BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 495/2003 Filed on 19.12.2003<br /> Dated : 30.07.2008<br /> <br /> Complainant:<br /> <br /> Sanjeev Sivan, Sivans Studio, M.G. Road, Thiruvananthapuram. <br /> <br /> (By adv. Sandeep T. George)<br /> <br /> Opposite parties:<br /> <br /> 1.Blaze Flash Courier Service Pvt. Ltd., G-2 Eldorado 112, Nungambakkam High Road, Chennai – 34 represented by its Area Manager.<br /> (By adv. C.S. Sukumaran Nair)<br /> <br /> 2.Manager, Blaze Flash Courier Service Pvt. Ltd., T.C 25/3525, Near Divisional Employment Exchange, Uppalam Road, Vanchiyoor, Thiruvananthapuram. <br /> (By adv. K.S.Sanal Kumar)<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 29.10.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 15.07.2008, the Forum on 30.07.2008 delivered the following:<br /> ORDER <br /> SRI.G.SIVAPRASAD: PRESIDENT<br /> The facts leading to the filing of the complaint are that complainant entrusted a cassette to the 1st opposite party on 29.08.2003 for delivering the same to Thiruvananthapuram on 30.08.2003 and an amount of Rs. 37/- was paid as consideration for the services rendered by the 1st opposite party. The complainant is a film maker by profession and complainant was entrusted with the production of a programme under the name “Onam Greetings from Bollywood” which was to be telecasted on Asianet from 01.09.2003 onwards. After finishing the editing works by spending an amount of Rs. 55000/- complainant sent the cassette through opposite parties. But the said consignment was not delivered to the consignee at Thiruvananthapuram on 30.08.2003. Complainant approached the 2nd opposite party and enquire about the consignment. Opposite party behaved in a very rash and rude manner and humiliated the complainant. The complainant felt very bad and the mental agony suffered by him cannot be explained in words. The action of the opposite party amounts to deficiency in service, unfair trade practice and unscrupulous exploitation of consumer. Because of the negligence of the opposite parties complainant lost his goodwill. Complainant sent a lawyer notice to the opposite parties on 11.10.2003. Opposite parties accepted it. Till date they did not care to take any action for the loss sustained by the complainant. Hence this complaint claiming an amount of Rs. 175000/- with future interest and costs of the complaint. <br /> Opposite party entered appearance and filed version contending that the complaint is not maintainable either in law or on facts. There is no deficiency in service on the part of opposite parties as alleged in the complaint and complainant is not entitled to get any amount from the opposite parties. Even as per the consignment note, the complainant has got a right to realise an amount of Rs. 100/- to the maximum extent when the consignment was missed or delayed. Complainant is not a consumer and the complaint is liable to be dismissed in limine. No document of any nature has been produced by the complainant along with the complaint to prove the veracity of the statement made in para 2 of the complaint. It is to be noted that the complainant has booked a parcel through M/s Ever Green, Chennai for delivering the same to Thiruvananthapuram. At the time of accepting the consignment from the complainant, opposite party conveyed the complainant that the parcel would not reach on the very next day as the parcel would be delivered to the addressee only after the connecting train Thiruvananthapuram-Chennai reached Thiruvananthapuram on the day after next day. Complainant did not pre alert the 1st opposite party nor the booking agent for making delivery of the article on 30.08.2003. The complainant has not chosen to insure the article claimed to high value even though specific instructions was given to him at the time of booking. Complainant has never informed the 1st opposite party directly regarding the consequences of non-delivery of the article booked on 30.08.2003. Complainant never approached the 2nd opposite party on 30.09.2003 and 31.09.2003 and enquired about the consignment. The act of the complainant is suspicious. No deficiency in service or negligence can be attributed to opposite parties. There is no contract of any nature is between the complainant and opposite parties. Hence opposite parties prayed for dismissal of the complaint with costs. <br /> The points that would arise for consideration are:<br /> (i)Whether there has been deficiency in service on the part of opposite parties?<br /> (ii)Reliefs and costs. <br /> To support the contention in the complaint, complainant has filed an affidavit of himself in lieu of examination in chief and marked documents as Exts. P1 to P7. Opposite parties did not file any affidavit or document. <br /> Points (i) & (ii):- The first point requiring consideration is whether there has been deficiency in service on the part of opposite parties. The case of the complainant is that complainant on 29.08.2003 entrusted a cassette to the 1st opposite party for delivering the same to Thiruvananthapuram on 30.08.2003 and an amount of Rs. 37 was paid as consideration for the services rendered by the 1st opposite party. But the said consignment was not delivered by the 1st opposite party to the consignee at Thiruvananthapuram on 30.08.2003. Ext. P1 is the courier consignment note issued by the 1st opposite party. As per Ext. P1 consignment note, the date of consignment is 29.08.2003. Consignor is Sanjeev Sivan and consignee is Dileep, Thiruvananthapuram. Service charge is Rs. 37, the value of the consignment, weight of the consignment and contents of he consignment not declared. Opposite parties in their version admitted that complainant had booked a parcel through the 1st opposite party for delivering the same to Thiruvananthapuram. 2nd opposite party is the branch office of the 1st opposite party. There is no material on record to show that opposite parties delivered the said consignment to the consignee. Opposite parties raised a contention in the version that there is no provisions to invoke jurisdiction of this Forum. As per Sec. 11(2)(a) complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint actually and voluntarily resides or (carries on business or has a branch office) personally works for gain or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office) or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside or (carrying on business or have a branch office) or personally works for gain, as the case may be, acquiesce in such institution or © the cause of action, wholly or in part arises. As per Sec. 11 of the Consumer Protection Act, we find there is provisions to invoke jurisdiction of this Forum. Ext. P2(a) is the cash receipt for Rs. 3198/- from Sivaji Jaganathan, issued by Prasad Laboratory, Kazhakkuttom. Ext.P2(b) is the invoice issued by Prasad Video, Saligramam, Chennai to Sanjeev Sivan entertainment. Ext. P3 series are bills issued by Preethi Studio and Prasad Video. Ext. P4 series are the bill issued by Aries Travel and others to Sanjeev Sivan. Ext. P5 is the copy of advocate notice dated 11.10.2003 addressed to opposite parties. Ext. P6 series are postal receipts and acknowledgement cards. Ext. P7 is the copy of the letter sent by the complainant to the 1st opposite party. Complainant has produced a statement of account along with complaint. At this juncture, it is pertinent to note that as per Ext. P1 complainant has not declared the value of the contents of the consignment. Ext. P1 is the crucial document in this case. Opposite parties admitted that they have accepted the consignment. Opposite parties never furnished any document showing that the said consignment was delivered to consignee. Opposite parties never sent a reply to Ext. P5 advocate notice. Complainant has not been cross examined by the opposite parties. Hence the affidavit filed by the complainant remains unchallenged. Non-delivery of the consignment to the consignee would amount to deficiency in service. Deficiency in service is proved. Regarding the quantum of compensation, it should be noted that as per Ext. P1, no agreement had taken place between the complainant and the opposite parties that the liability of the opposite parties due to non-delivery of the consignment will be restricted to Rs. 100/-. It is pertinent to note that complainant has not signed in Ext. P1 courier consignment note. As the complainant has not signed in Ext. P1 courier consignment note, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is restricted to Rs. 100/- would lay on the opposite parties. Opposite parties never adduced any evidence. There is no cogent and relevant evidence to prove that there is any contract/agreement between the complainant and opposite parties which restricts compensation to be paid in case of non-delivery of the consignment only to be Rs. 100/-. It is settled position that meeting of minds is essential and in the absence of meeting of minds any term relating to limited liability would not be part of the contract and ordinary liability would flow in cases of deficiency in service. It is clear from Ext. P1 that complainant had sent the consignment but articles and their value are not mentioned in Ext.P1. Courier consignment note (Ext. P1) is an important document. Considering all aspects of the case, submissions of the complainant and contents in the version as well as the evidence on record we are of the considered opinion that an amount of Rs. 2000/- as compensation would meet the ends of justice. <br /> In the result, complaint is allowed. Opposite parties shall jointly and severally pay an amount of Rs. 2000/- as compensation to the complainant and Rs. 1000/- as cost of the complaint. The said amounts shall carry interest at the rate of 12% per annum if not paid within two months of this order. <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th July 2008.<br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> <br /> S.K. SREELA : MEMBER<br /> <br /> <br /> <br /> <br /> O.P.No. 495/2003<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> P1 - Original receipt No. L 0846150 dated 29.08.2003 issued by 1st opposite party. <br /> P2 - Original cash receipt of Document No. 66 dated 05.09.2003 for Rs. 3198/-.<br /> P2(a) - Original invoice with No. 2031 dated 28.08.2003 and order No. 1459 dated 26.08.2003 for Rs. 7830/-.<br /> P3 - Original memo of Jency Audio, Chennai dated 01.09.2003.<br /> P3(a) - Original receipt dated 29.08.2003 with Log Sheet No. 1147 from Preethi Studios. <br /> P3(b) - Original memo of Jency Audio dated 28.08.2003.<br /> P3(c) - Original receipt No. 00406 dated 26.08.2003 for Rs. 7865/-. <br /> P4 - Original receipt No. 1696 dated 31.08.2003 for Rs. 9550/- from Aries Travel, Tvpm. <br /> P5 - Copy of advocate notice dated 11.10.2003 issued by the complainant.<br /> P6 - Original postal acknowledgment card from 2nd opposite party. <br /> P6(a) - Original postal acknowledgment card from 1st opposite party.<br /> P6(b) - Original postal receipt No. 1693. <br /> P6(c) - Original postal receipt No. 1692. <br /> P7 - Photocopy of registered letter dated 16.09.2003 from 1st opposite party. <br /> III OPPOSITE PARTIES' WITNESS :<br /> NIL <br /> IV OPPOSITE PARTIES' DOCUMENTS :<br /> NIL <br /> PRESIDENT