BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 467/16 Filed on 30/09/2016

ORDER DATED:  16.11.2021

The order delivered on 16/11/2021

ORDER

SRI. VIJU V.R : MEMBER

1. The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986, alleging that he had bought a product called “Connoisseur Club Membership” from Hotel Leela Group with dining and accommodation benefits  and privileges under special package for Rs.14,025/- specifically to be used at Hotel Leela, Kovalam.  This membership package was sent by Hotel Leela group from Mumbai to complainant through DTDC Courier on 08/09/2016 to his address.  Normally it would have taken three to four days to reach Trivandrum.  Complainant contacted Hotel Leela for the consignment details and they sent him a copy of Air Way Bill No.M37970213 for the consignment.  Complainant checked the status to this consignment from online and found that it has arrived at Trivandrum on 11^th September.  Complainant waited on 11^th September for opposite party to deliver this packed to him as they have received this at their sorting section on 11^th September at 08.42 am as it is evident from their online tracking status report.  Complainant waited couple of days more for opposite party to deliver this consignment to him.  From 12^th September onwards complainant was trying to call on the phone numbers of opposite party but did not get a response from them.  All the phone was ringing but nobody picked up.  Complainant waited till 15/09/2016 for this packed to be delivered to him, but it did not reach him.  On 15/09/2016 at 02:34 PM, complainant raised an online complaint with customer support of opposite party.  On 15/09/2016 complainant received an online reply from customer support of opposite party saying that they have registered the complaint with case No.03278011.  In that reply, they assured the complainant that their support team will look into this matter and revert to him at the earliest.  Complainant wrote another e-mail to their customer support on 16/09/2016 but did not get any further response.  On 16/09/2016 complainant checked online tracking status for this consignment, and came to know that the packet was taken out for delivery on 16/09/2016.  Then complainant wrote another e-mail to the opposite party’s customer support on 17/09/2016 specifically asking how many more days they would require to deliver the consignment to his address, again the opposite party failed to respond.  They ignored to offer any explanation about the non-delivery of the said packet in time.  Complainant again sent another e-mail to opposite party on 19/09/2016 asking for the updated status of the consignment.  As practiced by opposite party before, this query was also ignored.  Finally the packet was delivered to the complainant on 19/09/2016, but it was no delivered by opposite party.  The packet was collected by an employee of Hotel Leela, Kovalam from the opposite party’s officer and handed over to the complainant.  Complainant wrote another e-mail on 20/09/2016 to update the online status of this consignment.  Complainant submit that on account of non-delivery of the packet by the opposite party within a stipulated period as assured, complainant has lost his opportunity to spend holidays at Hotel Leela, Kovalam during Onam vacation with his family and children and has been made to suffer a lot as complainant would not get another opportunity with family and children due to the nature of his job and children’s university education.  Complainant has suffered a lot of mental agony, financial loss and harassment at the hands of the opposite party due to their deficiency in service,  hence this complaint.
2. The Opposite party entered appearance &filed version. They averred that there is no privity of contract between the complainant and the opposite party.  The complainant is not a “consumer” as he has not availed any services for consideration from the opposite party.  The services availed by the consignor/Sender from the opposite party is for commercial/business purposes, hence the consignor itself is not a consumer.  The consignment was booked by Leela Group of Companies for commercial purposes.  It is also admitted by the complainant himself that he purchased “Connoisseur Club Membership” from Hotel Leela Group.  It is not disputed that the
   Consignor (not the Complainant) had booked a consignment bearing consignment number M 37970213 dated 08/09/2016 through the DTDC Express Limited for consigning it from Mumbai to Trivandrum.  At the time of booking the consignment, it was informed to the Consignor that the consignment may not be delivered before 19^th September 2016 and the Consignor should make arrangements for collecting the consignment from the DTDC office at Vanchiyoor due to the intervening Bakrid, Onam and public holidays from 11/09/2016 to 19/09/2016.  It was agreed by the Consignor that the Consignment would be collected from the delivery office of the opposite party in Vanchiyoor, Thiruvananthapuram.  An endorsement of the special instructions given by the Consignor was made on the Consignment cover stating that the consignment will be collected from the office of DTDC by the Consignor/Consignee.  Accepting such terms, the consignment was booked by the Consignor from Mumbai.  Hence the Consignor agreed and accepted to collect the consignment from DTDC office at Trivandrum by arranging its staffs.  On the basis of the above instructions given by the consignor, the consignment was booked and the freight charges for carriage based on the weight of the consignment alone was collected by the booking office.  The special instructions and terms of carriage was telephonically intimated by the Mumbai branch to the opposite party herein.  As per the instructions when the consignment reached Trivandrum office on 11/09/2016, the same was kept at the office of DTDC and the same was collected by the consignor’s staff in Trivandrum from the opposite party’s office on 19/09/2016 and the entry of delivery was made by the opposite party in the tracking record on 20/09/2016.  The consignor’s staff had collected the consignment without making any complaints.  Since the consignment was booked under booking series with consignment “M”, the liability to Rs.100/- or each shipment which includes all documents and parcels which are not insured or not covered under DTDC risk coverage consigned through DTDC by the shipper.  Therefore the averment that the consignment was sent as a “super speed” category with the opposite party is incorrect.  The complainant had never contacted the office of DTDC at Trivandrum.  The e-mails sent by the complainant to the customer support of the company was not made known to the Trivandrum branch.  The allegation that due to the non-delivery of the consignment, the complainant had lost opportunity to spend holidays at the Hotel Leels during Onam and that he would not get another opportunity with family and children and thus was made to suffer a lot etc., is merely an exaggeration.  The opposite party collect consignments for carriage subject to terms and conditions that are specifically mentioned in the Consignment Note Leaf.  In the event of damage or loss to goods the liability of the opposite parties under the contract between the parties is limited to Rs.100/- unless the sender declares a higher value as “declared value for carriage” and also pays the applicable risk surcharge thereof as “Carrier’s Risk” at the time of tendering the shipment which has not been paid in the instant case to entitle the sender to claim for the declared value.  The consignor has to declare the value of the consignment and pay additional charges/value for its carriage and also for risk/insurance if they have to claim for its declared/actual value.  The consignor had only paid the freight charges and nothing else.  Hence the complaint may be dismissed with compensatory costs to the opposite parties.
3. Issues to be ascertained:

(i). Whether the complainant is maintainable?

(ii). Whether there is any deficiency in service from the side of

opposite parties?

(iii). Whether the complainant is entitled to get the reliefs?

4. Issue No.(i) : One of the contention raised by the opposite party is that the complaint is not maintainable as the complainant is not a consumer &  also the service availed by the consignor/sender from the OP is for commercial purpose.
5. The term “consumer” as per Section 2(1)(d) of the 1986 Act:
   1.  buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consider action paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
   2.   [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who  [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person  [but does not include a person who avails of such services for any commercial purpose];
6. Therefore, the term consumer is really broad and includes any beneficiary of service.  So that in this case complainant is a beneficiary for the service availed by the consignor/sender from the opposite party.  The service availed by consignor/sender from opposite party is that to send the consignment to the complainant.  Admittedly the consignment is nothing but a club membership purchased by the complainant from the consignor/sender.  It is only a service rendered by consignor/sender to the complainant.  Service of any kind or nature that is rendered in exchange of consideration to direct or potential user comes within the definition of service.  So the service availed by the consignor/sender from the opposite party is not for a commercial purpose.
7. So this complaint is maintainable under Consumer Protection Act.
8. Issues Nos (ii) & (iii):- Both these issues are considered together for the sake of convenience.  The complainant has filed affidavit in-lieu of chief examination and was examined as PW1 & he has produced 11 documents which were marked as Exts.P1 to P 11.  Exts P8 & P 10 were marked subject to objection.  There was no oral evidence from the side of opposite party.  One document was marked from the side of opposite party, as Ext D1 which is marked subject to objection.  The complainant as well as the opposite party filed Argument Note.  The main contention raised by the complainant is that the consignment was not delivered to him on proper time.  It is admitted by opposite party that the consignor has booked a consignment on 8.9.2016.  The main contention raised by the opposite party is that at the time of booking the consignment it was informed to the consignor that the consignment may not be delivered before 19/09/2016 due to holidays from 11/09/2016 to 19/09/2016.  But the opposite party has not produced any evidence to prove the same.  But on going through Exts.P3 to P7(a) & (b) it can be seen that the complainant has send his grievance to the customer support of the opposite party, to that they have responded without stating the reasons put forth by the opposite party in the version. i.e. the consignment will not be delivered before 19/09/2016.  So in order to accept the opposite party’s argument they have to say it in the replies at first & also there is no evidence to show that the consignor was informed that the consignment should be collected from the office of the opposite party.  It can be seen from Ext.P2 that the consignment was delivered on 20/09/2016.  So it is evident that there is delay in delivering the consignment by opposite party.
9. Another contention raised by the opposite party is that, as per the terms and conditions of consignment note leaf the liability of the Opposite Party, is limited to Rs.100/- only.  There is nothing, on the record, to prove that the terms and conditions of consignment note leaf were read over and explained to the consignor and the same were accepted by him.
10. In Sudhir Deshpande Vs. Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC), it was held by the National Consumer Disputes Redressal Commission, as under:-

‘’We may make an observation here that the mention of the limited liability is in very small print at the back of consignment note which is not necessarily read by the consignor before he/she entered into the transaction of despatch of the consignment and hence it cannot be said to be a part of negotiation between the two parties. Further, whatever may be the binding nature of the said clause in an action based on breach of contract we are of the view that it cannot restrict the liability of the courier for the consequences flowing out of its negligence and deficiency in the performance of the service undertaken by it.’’

11.  In Skypak Couriers Pvt. Ltd. vs Consumer Education and Research Society, the National Consumer Disputes Redressal Commission held as under:

“The objection of the Couriers that liability of the opposite party was limited to Rs. 100/- did not carry any weight as the printed memo containing the above condition was neither signed by anybody nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor.’’

12. So the limited liability clause of the Courier, was not binding on the complainant, as he was neither signatory to the same, nor any evidence was led by the Opposite Party, that the said clause was read over and explained to the consignor. These were unilateral terms and conditions, and, as such, the complainant was not bound by the same.
13. Another contention raised by the opposite party is that no declaration was submitted by the consignor nor he was paid the Risk surcharge at the time of booking the consignment with Opposite Party with regard the contents of the same, as also the value thereof.  In case, the declaration had not been submitted by the complainant, at the time of booking the consignment, then Opposite Party, could insist for the submission of the same, and, in the event of non-submission of the same, it could refuse to book the same (consignment), for delivery to the consignee.  At that time, it did not insist upon the consignor, that they should give declaration, with regard to the contents of the consignment and value thereof.  Opposite Party, accepted the consignment, as it is, by obtaining necessary charges.  Later on, it could not turn round and say that, on account of non-furnishing of declaration, with regard to the contents of the consignment and value of the same, the Opposite Party were not liable to pay any damages, to the consignor/consignee.  In this regard, being without merit, must fail and the same stands rejected.
14.  Hence we find that the complainant has succeeded in proving his case and there is deficiency in service from the part of opposite party.  Hence opposite party is liable to compensate the complainant.
15. In the result, the complaint is allowed. The opposite party is directed to pay an amount of Rs 25,000/- (Rupees Twenty Five Thousand Only) as compensation for the mental agony suffered by the complainant and pay Rs 2500/- (Rupees Two Thousand Five Hundred Only) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9% per annum from the date of order till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 16^th  day of November  2021.

                      Sd/-

             P.V.JAYARAJAN                 : PRESIDENT 

                       Sd/-

PREETHA G. NAIR              : MEMBER    

                       Sd/-

                                                                 VIJU V.R                          : MEMBER

                                             C.C. No. 467/2016

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

        Sd/-

PRESIDENT