appreciation before arriving a decision.

Here, the complainant is a regular customer of the 1st opposite party sending parcels to various places in the state. The question of the loss of the parcel in transit does not arise at all. It is lost at Srikalahasthi. 1st opposite party is not fair enough to bring to the knowledge of the facts to the complainant and delayed the matter inspite of several requests made by the complainant. The 1st opposite party has shown deaf ear. When the 1st opposite party approached the police by complaining about the loss of the parcel is not in the record. He approached the police on 30.08.2008, till then what steps he has taken not explained by him to trace out the theft of the parcel till 30.08.2008. He cannot seek the protection of the terms and conditions of the receipt issued to the complainant (Ex.A1). It does not contain all the details mentioned in Ex.B1 in Ex.A1. The complainant has no knowledge about the contents of Ex.B1. The point for determination of this consumer case is how far the 1st opposite party is fair in his attitude. It is clearly carelessness and negligence on the part of the 1st opposite party towards the complainant. It appears that his intention is to get wrongful gain.

The term ‘deficiency’ is defined in Section 2(1)(g) as follows: ‘deficiency’ means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In its decision in Lucknow Development Authority Vs. M.K. Gupta (1994) I SCC 243, the Supreme Court examined the scope of the term ‘service’ in the context of a consumer protection legislation. The Supreme Court in its decision in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) I SCC 66 had the opportunity to explain the nature of the test for ascertaining deficiency in service. According to Webster’s New Collegiate Dictionary defect means deficiency. Though both the words defect and deficiency mean almost the same, the Consumer Protection Act gives two distinct definitions and the words must be used and interpreted as per the definitions given in the said Act of 1986. Further the word ‘defect’ under Consumer law is used in relation to goods and the word ‘deficiency’ in relation to services.


In the light of discussion both on question of fact and law, it is crystal clear that there is a clear deficiency in service on the part of the 1st opposite party. As the remedy provided in the Consumer Protection Act, 1986 is an additional remedy as can be seen from Section 3 of the said Act of 1986 which says that “Act not in derogation of any other law”. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. We find considerable substance in the submissions made on behalf of the complainant by the learned counsel for the complainant.


From the preceding observations, it would be obvious that there has been deficiency in service on the part of the 1st opposite party towards complainant.


9. Point No.3:- In fact, the opposite parties 2 to 4 are not played their part in missing the alleged parcel booked by the complainant with the first opposite party. They are totally exempted from liability. It is the 1st opposite party who is responsible for missing the parcel at the starting point at Srikalahasthi itself because of negligence. So, keeping in view of all the circumstances and facts of the case, it can be said that the complaint against the opposite parties 2 to 4, is dismissed without costs. In view of the discussion above in Points 1 &2, and in the interests of Justice, it can be said that the complainant is entitled to get a sum of Rs.1,52,060/- with interest at 9% per annum from the first opposite party from the date of filing of this complaint before this Forum, i.e., 13.02.2009 till the date of realization. He is also entitled to get the costs of Rs.1,500/- towards expenses for litigation. This point is answered accordingly.


10. Point No.4:- In the result, the complaint of the complainant is allowed in part directing the first opposite party to pay a sum of Rs.1,52,060/- (Rupees one lakh fifty two thousand and sixty only) with interest at 9% per annum from the date of filing of the complaint, .e., 13.02.2009 till the date of realization and also to pay Rs.1,500/- (One thousand five hundred only) towards the costs of the complaint to the complainant within 6 weeks from the date of receipt of copy of order.

O R D E R.



1. The instant case was filed under section 11(2) read with section 12 of the Consumer Protection Act, 1986, on 3.10.08 by one Shri. Sunil Kr. Singh of 121 Bn BSF Shillong herein thereafter called as the ‘Complainant’ against the Professional Couriers Shillong, herein thereafter called as the ‘Opposite Party’ or ‘OP’. The Complainant’s case is that on 7.8.08 he had booked a parcel for his brother-in-law in the name of his father-in-law, Shri. Bhawani Pal Singh who is a very renowned lawyer residing in BASTI (UP). During the booking the Complainant had instructed the OP to deliver the parcel to the addressee before the 15.8.08 as the same contained ‘Raksha Bandhan’ (Rakhi) to be celebrated on the 16.8.08. The parcel was booked vide Challan No. 101613. The OP informed the Complainant that the parcel was sent to Gorakhpur which was a wrong address. The next day the Complainant informs the OP to deliver the parcel to one address at Lucknow (UP) located before Gorakhpur. On 9.8.08 the OP informed the Complainant that the parcel had reached Delhi and would reach Gorakhpur within one or two days. The Complainant informed his brother-in-law to collect the parcel from Gorakhpur. On 15.8.08 the brother-in-law of the Complainant went to Gorakhpur to collect the parcel but in vain. The parcel never reaches its destination. The Complainant claimed compensation as follow: -

(a) Cost of gift Rs.160/-.

(b) Cost of 7 Rakhis Rs.140/-

(c) Packing Rs. 20/-

(d) Courier Charges Rs. 80/-

(e) Telephone charges Rs.110/-

(f) Cost of travel from Basti to Gorakhpur Rs.600/-

(g) Cost of travel from Umpling to Police Bazar Rs. 40/-

T O T A L Rs.1150/-

And Rs.4000/- as compensation for breach of trust and harassment.

2. The case was registered by the Forum on 13.10.08 and notice was issued to the OP.

3. The issues to be decided before this Forum are (i) Whether the Complainant is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986? (ii) Whether there is negligence or deficiency in service by the OP? (iii) Whether the Complainant is entitled to any compensation? (iv) Any relief entitled to by the Complainant.

4. The OP filed the show cause on 15.12.08 denying liability in this instant case. There is no deficiency, unfair trade practice, delay and negligence on the part of the OP. The OP admitted that the parcel was booked on 7.8.08 vide Challan No.101613. The addressee as given by the Complainant could not be located by the OP. The Complainant did not furnish the telephone number of the addressee. The said parcel was returned back to Shillong and the same was collected by the representative of the Complainant. However, the Complainant returned the said parcel to the OP after two days. The OP stated that as per clause No.3 the OP shall pay Rs.100/- only in case of damage or loss of the parcel. The complaint petition was not supported by any affidavit. The case was heard on 13.3.09 as both the parties have no witness to examine.

5. On perusal of the materials on record and the written argument filed by the parties, the Forum decided the case as follows: -



(i) Whether the Complainant is a consumer within the meaning of Section 2(1)(d)

of the Consumer Protection Act, 1986? : - The Complainant had booked the parcel on 7.8.08 through the OP to deliver it to his brother-in-law on payment of Rs.80/- vide challan No.101613. There is no dispute about this fact. In fact the OP also admitted the same. Hence the Complainant is a consumer and the issue is decided in the affirmative.

(ii) Whether there is negligence or deficiency in service by the OP? : - The Complainant had booked a parcel to his brother-in-law at Basti UP on the 7.8.08 through the OP. The OP had also issued the Challan No.101613 and realized an amount of Rs.80/- for the said service. The OP in his written statement admitted this fact. The said parcel however could not be delivered to the addressee at the address given, as stated by the OP. The OP further stated that the Complainant should have given the telephone number of the addressee for easy delivery. The Forum is of the view that the OP being the professional in the trade should have asked the Complainant for the telephone of the addressee or any other required information to which he thought was necessary at the time of booking itself. However, the OP had realized the amount from the Complainant for the said service casually without applying his mind as to how the parcel could be delivered to the addressee without any difficulty. Hence negligence in the service and the issue is decided in the affirmative.



(iii)Whether the Complainant is entitled to any compensation? : - As per findings of the Forum in the issue (ii) above, there was negligence on the part of the OP and hence the Complainant is entitling to the losses and the compensation for harassment and mental agony. The issue is decided in the affirmative.

(iv)Any relief entitled to by the Complainant ?: - The Complainant prayed an amount of Rs.1150/- for the loss incurred and Rs.4000/- as compensation for harassment. The Forum is of the opinion that the claim of the Complainant seems to be reasonable and the same is allowed accordingly. The OP is directed to pay an amount of Rs.5150/- only to the Complainant.

Settipalli Vamsi Krishna,

S/o Satyam Babu, Hindu, male, aged 24 years

Student, Puppalavarigudem, Lingapalem Mandal

W.G. Dist., -- Complainant


1. The Manager, Branch Office, Professional Couriers, Near

Andhra Bank, M.R.O. Office, Bhimavaram, W.G. Dist,


2. Professor D.N.Reddy

Convener, I.C.E.T.-2007, Osmania University

Hyderabad. -- Opposite Parties

O R D E R


The complainant filed the present complaint under Sec. 12 of Consumer Protection Act, with a prayer to direct the opposite parties to pay damages of Rs.10,00,000/- for deficiency in service and also a sum of Rs.9,000/- towards expenditure. The averments of the complaint in brief are that :

2. The complainant is a B.Sc., Bio-Technology graduate and he is a brilliant and intelligent student. He intended to appear for I.C.E.T -2007 examination which would be held in May, 2007. Accordingly, as per the conditions of the 2nd opposite party, he took a DD for a sum of Rs.750/- on 21-3-2007 in favour of the 2nd opposite party in Andhra Bank, Bhimavaram and sent the application No.302328 under Registered No.804386 by enclosing copy of SSC Marks list, Intermediate and Degree Marks lists through the 1st opposite party on 21-3-2007 and the 1st opposite party passed a receipt bearing No.137326 to that effect. But the 1st opposite party did not deliver the cover containing the examination application and DD etc., of the complainant. Due to non-delivery of the cover, the complainant unable to receive the Hall-ticket for I.C.E.T -2007 examination.

Thereupon, the complainant went to the 1st opposite party personally and questioned about the delivery of the cover booked by him. But the complainant did not get any proper answer from the 1st opposite party. Again the complainant went to the 1st opposite party and questioned about the said cover. Even then the 1st opposite party did not respond properly. Due to deficiency in service on the part of the 1st opposite party, the complainant personally approached the 2nd opposite party who inturn informed him that they have not received his application from the 1st opposite party. Due to non-reaching of the application of the complainant, the complainant lost his opportunity for attending I.C.E.T -2007 examination. The complainant once again personally went to the 2nd opposite party and enquired about the receipt of application. The 2nd opposite party did not respond properly. Thereupon, he got issued a legal notice to both the parties on 30-7-2007 and both the parties having received the said legal notice failed to give any reply or any proper explanation. Thus the present complaint is filed for the aforesaid relief.

3. The 1st opposite party filed its version denying the averments of the complaint and stated that the complainant has not approached this Forum with clean hands as he suppressed the facts in two legal notices and in the complaint, and he did not file instructions booklet of I.C.E.T -2007 intentionally that according to the instructions 2(b), the last date for receipt of a filled application was 15-3-2007 at 5 pm., but according to the complainant he sent the application through the 1st opposite party on 21-3-2007 by paying late fee of Rs.500/- and also without mentioning the same as application with late fee on the top of the cover and so the complainant himself violated the instructions under 2(b) in sending the application to the convener I.C.E.T -2007. It is further stated that the 1st opposite party sent the cover on the same day night along with other Hyderabad covers to Hyderabad branch and it is the duty of the Hyderabad branch to deliver the same and that when the Hyderabad branch tried to deliver the same, the Convener of I.C.E.T -2007 refused to receive the cover of the complainant along with 15 other covers, that thereupon the Hyderabad branch immediately returned the cover to the 1st opposite party with an endorsement “Refused” and the same was returned to Bhimavaram branch, that then the 1st opposite party wrote a Post card on 26-3-2007 to the complainant but the complainant did not respond and he never approached personally, that on receipt of the legal notice, this opposite party issued a detailed reply to the complainant informing that there is no deficiency in service on its part, and that the non-joinder of Regional Office at Hyderabad and Corporate Office at Mumbai as parties by the complainant is fatal since this opposite party is working under Regional Office and Corporate Office on commission basis.

It is further stated that the complainant had a desire to get seat in the ICET, he will appear ICET -2008 without wasting time since in the year 2008 also the ICET entrance test would be conducted by the University in the month of May and therefore there are no bonafides on the part of the complainant. It is also further stated that the question of deficiency in service does not arise at all at any stage as this opposite party did his duty properly and as the complainant failed to comply the conditions of ICET the application was rejected by the Convener, so it clearly shows that there is no deficiency in service on the part of this opposite party as such the complainant is not entitled to get any damages and expenses as claimed by him from this opposite party and thus the complaint is liable to be dismissed.

4. The 2nd opposite party filed his version denying the averments of the complaint and stated that the complainant registered his name to appear in I.C.E.T -2007 examination through On-line and failed to comply with the payment of required amount of Rs.750/- by way of DD along with penalty amount to this opposite party on or before the cut off date fixed ie., 26-3-2007 that this opposite party did not receive any envelop beyond the cut off date ie., 26-3-2007, that this opposite party did not receive the amount of Rs.750/- by way of DD from the complainant in time prescribed in the notification and therefore the complainant obviously was not eligible to appear or entitle for the Hall-ticket for the examination and that the complaint filed by the complainant is totally devoid of merits and thus the complaint is liable to dismissed against this opposite party.

5. The complainant in support of his claim filed his proof affidavit corroborating the averments of the complaint and got marked Ex A.1 to Ex A.4. On the other hand, the 1st opposite party filed proof affidavit in support of his contentions mentioned in his version and got marked Ex B.1 to B.3. The 2nd opposite party having availed sufficient opportunity ultimately failed to file any affidavit and got no documents marked.

6. The points for determination now are :

1) Whether the deficiency in service alleged by the complainant is proved against the opposite parties and if so, on whom ?

2) Whether the complainant is entitled to the reliefs sought for by him ?

3) To what relief ?


POINT No: 1 and 2:


The complainant filed the present complaint making the Professional Courier as 1st opposite party and the Convener of I.C.E.T -2007 examination as 2nd opposite party. The simple case of the complaint is that for appearing I.C.E.T -2007 examination which would be held on 12-5-2007, sent his application along with required documents to the 2nd opposite party through the 1st opposite party on 21-3-2007 under a receipt Ex A.2 passed by the 1st opposite party and due to deficiency in service in not delivering the cover containing the Application, Demand Draft etc., by the 1st opposite party, he could not receive the Hall-ticket and as such he lost his opportunity for attending I.C.E.T -2007 examination. So, the main grievance of the complainant is against the 1st opposite party.

As far as the grievance of the complainant against the 2nd opposite party is only that though he personally went and enquired the 2nd opposite party, the 2nd opposite party did not respond properly. But the complainant did not furnish any particulars with regard to the date of his approaching and enquiring with the 2nd opposite party and also has not mentioned about the person with whom he made such enquiry. Therefore, the vague allegation without any proof except his self-styled affidavit is not sufficient to come to a conclusion that there is a deficiency in service on the part of the 2nd opposite party. As per the version filed by the 2nd opposite party, it may be no doubt true that the application which was sent through on line was rejected by it him due to nonpayment of the late fee, but the same is not the issue in the matter since the complainant did not challenge the said part of the act of the 2nd opposite party and not expressed any grievance for the same.

As stated above, the only grievance of the complainant is for not getting Hall-ticket due to non-delivery of the cover sent by him to the 2nd opposite party through the 1st opposite party. It is the contention of the 1st opposite party that having received the cover in question from the complainant it was sent to the Hyderabad branch for its delivery that when the Hyderabad Branch took the cover to the 2nd opposite party for delivery, the authorities of the 2nd opposite party refused to receive the same. It is also no doubt true that the 1st opposite party got the undelivered cover marked as Ex B.1. It is also no doubt true that there is an endorsement of somebody with read ink as “refused”. There is no proof produced by the 1st opposite party that whether the cover is actually refused by the authorities of the 2nd opposite party. If really the authorities of the 2nd opposite party refused to receive the cover, the agent of the 1st opposite party at Hyderabad ought to have insisted the authorities of the 2nd opposite party to put their signature with their official stamp. A perusal of such endorsement over the cover Ex B.1 did not contain any such particulars. In the absence of such particulars and proof, it can not be said that the cover in question was refused by the 2nd opposite party since such endorsement can also be made by itself to avoid responsibility lies over the 1st opposite party.

Under the said circumstances, we found that the 2nd opposite party can not be made liable with regard to the claim of the complainant. Thus the complaint against the 2nd opposite party is liable to be dismissed.

As far as the claim of the complaint against the 1st opposite party is concerned, it is the case of the complainant that he sent the cover to the 2nd opposite party through the 1st opposite party on 21-3-2007 and the 1st opposite party accordingly passed a receipt as under Ex A.2. The same is also not disputed by the 1st opposite party. As stated above the only contention of the 1st opposite party is that he could not deliver the cover to the 2nd opposite party since it was refused by the authorities of the 2nd opposite party. But the 1st opposite party failed to produce any proof in that regard. It is also an admitted fact through the version and the affidavit of the 1st opposite party that the undelivered cover reached to the hands of the 1st opposite party. When the 1st opposite party having received the cover from the complainant for its deliver to the 2nd opposite party and when the undelivered cover reached back to the hands of the 1st opposite party due to some reason or other, then the duty casts on the 1st opposite party to redeliver such undelivered cover to the complainant under proper acknowledgement without any hesitation. But in the case on hand, it appears that the 1st opposite party instead of redelivering the undelivered cover to the complainant, simply address a Postcard to the complainant, for which also there is no proof produced by the 1st opposite party. Further the act of the 1st opposite party in addressing such postcard to the complainant in stead of redelivering the same to him itself resembles the callous and negligent nature of the 1st opposite party in discharging his duties more particularly while handling the service of time bound paper correspondence amounts to deficiency in service on its part.

It also appears from the version and proof affidavit filed by the 1st opposite party that the 1st opposite party to avoid his liability gone to the extent of dictating terms to the complainant by saying that the complainant violated the instructions under clause 2(b) as mentioned in the I.C.E.T -2007, Booklet/Ex B.3, while sending the application to the Convener, I.C.E.T -2007 examination, and that if the complainant as desire to get seat, he will appear in I.C.E.T -2008 without wasting time since in May, 2008 also ICET entrance test would also be conducted by the University and therefore there are no bonafides on the part of the complainant by giving a total goby to his latches in rendering service to the complainant. Therefore, we hold that such contentions raised by the 1st opposite party are not tenable for the reason that the 1st opposite party is no way concerned with the violation of instructions made by the complainant. In other words, it can be said that it is the look out of the 2nd opposite party but not the look out of the 1st opposite party. The simply duty of the 1st opposite party is only that whenever a cover was entrusted to it by a party like the complainant he has to deliver the same at an earliest to its destination or if it is returned undelivered, he has to hand over the same back to the sender. Therefore the contention of the 1st opposite party that the complainant violated certain instructions in sending the application to the Convener of ICET and he can appear ICET -2008 examination for the next year itself appears the over anxiety of the 1st opposite party in avoiding his liability.

As stated in the earlier paragraphs of the order, the material placed on record not only by the complainant but also by the 1st opposite party with regard to simply addressing a postcard to the complainant that to without any proof in stead of redelivering the undelivered cover to him itself amounts to deficiency in service on the part of the 1st opposite party. It clearly appears from the record that because of the deficiency in service on the part of the 1st opposite party the complainant who is admittedly a graduate in B.Sc., Bio-technology lost his opportunity to appear in I.C.E.T -2007 examination and became a victim to the negligent acts of the 1st opposite party. If the 1st opposite party redelivered the undelivered cover to the complainant immediately as and when it was returned, the complainant might have tried to get the Hall-ticket by some how or other since the complainant was having cut off time till 26-3-2007 for the application sent by him though on-line in time as admitted by the 2nd opposite party in his version. But the act of the 1st opposite party by not returning the undelivered cover, prevented the complainant in getting the hall-ticket in time by some how or other.

Under the said circumstances and in view of the reasons stated supra, we hold that the complainant had clearly established his claim against the 1st opposite party, but however failed to establish the same against the 2nd opposite party, as such the complainant is entitled for the reliefs against the 1st opposite party only. The points are answered accordingly.

POINT NO: 2:

This is the case where the complainant, a science graduate in Bio-technology, lost his bright opportunity of his appearing for ICET-2007 examination for prosecuting his further studies due to the deficiency in service on the part of the 1st opposite party resulting his non-getting the hall-ticket. So, in view of the peculiar facts and circumstances of the case, we are of the firm opinion that the complainant deserves for a deterrent compensation. If this Forum is lenient in the cases like the present nature there will not be any telling effect on the persons like the 1st opposite party. Therefore, we are not inclined to take any lenient view in the matter.

In the result, the complaint is partly allowed directing the 1st opposite party to pay to the complainant a sum of Rs.5,00,000/- (Rupees five lakhs only) towards damages and also Rs.1000/- towards costs of the complaint within 30 days from the date of due dispatch of free copy of this order. The complaint against the 2nd opposite party is dismissed without costs.

Hameed.A.K., S/o.Kunhali, } Complainant

R/at Gunaje House, Po.Ariyapady,

Kasaragod.


1. The Professional Couriers,

Teeyem Complex, Old Bus Stand, } Opposite parties

Kasaragod.Po.

2. Sri.Narasimha Shenoy,

Processional Couriers, Gopala Prabhu

Complex, Badiadka, Po.Peradala,

Kasaragod.Dt
O R D E R

Complaint claiming compensation of Rs.25000/- due to the delay in delivering of a parcel sent through the opposite parties inspite of their assurance that the parcel will be delivered within 3 days from the date of booking of the consignment.

2. According to opposite party No.1 the incomplete address and the non-response of the addressee to the calls shown in the address caused the delay through the consignment was reached Dubai on 16-10-08 itself.

3. According to opposite party No.2 they are only a pick and service agent of opposite party No.1 and they never promised that the consignment will be deliver within 3 days from the date of booking. The incomplete address and non response of the addressee created difficulty in servicing the consignment. As per the terms and conditions of agreement liability of opposite party is limited to Rs.100/- only per consignment for any case.

4. The complainant has produced Exts A1 to A4 to support his claim. Exts B1 & B2 marked in defense for opposite parties. Both sides were heard.

5. The facts are not in dispute. It is admitted by opposite parties that the consignment was booked on 13-10-08 and delivered to the addressee on 26-10-2008. Evidently that there is a delay of 10 days in delivering the consignment. But no documents such as phone call register produced to show that the consignee was non-response to the calls made to him to collect the consignment that is said to have reached Dubai on 16-10-08.

6. In this case the complainant has not clearly stated the nature of parcel and its urgency of delivery. Even if he is able to establish as to what the consignment was and it’s urgency of delivery it will not make him eligible for compensation as claimed in the complaint in view of the decision of the Hon’ble Supreme Court in the case of Bharathi Knitting Company V. DHL World wide Express Couriers reported in 1996 CTJ 557 (SC) (CP).

7. Should the courier compensate the consignor or the consignee the actual amount of loss suffered by them due to its deficient service of non-delivery of packets entrusted to it or should it’s liability be limited to the sum of Rs.100/- as the case may be, as printed in the consignment note was the question posed before the Hon’ble Apex Court in that matter. The Hon’ble Supreme Court has held that since the couriers liability was to an extent of Rs.100/- as per the receipt the complainant was entitled for the deficiency in service only to that extent.

8. Again in the case of Desk to Desk Couriers Cargo V. Kerala State Electronics Development Corporation Ltd reported in 2004 CTJ 442 (CP) the Hon’ble National Consumer Disputes Redressal Commission has held that the complainant is entitled to the compensation of Rs.100/- with interest thereon. In so holding the Commission observed that “a person who signed a document containing contractual terms is normally bound by them eventhough he had not read them or was ignorant of their precise legal effect”

9. These are all being the settled views in this subject we are confined to award compensation of the tune of Rs.100/- only on account of the delay in delivery of the consignment to the addressee.

Therefore the complaint is allowed in part and the opposite parties are jointly and severally liable to pay Rs.100/- with interest @ 10% from the date of complaint till payment. The opposite parties are liable to pay Rs.1000/- towards the cost of this proceedings.

The complaint is filed for getting compensation Rs.2000/-

The allegation of complainant is that the letter sent from Railway Office to the complainant was received by the opp.party on 30.1.2009 but it was not delivered in his address. On 10.2.2009 the complainant went to the office of opp.party and collected the letter from there directly. The opp.party behaved indecently and replied on enquiry that no need for them to deliver the letter is the complainant’s address. The complainant sustained mental agony and financial loss because of this delay. Hence the complaint.

Even though sufficient opportunities were given the opp.party failed to appear and to file version and adduce evidence. Complainant filed affidavit. He was examined as PW.1. Ext.P1 marked.

The points that would arise for consideration are:

1. Whether there is any deficiency in service on the part of opp.party

2. Compensation and cost.

We have perused the complaint, affidavit and documents.

On verification of Ext.P1 we find that there is deficiency in service on the part of opp.party. Points found accordingly.

In the result the complaint is allowed. The opp.party is directed to pay compensation Rs.2000/- and cost Rs.500/- to the complainant.

M. Ramachandran, Lekshmeevaram, Sankaranpara Lane, Mudavanmugal, Poojappura P.O, Thiruvananthapuram -12.


2.

Deepa Udayakumar, Door No. 6/191, Ragasudha, Near Perikkappalam, Thottakkattukara, Aluva.

Opposite parties:

1.

M/s Professional Couriers represented by its Area Manager/Managing Director, Thycaud, Thiruvananthapuram – 14.

2.

The Branch Manager, Professional Couriers, Kailas Building, Poojappura, Thiruvananthapuram-14.


3.

The Branch Manager, Professional Couriers, Bank Junction, Aluva.

ORDER

The facts leading to the filing of the complaint are that complainant is the consumer of the opposite parties. On 05.10.2002 1st complainant entrusted the 2nd opposite party a consignment packet consisted of a D.D for Rs. 4,000/- and a digital wrist watch costing Rs. 1,500/- for delivery to his daughter, the 2nd complainant at Aluva. The 2nd complainant received the said consignment packet on 08.10.2002 with the D.D inside and the digital wrist watch was missing. This fact was brought to the notice of the 1st opposite party on 11.10.2002, but the opposite parties did not care to reply. The opposite parties in order to make unjust enrichment diverted the consignment wilfully and with malafide intention. Opposite parties are liable to pay punitive damages. Hence this complaint to get back the price of the digital wrist watch along with compensation.

Opposite parties entered appearance and filed version contending that the complainants are not consumers. There is no consumer dispute or deficiency in service or unfair trade practice. Complainant had neither disclosed the contents nor the value of the contents at the time of entrusting the consignment and opposite parties were not aware of the contents of the consignment. If the value of the consignment was far in excess of the maximum limited liability, complainant ought to have taken a transit insurance cover. Opposite parties had delivered the consignment in good condition without any delay to the consignee. It is true that the complainant had informed the opposite parties regarding the alleged loss of the wrist watch on 11.10.2002 for which the opposite parties had issued a detailed reply also. The courier consignment note is the basis of the contract between parties which clearly shows the conditions of carriage and the clause limiting the carrier's liability in sufficiently bold prints which are easily readable. As per the terms and conditions if at all the 1st complainant had suffered any loss due to the act of the opposite parties, the opposite parties' liability has to be confined to Rs. 100/- only. There is no deficiency in service or negligence on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

1.

Whether there is deficiency in service on the part of opposite parties?
2.

Whether the complainant is entitled for compensation? If so, at what amount?
3.

Whether the complainant is entitled to cost, if so at what amount?

Points (i) to (iii):- The case of the complainants is that on 05.10.2002 the 1st complainant entrusted the 2nd opposite party a consignment packet consisted of a D.D for Rs. 4,000/- and a Digital wrist watch costing Rs. 1,500/- for delivery to his daughter, the 2nd complainant, Door No. 6/191, Ragasudha, Near Perikkappalam, Thottakkattukara, Aluva, that the 2nd complainant had received the said consignment packet on 08.10.2002 with the D.D inside, devoid of digital wrist watch and that the fact was brought to the notice of the 1st opposite party on 11.10.2002, but opposite parties did not care to reply. Ext. P1 is the copy of the consignment note. As per Ext. P1, the consignor is the 1st complainant M. Ramachandran, the date of consignment is 05.10.2002, the weight of the consignment is not mentioned clearly, total cash/credit is Rs. 10.50. A perusal of Ext. P1 would reveal that 1st complainant has not declared the value of the contents of the consignment.

It is the case of the complainant that the consignment parcel consisted of a D.D and a digital wrist watch. It is to be noted that the complainant has not signed in the Ext. P1 consignment note. Main thrust of argument advanced by opposite parties is that the complainant has neither disclosed the contents nor the value of the contents at the time of entrustment of the consignment packet, that opposite parties were not aware of the contents of the said consignment.

Opposite parties submit further that if the value of the consignment was far in excess of the maximum limited liability indicated, the complainant ought to have taken transit insurance. In this case, no transit insurance is seen taken by the complainant. Ext. P2 is the copy of the letter dated 11.10.2002 addressed to the 1st opposite party informing him of the missing of the alleged digital wrist watch. Opposite parties submit that 1st opposite party had received the Ext. P2 letter dated 11.10.2002 for which 1st opposite party had issued a detailed reply. According to complainants, opposite parties did not care to reply nor did opposite parties file the copy of the reply. Complainant has no case that the consignment has not been delivered in good condition. It is pertinent to point out that the courier consignment note is the basis of the contract between parties.

On perusal of Ext. P1 consignment note, it is found that complainant has neither disclosed the contents nor declared the value of contents nor put signature in Ext. P1. 1st complainant in his affidavit deposed that 2nd complainant had received the consignment at her residence at Aluva on 08.10.2002 with D.D inside and missed digital wrist watch and on 11.10.2002 he had sent written letter by Ext. P2 to the 1st complainant, followed by several telephone calls and personal visits to the office of opposite parties 1 & 2, but they did not care to reply. Opposite parties did not furnish delivery slip or copy of the reply to Ext. P2. 1st complainant has not been cross examined by the opposite parties, thereby the affidavit filed by the 1st complainant remains uncontroverted. Deficiency in service is proved.

Regarding the quantum of compensation, it is contended by opposite parties that their liability is limited to Rs. 100/- for any cause as per contract. In this context it is to be noted that complainant has not signed in Ext. P1 consignment note. As complainant has not signed in Ext. P1, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is restricted to Rs. 100/- would rest on the opposite parties.

There is no cogent and clinching evidence to prove that there is any contract/agreement between the 1st complainant and opposite parties which restricts the compensation to be Rs. 100/-. It is settled position that meeting of minds is essential and in the absence of meeting of minds any term relating to limited liability would not be part of the contract and ordinary liability would flow in cases of deficiency in service. It is to be highlighted the fact that 1st complainant has never revealed the contents of the consignment parcel or the value of its contents in Ext. P1, nor has complainant produced any document showing the price of the lost digital wrist watch. Complainant has liability to reveal the contents, its value by way of documents. Considering all aspects of the case and evidence available on records in our opinion an amount of Rs. 2,000/- as compensation would meet the ends of justice.

In the result, complaint is allowed. Opposite parties shall jointly and severally liable to pay Rs. 2,000/- as compensation to the 1st complainant. The said amount shall carry interest at the rate of 12% per annum if not paid within two months from the date of receipt of this order. Both parties shall bear and suffer their costs.

Dr. Vishwanath Reddy S/o K. Basavareddy,

Age: 45 years, Occ: Eye Specialist Doctor,

R/o H.No.147, Shanti Nagar,

Opp: KSRTC Central Bus Stand,

GULBARGA.




// Versus //

OPPONENT:- 1) The Professional Courier (Booking Office),

Station Bazar, Opp: Mohan Lodge,

GULBARGA.

2) The Professional Courier (Head Office),

Domestic & International Courier & Cargo,

Dr. Jawali Complex, 2nd Floor, Shop No.14,

Super Market, GULBARGA.

: : O R D E R : :

1. This complaint is filed by one Dr. Vishwanath Reddy S/o K. Basavareddy, R/o Gulbarga against the O.Ps. u/s.12 of Consumer Protection Act 1986 praying to direct the O.Ps. to pay Rs.1,70,000/- towards loss of goods and Rs.2,00,000/- towards mental stress and strain.

2. The brief facts of the case of the complainant are as under;

On 23.9.2008, he booked consignment vide receipt brg.No.578953 dated 23.9.2008 addressed to Rajendra Bio-Medix, Bangalore through O.P. courier by paying Rs.420/-. After two days of booking, he enquired with Rajendra Bio-Medix Bangalore about the receipt of parcel. It is told that, parcel had not reached to the addressee. Immediately, he went to the office of O.P.No.1 and enquired about the delay in sending the parcel. He was surprised to receive vague and irrelevant answers from the office of professional courier personal. He never made any effort to trace the parcel and put the responsibility to head office situated at Jawali complex, Gulbarga. Accordingly, complainant went to the head office and informed about the misplacement of the parcel. Professional courier personal incharge of the office one Mr. Rajaram collected the Xerox copies of the receipt and assured that consigned parcel will be traced out and it will be informed. Even after lapse of one week, he again went to the office and asked about the parcel. O.P.No.2 did not respond to the complainant and went on giving evading answers and asked complainant to come again on 13.10.2008.

Again on 13.10.2008, complainant went to office of O.P.No.2 and asked about the parcel. Mr. Rajaram confessed before the complainant that the said parcel was misplaced in transit and not traceable anywhere. Complainant made enquires about other parcel on the same day. It was surprised to know that there was no entry in any ledgers and computer. To that effect they have issued a confessional letters stating that the parcel was misplaced in transit. Even after the repeated enquires at the courier service, they did not provide any information about the parcel. Therefore, there is a deficiency of service on the part of O.Ps. Under these circumstances, it is submitted that, complaint may be allowed and direction may be given to O.Ps. as prayed in the complaint.


3. After registering the case, notices were issued to O.Ps. After serving the notices, O.Ps. appeared through counsel and filed Written Statement contending that, it is true that, on 23.9.2008 complainant booked consignment addressed to Rajendra Bio-Medix, Bangalore through O.P. courier by paying Rs.420/-. On the same day, the booked parcel is forwarded to the addressee. In regular course valuable goods received from customer the details prescription and value are declared before receiving parcel then also collects the charges. The complainant has declare the No value of material. It is false to state that, even after lapse of one week, complainant did not receive any information from the office, he again went to the office and asked about the parcel, O.P.No.2 did not respond to the complainant and went on giving evading answers and asked the complainant to come again on 13.10.2008. O.Ps. further denied that, on 13.10.2008 complainant went to the office of O.P.No.2 and asked about the parcel was misplaced in the transit and not traceable anywhere. It is also denied that, there was no entry in any ledgers and in the computer. Further they have denied in their written statement that, there is a deficiency of service and complainant put to cost of equipment is Rs.1,70,000/- and suffered mental stress and strain for which he claims Rs.2,00,000/-. Under these circumstances, it is submitted that, complaint may be dismissed with costs.


4. To prove the claim of complainant, himself was filed affidavit by way of evidence who examined as PW-1, documents got marked Exh.P-1 to P-5. O.Ps. also filed affidavit by way of cross of PW-1. Complainant side evidence closed. O.Ps. filed affidavit by way of evidence, who examined as RW-1, got marked documents Exh.R-1 to R-3. Complainant filed affidavit by way of cross of RW-1. O.Ps. side evidence closed.

5. Heard the arguments from both sides.
6. The points that arises for our consideration are;

(1) Whether complainant proves that on 23.9.2008, he booked consignment vide receipt brg.No.578953 dated 23.9.2008 addressed to Rajendra Bio-Medix Bangalore through O.P. courier, but the O.P. neither delivered the consignment to the said addressee nor returned to him, he requested O.P. to find out his consignment by oral as well as in written, but O.P. shown his negligency in tracing out his consignment and thereby O.P. found guilty under deficiency in his service?

(2) Whether complainant is entitled for the reliefs as prayed in his complaint?

(3) What Order?

7. Our findings on the above points are as under;
(1) In Affirmative.
(2) As discussed in the body of this Order;
(3) In view of the findings on Point Nos.1 and 2, we proceed to pass the final Order for the following;


: : R E A S O N S : :

8. Point No:1 and 2 :-

In the instant case, booking of parcel by the complainant on 23.9.2008 through O.P. courier for to deliver to Rajendra Bio-Medix, Bangalore is not in dispute. Similarly O.P. not delivered the consignment to the addressee nor returned it to the complainant undelivered is not in dispute.

9. In view of the above said undisputed facts, a clear cut case is that, there is a deficiency in service on the part of O.Ps. towards the complainant for non-delivering the parcel to the addressee and not returning it undelivered to complainant, accordingly we have not considered any other contentions of the O.Ps. in this regard and answered Point No.1 in affirmative. As regards to Point No.2 is concerned, the point that arise for our consideration is that, to what extent the liability of the O.P. in such situation. In this regard, the learned Advocate for O.Ps. relied on the ruling reported in IV (2008) CPJ 145 (NC), Sunil Chawla V/s. World Pack Air Courier Service (I) Pvt., Ltd., & Ors. The Hon’ble National Consumer Disputes Redressal Commission, Delhi observed in the said case as “Courier company not liable to reimburse price of goods dispatched”.


10. In this regard, there are other decided cases of the Hon’ble Supreme Court as well as Hon’ble National Commission, Delhi;

(1) Bharathi Knitting Company V/s. DHL Worldwide Express Couriers which reported in AIR 1996 SC 2508 = 1996 CTJ 557 (SC) (CP). In this case, the Hon’ble Supreme observed as “Courier liability is limited to sum of Rs.100/- in India or $100/- in abroad as their liability limited by the parties to the assignment note”. Further it observed that, this verdict expresses the settled law and tribunals follows the same.

(2) The Hon’ble National Commission, Delhi reported the same principles in Tata Chemicals Ltd., V/s. Sky Pak Couriers Pvt., Ltd., which is reported in 2002 CTJ 239 (SC) (CP). But it slightly differ in the case of Desk to Desk Couriers and Cargo V/s. Kerala State Electronics Development Corporation Ltd., reported in 2004 CTJ 442 (CP). In the said ruling, their Lordships of the National Commission, observed as “complainant is entitled to the compensation of Rs.100/- only with interest thereon as a person who signs a document containing contractual terms is normally bound by them even though he had not read them or was ignorant of their precise legal effect”.


11. Keeping in view of the law laid down by the Hon’ble Supreme Court in Bharathi Knitting Company case as well as the principles of the rulings of the Hon’ble National Commission, we have to appreciate the case of complainant and the liability of the O.P. Admittedly the consignment booked by the complainant for to deliver it to the addressee at Bangalore not delivered by the O.P. courier and not returned undelivered to the complainant. Now the learned advocate for the O.P. relied on documents Exh.P-1 which is consignment note and Exh.R-2 and R-3. According to him, Exh.P-1 consignment note discloses the couriers liability to the extent of Rs.100/- per consignment for any loss of it. Exh.R-2 which is self-declaration by the complainant regarding the contents of the parcel and Exh.R-3 is terms and conditions regarding liability in case of loss of consignment.

12. It is the case of complainant that, he booked the valuable article for to deliver to the addressee which costs about Rs.1,65,000/-. The document Exh.R-2 is a created one by the O.P. to avoid his liability by making false signature of him on it. Complainant not signed on the Exh.P-1 which shows the liability of the O.P. in case of loss of goods. Complainant also not signed to the terms and conditions to Exh.R-3. Under the said circumstances, the liability of O.P. courier is to make the payment of actual cost of the goods booked.

13. In the light of the submission made on both sides and also considering the principles of the rulings referred above, we are of the view that, O.P. cannot take shelter of Exh.P-1, it is consignment note on which there is no signatures of the complainant or signature of the person who booked the parcel. In the similar way, Exh.R-2 shippers declaration slip is not helpful for to compensate the liability of complainant as it is a document created by the O.P. with false signature of the complainant as signature appearing on it, is differs to the signature appearing on the vakalathnama of the complainant and other signatures appearing in this proceedings. In the similar way, Exh.R-3 is also not signed by complainant and O.P., as such we are of the view that, with great respect to the principles of law laid down by the Hon’ble Supreme Court in Bharathi Knitting Company V/s. DHL Worldwide Express Couriers is not made applicable to this case. So also the principles held in the rulings of the Hon’ble National Commission, differs to the facts of this case on hand, as such with great respect to their Hon’ble National Commission, we have not made applicable to the facts of that cases to this case.


14. In the instant case, the liability of the courier, in view of the circumstances stated above is to make the good loss to the complainant to the extent of worth of the material packed in the parcel. According to complainant, he booked a A-Scan Biometer, Model No.2, worth of Rs.1,65,000/- to deliver it to addressee BioMedix, Optotechnik & Devices Pvt. Ltd., at Bangalore. To support the price of the Ascan Biometer, he produced Exh.P-3 quotation of the year 2008, it shows the price of it as Rs.1,65,000/-. Contrary to the said document, O.P. filed Exh.R-2 which is shippers declaration. The Exh.R-2 shows that, the consignment was containing literature and books on opthomology worth of Rs.1000/-.


15. As we have verified the signature appearing on Exh.R-2 with signatures of complainant on vakalathnama and on other documents of this proceedings, we are of the view that, Exh.R-2 is created document by the O.P. to avoid his actual liability for loss of said valuable goods.


16. In view of the facts and circumstances, stated above, the complainant is entitled to recover total cost of Rs.1,65,000/- from the O.P.Nos.1 and 2 jointly and severally which is the cost of the equipment.

17. Complainant claim to award an amount of Rs.2,00,000/- towards negligency and loss in his profession, hardship, mental stress and strain, we are of the view that, this Forum cannot award such kind of reliefs to the complainant. However, we have noticed the deficiency in service on the part of O.Ps., accordingly complainant is entitled to get a total sum of Rs.5,000/- recoverable from O.P.Nos.1 and 2 jointly and severally under the head of deficiency in service by these O.Ps., accordingly we answered Point No.1 and 2.

18. Point No.3 :

In view of the findings on Point No.1 and 2, we proceed to pass the following;

: : O R D E R : :

Complaint filed by the complainant is partly allowed. Complainant is entitled to recover total sum of Rs.1,70,000/- from the O.P.Nos.1 and 2 jointly and severally. O.P.Nos.1 and 2 are hereby given one month time from the date of this Order to pay the said sum to the complainant.

K.Karunakar, S/o.Mogilaiah,

Age:25 years, Occ:Advocate,

R/o.H.No.33-50, Jyothi Nagar, Angadibazar,

Near Beside G.M.Office,Mandamarry Mandal

and town, Adilabad District,

N/o.Warangal. …Complainant.

1.The Professional Courier Branch Office,

Mandamarry, Busstand Area,

Jagadamba Book stall and complex,

R/M.Mandamarry,Adilabad District.


2. The Professional Courier Head Office,

Hyderabad, Road.No.10, Habsiguda,

Professional Courier Building, Hyderabad. …Opp.Parties.


-:ORDER:-

1. The complaint submits that the complaint have sent a application to 1). Hon’ble D.G.P. of Police, Hyderabad 2). President Bar Association, Warangal, 3). The Hon’ble First Additional District & Sessions Judge at Adilabad, 4). The Hon’ble Member of Parliament, Amalapuram, Andhra Pradesh, through the service of the Opp.Party No.1 vide Receipts No. BMP 72313, BMP 72311, BMP 72312 and BMP 72310 respectively, for each courier service is Rs.15/- charged by the Opp.Party No.1, dated.07.03.2009 and for which the Opp.Party No.1 issued receipts in favour of the complainant.

The complainant submits that after sending letters to the said persons, the complainant have approached the Opp.Party No.1 for acknowledgement of receipts in the last week of March, 2009 that which is very important document for filing proof of document before the Hon’ble First Additional District & Sessions Judge at Adilabad and other courts, but at the time of filing of the petition before the Hon’ble First Additional District & Sessions Judge at Adilabad, the complainant has not filed the receipt of the proof of the document, that the receipt which is very essential document for the case and perusal of the case by the Hon’ble First Additional District & Sessions Judge at Adilabad and other courts.

The complainant submits that the Opp.Party No.1 returned the post of service vide receipt no. BMP 72310 as the letter addressed person’s house door locked, after filing of the petition before the Hon’ble First Additional District & Sessions Judge at Adilabad, dt:02.04.2009 again the complainant have approached the Opp.Party No.1 for Acknowledgement receipts and have been approached the Opp.Party No.1 each and every day, but the Opp.Party No.1 intentionally avoiding to issue Acknowledgement receipt to the complainant for which the complainant sustained have loss for the insufficient service provided by the Opp.Party No.1 & 2, as there is no alternative again the complainant send a request letter to the Opp.Party No.1 requesting him to issue acknowledgement receipts, through the Team United Courier Service vide no.841751, dt:15.04.2009 even though the Opp.Party No.1 did not respond for the letter wrote by the complainant to the Opp.Party No.1 and the same is also in the knowledge in the Opp.Party No.1. The complainant submits that the acts of Opp.Party clearly show the negligence and deficiency of service.

Hence the complainant prayed this Forum to allow the complaint as follows:

v To direct the Opp.Parties to furnish Acknowledgement receipts vide Courier Service Nos. BMP 72313, BMP 72311, BMP 72312.

v To direct the Opp.Party No.1 and 2 to pay an amount of Rs.65,000/- towards loss occurred and negligence of service by the Opp.Party No.1 and 2.

v To direct to award Rs.20,000/- towards mental agony and damages.

v To award Rs.5,000/- towards Traveling Expenditure.

v To award Rs.7,000/- towards legal Expenses and Miscellaneous Expenses.

v Costs of the Proceedings will be allowed.

2. On behalf of complainant Ex.A1 to A6 are marked. No documents are filed on behalf of Opp.Parties.

3. Now the point for consideration is whether complainant sustained any monitory loss or any other relief which was stopped for non filing of the alleged acknowledgement ?

4. Perused the material papers relied on by the complainant under Ex.A1 to A6. The fact that the Opp.Parties remained Ex.Parte discloses the allegation of the complaint stands un rebutted. The contention of complainant is that he sent an application to Opp.Party No.1 to 4. The Opp.Party No.1 charged Rs.15/- for each application and issued receipts(four) in favour of the complainant. The complainant enquired with Opp.Party No.1 about whether the cover is served on the respective persons and he also demanded for proof of the service for filing the said receipt before Hon’ble First Additional District and Sessions Judge. The complainant further contended that he filed a petition to Hon’ble First Additional District and Sessions Judge and requested the Opp.Party No.1 for issue of acknowledgement receipts.

He further alleged that Opp.Party No.1 intentionally refused to comply his request. According to complainant it amounts to deficiency of service and the said act of Opp.Party No.1 caused mental agony and he was put to severe inconvenience. As the Opp.party No.1 did not reply the oral request of the complainant, complainant sent a request letter to Opp.Party No.1 through another courier service (Team United Courier Service vide receipt no.841751, dt:15.04.2009). Even then there is no proper response from Opp.Party No.1. So according to complainant he underwent mental tension and it caused inconvenience because of negligent act of the Opp.Party No.1.


5. Admittedly there is no proper reply from the side of Opp.Party No.1 for the above correspondence. So complainant wants compensation as prayed for in the prayer portion of the complaint.


6. As matter stands, complainant was not deprived of any monitory relief because of non filing of acknowledgement. From the given circumstances the reasonable inference is complainant wanted to expose his grievance before proper Forum and in that process the negligence and defective service on the part of Opp.Party No.1 stood as stumbling block in the procedure adopted by complainant. The act of Opp.Party No.1 amounts to defective service and is to be discouraged by awarding some compensation to complainant from Opp.Party No.1.


7. The Ld. Advocate for the complainant submitted that Opp.Party No.1 exhibited same attitude even after receipt of notice from Consumer Forum by remaining Ex.Parte. Thus we hold Opp.Party No.1 is liable for compensation. Opp.Party No.2 is a formal party. We see no grounds to order compensation against Opp.Party No.2. Under the above circumstances we feel it reasonable to award a sum of Rs.1,000/- against Opp.Party No.1 to the complainant in the interest of justice.

8. In the result the complaint is allowed in part. The Opp.Party No.1 is directed to furnish Acknowledgement receipts vide Courier Service Nos. BMP 72313, BMP 72311, BMP 72312 and to pay a sum of Rs.1,000/- towards compensation to the complainant. Case against Opp.Party No.2 is dismissed,

A.Satyanarayana, S/o.Rajaram,

Age:40 years, Occ:Advocate,

R/o.H.No.28-14, Angadibazar,

Near Shivakeshavalayam

Mandamarry Mandal, Adilabad District. …Complainant.

1.The Professional Courier Branch Office,

Mandamarry, Busstand Area,

Jagadamba Book stall and complex,

R/M.Mandamarry,Adilabad District.

2. The Professional Courier Head Office,

Hyderabad, Road.No.10, Habsiguda,

Professional Courier Building, Hyderabad. …Opp.Parties.

-:ORDER:-

1. The complaint have sent a legal notice to 1). The General Manager, Mandamarry, 2). The collieries Manager, K.K.2 Incline, Mandamarry, 3).The Welfare Officer K.K.2 incline, Mandamarry through the service of the Opp.Party No.1 vide receipts no. BMP 72318, BMP 72320 and BMP 72319 respectively, for each courier service is Rs.15/- charged by the Opp.Party No.1, dated.07.03.2009 and for which the Opp.Party No.1 issued receipts in favour of the complainant.

The complainant have approached the Opp.Party No.1 for acknowledgement of receipts in the last week of March 2009 that which is very important document for filing proof of document before the Hon’ble A.P.State Human Rights Commission at Hyderabad, but at the time of filing of the petition before the A.P.State Human Rights Commission at Hyderabad the complainant has not filed the receipt of the proof of the document, that the receipt which is very essential for the entire case and perusal of the case by the Hon’ble Human Rights Commission, Hyderabad.

The complainant have approached the Opp.Party No.1 for Acknowledgement receipts and have been approached the Opp.Party No.1 each and every day, but the Opp.Party No.1 intentionally avoiding to issue acknowledgement receipt to the complainant for which the complainant sustained have loss for the in sufficient service provided by the Opp.Party No.1 and 2, as there is no alternative again the complainant send a request letter to the Opp.Party No.1 requesting him to issue acknowledgement receipts through the DTDC courier service vide no. T 33108810, dt:09.04.2009 even though the Opp.Party No.1 did not respond for the letter wrote by the complainant to the Opp.Party No.1 and the same is also in the knowledge in the Opp.Party No.1. The complainant submits that the acts of Opp.Party clearly show the negligence and deficiency of service.

Hence the complainant prayed this Forum to allow the complaint as follows:

Ø To direct the Opp.Parties to furnish the acknowledgement receipts vide courier services nos. BMP 72318, BMP 72320, BMP 72319.

Ø To direct the Opp.Party No.1 & 2 to pay an amount of Rs.50,000/- towards loss occurred and negligence of service by the Opp.Party No.1 and 2.

Ø To direct to award Rs.20,000/- towards mental agony and damages.

Ø To award Rs.5,000/- towards Traveling Expenditure.

Ø To award Rs.7,000/- towards Legal Expenses and Miscellaneous Expenses.

Ø Costs of the Proceedings will be allowed.

2. On behalf of complainant Ex.A1 to A5 are marked. No documents are filed on behalf of Opp.Parties.


3. Now the point for consideration is whether complainant sustained any monitory loss or any other relief which was stopped for non filing of the alleged acknowledgement ?



4. Perused the material papers relied on by the complainant under Ex.A1 to A5. The fact the Opp.Parties remained Ex.Parte discloses with the allegation of the complaint stands un rebutted. The contention of complainant is that he sent legal notice to General Manager, Mandamarry, S.C.Co. Ltd., Mandamarry, Collieries Manager, K.K.2 Incline, Mandamarry, Welfare Officer, K.K.2 Incline Mandamarry. The Opp.Party No.1 charged Rs.15/- for each application and issued receipts(three) in favour of the complainant. The complainant enquired with Opp.Party No.1 about whether the cover is served on the respective persons and he also demanded for proof of the service for filing the said receipt before A.P. State Human Rights Commission at Hyderabad.

The complainant further contended that he filed a petition to A.P. State Human Rights Commission and requested the Opp.Party No.1 for issue of acknowledgement receipts. He further alleged that Opp.Party No.1 intentionally refused to comply his request. According to complainant it amounts to deficiency of service and the said act of Opp.Party No.1 caused mental agony and he was so put to severe inconvenience. As the Opp.Party No.1 did not reply the oral request of the complainant, complainant sent a request letter to Opp.Party No.1 through another courier service (DTDC). Even then there is no proper response from Opp.Party No.1. So according to complainant he underwent mental tension and it caused inconvenience because of negligent act of the Opp.Party No.1.



5. Admittedly there is no proper reply from the side of Opp.Party No.1 for the above correspondence. So complainant wants compensation as prayed for in the prayer portion of the complaint.



6. As matter stands, complainant was not deprived of any monitory relief because of non filing of acknowledgement. From the given circumstances the reasonable inference is complainant wanted to expose his grievance before proper Forum and in that process the negligence and defective service on the part of Opp.Party No.1 stood as stumbling block in the procedure adopted by complainant. The act of Opp.Party No.1 amounts to defective service and is to be discouraged by awarding some compensation to complainant from Opp.Party No.1.



7. The Ld. Advocate for the complainant submitted that Opp.Party No.1 exhibited same attitude even after receipt of notice from Consumer Forum by remaining Ex.Parte. Thus we hold Opp.Party No.1 is liable for compensation. Opp.Party No.2 is a formal party. We see no grounds to order compensation against Opp.Party No.2. Under the above circumstances we feel it reasonable to award a sum of Rs.1,000/- against Opp.Party No.1 to the complainant in the interest of justice.



8. In the result the complaint is allowed in part. The Opp.Party No.1 is directed to furnish the acknowledgement receipts vide courier services nos. BMP 72318, BMP 72320, BMP 72319 and to pay a sum of Rs.1,000/- towards compensation to the complainant.

C. Venkata Subba Rayudu, S/o C. Krishna Murthy Naidu,

H.No. 2/48-A, Potladurthi village and Post, Yerraguntla Mandal,

Kadapa district. ….. Complainant.

Vs.

1) The Manager, The Professional Courier,

Gangamma Devalayam Street, Proddatur Branch, Kadapa.

2) The Manager, Professional Courrier, Tirupati Branch,

Chittoor district.

3) The Manager, Professional Courier, State head Office,

Secunderabad (A.P) ….. Respondents.


2. The brief facts of the complaint are as follows:- The complainant C. Venkata Subbarayudu filed this complaint before this forum for the claim amount of Rs. 5m00,000/- against R1 to R3 towards injuries caused to him by the negligent act of the Opposite parties 1 to 3 due to non service of the cover entrusted to R1 to deliver the same to the addressee at Tirupati, Chittoor Distrct.

This cover was entrusted to R1 on 18-2-2009 and R1 promised the complainant that the cover will be delivered at Tirupati on the next day i.e on 19-2-2009 as their service is a faster service and Tirupati is very near to Proddatur from where the complainant booked this cover. As promised by R1 the cover was not delivered on the next day and the addressee received the cover beyond 20-2-2009 and the same was refused as it was not in time.

The cover containing the application for appearing for the Post Graduate medical entrance test under the service quota, on account of late delivery of cover he lost a chance of appearing for the entrance test, as a result his future is spoiled in various ways. Hence, the complainant filed this complaint against R1 to R3 requesting this forum to direct the respondents to pay compensation of Rs. 5,00,000/- to the complainant towards deficiency of service and mental agony caused to him.


3. The respondents filed a counter and admitting that the complainant booked one cover with Pulivendula branch of the respondents on 18-2-2009 at late hours which was received by R1 on 19-2-2009 to deliver the same to the addressee at Tirupati. But the complainant is not disclosed the said cover should reach the addressee by 20-2-2009 and what is there in the said cover. Though every care is taken to ensure delivery within 24 to 72 hours, delays can always occur due to certain factors beyond control of the respondents. The respondents booked documents / consignments subject to terms and conditions printed overleaf of sender’s copy of the consignment note.

It is clearly mentioned in S.No. 5 that in case of any loss or damage our liability shall not exceed Rs. 100/- and also made it clear vide Sl.No. 10 that they will not be liable for any loss, mis-delivery, delay or damage to any article sent through these respondents and no officer of company is liable for any such loss of mis-delivery. Delay or damage except to the extent mentioned at Sl.No. 5. The cover booked by the complainant was received by R2 on 20-2-2009 late hours. As the cover was booked by the complainant at Pulivendula on 18-2-2009 and received by R1 on 19-2-2009 to further dispatch to Tirupati. The complainant is an educated individual is well aware of the facts that the cover must reach the addressee by 5.00 p.m on 20-2-2009 as it was last date.

The complainant in his complaint failed to disclose the facts that he booked cover at Pulivendula by concealing the fact. He stated that directly booked the said cover at Proddatur branch that the complainant has not approach the Hon’ble Forum with clean hands and the complaint is liable to be dismissed for concealing the facts and non-joinder of necessary party i.e. Pulivendula branch. The respondents requested to dismiss the complaint against them.

4. On the basis of the above pleadings the following points are settled for determination.

i. Whether the complainant is entitled to the relief as prayed for?

ii. Whether there is any deficiency of service on the part of the respondents?

iii. To what relief?

5. On behalf of the complainant Ex. A1 to A10 were marked. No documents were filed and marked on behalf of the respondents. Written arguments were filed by the complainant in person. Oral arguments were heard from both sides

6. Point No. 1& 2 Ex. A1 is the original consignment note No. PVD 85212. Ex. A2 is the Xerox copy of legal notice. Ex. A3 is the speed post receipt dt. 13-4-2009. Ex. A4 is the letter dt. 13-4-2009 from Post Master, Proddatur addressed to the counsel of the complainant. Ex. A5 is the cover address to the Principal, S.V. Medical College, Tirupati from address of the complainant was also written on it.

The application form for Post Graduate Entrance Test 2009-10 was clearly printed on the cover and last date 20-2-2009 is also written on the cover. Ex. A6 is the Xerox copy of consignment No. PVD 85212 delivering the professional couriers. Ex. A7 is the Xerox copy of consignment No. PDT 271421. Ex. A8 is the Xerox copy of letter of the complainant, dt. 16-7-2009 addressed to P.I.O., Professional Courier, Tirupati. Ex. A9 are 12 original receipts of Professional Couriers of various dates. Ex. A10 is the Xerox copy of service particulars of the complainant.

7. As could be seen from the documentary evidence on record the complainant booked a cover with R1 at Proddatur on 18-2-2009 and the cover containing the application for the Post of Medical Entrance Test 2009-10. Ex. A5 is the crystal clear document to say that the cover was booked by the complainant at Proddatur and the last date of receipt of the application was also written on the cover as 20-2-2009.

Since the said cover received by the addressee and after due date it was returned undelivered. The contention of the respondents that the cover was booked at Pulivendula branch and it was received by R1 on 19-2-2009. So there was delay in receipt of Ex. A5 cover to the addressee intime.

The other contention of the respondents that the details i.e. what is the cover contain what is the last date etc., are not mentioned by the complainant stands without legs before truth. Since all these particulars are very much available on Ex. A5 to the naked eye. The contentions of the respondents that the cover was booked at Pulivendula also have no legs to stand before truth. The scrutiny of 12 receipts (Ex. A9) is like this

1) Consignment No. 271421 of Proddatur booked at Pulivendula on 15-7-2009.

2) Consignment No. 274883 of Proddatur was booked at Pulivendula Branch.

3) Consignment No. 85663 of Pulivendula dt. 20-2-2009 was booked at Proddatur.

4) Consignment No. 85660, dt. 20-2-2009 of Pulivendula branch booked at Proddatur.

5) Consignment No. 35953, dt. 4-5-2009 of Jammalamadugu was booked at Proddatur.

6) Consignment No. 101184, dt. 7-4-2007 was booked at Proddatur.

7) Consignment No. 18707, dt 19-4-2007 of Pulivendula was booked at Proddatur.

8) Consignment No. 256307, dt. 31-8-2007 of jammalamadugu branch booked at Proddatur. This indicates that the printed receipts of various branches of the respondents are being used by different branches, irrespective of places of booking. In view of this there is no reason to disbelieve the contention of the complainant that he booked consignment cover of Ex. A5 at Proddatur on 18-2-2009.

8. The respondent vehemently argued that there is no merit on the facts of the complaint and he relied on the following decisions. 1) (2005) CPJ 53 a case of Saurabh Jain Vs. Madhur Courier service. In which the Hon’ble National Commission observed that the delivery of envelop is concerned the Opposite parties have delivered envelop to the addressee and therefore, the opposite party cannot be held deficient. At last the complainant is entitled for the claim upto Rs. 100/-. 2) 2004 (3) ALD (Cons.) 21 (NC). A case between Desk to Desk courier and Cargo Vs. Kerala State Electronics Development Corporation Ltd., their lordship observed that the damage for non delivery of goods entrusted to the courier.

The value of the goods entrusted is not disclosed by the person entrusted it to the courier. He cannot claim damages as per value of the goods. 3) IV (2007) CPJ 165 (NC). The case between Indrapuri Express Courier Pvt. Ltd., Vs. Allied Business corporation in which lordship observed that courier parcel non delivery – value of parcel not pre-declared at time of booking terms contained in receipt constituted contract between parties – showed liability for loss of booked parcel limited to Rs. 50/- only. The above decisions relied by the respondents the facts and circumstances are quite different with the facts and circumstances of the present consumer case.

The complainant relied on the following. 1) thehindu.com/2009/06/27 in which professional couriers, Bhimavaram was ordered to pay compensation of Rs. 5,00,000/- to the complainant besides Rs. 1,000/- towards litigation costs for its defective service. 2) Courier company fined for poor service and has been fined Rs. 1,50,000/- by the National Commission in the case of Blaze Flash couriers Pvt. Ltd., Kozhikode Vs. Rohit Poladiya. 3) Courier company was ordered to pay Rs. 50,000/- for deficiency of service by the Hon’ble Commission, Chandigar vide itchandigarh.com/2007/07.

The citations relied by the complainant and the facts of the present complaint almost tallies with regards to negligence and deficiency of service in the delivery of consignment / cover booked by the complainant, as such the complainant deserves consideration in his favour. The complainant claimed compensation of Rs. 5,00,000/-. But he failed to substantiate the same by giving break up details of compensation, as such the claim of Rs. 5,00,000/- is limited to Rs. 25,000/- in favour of the complainant.



9. Point No. 3 In the result, the complaint is allowed. Directing the R1 to R3 jointly and severally to pay Rs. 25,000/- (Rupees Twenty Five Thousand only) towards the compensation to the complainant within 45 days from the date of receipt of this order.

Mrs.Roopa R.Shetty, Adult,

W/o Raviraj Shetty,

Proprietor,

M/s. True Vision, Ananth Mahal,

Main Road, Gurupura,

Kaikamba-574 151. …….. COMPLAINANT



VERSUS



1. M/s. The Professional Couriers,

Baikampady,

Administrative Office “Uniplex”,

Kalakunja Road,

Kodialbail,

Mangalore-575 003.



2. Mr.M.N.Nayak, Adult,

Partner of M/s. The Professional

Couriers Baikampady,

Administrative office “Uniplex”,

Kalakunja road,

Kodialbail,

Mangalore-575 003. ……. OPPOSITE PARTIES


1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.

The Complainant is a dealer in spectacles and having optical shop by name “True Vision”. It is submitted that, the Opposite Party is having its booking office, collecting parcels and is a courier service provider.

It is submitted that, on 8.10.2008 the Complainant availed the service of Opposite Party for delivery of spectacles to her relative Mr.M.R.Shetty at Pune. Accordingly she handed over the parcels containing the spectacles worth Rs.2,548/- and the Opposite Party has undertaken to deliver the articles to the addressee and taken courier charges of Rs.40/-.

It is alleged that, the goods sent by the Complainant were not delivered to the addressee, thereafter the Complainant made a enquiry and also wrote a letter dated 10.11.2008. The Opposite Party No.2 has given a reply stating that the parcel has been stolen and to the said effect the Complaint has been lodged with the concerned police and stated that the consignment was worth Rs.700/- and refused to comply the demand made by the Complainant. Hence it is contended that the service rendered by the Opposite Parties amounts to deficiency and therefore the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay the cost of the spectacles i.e. Rs.2,548/- and also compensation and cost of the proceeding in total claimed Rs.6,088/- from the Opposite Parties.



2. Version notice served to the Opposite Parties by RPAD. The Opposite Parties appeared through their counsel filed version denied all the allegation alleged in the complaint and submitted that the Complainant is a dealer in spectacles and having shop by name “True Vision”. It is admitted that the Opposite Party is a courier service provider, the Opposite Party has undertaken to deliver the articles to Mr.M.R.Shetty who is residing at Pune and the Complainant has paid courier charges of Rs.40/-.

It is stated that the invoice stating the value of spectacles is a fabricated document. The articles sent by the Complainant were not delivered to the addressee because the addresses was always absent and the consignment of the Complainant had been stolen and the FIR was lodged to the police station. It is contended that the Complainant has not given a any declaration regarding the value of the consignment and hence their liability to pay the loss if any is only Rs.100/- and contended that there is no deficiency of service on the part of the Opposite Parties and prayed for dismissal of the complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?



(iii) What order?

4. In support of the complaint Mrs. Roopa R.Shetty (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served him. Ex.C1 to C3 were marked for the Complainant as listed in the annexure. One Mr.M.N.Nayak, Partner, of Opposite Party No.2 filed counter affidavit (RW-1) and answered the interrogatories served on him. Ex R1 to R3 were marked for the Opposite Parties as listed in the annexure. Both the parties are produced Written Notes of Arguments.

We have heard arguments, perused the pleadings, documents and evidence placed on record. We answer the points are as follows:

Point No.(i): Affirmative

Point No.(ii) & (iii): As per the final order.
REASONS

5. Points No. (i) to (iii):

In the present case, the facts which are not in dispute is that, the Complainant is a dealer in spectacles and having optical shop by name “True Vision” stated in the cause title and the Opposite Parties having booking office and collecting parcels and providing courier service. It is admitted that, on 8.10.2008 the Complainant availed the service of the Opposite Parties for delivery of spectacles to her relative to one Mr.M.R.Shetty at Pune. Accordingly, she handed over the parcels containing the spectacles, the Opposite Party received the parcel and undertaken to deliver the article to Mr.M.R.Shetty who is residing at Pune and the Complainant paid Rs.40/- as courier charges and the Opposite Party issued a receipt i.e. Ex.C1 and Ex.R1.

The allegation of the Complainant is that, the article so sent was not delivered to the addressee and the same has been lost by the Opposite Party. It is contended that she has been put to hardship and inconvenience and the service rendered by the Opposite Parties is deficient.

On the contrary, the Opposite Parties admitted that the article was received by them and but the same was stolen and not delivered to the addressee. But it is contended that as per the carriage rules envisaged on the consignment note copy, the liability on the Opposite Party is only Rs.100/-.

However, it is significant to note that the Opposite Parties admitted that whatever the article given by the Complainant on 18.10.2008 as per Ex.C1 to deliver to the addressee at Pune was not delivered by the Opposite Parties, the same was stolen. We see that basic facts are not in dispute, that the Complainant hired the service of the Opposite Parties for a consideration for which receipt was issued and the deficiency is writ large in the events of admitted position that the consignment was not delivered to the consignee.

Now coming to the question of compensation, it is contended that even if deficiency on the Opposite Party is accepted, even then the liability is limited to Rs.100/- only. The Opposite Party contended that as per the carriage rules envisaged on the consignment note copy the liability on the Opposite Party is only 100/-. But the Opposite Parties did not choose to file any document before us to prove the same. However, one Shippers declaration i.e. Ex.R2 was produced before the Fora wherein the value of the consignment declared as Rs.700/- but not Rs.100/-. It does not show that the Complainant had accepted the terms and conditions set out therein. There is also nothing to show that the Complainant was aware of any such conditions as contended by the Opposite Parties herein above. Even otherwise in our view any such condition would not limit the liability of the Opposite Parties.

It is necessary to refer to judgment on this well settled law relied by the counsel for the Complainant, we would refer the case THE FRANCH EXPRESS Vs. NATARAJAN, Vol-I (2006) CPJ 529, Tamil Nadu State Consumer Disputes Redressal Commission, Chennai, wherein, the Hon’ble State Commission observed as under:



“Consumer Protection Act, 1986 –Sections 2(1)(g) and 14(1)(d) – Courier Services – Non-delivery of envelope containing hall ticket of State Service examination – Opposite Party contended that envelope could not be delivered due to lack of proper address and its liability is limited to Rs.100 – Evidence that Complainant had given correct address and nothing to show that Complainant had accepted terms of limited liability – Deficiency in service proved – Order of District Forum direction Opposite Party to pay Rs.5,000/- as compensation upheld.”



Similarly, the concept of service thus the concept of limited liability cannot be accepted.

Apart from the above, it is clear that the Complainant had given the correct address. Once it had accepted to deliver the article to the addressee, it was the duty of the Opposite Parties to do it promptly. This Opposite Parties have failed to do the same shows their gross negligence which amounts to deficiency.

We have perused the receipt as well as the Shippers Declaration produced by the Opposite Parties wherein it is proved that the Complainant sent the spectacles as admitted by the Opposite Parties in preceding paras. Now the point for determination is that what the amount is entitled by the Complainant. The Shippers Declaration produced by the Opposite Parties does not contain the signature of the Complainant. In the absence of the same our attention was drawn towards the notice issued by the Opposite Parties dated 20.11.2008 (Ex.C3) and the letter written by the Complainant dated 10.11.2008 (Ex.C2) wherein, the Complainant has sent tax invoice No.135 for Rs.2,548/- seems to be the value of the spectacles. The said tax invoice was received by the Opposite Parties which is the material document to consider the compensation in this case. The document relied by the Opposite Parties i.e. shippers declaration form which contains only the signature of shippers authorized person and not of the Complainant. In the absence of the same, we cannot consider the Ex.R2 in this case.

In view of the above discussion, we consider that the Rs.2,548/- is the value of the spectacle which is reasonable, hence we hereby direct the Opposite Parties to pay Rs.2,548/- to the Complainant towards the value of the article and also pay Rs.2,000/- as compensation for the financial loss and the inconvenience caused by the Opposite Parties and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.



6. In the result, we pass the following:


ORDER

The complaint is allowed. The Opposite Parties are hereby directed to pay Rs.2,548/- (Rupees Two thousand five hundred forty eight only) to the Complainant and Rs.2,000/- (Rupees Two thousand only) as compensation for deficiency in service and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

Shri B.K Bhalla,

Village & P.O. Ghanahatti,

Distt. Shimla, H.P. Pin 171011.

...Complainant.





Versus







Vinod Kumar,

Maa Bhawati Couriers,

(Blaze flash) Ghanahatti,

Distt. Shimla, H.P. 171011.

…Opposite Party

________________________________________________

For the complainant: In Person.

For the Opposite Party: Exparte.

………………………………………………………………………

ORDER:

This complaint has been filed by the complainant, by invoking the provision of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he booked a letter containing railway tickets and hotel bills, besides important papers, valuing Rs. 5000/- with the OP, on, 07.06.2008, to be deliver to his son Sh. Rajesh Bhalla at Gaziabad, U.P. The OP charged Rs. 35/- as courier charges vide Annexure-1. He further avers that the letter was not delivered to the addressee. Hence, it is averred there is apparent deficiency in service on the part of the OP and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. Notice of this complaint was issued to the OP, pursuant to which, OP put in appearance, in person, on, 12.01.2009. However, on 28.04.2009, none appeared on behalf of OP, hence, the complaint was ordered to be heard exparte against him.

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

4. The complainant has placed on record courier receipt which bears Annexure C-1. The complainant has also sworn an affidavit in support of the complaint, to substantiate the fact that the letter so booked by him with the OP did not reach its destination. Since the allegations have not come to be repulsed by the OP, as the OP choose not to contest the complaint. Hence, the cumulative effect that flows from the aforesaid discussion is that the OP in not delivering the letter to the addressee, has not only committed, deficiency in service, but is also guilty of indulging in an unfair trade practice.

5. Since the complainant has claimed cost of the Railway ticket amounting to Rs. 5000/-, but no proof thereof, has been placed on record to prove the fact that the letter was actually containing Railway ticket worth Rs 5000/-. Hence, considering the facts and circumstances of the case, and the fact that the OP has not delivered the letter to the addressee, the ends of justice would be met, in case, the complaint is held entitled to a reasonable and just amount of compensation, which we proceed to assess at Rs. 3500/-, besides litigation cost of Rs. 1500/- to be paid by OP, to the complainant within a period of 45 days after the date of receipt of copy of this order.


The learned counsel for the complainant undertook to collect the certified copy of this order from the office, free of cost as per rules, whereas the certified copy of this order shall be sent to the OP through UPC. The file after due completion, be consigned to record room.

COMPLAINANT:

Sri J. Nagabhushana Sastry,

S/o Late Sri J. Rudramuni,

Aged about 59 years,

Retd. Tahasildar and Advocate,

Kuvemphu Nagar,

CHIKMAGALUR – 577 101.




V/s



OPPONENT:

Professional Couriers,

Krishna Tower,

Near Police Station,

M.G. Road,

CHIKMAGALUR CITY.


- ::: O R D E R ::: -

1. The complainant has filed this complaint u/s 12 of the Consumer Protection Act against the opponent for the deficiency of service in not delivering the cover to the addressee and also to direct the opponent to pay compensation of Rs.5,000/- along with court costs as sought in the complaint.

2. The facts of the case in brief are as follows:-

The complainant has alleged that he has sent one cover on 04.09.2008 containing two valuable photographs of girls whose parents had offered alliance to Dr. Sujay J.N., S/o. complainant Room No.041, Ajith Lodge, Gavaligalli, Belgaum vide receipt No.1718548 through the opponent. The cover never reached the addressee and the photographs had to be returned to their respective parents. The non receipt of the cover has caused anxiety and tension. As a result, the opponent has committed deficiency in service by not delivering to addressee or returning the same to the complainant. He has further alleged that he has sent a letter through registered post on 18.09.2008 and made several phone calls personally visited the opponent’s office and asked about the delivery of the same. But the opponent has never replied properly and the complainant was humiliated. Hence is the complaint for the said reliefs.

3. After the service of the court notice, the opponent has appeared through his counsel and filed version wherein he has contended that he has extended utmost care and courtesy to the complainant and behaved decently with him and the allegations made in the complaint is far from truth. He has further contended that the cover, which was given to him has been promptly delivered to the addressee and has obtained endorsement to that effect and therefore the allegation made by the complainant is false and made with a malafide intention to gain wrongfully. He has further contended that the complainant has not declared the contents of the cover and if the value of the cover or contents is lost, his liability is fixed only Rs.100/-, which has been printed on the receipt and for which the complainant has agreed. If the value of the contents of the cover exceeds Rs.100/-, the complainant has to insure the cover.


The opponent has further averred that he cannot extend the service to the addressee on par with the registered letters and the representative of the opponent will visit the place of the addressee and the cover will be handed over to the adult person whoever is available at that time and the endorsement to that effect will be obtained. In case the complainant wants proof of delivery it can be collected from the opponent’s central office. The allegation made by the complainant that he has kept photographs and the same have been lost caused loss etc., for which the opponent is not liable. Further, the addressee has already got married and the allegation that the complainant has put to loss has no substance in it. Therefore, prays for the dismissal of the complaint.

4. The complainant has filed his affidavit evidence as PW.1 along with the documents and the same have been marked as Exs.P1 to P3.

5. One Sri. D.K. Sathyanarayana, Manager, Professional Couriers of the opponent has also filed his affidavit evidence as RW.1 along with one document and the same has been marked as Ex.R1.

6. We have heard the arguments advanced by both the parties’ counsels.

7. Now, the points that arise for consideration of this Forum are as follows:-

i) Whether there is any deficiency in service on the part of the opponents?

ii) If so, whether the complainant is entitled to the reliefs as sought?

iii) What Order?

8. Our findings on the above points are as follows:-

i) Point No.1: Yes

ii) Point No.2: Yes, he is entitled

iii) Point No.3: See, as per the order below

- ::: R E A S O N S ::: -

9. Point No.1(a): There is no dispute with respect to the receipt of the cover by the opponent. The main crux of the dispute is that the consignment was not delivered to the consignee, whereas the opponent claims that he has delivered the same to the addressee. Now the point for our rapt consideration before us is as to whether the allegation and counter allegations made by both the parties are to be scrutinized basing on the documentary evidence produced before the Forum for adjudicating the case.

(b) In support of the claim, the complainant has submitted couple of documents, which have been taken on record. The Ex.P1 will clearly fortify the fact that the complainant has handed over a consignment to the opponent for onward transmission to the consignee. The advocate representing the opponent has vehemently argued in the first limb that the cover, which contains the valuable two photographs of girls seeking the alliance to the son of the complainant and never reached the same to the addressee, the two photo snaps were kept in the cover are denied as false. At the outset, it may be recorded here that we do not ascribe to this argument in the absence of documentary proof, as a result, the opponent has not performed his duties.


In fact the Ex.P1 to P3 will reveals the true fact that the complainant has sent two photographs in the cover and if this is untrue the opponent is put to strict proof of the same regarding the varacity of this allegation. It was further disclosed in the cross examination of the complainant that he has made it very clear in the dock box that he has disclosed the contents of the cover on the cover itself for which the opponent in our opinion is held responsible to make prompt delivery of the consignment to the consignee.

(c) The learned advocate in the second limb of his argument has categorically submitted that in case of loss or damage of the consignment the liability of the opponent is restricted to Rs.100/- only, which is in our opinion is unfounded argument. It is worthwhile to mention here that there is no privity of contract entered into between the complainant and service provider at the time of receiving the consignment and restricting the amount of damages upto Rs.100/- in case of loss or damage is printed on the receipt in inconspicuous place cannot be accepted by the other party in the absence of any written agreement. The Ex.P1 issued by the opponent is only a receipt and it was neither signed by the complainant nor the specific attention of his has been drawn to it. Such a condition could not be treated as a part of the contract between them as there was no meeting of two minds in writing and confirming the same and such plea is not permitted by law. Further, the term in the consignment note limiting the courier’s liability is in small and fine print will not bind by the complainant.


Therefore, we are of the opinion that the terms and conditions mentioned in the receipt by the opponent is arbitrary unilateral, unconstitutional, which has to be struck down and the opponent cannot take shelter under the exclusion clause in order to escape from the liability. It is apparent from this ceiling limit that one can draw an adverse inference that the opponent is trying to grab more profits and improve his business without rendering statutory service to his customers. Thus, in the specific circumstances of this case, we hold that it is a matter of utter negligence committed by opponent.

(d) The argument of the opponent that the consignment will be delivered to the available adult person at the place of the addressee is a unjustified ground. We reiterate here that whether it is a registered post or sent by courier service, it is imperative on the part of opponent to deliver the consignment to the addressee only and the opponent cannot take it for granted that such consignment can be delivered to any available person at that time in the absence of required authorization letter.


The learned advocate wishes to rely upon the Ex.R1, which is submitted by opponent and taken on record but it will discloses the fact that we could see only initial instead of putting the full signature along with his full name of the receiver. Further we noticed that RW.1 in his cross examination in the dock box has accepted that there is no mention of service in Ex.R1. We have carefully gone through the same and is evident that the opponent has not at all delivered the consignment to the consignee. Inter alia, the name, date and time and other columns are left unfilled in Ex.R1, we are in doubt that it is a concocted document to suit the complaint on hand.


Further in his cross examination of RW.1 has accepted that he has a duty to serve or return back the cover if not served. The opponent must bring to his task a reasonable degree of care, skill and must exercise his part of obligation when he undertakes to do so. It is pertinent to mention here that when the complainant has not accepted the signature affixed in the Ex.R1 is not that of his son onus probandi (the burden of proof) will automatically shift from the complainant side to opponent. Be that as it may, the opponent has never tried to establish his claim, by putting the person, who has delivered the disputed consignment at Belagaum to the consignee in the dock box for cross examination so as to elicit the truth.


If the view of the opponent is true as per Ex.R1 that the cover has been delivered to the right person, what prevented the opponent to adduce the evidence from the representative of Belgaum Office, which in our concerted opinion that the opponent has never delivered to the consignment to the consignee and has committed a deficiency of service coupled with unfair trade practice. We form the opinion that the initial affixed in the Ex.R1 does not belong to the son of the complainant and hence we have arrived at a conclusion that there is no concluded contract between the parties and therefore we are not inclined to accept argument of the learned counsel.

(e) The main thrust of the contention of the opponent that the son of the complainant got married and the complainant has not incurred any loss is invalid ground for consideration. When the photographs of two girls were sent by the parents seeking alliance and wed lock from the side of complainant, the girl as shown in the photographs is not acceptable by any of the family members of the complainant, the moral responsibility and duty is cast upon the complainant to safely return the said documents to the parents of the girls, otherwise, there is likelihood of misusing such photographs by known or unknown persons at a later stage for which in our opinion, the opponent is directly responsible and has failed to deliver the consignment properly to the addressee. Accordingly, we have no other option but to hold that the opponent has rendered deficiency of service and adopted unfair trade practice.

(f) In view of the discussions made in the foregoing paragraphs the above view has been well accepted and relied upon the following judgements of the Hon’ble National Commission and Hon’ble State Commission as detailed below:

Citation No.1: In the case of Blaze Flash Couriers Pvt. Ltd., V/s Rohit J. Paladiya and another before the Hon’ble National Consumer Dispute Redressal Commission, New Delhi, held that:

Terms and conditions regarding courier’s limited liability printed in small and fine prints complainant special attention not drawn – He having no knowledge thereof is not bound by them. (Vide Page No.354 of 2008 of C.T.J.)



Citation No.2: In the case of Blaze Flash Couriers Pvt. Ltd., V/s Rohit J. Paladiya and another before the Hon’ble National Consumer Dispute Redressal Commission, New Delhi, held that:

Contention that consignment note limits the courier’s liability to Rs.100/- complainant not bound by it unless specially painted out to him and also signed by him.

(Vide Page No.354 of 2008 of C.T.J.)



Citation No.3: In the case of Pankaj Upadhyay, Manager, Blue DART V/s Shilpa Nagaraj before the Hon’ble Karnataka State Consumer Dispute Redressal Commission, Bangalore, held that: the complainant being not a party to that agreement, she was not bound by it – impugned order as such left untouched. (Vide Page No.649 of 2007 of C.T.J.)



Citation No.4: In the case of Arovi Granites Pvt. Ltd., V/s Blue Dart Ltd., before the Hon’ble Andrapradesh State Consumer Disputes Redressal Commission, Hyderabad, the mention of limited liability in a very small print back of consignment note, which has not been read by the consignor cannot restrict liability of courier company. (Vide Page No.1200 of 2007 of C.T.J.)



Citation No.5: In the case of Garry Rana V/s. D.T.D.C. House and another before the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, Chandigarh, held that:

In the absence of any document showing contractual agreement that payment in such eventuality be restricted to Rs.100/-. (Vide Page No.187 of 2008 of C.T.J.)



Citation No.6: In the case of Akashganga Courier Ltd., V/s Mohansingh & others before the Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, held that:

Firstly the receipt was not signed by the complainant and secondly there was no evidence to suggest that the terms and conditions as printed on it were ever read over and explain to him. Therefore, held that the receipt being a unilateral document, the appellant was not entitled to have derived any benefit under it. (Vide Page 187 of 2008 of C.T.J.)



10. Point No.2: In so far as the deficiency part and awarding damages are concerned, we observed that the opponent has not delivered the consignment to the addressee at all and failed to produce any documentary proof or evidence to that effect However despite the efforts of the complainant, the opponent has forced the complainant to tap the doors of the Forum for redressal of his grievances without responding to the request before filing the suit, the act of which has been considered as deficiency of service coupled with unfair trade practice. The loss of photographs and loss of reputation of the complainant, the value of which cannot be measured in terms of money and compensated. Therefore we are of the opinion that the opponent has to pay suitable compensation. However, looking from the legal and equity aspect, it is upright and appropriate to award compensation and the complainant is entitled to get Rs.3,000/- as compensation for deficiency of service along with Rs.1,000/- as litigation expenditure.

11. Point No.3: In view of our findings on above points the complaint filed by the complainant has to be allowed. In the result we inclined to pass the following order.

- :::O R D E R::: -

1. The complaint filed by the complainant is partly allowed.

2. The opponent is hereby directed to pay compensation of Rs.3,000/- towards loss of photographs and reputation along with Rs.1,000/- as costs of the litigation expenses to the complainant.

3. The opponent is directed to desist from practicing unfair trade practice towards his consumers in future.

4. The above directions shall comply by the opponent within one month from the date of receipt of this order, failing which the amount shall carry interest at the rate of 9% P.A. from the date of default till realisation.

5. Send the copies of the order to the parties.