Consumer Complaint No. 190 of 2015
Date of filing: 28.08.2015 Date of disposal: 30.01.2017.
Present :
Sri Asoke Kr. Mandal Hon’ble President,
Smt. Silpi Majumder Hon’ble Member,
Sri Pankaj Kr. Sinha Hon’ble Member,
Manasree Kunduu,
D/O Pronoy Kundu,
Resident of ST No. 28, QRS. NO. 37B,
P.O.- Chittaranjan, Dist. Burdwan,
Pin-713331. Complainant.
VERSUS
- First Flight Curiers Ltd.
Having its Office at Pal Xerox,
Amladahi Market, Chittranjan,
P.O. Chittaranjan, Dist.-Burdwan, Pin-713331.
Represented by its Proprietor Jagabandhu Paul.
- The Director, First Flight Curiers Ltd.
Having its Registered Head Office at Block- IV, 192,
Sector- 3, Salt Lake, Kolkata 700106. Opposite Parties.
Appeared for the complainant : Ld. Advocate Subrata Ghosh & Debdas Rudra.
Appeared for the O. P. No. 1 : Ld. Advocate Jagabandhu Pal
Appeared for the O. P. No. 2 : None.
JUDGEMENT
This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to return the mobile handset bearing Model No. Apple iPhone 5S in good condition or to pay Rs. 35,740/- towards the cost of the Mobile in question, to Rs. 50,000/- as compensation for mental pain, agony and harassment and to pay Rs.10,000/- as litigation cost, to the complainant.
The complainant’s case in short is that the complainant purchased a mobile bearing No. Apple iPhone 5S, IMEI No. 352039068134388 online through Flipkart.com vide order ID OD202906373787113500 ORDER Dated 21.5.2015 at the cost of Rs. 35,740/-. On receipt of the same with an intention to send the same to Mr. Hemant Shakyawal C/O Mrs. Chanda Shakyawal of 147B, Jhaadu Basti, near Gandhi Nagar, O.P. Vigyan Nagar, Dist. Kota, Rajasthan, Pin. 324005 through the O.P. No. 1. The father of the complainant on 02.06.2015 went to the office of the O.P. No. 1 and expressed his desire. The proprietor of O.P. No. 1 received for sending the same to the address as mentioned and examined the weight of the article and found 460 gm. and also issued a bill vide Tracking No. E90600087578 dated 02.06.2015 on receiving the bill amount of Rs. 183/-. On the same day the O.P. No. 1 handed over the Consignor Copy to the father of the complainant assuring that the article would be delivered to addressee within 2/3 days. After three days the complainant made herself assured made talk with Mr. Hemant Shakyawal over telephone and came to know that the article was not delivered to him. On checking the track report vide tracking No. E90600087578 in the web site, the complainant came to know that the article was dispatched from Asansol on 02.06.2015 but there is no status related to the delivery of said article. The complainant with her father visited the office of the O.P. No. 1 to know the status. The O.P. No. 1 assured that the article shall be delivered to the consignee without intimating the status of the article but the article has not yet been delivered. The father of the complainant made a request before the O.P. No. 2 by sending letter dt. 12.06.2015 through O.P. No. 1, to investigate the matter and to take necessary steps but no action was taken by the O.P. No. 2. The complainant on 27.06.2015 by sending mail attaching relevant documents, requested the O.P. No. 2 to refund the value of the article but no action was taken. The complainant again on 30.06.2015 by sending mail attaching relevant documents, requested the O.P. No. 2 to refund the value of the article but this time also no action was taken by the O.Ps. Due to deficiency in service and unfair trade practice on the part of the O.Ps. the complainant has been suffering from mental pain, agony and harassment and has been forced to come before this Forum. So the complainant is entitled to get the value of the article, compesation and litigation cost. Hence this case with the prayer as mentioned above.
Inspite of service of notice of this case, the O.P. No.2 did not appear and contest this case. Accordingly this case was heard ex-parte against the O.P. No.2.
The O.P. No.1 contested this case by filing written version while stating inter-alia that case is not maintainable against this O.P., there was no dereliction of duties and deficiency in service on the part of this O.P., this O.P. being franchisee of O.P. No. 2 received the packet containing a return product of flipkart weighing about 460 gram at Chittaranjan and after receiving the same, this O.P. issued consign copy and took the charge for carrying the consignment but the consignor did not declare the value of the consignment and did not insist for insurance of the article deposited for carriage, as per condition printed on the consign and the O.P. No. 1 is not liable to pay any compensation and the limit of liability of the O.P. No. 1 is Rs. 100/- in abcence of existance of insurance. It has been further stated by this O.P. that on receipt of the article for delivery, this O.P. handed over the same to the collector of O.P. No. 2 on proper receipt, then the article was dispatched from Asansol for Kota, after the dispatching of the article for delivery, the sole responsibility is casted upon the O.P. No. 2, this O.P. being the franchisee has/had liability only to deliver articles and to accept articles on behalf of the company(O.P. No. 2), this O.P. has on special system to trace the route of dispatch, this O.P. always assisted the complainant and over telephone it tried to collect the status of the article from O.P. No. 2 but failed and there was no deficiency in service on the part of this O.P. It therefore claimed by this O.P. that the case is liable to be dismissed with cost against this O.P.
DECISION WITH REASONS
In support of his case the complainant has relied upon the contents of the complaint, evidence on affidavit submitted on 28.09.2016, photocopies of several documents like invoice showing payment of Rs. 35,740/- as value of the mobile handset including tax paid, consignor copy showing payment of charge for sending the article to the addressee, track report in the web site showing status- nil, letter dt. 12.06.2015 issued to Mr. Dinesh Subbu DGM/First Fight Couriers Ltd. Kolkata, consignor copy showing sending such letter through O.P No. 1, track report showing service of such letter dt. 12.06.2015 upon the O.P. No. 2, mail dt. 27.06.2015 and mail dt. 30.06.2015 sent to the O.P. No. 2 by the complainant.
On the other hand in support of its case, the O.P. No.1 has relied upon the contents of its W.V., evidence on affidavit submitted on 23.11.2016 and photocopies of documents like agreement dt. 15.12.2001 made between the O.P. No. 1 and O.P. No. 2 and computer generated copy of bill dt. 30.06.2015 issued by the O.P. No. 2 in favour of the O.P. No. 1 showing receipt of several articles including article having Tracking No. E90600087578 for delivery.
We have carefully perused the contents of the pleadings and other materials on record. It is admitted by the contesting O.P. that the O.P. No. 1 being the franchisee of O.P. No. 2 received the packet containing a return product of flipkart weighing about 460 gram at Chittaranjan and this O.P. issued consign copy mentioning the tracking No. E90600087578 on receipt of the charge of Rs. 183/- including tax, for delivery of said consignment to Mr. Hemant Shakyawal C/O Mrs. Chanda Shakyawal of 147B, Jhaadu Basti, near Gandhi Nagar, O.P. Vigyan Nagar, Dist. Kota, Rajasthan, Pin. 324005. It is also admitted that said article being tracking No. E90600087578, has not yet been delivered to the addressee Mr. Hemant Shakyawal. The documents like tax invoice, consignor copy showing payment of charge for sending the article to the addressee, track report in the web site showing status nil, letter dt. 12.06.2015 issued to Mr. Dinesh Subbu DGM/First Fight Couriers Ltd. Kolkata, consignor copy showing sending such letter through O.P No. 1, track report showing service of such letter dt. 12.06.2015 upon the O.P. No. 2, mail dt. 27.06.2015 and mail dt. 30.06.2015 sent to the O.P. No. 2 show that the complainant purchased a mobile bearing No. Apple iPhone 5S, IMEI No. 352039068134388 online through Flipkart.com vide order ID OD202906373787113500 at the cost of Rs. 35,740/- and with an intention to send the same to Mr. Hemant Shakyawal C/O Mrs. Chanda Shakyawal of 147B, Jhaadu Basti, near Gandhi Nagar, O.P. Vigyan Nagar, Dist. Kota, Rajasthan, Pin. 324005 through the O.P. No. 1, she handed over the same on 02.06.2015 to the O.P. No. 1 and the O.P. No. 1 on receipt of said article weighing about 460 gm. and on receipt of the bill amount of Rs. 183/- including tax, issued a bill dated 02.06.2015 mentioning Tracking No. E90600087578 and handed over the Consignor Copy to the complainant. From the above documents it is proved that the actual value of the consigned mobile bearing No. Apple iPhone 5S, IMEI No. 352039068134388 is Rs. 35,740/- and the complainant on several occasions by sending letter and sending mails requested the O.P. No. 2 to investigate the matter related to the article having tracking No. E90600091464 and to refund the value of the consigned mobile bearing No. Apple iPhone 5S, IMEI No. 352039068134388 failing to deliver the same to the addressee but no action was taken by the O.P. No. 2.
The photocopies of agreement dt. 15.12.2001 made between the O.P. No. 1 and O.P. No. 2 and computer generated copy of bill dt. 30.06.2015 issued by the O.P. No. 2 in favour of the O.P. No. 1 showing receipt of several articles including article having Tracking No. E90600087578 for delivery, show that the O.P. No. 1 being the Franchisee of O.P. No. 2 has/had liability to deliver articles and to accept articles on behalf of the company (O.P. No. 2) only, on receipt of the article from the complainant for delivery, the O.P. No. 1 handed over the same to the collector of O.P. No. 2 on proper receipt, then the article was dispatched from Asansol and the O.P. No. 2 received several articles including article having Tracking No. E90600087578 vide bill dt. 30.06.2015 for delivery.
The evidence on record shows that the O.P. No. 1 being the Franchisee of O.P. No. 2 discharged its liability properly and according the O.P. No. 1 had/has no deficiency in service in this connection. In view of the above the complainant is not entitled to get any award against the O.P. No. 1. But there was negligence & deficiency in service on the part of the O.P. No. 2. For the negligence and deficiency in service on the part of the O.P. No. 2 the complainant has been harassed and has been suffering mental pain & agony and also the complainant has been forced to come before this Forum for relief.
So, the complainant is entitled to get an award directing the O.P. No. 2 to return the article of Apple iPhone 5S in good condition or to pay Rs. 35,740/- towards the cost of the Mobile in question, to pay compensation for mental pain, agony and harassment and to pay litigation cost to her. Considering the facts and circumstances of this case and also considering the period of harassment we are of the opinion that Rs.10,000/- and Rs.2,000/- as compensation and litigation cost restively, shall meet the ends of justice.
In view of the above, the case succeeds in part. Fees paid, is correct. Hence, it is
Ordered
that complaint being No.190/2015 is allowed ex-parte against the O.P. No.2 but the same is dismissed on contest against the O.P. No. 1,
that the complainant do get an award directing the O.P. No. 2 to return the mobile handset bearing Model No. Apple iPhone 5S in good condition or to pay Rs. 35,740/- towards the value of such Mobile and to pay Rs.10,000/- as compensation for mental pain and agony and also to pay Rs.2,000/- as litigation cost to the complainant within 45 days, failing which the total awarded amount will carry interest @ 12% p.a. upto the date of realisation and the complainant will be at liberty to put this award in execution in accordance with law.
Let the copies of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President,
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President
D.C.D.R.F., Burdwan
(Silpi Majumder) (Sri Pankaj Kr. Sinha)
Member Member
D.C.D.R.F., Burdwan D.C.D.R.F., Burdwan
