Tamil Nadu

StateCommission

A/154/2019

The Franchisee, And Another - Complainant(s)

Versus

1.F.Selvakumar And Another - Opp.Party(s)

R.Sathyanarayanan

19 May 2023

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

           BEFORE :      Hon’ble Thiru Justice R. SUBBIAH                           PRESIDENT

                                Thiru R VENKATESAPERUMAL                                  MEMBER

                        

F.A.NO.154/2019

(Against order in CC.NO.71/2016 on the file of the DCDRC, Dharmapuri @ Krishnagiri)

DATED THIS THE 19^th DAY OF MAY 2023

 

1.       The Franchisee

Professional couriersOld Sub-Jail Road, Krishnagiri

 

2.       The Deputy Manager

Head Office

The Professional Couriers

No.17, Cathedral Garden Road                M/s. Sathyanarayanan

Nungambakkam,                                           Counsel for

Chennai – 600 034                          Appellants / 1 & 2 opposite parties

 

                                                         Vs.

1.       F. Selva Kumar

          S/o. Francis Xavier

          No.4/359, D.K.Samy Complex                        M/s. N. Sureka

          Bangalore Bye Pass Road                                  Counsel for

          Somarpet, Krishnagiri – 635 001               Respondent/ Complainant

 

2.       The Deputy Manager (Sales)

          Lanington Bazaar Com

          Sun Info Tech

          No.261, Champacaly M.J.Market            Publication effected, called absent

          Mumbai – 400 002                                  Respondent/ 3^rd Opposite party

 

          The 1^st Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint as against the 1^st and 2^nd opposite parties. Against the said order, this appeal is preferred by the 1 & 2 opposite parties praying to set aside the order of the District Commission dt.17.5.2019 in CC.No.71/2016.

 

          This appeal coming before us for hearing finally on 1.3.2023, upon hearing the arguments of the counsel appearing for appellant & 1^st Respondent and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

 

ORDER

JUSTICE R. SUBBIAH,  PRESIDENT   

1.         This appeal has been filed by the appellants/ 1 & 2 opposite parties as against the order passed by the District Commission, Dharmapuri @ Krishnagiri in CC.No.71/2016 dt.17.5.2019, by allowing the complaint. 

 

2.       For the sake of convenience parties are referred as per ranking before the District Commission.

 

 3.      The brief facts of the complaint before the District Commission are as follows:

           The complainant is a B.E.Mechanical Engineering student.  He has completed the said course in Excel Engineering College, Kumarapalayam.  At the time of filing the complaint, he was doing M.S. Engineering at the University of South Wales, London.  Since the said University, is known for its advanced technology in the teaching through online etc., they recommended to purchase a Sony Vaio Laptop of advanced Model F15N17, with the configuration of 15 Intel Core 17, 8 GB 1 T.B etc.  The complainant placed an order on 12.6.2014, with the 3^rd opposite party.  His order Number is 21.  The cost of Laptop is Rs.1,15,190/-.  On 13.6.2014, the total consideration of the product with the shipping charges has been paid through the NEFT to the tune of Rs.1,15,190/- from the complainant’s account bearing No.558702010002958 of Union Bank of India, Krishnagiri to the 3^rd opposite party’s account bearing No.021100101847 of Cosmos Bank of Vithalvadi Kalpadevi Road Branch of Cloth City.  It was intimated to the complainant that the product was packed and despatched on 17.6.2014 vide consignment Note No.1004608  through the franchise of the 3^rd opposite party viz. Vayulink of Mumbai on 17.6.2014, by charging Rs.800/-.  The franchisee of the 3^rd opposite party viz Vayulink, had booked the consignment with the 2^nd opposite party/ Professional Courier with the consignment Note No.506375824 dt.17.6.2014, weighing 5.500 gms for the consideration of Rs.175/- to the office of the 1^st opposite party, to be delivered to the complainant.  On 23.6.2014, the delivery boys of the 1^st opposite party came to the complainant’s home and by obtaining the signature of the servant maid they had delivered the package.  After the working hours, when the complainant’s parents returned to home and opened the package, they became shocked since the Laptop was missing and other accessories like the charger, headset etc., were alone available in the package delivered by the delivery boys. Hence the complainant got depressed, since he purchased the laptop for his studies, and he was very much confused that without laptop as to how he will continue his studies.  Therefore, the complainant immediately contacted the 3^rd opposite party through mail.  But the 3^rd opposite party replied that they have sent the product correctly through their franchisee, from Mumbai.  The 3^rd opposite party also sent the tracking report of 1^st opposite party, which would show that the 3^rd opposite party had booked the package through Vayulink of Mumbai with the weight of 5 Kg. The Vayulink in turn booked the package through Professional courier of Mumbai with the weight of 5.5 Kg. But the delivery tracking and status report of 2^nd opposite party shows that the package was delivered with the weight of 2.8 Kg.  The weight of the Laptop was 2.2 Kg.  Immediately, the father of the complainant contacted the 1^st opposite party/ Professional Couriers.  They gave some lame excuses, and shuttled the complainant by saying one reason or the other.  Therefore, the complainant lodged a complaint before the police station, Krishnagiri.  When they made an enquiry, it was informed that two delivery boys, who had delivered the parcel, containing the  laptop had  not reported for duty.  Thereafter, the complainant purchased another laptop of the same configuration from iBhejo on 4.9.2014 for a consideration of Rs.1,55,181/- for continuing his studies.  When he reported the missing of the product in the consignment, the 3^rd opposite party assured to refund the cost of the product, and asked him to come to Mumbai for having an amicable talk.  Infact the complainant came from London to Behrain, by making the expenditure of Rs.54,416/-, and visited to Mumbai and had a request with the 3^rd opposite party to refund the cost of the product.  But they have not refunded the cost of the laptop.  Hence, alleging deficiency of service on the part of the opposite parties, the complainant filed a complaint before the District Commission, praying for a direction to the opposite parties to pay a sum of Rs.1,15,190/- to the complainant, to pay the cost of the flight charges to the tune of Rs.1,47,053/-, and to pay Rs.6 lakhs towards compensation for mental agony alongwith cost. 

 

4.       The case of the complainant was resisted by the 1^st & 2^nd opposite parties by filing their counter as follows:

          There is no consumer relationship between the complainant and the 1^st opposite party.  The complainant has not booked any consignment with the 1^st opposite party, and no amount was paid by the complainant to the 1^st opposite party for rendering any service.  It is incorrect to say that the consignment was packed and despatched by 3^rd opposite party through M/s. Vayulink Mumbai on 17.6.2014 with weight of 5.5. Kg.  The delivery boys of the 1^st & 2^nd opposite party had delivered the consignment to the complainant in good condition.  It is incorrect to say that  when the parcel was opened the laptop was missing, and other accessories were present.  It is also denied that the consignment weighed @ 5.5 Kgs. at Mumbai, but the opposite parties delivered only 2.2 Kgs.  Thus the opposite parties sought for dismissal of the complaint. 

 

5.       The 3^rd opposite party, was called absent and set exparte before the District Commission.

 

6.       In order to prove the complaint, proof affidavits were filed on eitherside, alongwith documents, which were marked as Ex.A1 to A13 on the side of the complainant.  There were no document filed on the side of the 1^st and 2^nd opposite parties. 

 

7.       The District Commission after analysing the evidence had come to the conclusion that the laptop would have been removed either in the office of the 1^st opposite party before weighing or in the transit gap between the 2^nd opposite party and the 1^st opposite party.  Therefore, there is a deficiency of service on the part of the 1^st and 2^nd opposite parties, and thus directed them to pay a sum of Rs.1,00,000/- towards the loss of laptop with interest @6% p.a., from the date of presentation of the complainant i.e., 23.6.2016, till the date of realisation and Rs.20000/- towards compensation and Rs.5000/- towards litigation expenses.  Aggrieved over the order impugned, the present appeal has been filed.

 

8.       Heard the submission of the learned counsel for both parties, perused the  documents and the materials placed before us.

 

9.       The learned counsel for the appellant would submit that the complainant was alleged to have purchased the laptop for a sum of Rs.1,15,190/- on 13.6.2014 from the 3^rd  opposite party through online.  The said laptop was alleged to have been booked by the 3^rd opposite party with one M/s. Vayu Link at Mumbai on 17.6.2014.  The said M/s. Vayu Link was alleged to have booked the above said shipment with the Professional Courier Mumbai the 1^st opposite party herein.  But at the time of booking, there was no endorsement that the consignment was containing a new laptop and no value of the same has been mentioned, but in contra the contents were declared as computer accessories worth around Rs.20000/-.  The said consignment was promptly delivered to the complainant at Krishnagiri and at that time the parcel was intact and no endorsement have been made with regard to loss of laptop.  On a complaint by the complainant, the appellant was called by the police at Krishnagiri on 2.8.2014, and after going through the records they have not entertained the complaint as there was no room for any criminal prosecution.  But the complainant had filed the present complaint.  Even if it is accepted that the complainant had purchased laptop from the 3^rd opposite party, he should have instructed them to send that laptop after obtaining a transit insurance cover.  Availing transit insurance cover is the basic norm.  Any prudent man will adhere when he purchases the laptop worth Rs.1.15 lakhs.  At the time of booking of laptop the value of the item was declared only as computer accessories worth around Rs.20000/-.  Further, more the complainant had lodged the complaint only from the date of receipt.  No prudent man will keep quiet for one month.  Even in the Carriage by Road Act 2007, the couriers are liable only the 10 times of the courier charges as compensation for any loss or damage to the consignment, when it has not been booked by paying additional charges as prescribed by the Act.  Thus prayed for dismissal of the complaint. 

 

9.       Per contra, the learned counsel for the complainant made a detailed averments, adverting to the averments made in the complaint.

10.     Keeping the submissions in mind, we have carefully gone through the materials available on record. 

 

11.     It is the defence of the appellant that what was received by them from M/s. Vayulink, was delivered to the complainant.  But on perusal of records, we find that the product was packed and despatched through the franchise M/s. Vayulink on 17.6.2014 with the weight of 5.5 Kg. as per consignment Note No.1004608 from consignor M/s.Sun Infotech, as seen from Ex.A5. 

          In turn,  being the franchisee of the 3^rd opposite party, M/s. Vaylink booked the consignment with the 2^nd opposite party, Professional Courier, as per consignment Note No.506375824 dt.17.6.2014 weighing 5.5 gms by paying a sum of Rs.175/- as charges.

          Thereafter, as per the tracking report, the consignment was handed over to the Professional Courier at Krishnagiri, the 1^st opposite party herein on 23.6.2014 with a weight of 2.8 Kgs.   Therefore, from the above three documents,  it is clear that at the time of entrusting the consignment to the Professional courier at Mumbai the weight of the parcel was 5.5 Kgs., and at the time of delivery it was 2.5 Kgs.  But there was no reason put forth by the appellants/ opposite parties for the difference in weight.  Therefore, in the absence of any explanation for the sudden fall in the weight of the consignment, the inference that could be drawn is that only the 1^st and 2^nd opposite parties are responsible for the same. It is also proved that at the time of entrusting the parcel by the 3^rd opposite party to their franchise the weight of the parcel was mentioned as 5.5 Kgs.   In the above circumstances, we have no option except to accept the case of the complainant that the laptop would have been tampered when it was in the possession of the opposite parties 1 & 2 during transit.  In such circumstances, we do not find any infirmity in the order passed by the District Commission, and the same has to be upheld, by dismissing the appeal.

 

12.     In the result, the appeal is dismissed, by confirming the order of the District Commission, Krishnagiri, in CC.No.71/2016 dt.17.5.2019.   There is no order as to cost in the appeal. 

 

 

 

 

 

  R  VENKATESAPERUMAL                                     R. SUBBIAH

                      MEMBER                                                     PRESIDENT