THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.163/2016
Dated this the 23rd day of April, 2019
(Smt. Rose Jose, B.Sc, LLB. : President)
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Hon’ble Smt. Rose Jose, President
This petition is filed under Section 12 of Consumer Protection Act, 1986.
Petitioner’s case is that, he had sent an envelop containing application for the post of a teacher to Bhrathiya Vidya Bhavan, Sulthan Bathery, Wayanad through the 1st opposite party on 27/02/2016. Since 28/02/2016 was Sunday, the consignment received at the 2nd opposite party’s office on 29/02/2016. But instead of delivering the consignment to the consignee, the 2nd opposite party kept it at their office for many days. It is stated by the petitioner that in case of non-delivery, the 2nd opposite party was bound to return the article to the sender at the earliest but they have not done so. Only on 18/03/2016 the 1st opposite party informed him about the return of the article telephonically. The reasons stated for returning the article was that the addressee refused to accept the same. Thereafter he directly went to the office of the Bhrathiya Vidya Bhavan and they told him that the 2nd opposite party has not bring such an application to their office or they have refused any application as stated by the opposite parties. The opposite parties are bound to deliver the article to the addressee immediately on receipt of the same and the non-delivery of the article amounts to unfair trade practice and also deficiency in service on their part. Due to the said act of the opposite parties, he lost his chance to attend the interview for the teacher post and this caused much mental agony, financial loss and such other hardship to him. Hence this petition is filed to direct the opposite parties to pay him Rs.25,000/- as compensation for his loss of chance and other sufferings and also cost of the proceedings.
The opposite parties filed a joint version denying all the allegations of the petitioner as false and frivolous. They admitted that the petitioner had booked the consignment bearing No. R20795466 to the 1st opposite party on 26/02/2016 at 7.00pm to be consigned at Sulthanbathery Wayanad. It is stated that the next day ie. 28/02/2016 was Sunday and so no consignment was taken for delivering. On the next day ie. 29/02/2016 the consignment was taken for delivery to the consignee but the consignee refused to accept the same stating that the cut off time for the receipt of application was 29/02/2016 forenoon and the time was already over. So the 2nd opposite party hold the consignment on 29/02/2016 and this matter was informed to the petitioner on the telephone number given in the consignment. Then the petitioner requested them to return the article to him and informed that he will collect it from the booking office, Calicut. As such they returned the article to the booking office Calicut ie. to the 1st opposite party on 29/02/2016 itself but the petitioner had collected the same only on 18/03/2016. Their obligation is to deliver the consignment to the consignee in time but since it was not accepted by the consignee it has to be returned to the booking office as per the instruction of the consigner. It is further stated that, they suspect that the petitioner had sent the consignment which he alleges to be an application for the post of a teacher belatedly and that is why the consignee refused to accept the same. Here the last time for receipt of application was forenoon of 29/02/2016 and so they are in no way liable for the rejection of consignment by the consignee.
It is also stated that as per the terms and conditions of Carriage, if the parties failed to take delivery of the consignment within 48 hrs. from the tendering of the consignment, the consigner is liable to pay additional charges like demurrage etc. The consignment will be return to the centre only on his request provided that he has to pay the return freight charges in advance. In this case the petitioner had requested them to return the consignment to him but he has not paid the return freight charges and also didn’t take delivery of the consignment within the time. They cannot be held liable for the said act of the petitioner. As per the terms and conditions of Carriage by Road Act, the consigner is not entitled to any consequential or indirect losses or damages due to any loss or damage on delay in shipment. This petition is filed without any bonafide and only with the malafied intention to gain undue monitory benefit at the cost of the opposite parties. There is no deficiency in service on their part as alleged and no loss or damages has been occurred to the petitioner due to any of their acts and so the petitioner is not entitled to get any of the reliefs sought for in the petition and hence prayed to dismiss the petition with their cost.
Evidence consists of the affidavits filed by the petitioner and opposite parties, Ext. A1, A2, B1 and deposition of PW1, the petitioner.
Ext. A1 is the returned envelop, Ext. A2 is the receipt for payment of freight charge and Ext. B1 is the Standard Consignment Note Leaf bearing Consignment Note No. R19107250 containing terms and conditions of carriage.
According to the petitioner, his application for the post of Sanskrit Teacher sent to the Bharathiya Vidya Bhavan Wayanad through the opposite parties was not delivered to the addressee by 2nd opposite party and thereby he lost his chance of getting the said job and that caused much mental agony, financial loss and other hardships to him. But according to the opposite parties the 2nd opposite party had received the consignment only on 29/02/2016 and they took the article to the consignee on the same day itself but it was intimated to the delivery boy from the office of the consignee that the cut-off date for receipt of such applications was already over and the counter for receiving such applications was closed and hence the consignee refused to accept the consignment and that is why they could not deliver the consignment. Immediately this matter was informed to the petitioner over phone and as requested by him they returned the article to the 1st opposite party on 29/02/2016 itself but the petitioner took delivery of the same on 18/03/2016.
The petitioner was examined as PW1. In cross it is stated by the petitioner that when he went to the office of Bharathiya Vidya Bhaven they told him that they had received applications upto 03/03/2016 and the 2nd opposite party has not came to their office with his application on 29/02/2016 and they have not refused any applications as claimed by opposite parties. In such situation it is for the 2nd opposite party to prove that they had approached the consignee with the application on 29/02/2016 and the consignee refused to accept the same. If the consignment could not delivered to the consignee there will be an endorsement on the consignment to the effect that on what reason it could not be delivered like addressee not known, addressee left or refused etc. In this case if the consignee had refused the application as claimed by the 2nd opposite party, then it is the duty of the delivery boy to get it endorsed on the consignment by the consignee. Here Ext. A1 is the returned envelop but there is no such endorsement on Ext. A1 to show that the consignee refused the same. So the contention of the 2nd opposite party in this regard is not believable or acceptable.
Moreover the petitioner is also having a case that the 2nd opposite party has not informed him the fact of non-delivery of the article and they had kept the article at their office instead of returning the same immediately, otherwise he can go directly to Bharathiya Vidya Bhavan and can submit the application directly. Though the 2nd opposite party had denied the said allegation, they have not adduced any evidence to prove that they had contacted the petitioner at his phone number given in the consignment and had informed the matter of refusal of the application and returned the consignment to the 1st opposite party on the same day ie. 29/02/2016 itself as stated by them. They have not produced any call details to prove that they had called to the petitioner’s phone number on 269/02/2016. Likewise there is no endorsement on Ext. A1 envelop to the effect that on which day and time the 1st opposite party had received the returned envelop.
So from the facts stated and evidence on record, it is found that there is deficiency in service on the part of the 2nd opposite party which caused much difficulties to the petitioner and so the 2nd opposite party is liable to compensate the petitioner for his sufferings.
Hence the following order is passed.
The 2nd opposite party is ordered to pay Rs.7,500/- (Rupees seven thousand five hundred only) to the petitioner as compensation for his sufferings and Rs.2,000/- (Rupees two thousand only) as litigation charge within 30 days from the date of receipt of this order. Failing which the whole amount will carry 7% interest per annum from the date of default till payment.
Dated this the 23rd day of April, 2019
Date of filing: 05/04/2016
SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of returned envelop
A2. Copy of receipt
Documents exhibited for the opposite party:
B1. Standard Consignment Note Leaf
Witness examined for the complainant:
PW1. C. Sumesh (Complainant)
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
