DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Wednesday the 30TH day of September 2021
CC No. 290/2017
Complainant
Hijas Muhammed
S/o. Muhamed.C,
Chalil House,
Nellikkamparambu (P.O)
Mukkam,
Kozhikode – 673 602.
Opposite Parties
1. Manager
Professional Couriers
No.7/97, CDE, Ist Floor,
K.K. Building, Aravindghosh Road,
Kozhikode – 673 001.
2. Manager
Professional Couriers
Near alinchuvad, Mukkam,
Kozhikode – 673 602.
(By Adv. P. Rajeev)
ORDER
By Smt.PRIYA.S. MEMBER
This is a complaint filed under section 12 of the Consumer Protection Act, 1986.
2 . The case of the complainant, in brief, is as follows:
The complainant is a student studying in Karnataka. On 20.06.2017 he purchased a new M1 Redmi 4 (Black 32 GB) mobile phone through online by paying an amount of Rs.8,999/-. On 27.06.2017 Aswin Selvi, one of his classmates, despatched the mobile phone through the Professional Couriers, Bhatkal, Karnataka to the complainant in his house address at Mukkam, Kozhikode District. On 29/06/2017 the complainant received the courier from the Mukkam office of the Professional Couriers. But the packet was empty and it was seen opened partly. When this was brought to the notice of the 2nd opposite party, he certified that the packet was empty. No positive steps were taken by the opposite parties to redress his grievance. The mobile phone was taken by the opposite parties after opening the packet. There was deficiency of service and unfair trade practice from the part of the opposite parties. Hence the complainant seeks to realise from the opposite parties the price of the mobile phone and Rs.50,000/- towards compensation for mental agony along with cost of the proceedings.
3.The opposite parties filed their version. Their contentions,
in brief, are as follows:
The courier received was delivered to the complainant. All the allegations in the complaint are false. It is only at the time of the delivery of the courier that it was realised that the packet was empty. The contents of the packet were not mentioned in any of the documents of the Professional Couriers. The complainant is responsible for the loss of the article, if any, in the packet. It is not possible to trace out the missing article. The complainant has not informed the police about the missing of the article. The complainant is liable to pay Rs.10,000/- to the opposite parties as compensation for the mental agony and cost. With the above contentions, the opposite parties pray for dismissal of the complaint.
- The points that arise for determination in this case are:
- . Whether there was any deficiency of service from the part of the opposite parties ?
- Reliefs and costs
- Evidence consists of the oral evidence of PWI and Exhibits A1 to A4 on the side of the complainant. RW1 was examined on the side of the opposite parties. No document was marked on their side.
6. Heard both sides
7. Point No.1: In order to substantiate his case, the complainant got himself examined as PWI. PWI has filed proof affidavit and deposed in terms of the averments in the complaint . Ext. AI is the copy of the bill dated 20.06.2017, Ext. A2 is the receipt dated 27/06/2017 issued by the Professional Couriers, Bhatkal, Ext. A3 is the delivery run sheet and Ext. A4 is the receipt dated 08.01.2018 of the Professional Couriers, Mukkam.
8. RW1 is the Manager of the Professional Couriers, Kozhikode. RW1 has filed proof affidavit and deposed supporting the contentions in the version.
9. Ext. A1 shows that the complainant purchased the mobile phone in question on 20/06/2017. The definite case of PW1 is that the said mobile phone was sent by his class mate to him in his house address at Mukkam through the Professional Couriers. Ext. A2 is the copy of the receipt for the same. There is no reason to disbelieve PW1. His testimony in this regard stands unshaken in the cross examination. It is an admitted fact that what the opposite parties delivered to the complainant was an empty packet. This is further evidenced by the endorsement in Ext. A2 and A3 documents.
10. The stand taken by the opposite parties is that they came to know that the packet was empty only at the time of delivery. It is true that the details of the contents of the packet are not stated in Ext.A2. The opposite parties cannot contend that what was sent was an empty packet so far as they have charged Rs.120/- for the courier. If it was only an empty envelope/packet there was no occasion for collecting that much amount as courier charges. The fact that the packet was not empty at the time of handing over to the Professional Couriers is established from the facts and circumstances afore stated. Moreover, ordinarily no one will send an empty packet through courier.
11. The definite case of the PW1 is that the packet was seen partly opened at the time when he received delivery from the 2nd opposite party. This fact is specifically averred in the complaint and reiterated by PW1 before this Commission. But this is neither denied in the version nor challenged while cross examining PW1. From the available evidence and the admission of the opposite parties, it is evident that the mobile phone in the packet was lost somehow before the packet reached the complainant. It is for the opposite parties to explain how the contents of the packet was lost. By acknowledging that the packet was empty, the opposite parties were well aware of the loss of the contents of the packet. But they did not take any effort to trace out the lost article or to compensate the complainant. On the other hand, in their version they have expressed their inability to trace out the article and tried to put all the blame and the responsibility on the complainant. The loss of mobile phone is due to deficiency of service from the part of the opposite parties. It is printed in Ext.A2 courier receipt that the liability of the carrier is limited to Rs.100/- per consignment for any cause. But the limited liability clause mentioned in the courier receipt cannot be applicable. The consignor or the consignee is not a signatory to the said clause in the courier receipt. There is no evidence that the said clause was shown and read over to the consignor or consignee or the same was agreed upon. So the said clause in Ext.A2 limiting the liability to Rs.100/- cannot carry any weight. The complainant is entitled to get the value of the mobile phone and also an amount of Rs.2,000/- as compensation for mental agony from the opposite parties. Point found accordingly.
12. Point No:2: In the light of the finding on the above point, the complaint is disposed of as follows:
- CC.290/2017 is allowed in part.
(b) The opposite parties are directed to pay a sum of
Rs.8,9 99/-(Rupees eighty nine thousand nine hundred and
ninety nine only), being the price of the mobile phone,
to the complainant.
(c) The opposite parties are directed to pay a sum of
Rs.2000/- (Rupees Two thousand hundred only)
as compensation for the mental agony to the complainant.
(d) The order shall be complied with within 30 days
from today.
(e) No order as to costs.
Pronounced in the open commission on this the 30th day of September 2021.
Date of filing: 10/08/2017
Sd/-
PRESIDENT
Sd/-
MEMBER
APPENDIX
Exhibits for the Complainant :
1. Ext. A1 – Copy of the bill dated 20.06.2017.
2. Ext. A2 – Receipt dated 27/06*2017 issued by the
Professional couriers, Bhatkal .
3. Ext. A3 – Copy of the delivery run sheet
4. Ext. A4 – Receipt dated 08/01/2018 of the Professional
Couriers, Mukkam.
Exhibits for the Opposite Party
Nil –
Witnesses for the Complainant
PW1 – Hijas Muhammed – Complainant.
Witnesses for the Opposite Party
RW1 – Manager, Professional Couriers, Kozhikode.
Sd/-
PRESIDENT
Sd/- MEMBER
Forwarded/By Order
Senior Superintendent
