Minakshi Chakraborty,  Presiding Member.

Brief facts of the case of the complainant:       This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that complainant’s brother/ friend brought one LED Television bearing Model No. LG 32LB582080 and (32) LEDTV from WS Retail Service Pvt. Ltd. on 17^th January, 2015 for a sum of Rs. 34,022/- and on 8^th March, 2018 the complainant went to the office of the opposite parties and asked for packing and delivering the above mentioned item in the permanent address of the complainant. On 8^th March, 2018 the opposite party No.-1 & 2 made a receipt and told that it will be sent to the said address and for this procedure the complainant would have to pay Rs. 2000/- and thereafter few days the opposite party No.-1 & 2 asked for certain payment as they could not find any proper delivery man as they said that the delivery spot is inconvenient and the complainant made another added payment of Rs. 1000/-. On 5^th April, 2018 the T.V. was delivered in a broken and damaged condition when the complainant informed the opposite party no. 2, the opposite party no. 2 asked to inform in the customer care of the different courier service and the complainant case to know that the opposite parties further gave the consignment to some courier service. On 7^th April, 2018 and 14^th April, 2018 the complainant made several written complaints before the opposite parties and the courier service but all in vain. Therefore the complainant lodged a complaint before the Consumer Help line vide complain No. 677995.

            Complainant filed the present petition praying direction upon the opposite parties to pay a sum of Rs. 34022.00/- as compensation and to pay a sum of Rs. 10,000.00/- as litigation cost and to pay a sum of Rs. 3,00,000/- with interest @ 9% per annum for mental agony and to pass any such order as deem fit and proper.

Brief facts of the case by the opposite parties:        The opposite party No. 3 contests the case by filing written version denying inter-alia all the material allegations leveled against it and submits that the complainant has not booked any consignment to the opposite party no. 3 and the opposite party no. 3 has not packed any alleged product from the complainant. The consignment has been booked by the complainant to opposite party nos. 1 and 2 so they are only answerable. The opposite party no. 3 received the alleged article in packed & sealed condition from the opposite party nos. 1 and 2 and delivered that to proper address under the instructions of the opposite party nos. 1 and 2. So, it is clear from the invoice of opposite party nos. 1 and 2 as annexed in the complainant that “carriers are not responsible for leakage, breakage & damage”& after knowing this the complainant booked the consignment at his own will and signed the invoice. Moreover, the invoice of opposite party nos. 1 and 2 bears that consignment had been booked at owner’s risk” i.e. if any damage, leakage, breakage etc may be happened during transport period then only owner of the goods is liable for that for which over Rs. 100/- of goods, insurance provision is there. This consignment booked by owner’s risk so insurance company should be added as a party and the instant complaint should be dismissed on the ground of non joinder of parties and the complaint is not maintainable as complainant had not issued any statutory notice of claim under the Carriage by Road Act, 2007 and the assessment of damaged goods, if any is done by complainant himself has not appointed any professional assessor or surveyor to assess the same. Therefore assessment value of damaged goods, if any is always in question. So the present complaint should be rejected with cost.

Evidence adduced by both the parties

            The complainant has filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party no 3.

            Complainant and opposite party no. 3 have filed separate written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.

            Argument advanced by the Ld. advocates of the complainant and the opposite party no. 3 heard at length.

            From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this commission has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get any relief?

DECISION WITH REASONS

Issue number 1

In the light of the discussion hereinabove and from the materials on record it transpires that the complainant is a Consumer as provided by the spirit of section 2(d) of the Consumer Protection Act 1986.

Issue number 2

Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding Rs. 20,00,000/-. So, this Commission has territorial as well as pecuniary jurisdiction to entertain the present case. This issue is thus disposed of.

Issue nos.3&4 :

Both the issues are taken up together for the sake of convenience.

At the very outset it should be made clear that case will run ex parte against O.P. Nos. 1 & 2 vide order 14 dated 11/09/2019.

It appears from retail invoices/bill (P-1) that one LED Television bearing Model No. LG 32LB582080 (32) LED TV was purchased from WS Retail Service Pvt. Ltd. on 17^th January, 2015 for a sum of Rs. 34,022/-.It further appears that Rs.2000/ has been paid by the complainant to Agarwal Packers and Logistics with the consignee’s name and address scribed therein (P-2), a receipt of the goods for delivery, SBI and Citi Bank account of the complainant(P-3) . On perusal of P-4 which is a photocopy of Whatsapp chatting all these documents specifically indicate that the TV, referred to herein above was handed over to the O.P Nos. 1 & 2 univocally. But ultimately screenshots dated 5/4/2018 and 10/4/2018 indicate that the TV in question has been damaged during the course of transit.

The O.P No 3 has travelled much to say that it is not in any way answerable as the consignment was booked with Agarwal Packers and Logistics i.e. O.P Nos. 1 & 2 and the complainant booked the consignment at his own will and this O.P 3 is not in any way responsible relating to the present consignment which leads the present O.P to say that for all these reasons the present OP. has no responsibility.

Perused the written version of O.P.no 3 which has claimed in it’s para 18 “is a reputed currier company and they are providing service with a good reputation.” Admittedly the consignment has been booked by the complainant from O.P. Nos. 1 & 2 but it cannot be denied that the entire responsibility lies upon the present O.P who is exclusively liable to answer the claim of the petitioner. The commission has considered section 17 of the Carriage By Road Act 2007 which specifically lays down that the carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non delivery of any consignment entrusted to him for carriage arising from any cause and the same clause specifically lays down that the common carrier shall not be relieved from it’s responsibility of damage, deterioration etc.

A perusal of the section also indicates that in a case like the present one this commission has to look into the question whether the carrier exercised due diligence and care in the carriage of the consignment. Needless to say that in the written version the O.P 3 has remained conspicuously silent about taking such steps which would have been nice to deliver the goods in question in a good condition.

In the circumstances the O.P No 3 cannot escape its liability from making payment to the complainant for damage of the TV in transit.

In this connection this commission cannot shut its eyes to the responsibility lies upon O.P. Nos. 1 & 2 also. Admittedly, in spite of frantic effort both the O.P. Nos. 1 & 2 have not made their appearance to contest the present proceeding. In this connection it seems pertinent to refer to the endeavor of the complainant to make the appearance of both these O.P. Nos. 1 & 2 as news paper publication has also been made by the complainant. In absence of these O.P. Nos. 1 & 2 this commission is constrained to take assistance of the brief notes of argument of the complainant. It appears that when the complainant visited the office of O.P. Nos. 1 & 2 and asked for packing and delivering of the said TV in the permanent address of the complainant for which the complainant had to pay Rs. 2000/ and a receipt was given to the complainant for such transmission. It further appears that and extra amount of Rs. 1000/ was paid by the complainant o the ground that the proper place of delivery was at a far place of inconvenience.

The endeavour on the part of the complainant, thus, seems to be sufficient on his part relating to delivery of the television in question specially when sending of Rs. 2000/ as transit cost is evident from P-2 and P-3. In view of such facts and circumstances and in deliberate absence of the OP. Nos. 1 & 2 this commission is constrained to hold that the O.P. Nos. 1& 2 cannot escape their liability relating to delivery of the TV in question in the appropriate place.

Both the issues are thus disposed of.

Hence,

ordered

that the complaint case no. 83 of 2018 be and the same is decreed on contest against O.P. No. 3 with cost and also stands decreed ex parte against O.P. Nos. 1 & 2 with cost.

            The O.P. Nos. 1 & 2 do pay the sum of Rs. 34,022/ to the complainant within 45 days from date failing which the complainant is at liberty to take recourse to law.

The O.P. Nos. 1,2 & 3 do pay Rs. 5000/ each to the complainant towards compensation and Rs. 5000/ each for mental agony and harassment and also Rs. 2000/ each towards cost of litigation to the complainant within 45 days from date failing which the complainant be at liberty to take recourse to law .

             In addition to that each of the opposite party nos. 1, 2 and 3 are further directed to pay and/ or deposit Rs. 1500/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.