DOF.7.11.2008 DOO.5.10.2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 5th day of October 2010 C.C.No.265/2008 Saraswathi D.Nambiar @SD Nambiar, Kiranam House, Kurumathur.P.O. 670 142. Complainant (Rep. by Adv.P.P.Aravindakshan) - Manager, DTDC Courier & Cargo Ltd.,
DTDC House No.3, Victoria Road, Bangalore 47. 2. Branch Manger, DDTDC of 60, Kadakkal, Kollam. Opposite parties (Rep. by Adv.Binu Mathew) O R D E R Smt.K.P.Preethakumari, Member This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pay Rs.15000/- as cost of the lost articles, compensation and cost of notice along with the cost of the complaint. The case of the complainant is that her friend one Mr.Raju George has despatched a box containing one compact disc player worth Rs.10, 000/- and 5 pieces of compact disc through the opposite parties courier service on 2.8.08. The article was entrusted to 2nd opposite party for sending the same to the complainant’s residential address and the reasonable period of transit was two days. But article was neither delivered to the complainant nor returned to the sender. The 2nd opposite party had issued a receipt for accepting the consignment. According to the complainant the article entrusted to 2nd opposite party might have been lost or misdirected else where in the course of transit or misused by the opposite parties. The complainant had contacted many times to the 2nd opposite party to get the above said consignment, but the opposite party failed to deliver the same. The loss was happened to the complainant due to the gross negligence on the part of opposite parties or the employees during the course of employment. So the complainant issued a registered lawyer notice to the opposite party for a claim of Rs.10, 340/-. Even though they received the notice they neither replied it nor paid the claim amount. Hence this complaint. Upon receiving the notices from the Forum, opposite parties appeared and filed their version, contending that the complaint is not maintainable before the Forum since the complainant is not a consumer and no cause of action has arisen within the territorial jurisdiction of the Forum. The opposite parties are carrying out its business at Bangalore and Kollam respectively. There is no privity of contract between the complainant and the opposite parties. The complainant has not availed any service of opposite parties and hence she is not a consumer. The opposite parties admitted that one Mr.Raju George had entrusted one consignment with 2nd opposite party to be couriered to the complainant. But according to opposite party the person who had entrusted the consignment stated that the contents in the packet as documents. So the allegation that it was a compact disc player was false and an after thought one. The opposite party accepted the consignment for carriage subject to the terms and conditions. They further admit that the weight of the article is 850 Gms. The opposite parties further admit that they had issue the copy of the consignment note to the consignor evidencing the acceptance of consignment. The opposite party had issued consignor’s copy on 2.8.08 and not on 8.2.2008. The consignor Raju George had never contacted the 2nd opposite party nor made any complaint regarding any loss of consignment, which itself proves that the consignment was delivered to the complainant. There is no misconduct or negligence on the part of opposite party or their employee. They admits that they have already received a lawyer notice, but they were failed to issue reply because as per the notice the consignor was one Mr.Raju Varghese and no consignment number or other details were not mentioned in the notice. The consignor have never disclosed the contents of the consignment nor declared its value to 2nd opposite arty at the time of entrusting. So the complainant is not entitled to refund the charge or any expenses as alleged. More over the liability of the opposite parties is limited under contract and hence the complaint is liable to be dismissed. Upon the above contents the following issues have been taken for consideration. 1. Whether the complainant is a consumer and Forum has jurisdiction to try the case? 2. Whether there is any deficiency on the part of opposite parties? 3. Whether the complainant is entitled for the relief as prayed? 4. Relief and cost. The evidence in this case consists of the oral evidence of PW1and Exts.A1to A6. Issues 1 The opposite parties contended that the complaint is time barred, the complainant is not a consumer and no cause of action has arisen within the territorial jurisdiction of the Forum. The section 24 A of the Consumer protection Act says that “ the District Forum, State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. But as per the consignment note the date of entrustment is on 2.8.08 and the complaint is filed on 7.11.08 itself that is within three months from the date on which the consignment was entrusted to the opposite party for sending. So the averment that the complaint is barred by limitation cannot be taken into consideration. The other contention is that no cause of action has arisen within the territorial juarisdiction of the Forum. As per the consignment note the consignor had entrusted the consignment to deliver it in the address shown in the consignment note as: S.D.Nambiar, Kiranam House, and Kurumathoor.P.O. Kannur”. So the above said lost consignment was entrusted to deliver at Kannur. Under the Act, the territorial jurisdiction of the District Forum would be determined on the basis of actually or voluntarily residence of the opposite party or a place where registered office or branch office of trader or manufacturer is situated or at place where the opposite parties personally works for gain or carry on business or where the cause of action wholly or in part arises. But in this case the opposite party has to deliver the consignment to the complainant at Kurumathoor and hence part of cause of action arises at Kurumathoor which is within the jurisdiction of this Forum. Yet another contention of the opposite party is that the complainant is not a consumer, since she has not availed any services for consideration from the opposite party nor beneficiary of the same. The very specific case of the complainant is that her husband had entrusted a compact disc player with 5 pieces of compact disc to one Mr.Raju George in order to send the same to the complainant. Moreover the consignment is addressed to the complainant and the service of opposite party is availed to send the consignment to the complainant which is admitted by the opposite party. So there is no doubt that the complainant is a beneficiary and the act says that a beneficiary is also a consumer. So this contention of the opposite parties is also cannot be taken into consideration. So from the above discussion it is found that the complainant is a consumer and the complaint is not barred by limitation and the Forum has ample jurisdiction to try the case and the issue No.1 is found in favour of the complainant. The case of the complaint is that her friend Raju George had entrusted a consignment to the opposite party for delivering her at Kurumathoor and in order to prove her case her power of Attorney holder was examined as PW1 and produced Exts.A1 to A6 such as consignment note, copy of lawyer notice, postal receipts, acknowledgement cards etc. The admission of opposite party along with the documents proves that the above said Raju George had entrusted a consignment having 850 Gms on 2.8.08 to deliver it to the complainant. The complainant contended that the article entrusted by the above said Raju George was one compact disc player worth Rs.10,000/- and 5 pieces of compact discs. But opposite parties denied this by saying that at the time of entrustment the consignor Raju George told him that it contains certain documents. But it is true that the consignment have a weight of 850 Gms. Even though the complainant contended that it contains compact disc player and 5 discs, no evidence is before us to show that it is the compact disc player and discs. Nothing is mentioned in the consignment note. The best person who can say what was in the consignment is the consignor Mr. Raju George. He was not produced before the Forum and not sited even as witnesses. So regarding the article we are in darkness. The opposite party has not produced any document to show that the consignment is already delivered to the complainant in her address. So it is fact that she has not received the consignment even today. So it is true that she had lost the consignment whatever it may be and hence she had suffered some physical as well as mental hardship. This was caused due to the deficient service of opposite party for which the opposite parties are liable to compensate the complainant. Considering the facts and circumstances of the case we assess Rs.4500/- as compensation which will meets the two ends of justice. We are of the opinion that the complainant is also entitled to get Rs.1000/- as cost of these proceedings from opposite parties. So the opposite parties are directed to pay Rs.4500/- as compensation and Rs.1000/- as cost of this proceedings and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to pay an amount of Rs.4500/- (Rupees Four thousand and Five hundred only) as compensation along with Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against opposite parties under the provisions of consumer protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.copy of the receipt issued by OP A2.Power of attorney A3.Copy of the lawyer notice sent to OPs A4 & 5.Postal receipts & AD cards. A6.Copy of the cash bill dt.12.7.08 issued to T.K.Divakaran Exhibits for the opposite parties: Nil Witness examined for the complainant PW1.K.K.Pavithran Witness examined for the opposite parties: Nil /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
