BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE                        

Dated this the 22^nd February 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SRI T.C. RAJASHEKAR                  : HON’BLE MEMBER

ORDERS IN

C.C.No.167/2013

(Admitted on 14.06.2013)

1. MAX Technologies,

    No.25, Tiruvalluvar Nagar,

    Near Golden Flat Signal,

    Opposite Coffee Day,

    Mugapper East, Chenai  37,

    Represented by proprietor,

    Mr. Sendhil.

2. Shameer S.H,

    S/o Abbu Hasan,

    Aged 21 years,

    Naaz Manzil,

    3^rd Block, K.S. Rao Nagar,

    Mullky, Mangalore Taluk.

                                                                    ….. COMPLAINANTS

(Advocate for the Complainants: Sri VK)

VERSUS

1. Star Fancy,

    1463, Garden Avenue, Triuvalluvar Nagar,

    Mugapper East, Chenai 37,

    Represented by its Proprietor,

2. On Dot Couriers and Cargo Limited,

    8/42, Kirti Nagar, Industrial Area,

    New-Delhi110015

    Represented by its Managing Director.

3. S.T. Couriers Bangalore,

    No.65/1, 2^nd Main, C.K.C. Garden,

    Mission Road, Shanthi Nagar,

    Bangalore 27.

    Represented by its Managing Director and Mr. Johnson.

4. Franch Express Net Work,

    S.R. Nagar, Trinity Commercial Complex,

    Near Railway Station, Attavar,

    Mangalore,

    Represented by its Manager, Smt. Sujatha.

                                                                           …........OPPOSITE PARTIES

(Opposite Party No.1: In person)

(Opposite Parties No.2 & No.3: Ex parte)

(Advocate for the Opposite Party No.4: Sri DS)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainants against opposite parties alleging deficiency in service claiming certain reliefs. 

The brief facts of the case are as under:

The complainant claims opposite parties proclaimed they are dealing with courier service sending parcels/consignment/cargo from one destination to another by collecting charges/price and having internal tie up for collect and distribution of those articles.  Opposite party No.2 is having a collection branch at Chennai and operated by opposite party No.1 and he collecting materials for transit on behalf of opposite party No.2.  Complainant No.1 gave mobile phone worth Rs.14,175/ with opposite party No.1 for deliver to the address of the 2^nd complainant through courier service.  Declaring the value as by giving concerned bill for which Rs.55/ was collected towards courier transit charges.  But mobile parcel was not delivered to complainant to which was required to be after transit through opposite party No.3 & No.4.  On enquiry it was found it had reached opposite party No.4 on 5.1.2013 but was not delivered.  Hence seeks reliefs to complainant from opposite parties No.1, No.2, No.3 and No.4 as prayed.

II.      Opposite party No.1 though appeared in person did not contest.  Opposite parties No.2 and No.3 kept Ex parte.  Opposite parties No.4 and No.5 filed written version.  On appearance despite the allegation made and expressing ignorance about the parcels of the mobile given to opposite party No.1 collecting Rs.55/ delivering to complainant No.2.  Opposite party No.4 not collected amount.  Opposite parties No.1, No.2 and No.3 does not received any courier pertaining to complainant till day as such denies liability.  Hence seeks dismissal of complaint.

2.     In support of the above complainant Mr. Shameer S.H filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C6 as detailed in the annexure here below.  On behalf of the opposite parties Smt. Sujatha (RW1) Office In charge, also filed affidavit evidence.

III.    In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

      The learned counsel for complainant filed list of decisions.   Opposite parties filed notes of arguments.   We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties.  Our findings on the points are as under are as follows

               Point No.  (i): Affirmative

              Point No.  (ii): Partly Affirmative

              Point No. (iii): As per the final order.

REASONS

IV.   POINTS No. (i):   As can be seen from the descriptions of opposite parties as they admitted to be different entities for probably pointed out for complainant connected which interlinked with undertaking to collect and deliver mutually from the customers.  One Mrs. Sujatha, Office in charge of opposite party No.4 was examined and cross examined as RW1.  Of course in affidavit evidence she supported in the written version and denied complainant version.  She admits of collecting parcels from different companies/firms (ಸಂಸ್ಥೆಗಳಿಂದ).   She also says she send the parcels to different address through other companies like Eagle and Thirupathi courier, Anjal courier and this way through five courier companies delivering parcels.  She also says for sending parcels she retain records in computer as per Ex.C5.  To the suggestion that she is running opposite party No.4’s Franch Express Network.  She deposed the name of the firm and admitting the two mobile numbers as mentioned at Ex.C5 as her mobile numbers.  She says in her affidavit evidence at page 7 she admits that the profit and loss of the Mangalore office is brought by through company and she is the Manager and she says she is salaried employee and at para 9 she stated that the opposite party No.4 she is an owner of opposite partys Franch Express Network.  By reading to the testimonies of this case, in the case there is tie up with other companies and also from the evidence of complainant is that opposite parties No.1 to No.4 having network for collection of the delivery of the parcels and return for the delivery to one another.

2.      From the documents produced by complainant Ex.C1 is the copy of purchase bill of the mobile by complainant No.1 which was sent to complainant No.2 for delivery to Mangalore as per Ex.C2.  Ex.C3 is reply by Mr. Johnson, Managing Director of opposite party No.3.  It is dated 23^rd January 21, 2013 addressed to complainant where in through the mentioning the item entrusted to opposite party No.2 by complainant No.1 Mr. Sendhil the proprietor of complainant No.1 to deliver to complainant No.2 mentioning the product sent the mobile is not traceable.  Ex.C4 is the Tract ST Courier showing as on 2013.01.04 it was on transit after originated from Chennai and destination at Bangalore.  Ex.C5 is the copy of the Franch Express Network, S.R. Nagar the outstanding Manifest Report from 05.01.2013 to 05.01.2013 destination showing as Mangalore.  It mentions Airway bill No.400361156 and it shows that the product reached Mangalore but not delivered.

3.     Ex.C6 is the telephone bill from 1.1.2012 to 31.01.2013 of complainant No.2 with details of the calls made.  It shows phone calls made by complainant to the two mobile numbers of opposite party no.4 on various dates after the expected date of delivery by opposite party No.4. 

4.     Than considering this and also the evidence of opposite party No.4 that she have not maintained any records pertaining to undelivered parcel and further evidence she has not maintained any documents in respect of the undelivered parcels we are of the view this is itself is sufficient to draw adverse inference against opposite party No.4 for establishing non delivery of the parcel sent from Chennai by complainant No.1 to deliver to complainant No.2.

5.     It was argument for opposite party No.4 that there are no documents to show there was any understanding between opposite party No.1, No.2, No.3 and No.4 for collection and delivery of the parcels.  But from the testimony of the opposite party No.4 referred earlier this has to be turned against opposite party No.4 considering that the sufficient record to show the parcel delivered by complainant No.1 to opposite party No.2 at Chennai reached the Mangalore office of opposite party No.4 and that has not been delivered by opposite party No.4 to complainant No.2.  Hence in our opinion complainants succeeded in establishing the deficiency of service on the part of opposite party No.4.  Hence we answer point No.1 in the affirmative.

POINTS No. (ii):  The learned counsel for opposite party No.4 argued that the liability of the opposite party No.4 if at all is only Rs.100 as there was no declaration of complainants delivering the valuable mobile to opposite party No.1 and that the receipt also containing endorsement that the liability carrier of opposite party No.4 is limited to Rs.100/ .  It was also pointed out by complainants failed to produce the carbon copy of the receipt issued to complainant No.1 by opposite party No.1 and what is produced is only of the Xerox copy.  It is true what is produced before this Forum it is only Xerox copy as seen at Ex.C2, as seen from Ex.C2 the parcel that was handed over to opposite party No.1 is shown as complainant No.1.  In complainant evidence also mentioned that the copy of the invoice Ex.C1 was handover to opposite party No.1 at the time of delivering the parcel by complainant No.1.   Hence the contention of the opposite party No.1 is that the details of the parcel was not disclosed cannot be accepted.  Hence we are of the view that there is deficiency in service and that despite knowing the contents of the parcel and that opposite party No.4 having not even maintained any records to show undelivered article/parcels shows negligence on the part of opposite party No.4.   Hence we are of the view that the opposite party No.4 cannot permitted to take shelter to restrict liability to Rs.100/.  Hence complainant established deficiency in service on the part of opposite party No.4 as the parcel had reached opposite party No.4.  The claim against opposite party No.1 to No.3 does not survive.  As such opposite party No.4 shall be directed to pay the value of the mobile handed over to opposite party No.1 for delivery by opposite party No.4 of Rs.14,175/ with interest at 9% per annum from the date of compliant till the date of payment.  Opposite party No.4 shall pay Rs.10,000/ as compensation and also Rs.5,000/ as advocate fee.  Hence we answer point No.2 partly in the affirmative.

POINTS No. (iii): Wherefore the following

ORDER

      The complaint is partly allowed with cost. Opposite party No.4 is directed to pay Rs.14,175/ (Rupees Fourteen thousand One hundred Seventy Five only)  to complainant with future interest at the rate of 9% per annum from the date of complaint till the date of payment. 

2.     Opposite party No.4 shall also pay Rs.10,000/ (Rupees Ten thousand only) as compensation to the complainant.

3.    Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).

4.   Payment shall be made within 30 days from the date of this order.    

      Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.

     (Page No.1 to 9 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 22^nd February 2017)

             MEMBER                                             PRESIDENT

  (SRI T.C. RAJASHEKAR)              (SRI VISHWESHWARA BHAT D)

D.K. District Consumer Forum                 D.K. District Consumer Forum

 Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainants:

CW1  Mr. Shameer S.H

Documents marked on behalf of the Complainants:

Ex.C1: Mobile Bill dated 03.01.2013

Ex.C2: Freight charges/Courier bill dated 04.01.2013

Ex.C3: Letter given by complainant to opposite party

Ex.C4: Track Status issued by opposite party

Ex.C5: Manifest Report given by Mangalore office

Ex.C6: Call details of the complainant showing contacts made to opposite party No.4 during the parcel transit time.

Witnesses examined on behalf of the Opposite Parties:

RW1  Smt. Sujatha (RW1) Office In charge

Documents marked on behalf of the Opposite Parties:

Nil 

Dated: 22.02.2017                                    PRESIDENT