DOF.  /     /05

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the  19^th day of  June   2010

C.C.No.308/2005

Dr.K.A.Karunan,

Eye Specialist,

‘Sithara’,

P.O.Chirakkal, Kannur 11.                                           Complainant

(Rep. by Adv.T.Ramakrishnan)

1. DTDC Courier & Cargo Ltd.,

    Stadium Complex, Kannur 1.

2. DTDC Courier & Cargo Ltd.,

    Modern Market,

    Jam Nagger, Gujarat 361 001.

    (Rep. by Adv.K.O.Jayapradeep for Ops 1 & 2)

3. DTDC Courier & Cargo Ltd,

    Regd. Office, DTDC House,                                     Opposite Parties

    No.3, Victoria Road,

    Bangalore 47.

O R D E R

Smt.M.D.Jessy, Member

            This is a complaint filed under sectin12 of the consumer protection act for an order directing the opposite party to pay the value of the goods Rs.24, 110/- with interest @12% per annum and also Rs.10, 000/- as compensation with cost.

            The material averments in the complaint is as follows: The opposite party is conducting courier service. On 31.8.05  the complainant booked a parcel containing computer peripherals valued Rs.22,750/- vide bill No.00850953 through the  1^st opposite party for sending the same to his son K.Naveen who is residing at JamNagar, Gujarath. The opposite party collected Rs.1360/- from the complainant as service charge. After one week of booking of the parcel with 1^st opposite party, the parcel reached at 2^nd opposite party. On receiving intimation from the2nd opposite party, complainant’s son went to the office of the 2^nd opposite party for collecting the parcel. But he found the parcel in a damaged condition. Hence complainant’s son refused to take delivery of the parcel and the same was informed to2nd opposite party. This caused deficiency in service on the part of the opposite party. The complainant is claiming Rs.22,750/- being the value of the goods booked through the 1^st opposite party and for refund of the booking charge of Rs.1360/-. Complainant also demanding Rs.10, 000/- towards compensation. Demanding the same the complainant issued lawyer notice on 14.10.05 to the opposite parties. All the opposite parties received the notice. 3^rd opposite party sent a reply on 17.10.05 saying that they are investigating the matter. But there after there is no response from the opposite parties for redressing the complainant’s grievances. Hence the complaint filed.

            After receiving the complaint Forum sent notices to opposite parties. Opposite parties appeared through counsel and filed version denying the allegation of the complainant. The opposite parties admitted that the complainant booked a parcel addressed to his son who is residing at Gujarat. The parcel was reached safely at the office of the 2^nd opposite party and intimated the mater to the addressee. But the addressee did not collect the parcel. After keeping the parcel for prescribed time it was returned to the office of 1^st opposite party and information was given to complainant regarding the same. But even now the complainant has not taken back the parcel. Since the parcel was safely reached and properly conveyed to the addressee with in proper time there is no deficiency of service on the part of the opposite parties. The further contention is that the complainant never disclosed the contents of the parcel to the opposite party and if the parcel is containing any valuable item it is to be insured by the complainant. If there is any loss sustained to the complainant from the opposite party, the opposite parties liability is limited to Rs.100/- only as per the terms of consignment note issue at the time of booking the article.

            On the above pleadings the following issues are framed

1. Whether the article entrusted by the complainant to opposite parties is damaged

    while forwarding the same to the destination?

2. Whether there is any deficiency of service on the part of 1^st opposite party in

     Transporting the article entrusted with them?

3. If so the quantum of damage sustained to the complainant?

4. Relief as to cost.

            The evidence consists of the oral testimony of complainant. Ext.A1 to A6 marked. No evidence adduced on the defense side.

Issue Nos. 1 to 4

            Admittedly complainant booked a parcel containing computer peripherals valued Rs.22750/- on 31.8.2005 for sending to his son K Naveen in Gujarat. The1st opposite party collected a sum of Rs.1360/-from complainant towards service charge for the same. After one week the parcel reached the office of 2^nd opposite party at Gujarat. On getting this information, the addressee Mr.Naveen approached at the office of2nd opposite party for taking delivery of the parcel. He refused to accept the same alleging that the parcel was completely damaged. Complainant further alleged that he had contacted 1^st opposite party demanding value of the damaged article and for the refund of the amount paid at the time of booking the parcel together with compensation for mental agony. Complainant further alleges that the 1st opposite party agreed to pay the compensation but did not pay the same eventhough    ` the complainant met the 1^st opposite party several occasions. Hence on 14.10.05 the complainant caused to send a lawyer notice  to the opposite parties intimating his grievance and demanding compensation for the same. The opposite parties 1 to 3 received the notice respectively on 15.10.05, 16.10.05 and 17.10.05. Only the 3^rd opposite party sent a reply stating that they are investigating the matter with their concerned office and will revert the complaint shortly etc.Ext.A2 is the lawyer notice. A3 is the acknowledgement of 1st opposite party, Ext.A3 (b) and (c) are that of  2^nd and 3^rd opposite party respectively. Ext.A4 is the reply letter sent by 3^rd opposite party informing that the matter was investigating and will revert shortly. Ext.A1 is the courier consignment note that shows complainant had paid Rs.1360/- towards the parcel charge.

            The booking of article by the complaint on 31.8.05 with 1^st opposite party is admitted. Ext.A1 consignment note issue by opposite party reveals that 1 + 2 packets weighing 34 kgs. was entrusted to 1^st opposite party by the complaint for delivery at Jam Nagar in Gujarat. Rs.1360/- is also received by 1^st opposite party towards the service charge for the same.  Ext.a1 bears no mention regarding the contents in the parcel. There is no whisper in the complaint that the 1st opposite party is having knowledge that the parcel contains computer peripherals. Any how the material allegation of the complaint is that while the addressee was at the office of 2^nd opposite party for taking delivery he found the parcel completely damaged and refused to accept the same. The nature of damage caused to the computer peripherals is not brought to the notice of the Forum. The opposite parties in their version categorically stated that the parcel booked by the complaint was reached at Gujarat and 2^nd opposite party informed to the addressee, Mr.Naveen to collect the parcel. But the addressee after getting information regarding the arrival of the parcel did not take delivery of the same. Thereafter the parcel was returned to the office of the 1^st opposite party and intimated the same to the complainant. Even though the complainant deposed in his cross examination that “km[-\-T -Xn-cn¨p X¶-Xnsâ bmsXmcp  intimation \pT X¶n-«nà , in paragraph 12 of the chef affidavit submitted by the complainant, he specifically admitted that  the 1st opposite party informed the complainant about the return of the fully damaged computer. If that be so or even other wise as disclosed in the version of the opposite parties the complainant should have taken steps to cause production of the so called damaged parcel before the Forum. The nature of damage sustained to the computer is to be assessed by expert persons. From Ext.A5 invoice it is seen that the computer peripherals were purchased on 18.2.04. Hence it is evident that the alleged computer sent to his son by parcel is at least 1 ½ years old. The condition of the computer has not been proved before the Forum. Complainant hasn’t taken any possible steps to bring the computer before the Forum and get it examined by an expert. It cannot be ignored that opposite party has the case that the addressee is  in Gujarat, the son of the complainant was properly conveyed that the parcel was safely and properly reached and informed to collect the same. The specific case of the opposite party is that the addressee did not turned up to collect the parcel and after giving sufficient time the parcel was returned to the 1^st opposite party. That was also informed to complainant. Ultimately the case of the opposite party at present is that even now complainant is not taking back the parcel.

            Complainant is not taking back the parcel on the ground that the content of the parcel was found completely damaged then the complainant has the bounden  duty to prove that the parcel is damaged. But he has not taken any steps to prove that the computer is in damaged condition. Complainant has no case that the parcel has not reached in time. Complainant also has no case that the opposite party is not ready to deliver the parcel. The only case of the complainant is that the content of the parcel is damaged. Then it is the complainant who has to prove that the parcel is damaged. The Forum can take appropriate decision  infavour of complainant only on proving the facts whether or not the content of the parcel is damaged. Until and unless it is proved Forum is not in a position to come in to conclusion that there is deficiency in service on the part of opposite parties.

            When the opposite party takes the position that the parcel is safely reached and opposite party is not ready to take back complainant could have taken steps to compel the opposite party to produce the parcel, allegedly reached safely, before the Forum so as to convince at least it is damaged. Complainant pleaded the reason for not taking back the parcel for which opposite party has given explanation that the parcel is safely reached in their office but complainant reluctant to take back. Then it is the complainant who has to take steps to cause production of the parcel and to prove the same is damaged but complainant failed to discharge his obligation to establish his case. Under such circumstances Forum is helpless to find fault with the opposite party to say that there is deficiency in service on the part of opposite parties. Hence these issues 1 to 4 are answered against the complainant. Opposite party has to return the parcel on demand by the complainant.

            In the result, the complaint is dismissed. No cost.

                                         Sd/-                           Sd/-                             Sd/-

President          Member                       Member

APPENDIX

Exhibits for the complainant

A1.Receipt issued by OP

A2.Copy of the lawyer notice sent to Ops

A3.Postal acknowledgement cards

A4.Reply noticedt.17.10.05

A5.Invoice dt.18.2.04 issued by Ruby Global systems, Kannur

A6.Receipt dt.18.2.04 issued by Ruby Global systems, Kannur

Exhibits for the opposite parties: Nil

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties: Nil

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Froum,  Kannur