DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
CC.No.483 of 30-09-2011
Decided on 12-01-2012
M/s Mangla Sales Co., 17-A, Gole Market, Bathinda, through its Prop. Mr. V.K.Mangla, aged about 45 years.
.......Complainant
Versus
Blazeflash Courier Limited, Corporate Office, IIIrd Floor, 2E/B, Jhandewalan Extn., New Delhi-110055, through its
Managing Director/ Director.
Blazeflash Courier Limited, The Mall, Bathinda, through its Manager.
......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986
QUORUM
Smt. Vikramjit Kaur Soni, President
Sh.Amarjeet Paul, Member
Smt. Sukhwinder Kaur, Member
Present:-
For the Complainant: Sh. Amritpal Singh Shergill, counsel for the complainant
For Opposite parties: Sh. Vikas Singla, counsel for opposite party No.1
Opposite party No.2 exparte.
ORDER
Vikramjit Kaur Soni, President:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant is running a business under the name & style of M/s Mangla Sales Co., Bathinda for earning his livelihood for himself and his family. He booked a consignment with the opposite party No.2, containing 2 PCs of Intel P3 and 3 PCs of Intel P3 C2D I.Q3 of Rs.24,159/- vide receipt No.191803916 dated 13.05.2011 after paying the requisite fee. The said consignment was to be delivered to Sri Sanchia Computer, Nehru Place, New Delhi. The opposite party No.2 assured the complainant to deliver the said consignment to the consignee within a period of 2-3 days from the date of booking of the said consignment. The complainant has alleged that a period of more than 3-1/2 months has already been elapsed but the said consignment has not been delivered to the consignee. The complainant has been repeatedly visiting the office of the opposite party No.2 and inquiring about the same but they have been postponing the matter on one or the other pretext. The complainant has also been inquiring about the same from the consignee who told him that the above said consignment has not been delivered to him. The consignee also inquired from the opposite party No.1 but to no effect. The complainant has further alleged that the said consignment has not been delivered either to the addressee nor the same has been returned back to the complainant till date. The complainant has also got issued a legal notice dated 12.07.2011 to the opposite parties. Hence, the complainant has filed the present complaint to seek directions of this Forum to make the payment of the above said consignment of Rs.24,159/- along with cost and compensation.
2. Notice was issued to the opposite parties. The opposite party No.1 after appearing before this Forum, has filed its written statement and pleaded that the complainant is not consumer as the said services of the opposite parties were engaged by the complainant for commercial purposes. The opposite party No.1 has further pleaded that one packet was booked with the opposite parties for delivery against consignment note No.191803916 dated 13.05.2011 which in the normal and usual course, was delivered to the addressee. At the time of booking, the contents of the packet and its value was not disclosed by the consignor nor it was accompanied with any document to suggest the same. No such article was booked by the complainant against the said consignment note. The opposite party No.1 has further pleaded that in case, the complainant had informed that the packet was containing valuable article, then the opposite parties would have been advised him to send the said packed under insurance cover by paying additional charges/premium. The opposite parties till date has not received any complaint for non-delivery of the consignment from the addressee. There is no evidence on record to suggest that the addressee has not received the booked packed. The damages claimed are hypothetical, speculative, fake, fictitious, bogus and devoid of merits. The opposite party No.1 has further pleaded that though not admitted even if it is assumed that the booked packet has not been delivered to the consignee, due to any reasons, it has to be treated as lost in transit. It is assumed that if there is deficiency in service due to non-delivery, the liability of the opposite parties is limited to Rs.100-. The said consignment note is a contract for providing courier services and the consignor is bound with its terms and conditions. All rights of the complainant flow from this contract/consignment note. The opposite party No.1 has taken the support of law laid down in cases titled Bharti Knitting Company Ltd. Vs DHL Worldwide Express Couriers Division of Airfreight Ltd., II (1996) CP 25 (SC), Airpak Courier (India) Pvt. Ltd. Vs S. Suresh., I (1994) CPJ 52 (NC), Dr. R.N.Mukherjee Vs DWL World Wide Express, I (2003) CPJ 79, Herman Mit Singh Vs Speedman Express & Anr., II (1999) CPJ 216 and Best Electrodes Industry & Anr. Vs M.P.Audhogik Kendra Vikas Nigam (REWA) Ltd. & Ors., (2002) CPJ 1 (NC).
3. The opposite party No.2 despite service of summons/notice, has failed to appear before this Forum. Hence, exparte proceedings are taken against opposite party No.2.
4. Parties have led their evidence in support of their respective pleadings.
5. Arguments heard. Record alongwith written submissions submitted by the parties perused.
6. The undisputed facts between the parties are that the complainant had booked one consignment with the opposite party No.2 vide receipt No.191803916 dated 13.05.2011 which was to be delivered to Sri Sanchia Computer, New Delhi.
7. The disputed facts between the parties are that the opposite parties were unable to deliver the consignment containing 2 PCs of Intel P3 and 3 PCs of Intel P3 C2D I.Q3 worth Rs.24,159/- whereas the assurance was given by the opposite parties to deliver the consignment within 2-3 days whereas after a period of more than 3-1/2 months but the opposite parties were unable to deliver the consignment to the consignee. The complainant approached the opposite party No.2 but they did not pay any heed to his requests. The parcel in question of the complainant had not been delivered by the opposite parties either to the consignee or the same had been returned back to the complainant till date. The opposite parties have also not filed reply to the said legal notice, sent by the complainant.
8. The opposite party No.1 has taken legal objections that the complainant has availed the services from the opposite parties for commercial purposes as such he is not consumer under the 'Act'. The opposite party No.1 has submitted that there is no evidence on record to prove that the addressee has not received the booked packed. The opposite parties have not received any complaint for non-delivery of the consignment from the addressee/consignee till date. The opposite party No.1 has further submitted that at the time of booking, the contents of the packet were not disclosed by the consignor nor it was accompanied with any document to suggest the same. In case, he had informed that the packet contains valuable article, the opposite parties would have been advised him to send the said packed under insurance cover. Except the statement of the consignor, there is no evidence on record to suggest that the addressee has not received the booked packet.
9. Moreover, the addressee/consignee is not a party to the present complaint. The opposite party No.1 has further submitted that if it is assumed that the booked packet has not been delivered, due to any reasons, it has to be treated as lost in transit, the liability of the opposite parties is limited to Rs.100/-.
10. To support its version, the opposite party No.1 has taken the support of various authorities. The opposite party No.1 has also referred the terms of the booking which are reproduced as under:-
“The liability of Blazeflash for any loss or damage to the consignment in transit or for any delay in delivery of the consignment shall be strictly restricted/limited to Rs.100/- for each domestic consignment and Rs.1,000/- for each international consignment. Further, Blazeflash shall also not be responsible for any consequential losses or damages or compensation. No claim or complaint shall be entertained after one month from the date of the consignment note, as we do not keep record pertaining to proof of delivery, after expiry of the said period. The above conditions are in addition to the terms and conditions mentioned on the reverse, which have been read over to me/us and have been understood and accepted to me/us. The consignor himself shall collect the P.O.D from us within one week of booking.”
11. A perusal of receipt dated 13.05.2011 issued by Blazeflash Courier Limited Ex.C-5 reveals that no amount which was charged from the complainant, has been filled on this receipt. The complainant has placed on file Ex.C-6 i.e. Invoice dated 13.05.2011 through which he had purchased 2 PCs of Intel P3 and 3 PCs of Intel P3 C2D I.Q3 for a sum of Rs.24,159/-.
12. The opposite party No.1 has placed on file Ex.R-1, the affidavit of Arvind Varshney C/o M/s Blazeflash Couriers Limited, Blazeflash House, New Delhi, except this evidence, the opposite party No.1 has not placed on file any other evidence. The opposite party No.1 has failed to produce any Register or Record or any such document through which they have delivered the consignment to the consignee/addressee. Further, the opposite party No.1 has also failed to establish that the said consignment has been lost in transit and if the said consignment has been lost in transit, what steps have been taken by the opposite parties.
13. The receipt Ex.C-5 itself reveals the deficiency in service and unfair trade practice on the part of the opposite parties as no amount charged has been mentioned in the receipt. Moreover, the opposite parties have nowhere pleaded that the consignment has been sent free of cost. Non-entering of the amount in receipt seems to be intentional on the part of the opposite parties. Further, it has not been signed by any official of the opposite parties or got signed by the complainant. Moreover, the opposite parties have failed to produce any documentary evidence regarding their pleadings. Thus, the terms and conditions mentioned overleaf, are not binding on the complainant. The support can be sought by the precedent laid down by Hon'ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in case titled Madhur Courier Services Vs Dr. R.S.Pande, III (1998) CPJ 5 wherein it has been held:-
“Consumer Protection Act, 1986 – Section 15 – Appeal – Liability of Courier Service – Liability restricted upto Rs.100/- - Receipt does not bear signatures of consignor – Conditions not binding upon him – Liability not limited upto Rs.100/-.
Further, the support can be sought by the law down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled Sudhir Deshpande Vs Elbee Services Ltd. Bombay, I (1994) CPJ 140 (NC) wherein it has been held:-
“Consumer Protection Act, 1986 – Section 14(1)(d) - “Compensation” - “Courier” - Opp. Party were entrusted to deliver two packs of maquette's and one envelope containing documents as an entry to the Hokone Open – Air Museum, Tokyo for qualification to an exhibition on 10.12.90 – Consignment did not reach destination – Hence complaint – Whether the complainant is entitled to compensation” - Yes.”
Further, the Support can be sought by the precedent laid down by the Hon'ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur in case titled Blazeflash Couriers (P) Ltd. Vs V. Manish Jain, I (2010) CPJ 542, wherein, it has been held:-
“....Contention, value of parcels not mentioned – Liability in case of damage limited to only Rs.100 – Contention rejected – Terms and conditions printed on the receipt not binding unless same signed by consumer – Damage of Rs.9,000/- - suffered – Deficiency in services proved – Order upheld – No interference required.”
Further, the reliance can be put on the precedent laid down by the Hon'ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case titled Pavit Garg Vs Blazeflash Couriers Ltd. & Ors., IV (2009) CPJ 271, wherein it has been held:-
“....Contention, as per terms mentioned on envelope liability of postal authorities limited to Rs.100 only – Contention rejected – Contents of courier receipt in very fine print, practically illegible – No signatures put by appellant on the receipt giving consent to the terms of respondents – Admittedly letter delivered after 7 days – Delay not explained by respondents – Deficiency in services proved – Respondents directed to pay Rs.10,000 as compensation directed alongwith interest @ 6% p.a. - Order modified – Relief entitled.”
Further, the reliance can be put on the precedent laid down by the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case titled Arjun Kumar Vs D.T.D.C., II (209) CPJ 462, wherein it has been held:-
“....Courier Services – Consignment no delivered – Absence of term in contract regarding non-delivery, wrong delivery, damaged delivery, not absolved courier from liability to perform its part of contract – Shortcoming, imperfection, inadequacy in performance amount of deficiency in service – Address mentioned in consignment very clear – No endorsement made in consignment, courier service only up to Dimapur – Place of address within operative limits of Dimapur Branch – OP guilty of deficiency in service proved – Compensation awarded.”
“......13. In the instant case, the compensation being sought by the complainant is not on the terms of contract nor is in consonance with the consideration paid by him. However, taking overall view of the matter, we allow the appeal and deem that lumpsum compensation and cost of Rs.25,000 shall meet the ends of justice.”
Further, the reliance can be put on the precedent laid down by the Hon'ble Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in case titled Professional Courier & Anr. Vs Balkrishna, II (2009) CPJ 30, wherein it has been held:-
“Consumer Protection Act, 1986 – Section 2(1)(g) and 14(1)(d) – Courier Services – Certificates – Non-delivery of – Cover sent to Hyderabad instead of Sonepat, by mistake – Not delivered to addressee – Complainant's wife not selected in job interview – Mistake on part of courier company proved – Complaint allowed by Forum – Compensation of Rs.20,000 and Rs.10,000 awarded towards mental agony, pain and suffering respectively – Costs awarded – Order upheld in appeal.”
14. The opposite party No.1 has taken the legal objection that the complainant is not consumer as he availed the services of the opposite parties for commercial purposes whereas the complainant has submitted that he is running a small business for earning his livelihood for himself and his family. The opposite parties have not placed on file any evidence regarding any commercial transaction which the opposite parties have to prove with cogent and convincing evidence. Hence, the said legal objection taken by the opposite parties, is not tenable.
15. With utmost regard and humility to the authorities relied upon by the opposite party No.1, are distinguishable on facts and circumstances.
16. The opposite parties have failed to deliver the consignment to the consignee and also failed to return the same to the complainant. Therefore, it would meet the ends of justice if the complaint is allowed with Rs.10,000/- as cost and compensation and the opposite parties be directed to return the consignment to the complainant or to pay Rs.24,159/-.
17. Therefore, in view of what has been discussed above, this Forum concludes that there is deficiency in service as well as unfair trade practice on the part of the opposite parties. Hence, this complaint is accepted with Rs.10,000/- as cost and compensation. The opposite parties are directed to return the booked consignment to the complainant and in case, the opposite parties are unable to trace/return the consignment then the opposite parties are directed to pay Rs.24,159/- to the complainant. Compliance of this order be done jointly or severally within 45 days from the date of receipt of copy of this order. In case of non compliance, interest @ 9% p.a. will yield on the amount of Rs.24,159/- till realization.
A copy of this order be sent to the parties concerned free of cost and file be consigned for record. '
Pronounced in open Forum
12-01-2012
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
