Date of filing : 05.03.2018

Judgment : Dt.4.12.2018

Mrs. Sashi Kala Basu, President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Ms. Chandni Nandy alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Gati Kintetsu Express Pvt. Ltd., (2) The Regional Manager, (3) The Directors, Gati Kintentsu Express Pvt. Ltd., (4) The Regional Manager, A.R.Cargo Packers & Movers and (5) Dinesh Sing, the Manager, A.R.Cargo Packers & Movers.

            Brief fact of the case of the Complainant is that she sent a parcel through the OP No.4 & 5 from Navi Mumbai to Kolkata and an amount of Rs.2,500/- was paid. A receipt was issued, vide consignment Note No.5251 dt.16.3.2017. The said parcel was received by the OP No.4 on assurance that ‘Gati’ i.e. OP No.1 shall deliver the said consignment at the Complainant’s address in Kolkata. But after a few days when the parcel did not reach at the destination i.e. the residence of the Complainant, she contacted the OP No.4 A. R. Cargo Packers & Movers and she was intimated by them that the consignment/parcel has been handed over to the OP No.1 and she was advised to contact OP No.1. When she contacted the OP No.1 she was assured that parcel will be delivered soon and it was stacked somewhere in the Gati Warehouse. The docket No.431921962 was given by the Gati/OP No.1, but, ultimately the parcel did not reach the residence of the Complainant. She contacted again the OP No.1. But, ultimately she was informed by the Customer Care of the Gati that the parcel was not traceable and they shall issue an observation note for settlement. The Complainant, thereafter, sent a legal notice through her Ld. Advocate. But, as it went in vain, she has filed the present complaint for directing the OP to pay a sum of Rs.1,07,915/- which is the amount of the goods and the items sent through parcel and also to pay compensation of Rs.1,00,000/- for harassment and mental agony together litigation cost of Rs.50,000/-.

OP No.1, 2 & 3 have contested the case by filing written version denying the material allegations against them and it has been contended that the complaint petition is not maintainable on the ground of non-joinder and mis-joinder of necessary party and also that this Forum has no territorial jurisdiction. It is the specific case of the OP No.1, 2 & 3 that as the consignment was booked by OP No.4 & 5 whose actual name is Vikash Cargo Package and Movers, they are liable for any misplacement of the cargo and not these OPs. Thus they have prayed for the dismissal of the complaint against them as they are not the service providers.

Complainant has annexed with the complaint petition the copy of the consignment note dt.16.3.2017, e-mails between the Complainant and the OPs and the reply letter sent by the OP No.1, 2 & 3 against the notice sent by the Complainant.

During the course of the evidence, Complainant has adduced evidence but OPs did not adduce any evidence.

Written notes of argument has been filed.

In spite of notice being sent to the OP No.4 & 5 as no step was taken, vide order dt.22.11.2017 the case was directed to be proceeded ex-parte against them.

So, the following points require determination.

1) Whether the present complaint case is maintainable in its present form?

2) Whether there has been any deficiency in service on the part of the OPs?

3) Whether the Complainant is entitled to the relief as prayed for?

            Decision with reasons

            Point No.1

            Opposite parties No.1 to 3 have contended that Complainant is a consumer of opposite parties No.4 & 5 and both the addresses of OP No.4 & 5 namely A. R. Cargo is outside the state and thus this Forum has no territorial jurisdiction. This case is bad for misjoinder and non-joinder of necessary parties as Complainant is not the consumer of OP No.1 to 3.

            Complainant has filed consignment note being No.5251 dt.16.3.2017 from which it is evident that one number of package weighing 30 kg was accepted by the A.R.Cargo Movers in Mumbai for its delivery to Kolkata, on payment of Rs.2,500/- by the Complainant. Complainant was informed through messages that the parcel was stacked somewhere at ‘Gati’ Warehouse and it will be delivered in the given address of the Complainant soon. Opposite party No.1 to 3 have also admitted that they provide service to the OP No.4 & 5 in Kolkata indicating that parcel sent by A.R.Cargo is received by ‘Gati’ for its delivery. Same is also apparent from the communication by the OP No.1 to 3 with the Complainant. OP No.1 to 3 provided the Docket Number 431921962 o the Complainant.  Thus, all the opposite parties are the service providers to the Complainant and she is their consumer within the meaning of Section 2(d) of the Act.

            So far as territorial jurisdiction is concerned, apparently office of the OP No.1 is within P.S.-Taratala and OP No.2 & 3 are its Regional Manager and director. Section 11 of the Act is very clear in this regard. It is not necessary that all the opposite parties should reside or carry on business within the territorial jurisdiction of the Forum.

            So, the complaint is maintainable in its present form and this point is thus answered accordingly.

            Point Nos.2 & 3

            Both these points are taken up together for discussion for the sake of convenience and to avoid repetition.

            Consignment note 5251 dt.16.3.2017 issued by A.R.Cargo Movers & Packers shows that Complainant handed over the package/parcel containing old and used cloth weighing 30 kg and had paid cost of Rs.2,500/- towards its delivery in Kolkata, in the address mentioned therein. It was sent from Mumbai.

            For proper adjudication of the dispute, certain messages and communications between the parties are required to be highlighted, wherefrom it appears that parcel was sent by the OP Nos.4 & 5 and OP Nos.1 to 3 have acknowledged it. WhatsApp message dt.20.04.2017 by A.R.Cargo reads that “Dear Mam, Process is on. It is 100% assurance that your parcel will be delivered. It has been stacked somewhere in Gati Warehouse. It can take time but deliver you as soon as they find it”. Complainant when enquired from ‘Gati’ about whereabout of parcel, Vigilance Officer of OP Nos.1 to 3 namely Sunil Naskar asked the Complainant to share the shipment relating documents, which she shared it. By e-mail dt.22.4.2017, OP No.1 asked the Complainant to give them the Gati 9 digit docket number for further assistance, which she provided them by mail on the same day. On 25.4.2017, OP No.1 sent e-mail stating “Please accept our sincere apology for the inconvenience caused to you for docket No.431921962. Our representative from Issue resolution team has been assigned for your complaint. Please make a note of the complaint number for the said Docket Number 16153599. Request you to please give us sometime to get back to you with resolution”. But, in spite of resolving, OP No.1 sent a mail stating that they were unable to trace the material.

            So, it is evident that Complainant who was a student kept constant contact with the opposite parties. The exchanges between the parties indicate that package/parcel which were the wearing  apparels of the Complainant was lost by the OP No.1 (GATI). On a careful perusal of the communications exchanged between the Complainant and the OP No.1, it appears that they have just asked the Complainant to make claim from OP No.4 & 5 but they have not denied that the parcel was lost from their custody, which amounts to deficiency in service. Thus the Complainant is entitled to the compensation and the cost of the material as well as litigation cost from all the opposite parties. However, so far as quantum of compensation and the cost, it appears that no document relating to the goods lost in transit is filed. Admittedly, cloths were used cloths. So the price as stated in the schedule of the complaint petition cannot be accepted. But, at the same time, it cannot be ignored that the Complainant being a student came to Kolkata for internship had to face so much inconvenience and harassment for want of cloths. She even has sent a mail stating that she did not have cloths to wear. There cannot be denial that the parcel which weighed 30 kg did contain sufficient number of cloths and Complainant had sentimental value towards those cloths. So, in the given facts and circumstances of this case, an amount of Rs.30,000/- for the goods lost, Rs.50,000/- as compensation and Rs.5,000/- towards litigation cost  would be justified. All the opposite parties are jointly and severally liable to pay the same.

            Hence

                                    Ordered

            CC/496/2017 is allowed on contest against OP No.1 to 3 and ex-parte against OP No.4 & 5. Opposite parties are directed to pay Rs.30,000/- towards cost of cloths, compensation of Rs.50,000/- along with litigation cost of Rs.5,000/- (total sum of Rs.85,000/-) within two months from the date of this order in default amount shall carry interest at the rate of 8% p.a. till its realization.

            Consequently, MA/78/2018 is also disposed of.