West Bengal

Siliguri

95/S/2012

LANDMARK OFFICE SYSTEM PVT. LTD., - Complainant(s)

Versus

BLAZEFLASH COURIER LTD., - Opp.Party(s)

09 Jun 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

 

CONSUMER CASE NO. : 95/S/2012.                DATED : 09.06.2015.             

 

BEFORE  PRESIDENT              : SRI BISWANATH DE,

                                                              President, D.C.D.R.F., Siliguri.

 

 

                      MEMBER                : SMT. PRATITI  BHATTACHARJEE.

 

COMPLAINANT                 : LANDMARK OFFICE SYSTEM PVT. LTD.,  

                                                a Company registered under the Companies 

                                                             Act, 1956, having its registered office at                                

                                                             People’s T.V. Building, 2^nd Floor,

                                                             Raja Rammohan Roy Road, Hakimpara,

                                                             P.O. & P.S.- Siliguri, Dist.- Darjeeling.                                         

O.Ps.             1.                       BLAZEFLASH COURIER LTD.,  

                                                 a Company registered under the Companies 

                                                 Act, 1956, having its registered office at Shri

                                                 Shakti Compound, Bajson Industrial Estate,

                                                 Chakla Road, Andhri (East),

                                                 Mumbai – 400 099.

 

2.                     BLAZEFLASH COURIER LTD.,

a Company registered under the Companies  Act, 1956, having its corporate office at Blazeflash House, III Floor, Jhandewalal Extention, New Delhi – 110 055.           

 

3.                     THE REGIONAL MANAGER,

Blazeflash Courier Ltd., P – 533,

Raja Basanta Roy Road, Ground Floor,

Kolkata – 700 029.

 

4.                     THE BRANCH-IN-CHARGE,

Blazeflash Courier Ltd.,

54, Ram Krishna Road,

P.O. & P.S.- Siliguri, Dist.- Darjeeling.

                                                                                                                                                                  

FOR THE COMPLAINANT         : Sri Rathin Sarkar, Advocate.

 

FOR THE OPs                                  : Sri Ajay Chaudhuri, Advocate.

 

 

 

J U D G E M E N T

 

The complainant’s case in brief is that the Commanding Officer, B, Composite Signal Regiment, Jorhat, Assam had purchased a Cable Route

Contd…….P/2

-:2:-

 

 

Tracer Machine from the complainant company with condition to sent the said item at their address.  Accordingly, the complainant company has sent the said Cable Route Tracer Machine to the address of the Commanding Officer, B, Composite Signal Regiment, Jorhat, Assam through the OPs Blaze Flash Courier Ltd. and others OPs on 22.11.2011.  The complainant company has categorically disclosed the value of the said consignment to the OPs, but OP No.4 the Branch-in-Charge, Blaze Flash Couriers Ltd., Siliguri has not mentioned the price in the voucher/receipt.  The complainant company paid Rs.1,000/- as charges for delivering the article from their office to the address of the Commanding Officer, Jorhat, Assam.  The time of sending the articles from Siliguri to Assam was fixed for 10 to 15 days from the date of booking.  But the consignment was not sent to the consignee at Jorhat, Assam.  Complainant company came to know that said consignment was not delivered to the address of the Commanding Officer, Jorhat, Assam.  The OP failed to show satisfactory reason for that.  The complainant informed the OP many times but no satisfactory reply came from the OPs.  On 21.02.2012 lawyer’s notice was served upon the OP, but no positive step was taken by the OPs.  The complainant filed this case for deficiency in service by the OPs.  The complainant suffered immense mental pain and agony and continuous harassment by the act of OPs.  Hence, this case under the Consumer Protection Act, 1986 as per prayer served in the para-15 (a), (b), (c), and (d).        

 After receiving summons the OPs appeared and filed written version denying inter-alia all the material allegations raised by the complainant.  The ground taken by the OPs are i) that the complainant is not a consumer; ii) that the case is hit by the Doctrine of Limited Liability.

 

 

Contd…….P/3

-:3:-

 

 

It is further case of the OPs that if there is liability and that liability is restricted to Rs.100/-, and the complainant is not entitled to damages more than Rs.100/-.

 

The further case of the OPs that the complainant would have also been advised to send the consignment under insurance cover against any transit loss damages.  It is also submitted that the complainant itself is at fault the complainant ought to have acted in a prudent manner.  The OPs frames their defence on the principle of strict liability. 

The complainant has filed the following documents :-

1. Photocopy of Receipt being No.-232891329, issued by OP No.4 on 22.11.2011.
2. Photocopy of Tax-invoice.
3. Photocopy of Challan issued by the complainant company dated 22.11.2011.  
4. Photocopy of correspondences made in between the complainant and the OPs through E-mails.
5. Photocopy of Lawyer’s notice dated 25.02.2012, issued by the complainant company, through their lawyer’s along with Postal receipts and A/D cards. 

 

The OPs did not file any documents.    

Complainant has filed evidence-in-chief. 

 

Point for consideration

 

Let us now see whether the complainant is entitled to get any relief as prayed for on the ground of deficiency in service.

 

Decision with reason

 

Complainant has stated his case on evidence-in-chief.

 

Contd…….P/4

-:4:-

 

 

OPs have filed counter affidavit. 

The ld advocate of the complainant argued regarding definition of ‘common carrier’.

As per Section 2(a) of The Carriage by Road Act, 2007 ‘common carrier’ means a person engaged in the business of collecting, storing, forwarding or distributing goods to be carried by goods carriages under a goods receipt or transporting for hire of goods from place to place by motorised transport on road, for all persons undiscriminatingly and includes a goods booking company, contractor, agent, broker and courier agency engaged in the b\door-to-door transportation of documents, goods or articles utilizing the services of a person, either directly or indirectly, to carry or accompany such documents, goods or articles, but does not include the Government. 

Ld advocate of the complainant also advanced argument upon Section 10 which reads as follows :-

‘Liability of common carrier’ – (1) The liability of the common carrier for loss of, or damage to any consignment, ‘shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment,’ unless the consignor or any person duly authorized in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under section 11.

(2) The liability of the common carrier in case of any delay up to such period as may be mutually agreed upon by and between the consignor and the common carrier and specifically provided in the goods forwarding note including the consequential loss or damage to such consignment shall be limited to the amount of freight charges where such loss, damage or delay took place while the consignment was under the charge of such carrier.

 

Contd…….P/5

-:5:-

 

Annexure-I shows that the goods have been deposited to the Blaze flash Courier Ltd. on 22.11.2011 for carrying the said article to Jorhat, Assam within stipulated therein.  The over leaf of the receipt shows the terms, conditions etc. embodied therein.  At the end of the overleaf terms, conditions and other conditions which is self explanatory, although it is laid down that the Blaze Flash issued any insurance coverage.  So, the annexure shows that the goods were given to the OP for carrying the same to the consignee’s address for which payment was made to Rs.1,000/-.  The particulars of the goods have been shown in the invoice Annexure-II. 

The Road Challan also shows that on 22.11.2011 the article was given to the carrier for carrying the same. 

Legal notice dated 21.02.2012 was sent to the Blaze Flash Courier with registered post. 

Annexure-V legal notice shows that goods sent by Annexure - I & II has not been delivered upon the consignee.  It is the duty of the carrier to send the consignment i.e., Cable Route Tracer Machine to the Commanding Officer, B, Composite Signal Regiment, Jorhat, Assam.  It was the duty of the OP carrier to send the same and deliver the same at the destination of the Commanding Officer.  Such non-delivery of goods is deficiency in service. 

It is argued by the ld advocate of the complainant that such non-delivery is deficiency in service as per provisions of Consumer Protection Act, 1986. 

As per Section 2(1)(g) ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

As per Section 2(1)(o) ‘service’ means of any description which is

 

Contd…….P/6

-:6:-

 

 

made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.                 

In this case, it is not the OPs’ case that the goods have not been delivered by them at their destination.  Moreover, it is admitted position that the OP took the goods for delivery.  OP courier did not deliver the goods to the consigning officer, Composite Signal Regiment, Jorhat, Assam.  The OPs’ contention that they want to avoid the delivery of the goods by taking the plea of charge or responsibility of courier as per Carriage Road Act, 2007 and Carriers Act, 1865. 

So, from the contention of both sides as per case in record, it transpires that OP fails to deliver the goods to the consignor’s address i.e., for whom the goods have been sent.  i.e., OPs are causing deficiency in service as per terms laid down in our hand. 

Section 14 of Consumer Protection Act, laid down provision for passing order to fill up the deficiency in service by taking the recourse therein.  Whereas Section 10(1) & 10(2) of The Carriage by Road Act, 2007, laid down the extent to which the liability exist.

The invoice (Annexure-II) shows that the price of the goods including other taxes etc. stands Rs.1,25,000/-.  This amount had been given by the purchaser. 

Freight charge of Rs.1,000/-.  The complainant is entitled to get this amount as per provision laid down in Section 14 of the Consumer Protection Act. 

 

 

Contd…….P/7

-:7:-

 

 

As per provision of Consumer Protection Act, the complainant is also entitled to get compensation for not getting the articles and the complainant is entitled to get Rs.5,000/- from the OPs towards loss suffered by him for mental pain, agony and harassment.

The complainant is also entitled to get Rs.5,000/- on account of damages.   

The complainant is also entitled to get Rs.5,000/- for litigation cost. 

In the result, the case succeeds.

Hence, it is,

                      O R D E R E D

that the Consumer Case No.95/S/2012 be, and the same is hereby allowed on contest with cost.

The complainant is entitled to get Rs.1,25,000/- for the price of the goods including other taxes from the OPs. 

The complainant is also entitled to get Rs.1,000/- towards freight charge. 

The complainant is also entitled to get compensation of Rs.5,000/- for mental pain, agony and harassment.

The complainant is further entitled to get Rs.5,000/- on account of damages from the OPs.  

The complainant is further entitled to get Rs.5,000/- for litigation cost.

The OPs, who are jointly and severally liable, are directed to pay Rs.1,25,000/- by issuing an account payee cheque in the name of the complainant, for the price of the goods including other taxes, within 45 days of this order. 

The OPs are further directed to pay Rs.1,000/- by issuing an account payee cheque in the name of the complainant, towards freight charge, within 45 days of this order. 

Contd…….P/8

-:8:-

 

 

The OPs are further directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant, for mental pain, agony and harassment, within 45 days of this order. 

The OPs are further directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant, on account of damages, within 45 days of this order.

The OPs are also directed to pay Rs.5,000/- by issuing an account payee cheque in the name of the complainant, for litigation cost, within 45 days of this order.

Failing which the amount will carry interest @ 9 % per annum from the date of this order till realization.

In case of default of payment as ordered above, the complainant is at liberty to execute this order through this Forum as per law. 

Copies of this judgment be supplied to the parties free of cost.

 

 

-Member-                                                     -President-