D.O.F.20.8.08 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 21st day of May 2010 CC.280/2008 K.K.Deepa, Senior Accountant, Dist. Treasury, Kannur 2. Complainant (Rep. ByAdv.P.N.Nambiar) 1. Proprioetor, P.V.Enterprises, DTDC Franchisee, 178 Stadium Complex Kannur 1. 2. Manger, DTDC, House No.3, opposite parties Victoria Road, Bangalore 47. 3. Manger, DTDC Courier Service Elite Chouraha, Jhansi 284201. (Rep. by Adv.Binu Mathew) O R D E R Smt.M.D.Jessy, Member This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite party to pay an amount of Rs. 53,000/-. The averment of the complainant is as follows: On 21.8.2007 the complainant sent a parcel containing 3 shirts and some nuts through OP1 under consignment No. 007952937 to Sri.Pushkaran residing at Jansi. Opposite party collected Rs.360/- as service charge. The value of items was shown as Rs.2500/- in the receipt issued by 1st opposite party. When the recipient approached the office of 3rtd opposite party for collecting the parcel it was found in an open condition and the addressee’s name and address is also not found. The parcel containing only one shirt and some nuts. 2 costly shirts were found missing from the parcel. The recipient received the parcel under protest and lodged a written complaint to 3rd opposite party. But no action was seen taken by the opposite parties to find out the missing shirts. Hence this complaint was filed by the complainant demanding Rs.2000/- toward the cost of the lost shirts and Rs.1000/-towards expense and Rs.5000/- for mental agony. On receiving the complaint notices duly issued to opposite parties. 1st opposite party appeared and filed version contending that complainant booked a parcel for delivering it at Jhansi. After receiving the parcel, 3rd opposite party informed to the addressee to collect the parcel and same was collected by the addressee from office of 3rd opposite party at Jhansi. The parcel was safely and properly given to the addressee within proper time. The consignment in an open condition with out any address on it two costly shirts are found missing etc. denied by the opposite party. At the time of entrusting the parcel, the complainant never disclosed the contents of the parcel. If anything contains valuable things it is the duty of the complainant to insure the parcel. More over as per the consignment note, liability for loss or damage to the consignment is limited to rs.100/-. So this complaint will not come under the purview of consumer protection Act. There is no deficiency of service on the part of the opposite party. So complainant is not entitled to get any relief as prayed. 2nd and 3rd opposite party appeared and filed their version contending that the complainant is not a consumer and complainant had entrusted one consignment for carriage with the opposite parties. The complainant had neither disclosed the contents of the packet nor the value of its contends while entrusting the same for carriage with the opposite parties. The value of the item was Rs.2500/- is false and denied by the opposite parties. The 1st opposite party had never given any assurance to the complainant that the consignment entrusted by him will be delivered to the consignee with in 5days. It is also denied by this opposite parties that the addressee found the consignment in open condition without any address and that the same was kept outside the parcel office. The delivery of the consignment was taken under protest also denied by this opposite party. The allegation of loss of goods worth Rs.2000/- due to alleged negligent and faulty handling of goods by the opposite party is false and denied. The complaint is not permitted to courier edible items like nuts etc. if it is done it is against the conditions of carriage. The consignment was delivered to the consignee without delay. So there is no deficiency in service on the part of the opposite party and the complainant is not entitled to get any relief as prayed. The evidence consists of oral evidence of PW1 and PW2 and Exts.A1to A5 marked for complainant. Exts.B1 (a) to © for opposite parties. On the above pleadings the following issues were raised for consideration. 1. Whether the complainant is a consumer? 2. Whether there is any deficiency of service on the part of the opposite partitas? 3. If so the quantum of damage the complainant is entitled to get? 4. Relief and cost. Issue No.1. Admittedly the complainant entrusted a parcel on21.8.07 to the 1t opposite party who is dealing with courier service for sending it to the addressee at Jhansi. The case of the complainant is that she sent a consignment through 1st opposite party on21.8.07 under consignment No.007952937 to Shri.Pushkaran residing at Jhansi, An amount of Rs.360/- was collected as service charge by 1st opposite party. According to section 2(d) of the consumer protection act a consumer is a person who avails service for consideration which has been paid or promised to pay. Here complainant availed service rendered by the opposite party by paying consideration. Hence there is a contractual obligation by the opposite party to the complainant to deliver the consignment to the addressee properly within a reasonable time. Hence the complainant is a consumer of the opposite party and the issue is answered accordingly. Issue No.2. The case of the complainant is that on 21.8.2007 complainant forwarded a parcel through 1st opposite party to PW1 who is employed at Jhansi. It is the admitted case of PW1 that addressee that he received the parcel on 30.8.07 from the office of 3rd opposite Party. The complainant alleged that the parcel is containing 3 shirts and ½ Kg. of dry nuts. But no bills or vouchers are seen produced to prove the same. While cross examination the complainant deposed that Ab-¨p-sIm-Sp-¯- km-[-\-¯nsâ hne sam¯T 2000/- cq] Bbn-«p-m-IpT. This means she herself has no idea about the value of the article forwarded. PW1 in his chief itself has admitted that sImdn-bÀ kÀho-kn km[-\-T-A-b-¨Xv t^m¬ sNbvXv]-d-ª-XmWv Onam gift Bbn Ab-¨-XmWv 3 shirtsDT dry nuts DT BWv Ab¨Xv . Then he further deposed that on 30.8.07 he got the information that the consignment is arrived at the office of 3rd opposite party and when he reached there he found the parcel in an open condition without any address on it. Any how he received one shirt and some dry nuts under protest. Even though he alleged that a written complaint was filed by him to 3rd opposite party, copy of the same or a receipt obtained from 3rd opposite party for accepting such a complaint is not seen produced by PW1. The statement in Ext.A1 is quite contrary to what PW1 deposed before the Forum. The letter which is marked as Ext.A1 is seen dated 1.9.07. In Ext.A1 he is having no case that he received the parcel under protest. On 30.8.07 he received the parcel and after taken it to the room he opened the same and found that it contains only one shirt and some food items. Subsequently after getting information from the complainant that she forwarded three shirts, he again gone to the office of 3rd opposite party and preferred a complaint against the loss of two shirts. Finding that 3rd opposite party is not taking any action he informed the matter to the complainant vide letter dt.1.9.07. But regarding the arrival of letter from PW1 there is no whisper in the complaint. Moreover the sequence of allegation in the letter and evidence tendered by PW1 is totally differs. It can only be presumed that Ext.A1 is subsequently created for the purpose of supporting the case of complainant. The envelope in which Ext.A1 is sent to the complainant is also not seen produced. Hence no reliance can be pleaded upon Ext.A1. While cross examination PW1 admits that “Under protest”F¶v-F-gp-Xn-bà kzo-I-cn-¨-Xv. In any case when the parcel delivered by opposite party is seen damaged or tampered it should be received only on protest and the weight of the article is also to be assessed. Here no evidence is seen produced with regard to the weight of article delivered to the addressee. The non production of the tampered cover delivered by 3rd opposite party to PW1 is also fatal to the complainant’s case. If the cover is tampered the addressee should have receive the same after making an endorsement in the delivery note. From the available evidence on record will reveals that the addressee taken delivery of the parcel without making any protects and he himself opened the parcel at his room. The forwarding of three shirts is not proved by PW1 by producing documents and its value is also inaccessible. Hence we find that there is no deficiency of service on the part of opposite party and the issue is answered accordingly. Issue No.3 From the findings on issue No.2 the complainant is not entitled to get any damages as claimed. Hence complaint is dismissed without cost. In the result, the complaint is dismissed without cost. Sd/- Member Sri.K.Gopalan, President, Smt.K.P.Preethakumari,Member The complainant in the above case sent a consignment through opposite parties by paying Rs.360/- as service charge. It is correctly found in answering issueNo.1 that the complainant is a consumer. The complainant consumer sent the consignment to Sri.Pushkaran employed in Navodaya Vidyalaya at Jansi.The value of the consignment has been shown in Ext.A2 courier consignment note as Rs.2500/-. Ext.A2 is an important document which cannot be ignored while considering the value of the article. PW1and 2 while adducing evidence stated that the value will come about Rs.2000/-. PW2 in her cross examination deposed that “Hmtcm-¶n-sâ-bpT hne F{X-bm-sW¶v HmÀ½-bn-Ã.-\-«vknsâ hne F{X-bm-bn-cp¶p F¶p H.mÀ½-hbn-Ã. Ab-¨p-sIm-Sp¯ km[-\-§-fpsS hne-sam-¯T Hcp cm-bn-cT Bbn-«p-m-IpT. dkoäv Fsâ- ssI-h-i-an-Ã. dkoäv In«n-bn-cp-¶p. tImS-Xn-bn lmP-cm-¡m-Xn-cp-¶Xv dko-ävssI-bn-en-Ãm-Xn-cp-¶-Xp-sIm-m-Wv. 2500 cq] F¶mWv kpamÀ IW-¡v. 2500 cq]-bpsS km[-\T Ab¨p F¶-Xp-I-f-hmbn ]d-ªXm -s-W¶p ]d-ªm icn-b-Ã.- A2-hnÂkm-[-\-§-fpsS hne 2500 cq]-bm-sW¶p ]d-ªn-«p-v. Rm³ ]d-ª-X-\p-k-cn-¨mWv 2500 cq] F¶p F2-hn Fgp-Xn-bXv“. Taking into consideration the spirit of the entire sentences as a whole it is not possible to jump in to a conclusion that the complainant has no idea about the value of the article. Article was sent immediately after the purchase and the price shown then in Ext.A2 was Rs.2500/-. Evidence adduced much after the purchase that is on 22.6.09 whereas the consignment was sent almost one year back on 21.8.07. So while adducing evidence if the witness has stated price of the article approximately Rs.2000/-, that variation cannot be taken as very material aspect to say that she has no idea about he value of the article when the relevant document Ext.A2shows the value of article as Rs.2500/-. That is only a mater to be considered while determining the quantum and not that of the genuinty of the facts revealed in the evidence. ‘She has stated in affidavit that the cost of two shirts and nuts would be Rs.2000/-. Her case is that she has sent three shirts and nuts but missed two shirts. The real case of the complainant is that the recipient took delivery of the article but two costly shirts were found missing out of three shirts in the consignment. Complaint was given to opposite party but it was not entertained by opposite party and thus lawyer notice was issued. Opposite parties 1 and 2 received the notice but no reply was sent. Ext.A4 and A5 proves that 1st opposite party and 2nd opposite party received the notice on 31.10.07 and 2.11.07 respectively. No reply was sent to the lawyer notice sent by the complainant. Both opposite parties 1 and 2 did not reply the lawyer notice sent by the complainant. Non reply of lawyer notice is a gross negligence and deficiency in service on the part of opposite parties. The lawyer notice clearly mentioned about the enquiry of 3 shirts sent. Ext.A3 is the copy of the lawyer notice. 1st opposite party stated in the version that they have satisfactorily replied to the Lawyer notice. But no evidence adduced postal receipt or acknowledgement produced by 1st opposite party to prove that they have sent reply to lawyer notice. In the version filed on behalf of second and third opposite parties it has stated that opposite parties have not received any lawyer notice. But no whisper about Exts.A4 & 5. Exts.A4 & 5 are acknowledgements. This is a very material aspect to show the deficiency in service on the part of opposite parties. It can be seen that the lawyer notice has specifically stated that “addressee got a packet having no address, containing one shirt and some food items and the cover seen opened and two shirts and some food articles were seen missing”. Non reply of lawyer notice is very fatal in deciding this case. More over, opposite parties have-not adduced any oral evidence. They have not filed chief affidavit. Except three documents there is no other evidence adduced on the part of opposite parties. What is the relevancy of these documents produced has also not been explained. It is seen produced three forms of courier consignment note. Any way those three simple forms produced do not help in any direction in determining the above case. PW1, the recipient and PW2 complainant adduced oral evidence and 5 documents including consignment note, copy of the lawyer notice and postal acknowledgements were produced on the side of the complainant. In the consignment note Ext.A2, the value column filled up with Rs.2500/- and the name of the receiver Pushkaran.C.P the PW1. Ext.A2 shows that Deepa K.K., the complainant sent a consignment, which is valued as Rs.2500/- to Pushkaran C.P., T.G.T Malayalam, and Jawahar Nagar. PW1, Pushkaran adduced evidence that three shirts and nuts were sent to him by the complainant. He deposed that “ Onam gift Bbn Ab-¨p-X-¶-XmWv.3 shirts DT dry nutsDT 30.8.07 \p Ft¶mSv km[-\T F¯n-F¶p hnfn-¨p-]-d-ªp. A-hn-sS-t]m-b-t¸mÄ s]mfn¨ ]m¡äv Bbn-cp-¶p. AXp Hm^n-kn\p shfn-bn-em-bn-cp-¶p. Hcp jÀ«pT Ipd¨v ss{U \«-kpT kzo-I-cn¨p ]cmXn Fgp-Xn-sIm-Sp-¯p.-a-dp-]Sn H¶p-T-In-«n-bn-Ã. In the cross examination he deposed that “In«n-F-¶p-]-d-bp¶ km[-\-§ÄUn.-Sn.kn Pm³kn Hm^o-kn t]mbn collect sNbvXm-Wv. s]«n-bpsS apI-fn A{U-Êv-D-m-bn-cp-¶n-Ã. Hm¸¬ Ih-dm-bn-cp-¶p. The evidence of the PW1 shows he has received one shirt and nuts only. The evidence of PW1, PW2 and Ext.A2 consignment note which shows the value of article as Rs.2500/- and Lawyer notice establish the case of the complainant and the minor discrepancies if any is only ignorable. Moreover opposite parties have not entered in witness box and adduced oral evidence though PWs 1 and 2 were elaborately cross examined for opposite parties. The documents produced on the side of the opposite party Ex.B1(a),(b),(c), are practically irrelevant. In other words there is no evidence in the practical sense on the side of opposite parties to establish any of their contentions. Opposite parties filed version. But version cannot be considered as evidence. Version covers only pleadings. It can be proved only by adducing evidence. The contentions of opposite party’s remains not proved since he has not adduced evidence. In the light of the available evidence on record we are of opinion that complainant could prove his case and there is deficiency of service on the part of opposite parties. Hence we dissent with the opinion of the learned member and do find that the complainant is entitled for compensation. We are of opening that an amount of Rs.2000/- will meet the ends of justice. Complainant is also entitled for the cost of this proceedings Rs.1000/- . Thus issues No.1 to 4 are answered in favour of complainant and order passed accordingly. In the result, the complaint is allowed directing the opposite parties to pay Rs.2000/-(Rupees Two thousand only) as compensation and Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of the Act. Sd/- President Sd/-Member The issues 1 to 4 are found in favour of the complainant by majority opinion. Hence the order passed accordingly allowing the complaint In the result, the complaint is allowed directing the opposite parties to pay Rs.2000/-(Rupees Two thousand only) as compensation and Rs.1000/-(Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of the Act. Sd/- President Sd/-Member Sd/-Member APPENDIX Exhibits for the complainant A1.Letter dt.1.9.07sent by Pushkaran to complainant A2.Receipt issued by OP A3.Copy of the lawyer notice sent to OP A4 & 5.Postal AD cards Exhibits & witness examined for the opposite parties: Nil Witness examined for the complainant PW1.Pushkaran PW2.Complainant /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
