BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 28th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.393/2012
(Admitted on 22.12.2012)
Mr. Abdul Latheef,
Aged 35 years,
Son of Late Usman,
24/18, MJM 258,
Bengre Kasaba,
Mangaloe 575001.
….. COMPLAINANT
(Advocate for the Complainant: Sri NB)
VERSUS
1. The Franch Express,
Head Office, Erode,
Tamilnadu, 638011,
By its Proprietor/Authorized signatory.
2. Babi Enterprisers,
Laxman Hari Building,
Beebi Alabi Road,
Mangalore 575001.
By its Proprietor/Authorized signatory.
............OPPOSITE PARTIES
(Opposite Parties No.1: Ex parte)
(Advocate for the Opposite Parties No.2: 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 complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims on 4.8.2012 he approached the opposite party No.2 to send his passport for attestation via courier service of opposite party addressed to M/s. Skyship International Pvt Ltd. Memonwada, Mumbai as the complainant was issued with visa to kingdom of Saudi Arabia. Opposite party had issued a receipt to complainant undertaking the delivery of the same to the addressee named by him. However opposite party No.2 on 1.9.2012 issued a letter stating that the parcel delivered by complainant is not traceable and presumed has lost. Due to recklessness of opposite party the complainant was put to great loss and hardship. Due to failure to serve the parcel to the addressee the complainant’s visa was cancelled and complainant’s future was in jeopardy. The complainant incurred Rs.2,50,000/- to obtain the above visa medical examination, travelling expenses, stamping charges and other incidental charges on the complaint. The opposite party has not taken any action even after service of the legal notice. Hence seeks reliefs claimed.
II. Opposite party No.2 filed written version stating the consignment entrusted to opposite party No.1 did not disclosed its contents of the consignment. Opposite party No.2 did not positively known that the consignment having contained the passport. Opposite party No.2 would not have received the consignment if complainant disclosed the content as possible. The allegation that opposite party No.2 on 1.9.2012 issued a letter stating parcel delivered by complainant is misplaced in transhipment and not traceable presume to be lost is false. The letter dated 1.9.2012 not issued by the complainant there is a fabricated and doctored document and does not contain the handwriting of the opposite party No.2. Opposite party No.2 is not a signatory to the document and it is bogus one created to lend credence and colour to the complainant’s claim with the aid and being in cahoots.
2. The way stands reflected on the said bogus record which complainant projected as the signature obtained in the letter and postal acknowledgement being of opposite party No.2. The said Sarala Poojary has affixed her signature on a seal of the proprietorship concern of opposite party No.2, she was working under opposite party No.2 through malpractice the signatures were obtained. The legal notice was properly replied. With intendment to make profit at the cost of opposite party No.2 claim is made at the cost of the opponent without this claim is that and the reverse of annexure No.2 the P.O.D copy and under the labiality if at all towards the loss of the opposite party is liable under section 9 and 10 Rs.100/ the liability for any loss and damage to the shipment. The opposite party No.2 along with opposite party No.1 is not liable to pay Rs.2,50,000/ as claim and they are not liable to pay penalty if any payable to the recklessness handling to the Government of India. Hence seeks dismissal.
3. In support of the above complainant Mr. Abdul Latheef filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite parties Mrs. Sujatha Deepak (RW1) also filed affidavit evidence and answered the interrogatories served on her and produced documents got marked at Ex.R1 to R3 as 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 reliefs claimed?
- What order?
The learned counsels for both sides already 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): Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The opponent No.2 received consignment from complainant and that it was not delivered to the addressee by opposite party No.2 or opposite party No.1 is not in dispute. Hence the relationship between complainant consumer and opposite party service provider is established. The complainant mentions he approached opposite party No.2 to send his passport via courier i.e. opposite party with consignment addressed to M/s. Skyship International Pvt. Ltd. Memonwada, Mumbai. He also mentions that when the opposite party has undertaken through opposite party No.2 to deliver the same to addressee and collected the fee towards the same and did not deliver to the addressee, opposite party No.2 on the other hand claims that opposite party No.2 was not positively aware that the consignment handed over by the complainant contained passport and that in the receipt issued to the complainant there is specific mention that the passport the material mentions like Book cash, Glass, Diamond, liquid, jewels should not be handed over to deliver. Thus there is dispute as to whether the complainant delivered the passport for delivery as a consignment to the opposite party No.2 is in dispute between the parties. Hence there is dispute between the parties under section 2(1)(e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS NO (ii): In fact even though in the present objection statement the complainant made allegation of the complainant colluding with opposite party No.2’s employee one Sarala Poojary, at Ex.R3 opposite party No.2 did not make Sarala Poojary as one of the accused. In fact, even though the complaint before police as per Ex.R3 was filed on 23.2.2013 after the present written version of opposite party No.2 was filed before this Forum on 21.2.2013 surprisingly opposite party No.2 did not make its employee Sarala Poojary as an accused in the complaint lodged to the police. This only goes to show the theory of the complainant colluding with Sarala Poojary must have been weaved by opposite party No.2 to suit its convenience. In the case on hand in the written version opposite party No.2 had made allegations of complainant colluding with Sarala Poojary to secure the letter Ex.C1 and also the signature in the postal acknowledgement for service of legal notice at Ex.C4(a). In fact, for the sake of argument even if it is admitted Ex.C1 is got up discussed, it is not possible to accept the claim of opposite party No.2 of complainant obtaining Sarala Poojary’s signature at Ex.C4(a) the postal acknowledgement as there is no allegation levelled by opposite party No.2 against postal authorities. However it is to be noted even according to opposite party No.2’s version she had engaged Sarala Poojary as an employee whether temporary or otherwise but discharging the duties required to be attended to in the shop of opposite party No.2 is not disputed by opposite party No.2. But opposite party No.2 has not lodged a police complaint against said Sarala Poojary for the alleged collusion and helping complainant in securing Ex.C1 and Ex.C4. Hence the contention on this count of opposite party No2 is not tenable.
2. Another aspect to be noted is even though the complainant before lodging this complaint got issued legal notice to both opposite party No.1 and No.2 duly served as Ex.C4 and C4(a) as per legal notice Ex.C2 they never bothered to give a reply. We are aware that mere failure to give a reply does not amount to admission of the facts alleged in the legal notice. However when certain pertinent and serious allegations are made and when those facts are seriously disputed a reply has to follow. In the case on hand the opposite parties did not bother to give any reply to legal notice Ex.C2. when these facts of failure to reply, opposite party No.2 not making her employee Sarala Poojary as an accused with complainant while lodging complaint to the police as per Ex.R3 even after filing written version before this Forum, in our view, leads us to draw an adverse inference against opposite party No.2. In fact Ex.R2 produced is a document not pertaining to the delivery of the consignment to with opposite party No.2. Under these circumstances we are of the opinion that the allegation of opposite party No.2 that Ex.C1 was not issued by opposite party No.2 to complainant is liable to be rejected. It is to be noted Ex.C1 contains a seal on which as for opposite party No.2 signature is put admitting the responsibilities for non-delivery of the consignment containing the passport of the consignment entrusted to opposite party No.2 for delivery to the addressee. Under the circumstances we are of the firm opinion that opposite party No.2 not only admitted the delivery of the consignment by complainant to opposite party No.2 for its delivery to the addressee through the opponents but also its non delivery to the addressee. Hence opposite party No.2 cannot be permitted now to escape from the admissions made at Ex.C1.
3. Ex.C1 is a letter addressed by the The Franch Express (Couriers) Babi enterprises i.e. opposite party No.2 it is dated 1.9.2012 Court attention. The letter addressed to complaint reads:
Ref: Date: 01.9.2012
To:
Abdul Latheef,
MJM.258, Mee.2.126,
Kasba Bazaar,
MANGALORE 575001.
Ref: your E-Note No. 50019684 on 4.8.2012
…................x........x...............x..............x....................
We like to inform you that, the original passport sent to
Bombay [Sky ship International Pvt. Ltd. Memonwada] was misplaced while Transhipment & not trasable. We presume that its lost. Please kindly make arrangement for duplicate passport. The expences incurred by u will be reimbursed by us
Thank you very much for your co operation.
For
For BABI ENTERPRISES
Proprietor.
4. Ex.R2 is the receipt issued and it contains an endorsement mentioned that materials like book cash, glass, gold RC book share certificate material like if booked they are not responsible relevant portion reads thus:
DONT BOOK CASH, GLASS, DIAMOND, LIQUID, JEWELS, LOTTERY, GOLD, SILVER, TENDER DOCUMENTS, SILK MATERIALS, SHARE CERTIFICATES. R.C. BOOK, PERSONAL MAIL AND OTHER REGISTERED ITEMS AS PER OVERLEAG. IF BOOKED WE ARE NOT RESPONSIBLE.
In fact Ex.R2 is dated 29.1.2013 and is not copy of the receipt issued to complainant.
5. As to the consequence of loss of pass port of complainant the complainant as stated for endorsement the passport was sent through opposite party. Ex.C5 is the cancelled visa of complainant which is in Urdu with translation in English. It mentions the employment visa is issued to complainant to work at Riyadh for the period from 25.8.2010 to 24.8.2010. Ex.C6 is the medical certificate issued to complainant by Unity Migrants Health Service Medical Report by one Dr. C.P. Habeeb Rahman to complainant it is addressed to Royal Consulate General of Kingdom of Saudi Arabia in Bombay. It mentions the expiry date as 25.10.2012 and of examination of on 26.7.2012. It is clear that the complainant was required to avail visa facility before the date of the expiry motioned on 25.10.2012 at Ex.C6 because of the loss of the passport the visa issued lost and thereby the appointed visa which was cancelled was lost. Thus there is deficiency in service on the part of opposite parties to the complainant is not delivering the consignment containing passport to the addressee.
6. The complainant had stated that he had spent Rs.2,50,0000/ towards medical examination travelling expenses, stamping charges and other incidental charges. Of course there are no documents to substantiate these claim as to the amount spent. Considering that in view of the loss of the passport the opportunity to complainant to work at Riyadh was lost, these aspects the loss caused to complainant and towards pain and suffering in our view is to be assessed reasonably totally at Rs.1,25,000/.
7. The learned counsel for opposite parties referred to reported order of the National Consumer Disputes Redressal Commission Consumer Protection Council, Tamil Nadu and Anr. Appellants vs. M/s Indu Couriers Pvt. Ltd. respondents in order dated 20.10.1995 in First Appeal No.227 of 1993 in this reported case stand was taken that the courier was not aware as to the contents of the consignment entrusted for delivery to the addressee.
Consumer Protection Act, 1986, Section 2, 14 & 15 Courier Service Deficiency in service Negligence Compensation Packet handed over to the Respondent Company has not been delivered at the designated place, although necessary courier charges were paid to the company by the complainant Forst Corporation. The loss of the packet by the company messenger amounts to negligence and that there was deficiency of service on the part of the company (Para 9)
Consumer Protection Act, 1986, Sections2, 14 & 15 Courier service Deficiency in service Negligence Compensation Far fetched to equte the liability of the Courier Company for its negligence to the quantum of misappropriated amount in the disciplinary case State Commission has rightly dismissed this claim of the complaint for compensation, but it has awarded a compensation of Rs.1,000/ Appropriate to limit the quantum to Rs.100/ only (Para 9).
Ongoing thorough in reported order even though the liability is shown as limited to Rs.100/ in respect of the consignment in the case on hand as evidenced from Ex.C1 there is clear admission on the part of opposite parties that they were aware of the contents of consignment when they received the consignment for delivery through courier by the opposite parties was a valuable document namely a pass port. As such the limit of Rs.100/ as damage towards loss cannot be applied to the case on hand. Hence the law laid down in the reported order is not applicable to the one on hand.
8. Thus we are of the view that the complainant has proved the deficiency in service on the part of the opposite parties to the complainant as the passport was received in the consignment for delivery to the addressee through the opponents we are of the opinion that the opponents are jointly and severally to pay the compensation amount to the complainant. Hence we answer point No. 2 in the affirmative.
9. Considering the nature of the document lost of complainant’s while in transit after entrustment to opposite parties in our opinion the claim made by complainant at Rs.1,25,000/ is just and proper. Hence this amount shall be order to pay to complainant with interest at 8% from the date of Ex.C2 i.e. 28.9.2012 till the date of payment.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is allowed. Opposite parties are jointly and severally directed to pay Rs.1,25,000/ (Rupees One lakh Twenty Five thousand only) to complainant as compensation with interest at 8% from the dated of Ex.C2 i.e. 28.9.2012 till the date of payment. 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 12 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 28th January 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 Complainant:
CW1 Mr. Abdul Latheef
Documents marked on behalf of the Complainant:
Ex.C1: 01.09.2012: The letter issued by the opposite party No.2 (original)
Ex.C2: 28.09.2012: The Legal Notice
Ex.C3: 27.09.2012: The Postal Receipts
Ex.C4: 28.09.2012
29.09.2012: The Postal Acknowledgements
Ex.C5: : Cancelled Visa bearing No.1103127916
Ex.C6: 26.07.2012: Medical examination Report of the Complainant
Witnesses examined on behalf of the Opposite Parties:
RW1 Mrs. Sujatha Deepak
Documents marked on behalf of the Opposite Parties:
Ex.R1: Annexure No.1: Attested copy of the Card revealing there in the admitted signature of the Opposite party No.2
Ex.R2: Annexure No.2: Original P.O.D. Copy
Ex.R3: : Description document copy of the complaint given to the police
Dated: 28.01.2017 PRESIDENT
