1. The Branch Manager The Professional Couriers Office V/S Mr. Jayakar - Consumer Court Case

Karnataka

Dakshina Kannada

cc/180/2013

Mr. Jayakar - Complainant(s)

Versus

1. The Branch Manager The Professional Couriers Office - Opp.Party(s)

29 Nov 2016

ORDER

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Complaint Case No. cc/180/2013

1. Mr. Jayakar

S/o. Tukra Shettigar ged 52 Years Managing Partner Gurucharan Industrial Estate Baikampady Mangalore R/at Sridevi Nilaya Baikampady Mangalore

...........Complainant(s)

Versus

1. 1. The Branch Manager The Professional Couriers Office

D.No. 2.84.1, 2.84.2 First Floor Saptamba Complex Near Supreme Automobiles NH 66, Kulai Hosabettu Mangalore

............Opp.Party(s)

BEFORE:
	HON'BLE MR. Vishweshwara Bhat D PRESIDENT
	HON'BLE MR. T.C.Rajashekar MEMBER

For the Complainant:

For the Opp. Party:

Dated : 29 Nov 2016

Final Order / Judgement

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

Dated this the 29^th November 2016

PRESENT

SRI. VISHWESHWARA BHAT D : HONBLE PRESIDENT

SRI. T.C. RAJASHEKAR : MEMBER

ORDER IN

C.C.No.180/2013

(Admitted on 26.6.2013)

Mr. Jayakar,

S/o Tukra Shettigar,

Aged 52 years,

Managing Partner,

Gurucharan Industries,

QG.1.2.3., Industrial Estate,

Baikampady, Mangalore.

Residing at Sridevi Nilaya,

Baikampady, Mangalore.

….. COMPLAINANT

(Advocate for the Complainant: Sri ADB)

VERSUS

1. The Branch Manager,

The Professional Couriers,

Office:D.No.2.84/1, 2.84/2,

First Floor, Saptamba Comples,

Near Supreme Automoabiles,

NH 66, Kulai, Hosabettu, Mangalore.

2. The Manager,

Administrative Officer,

The Professional Couriers,

Uniplex, 4.9.853/2&3,

Kala Kunja Raod, kodialabail,

Mangalore.

.....OPPOSITE PARTIES

(Advocate for the Opposite Parties No.1 & No.2: Sri. YBPR)

ORDER DELIVERED BY HONBLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

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

The brief facts of the case are as under:

The complainant contends he was utilizing the service of opposite party for the delivery of his articles in various parts of Karnataka on 26.9.2012. The complainant had engaged opposite party No.1 to deliver an Article containing a cheque dated 24.9.2012 drawn on Canara Bank, Panambur Branch the complainant apprehends misusing the above article for on Rs.67,259 should have been deliver to M/s Alloy Steel Enterprises, Bangalore which was received in the office of the opposite party No.1 with promise to delivery it on the next day i.e..25.9.2012 TO M/s Alloy Steel Enterprises without fail. But opposite party did not deliver the article which contained cheque and failed to tender proper reply for the non delivery and promised to deliver the cheque or to return the cheque to the complainant. The non delivery cheque has caused financial loss mental agony to the complainant. To the legal notice of 12.1.2013 opposite party got issued false and frivolous reply hence seeks payment of the cheque amount Rs.67,542 and another a sum of Rs.50,000/ towards mental agony with the interest at 12% and another sum of Rs. 15,000/ towards litigation expenses

II. Opposite party admits that complainant was and is regular customer. The complainant mentioned article was handed over to opposite party No.1 for delivery to M/s Alloy Steel Enterprises, Bangalore. It’s contents as a cheque is not known to opposite party. It is further alleged on 27.9.2012 at 4.20 pm immediately on coming to know a loss of consignment by the delivery boy the opposite party called upon complainant’s industry office on 0824.2400866 and informed the receiver of the call Nalini, that the consignment had been lost. However as opposite party usually used deal with complainant’s staff Ms. Triveni they asked for her contact number and informed over the furnished number 0824-2409556 at 4.40 pm about misplacement of consignment and requested her to arrange for stop payment of the alleged cheque contained in the consignment assigned to the opposite party to which it was replied by Triveni that the arrangement of stop payment will be made and police compliant was also lodged as 5 other consignment were also lost on 27.9.2012. On the opposite party making enquiry about the loss found the consignment of complainant was despatched from Baikampady-MSR to Mangalore on 26.9.2012 at 18:28:45 hrs on 26.9.2012 at 21:15:01 on the same day dispatched from Mangalore to Bangalore. On September 27^th 2012 at 08:04:40 hrs the said consignment was dispatched from Bangalore -MSR to Peenya and was taken for delivery and entered in Sl.No.11 and was lost in the hand of the delivery boy Mr. Ramesh R along with other 5 other documents. Inspite of those efforts the opposite party could not trace out the consignment including lodging the complaint to the jurisdiction police. The complainant has not co-operated with opposite party to trace the Whereabouts of the lost consignment by filing separate complaint. Without it is contended there is no consumer and service provider relationship between complainant and opposite party without prejudice, it is contended that opposite party is responsible only to pay Rs.100/ as mentioned in the receipt issued by opposite party to complainant. Hence seeks dismissal.

2. In support of the above complainant Mr. Jayakar filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents detailed in the annexure here below. On behalf of the opposite party Mr. M. Narendranath Nayak, Manager, Professional Couriers (Rw1) also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked as ExR1 to R7 detailed in the annexure here below.

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

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

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points 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): That the complainant booked the consignment in question with opposite party a service provider is admitted by opposite party for delivery at Bangalore. Infact opposite party even did admit of non delivery of the article entrusted to opposite party No.1 by complainant to the destination address. The complainant raised objection and dispute about non delivery of the article as to their liability. As such there is dispute between the parties. Hence we answer point No.1 in the affirmative.

POINTS No. (ii): Admittedly the complainant had sent a cheque in the consignment addressed to M/s Alloy Steel Enterprises, Bangalore through opposite party. Ex.R5 is carbon copy of the receipt for the complainant deliver of the article taken by opposite party No.1. The argument of opposite party is twofold. First is that the complainant has not cooperated with the police towards the investigation to the case on the complaint lodged by opposite party for theft of consignment of complainant along with 5 other consignment. The second is the liability of opposite party is towards the loss is restricted to Rs.100/ As to the contention of opposite party on rejection of the loss of Rs.100/ Ex.R5 does not make any such endorsement as to the limit of liability. Even in the column pertaining to the declared value and description of contents are kept blank. However there is one line at the end of this document on the front page could please do not book cash, it is an offence, if it is lost, we are not responsible

Ex.R1 is the copy of the complainant given to Police Sub Inspector, Peenya Police Station, Bangalore towards the loss of the consignments. In the written argument notes on behalf of complainant that the lost of cheque sent in the consignment of Rs.67,542/ was not immediately intimated to complainant so as to enable the complainant to give instruction to bank to stop payment. As seen from the written version of opposite party which is also signed and verified by the partner of opposite party at para.4 (b) at page 2 has made the following statement:

However as this opposite party usually used to deal with complainants staff Ms. Triveni they asked for her contact No. and as directed by Nalini they called on Phone No.0824.2409556 at about 4.40 P.M. and informed the receiver of the call Ms. Triveni about the misplacement of the consignment and requested her to arranged for stop payment of the alleged cheque contained in the consignment assigned to the opposite party for delivery to M/s Alloy Industries and Ms. Triveni informed the opposite party that she would be arranging for stop payment of the alleged cheque.

Thus on going through the above underlined portion by us specifically indicates that opposite parties were aware that the consignment entrusted to them contained a cheque. But for the knowledge of the existence of the cheque in the consignment entrusted by the opposite party No.1 by the complainant or on behalf of opposite party would not have made this statement which is against the interest of opposite party. As such the contention raised on behalf of opposite parties their liability is restricted to Rs.100/ and that the complainant had not declared the contents of the consignment cannot be accepted.

The learned counsel for opposite party referred to a reported judgment of the Apex Court Supreme Court of India in Bharathi Knitting Company vs Dhl Worldwide Express Courier……on 9^th May, 1996 th May 1996 in this reported judgment considering that the clause 6 mentioned about limitation of liability it was held that towards the loss of the consignment the liability is fixed only to the extent mention in the clause 6 therein. However in the facts of the present case as mentioned above and quoted from the written version of opposite party soon after the loss of consignment came to the notice of opposite party there is an admission made that the opposite party knew that the consignment of the complainant contained and it a cheque was to the knowledge of opposite party could not have intimated the complainant to arrange of stop payment. Hence on the facts of the case the opposite party having accepted the consignment containing cheque he also accepted the risk of loss of cheque and to answer for liability in case of loss. As such not only that the complainant succeeded in the establishing the deficiency of service on the part of the opponent in the non delivery but the liability of opposite party to the extent of the amount of cheque Rs.67,542/ to complainant with the future interest at the 9% p.a from 25.9.2012 is proved. As to towards mental agony suffered by complainant in the circumstance of the case an amount of Rs.20,000/ in our view is just and proper, to costs of the complainant an amount of Rs. 5,000/- would meet ends of justice. Hence we answer point No.2 partly in the affirmative.

POINTS No. (iii): Wherefore the following order