DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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K.L.Lakhotia r/o H.no.512, Vigyan Vihar, Sector 49-A, Chandigarh.

….…Complainant

                 V E R S U S

1.  Blazeflash Courier Ltd., SCO 142-144, Sector 17, through its Branch Head/Manager, Chandigarh.

2.  Blazeflash Courier Ltd.,  Corporate Office, RZ-A-144, Gali No.9, Road No.4, Mahipalpur Extn., New Delhi-110037.

3.  Chief Managing Director, Blazeflash Courier Ltd., Regd. Office: Third Floor, Blazeflash Home, 2E/8, Jhandewalan Extn., Jhandewalan, New Delhi-110055.

4.  Blazeflash Courier Ltd.,  Regd. Office Shri Shakti Compound, Bajson Industrial Estate, Chakala Road,  Andheri (E), Mumbai-400099.

             ..…Opposite Parties

CORAM:   SH.P.D.GOEL,                         PRESIDENT

SH.RAJINDER SINGH GILL,       MEMBER

              DR.(MRS) MADANJIT KAUR SAHOTA          MEMBER

Argued by: Sh. Manoj Lakhotia, Counsel for Complainant.

Sh.Kapil Nag Pal, Authorized Representative of OPs.

PER RAJINDER SINGH GILL, MEMBER

         The complainant has filed the present complaint under section 12 of the Consumer Protection Act (as amended upto date) “hereinafter referred to as the Act”. In short, the facts of the case are that the complainant purchased a health care machine–V Slim from M/s Jagdambay Enterprises, Sector 22-C, Chandigarh vide bill NO.724 dated 21.05.2009 for Rs.19,999/- for his maternal uncle.

         According to the complainant, the machine was duly checked, packed and sealed in one parcel in the presence of representative of OP-1 and thereafter it was handed over to him delivering the same at Suratgarh against a sum of Rs.1000/- which was paid vide receipt dated 19.05.2009 (Annexure C-2). 

         The complainant asserted that after waiting for sufficient time of about more than one month, he enquired about the non-delivery of the machine and he (complainant) was informed that the matter of non-delivery of the consignment had been reported to the New Delhi, as well as Mumbai Office and assurance was given that the same would be delivered within a week. Thereafter, the complainant visited a number of times to enquire about the non-delivery of the machine but to no effect. Ultimately, the complainant served a legal notice dated 18.05.2011 but the same has also failed to yield any result. Hence, this complaint.

2.       OPs filed written statement and took some preliminary objections. On merits, the averment of the complainant made in the complaint with regard to the booking of the machine has been admitted. It has been pleaded that the consignment was booked by the complainant on 21.05.2009 and the first complaint of non- delivery, has been made through legal notice dated 18.05.2011, by which time, the record of its delivery status had already been destroyed / weeded out.

         It has further been pleaded that prior to notice dated 18.05.2001, the respondent has not received any complaint of non-delivery in writing either from the complainant or the consignee. The said notice was received on 20.05.2011, and the complaint has been filed on the same day, leaving no time to the respondent to sent the reply to the legal notice. According to the OPs, as the complainant has failed to collect the proof of delivery and lodge the claim within the stipulated period, therefore, Ops are not liable to indemnify the complainant. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service or unfair trade practice on their part prayer for dismissal of the complaint has been made. 

3.       Parties led evidence in support of their contentions.

4.      We have heard the learned counsel for the parties and have also perused the record. 

5.       It is not disputed that a parcel was booked by the Complainant with the OPs vide Annexure C-2 for being sent to his maternal uncle at Suratgarh (Rajasthan), for which the OPs had charged Rs.1000/-as courier charges. It is a fact that the said parcel did not reach the addressee, despite specific assurance that the same would be delivered at its destination within 3-4 days. The contention of the Complainant is that it contained a Health Care Machine namely “V-Slim”, which had been purchased by him for Rs.19,999/- vide Annexure C-1 from M/s Jagdambay Enterprises.   

6.       It is the case of the Complainant that he had been visiting the office of the OP No.1 and complained about the non-delivery of the machine to its destination, but neither it had provided plausible justification, nor provided the delivery report to him and rather, dilly-dallied the matter on one pretext or the other, with a view to avoid its liability.

7.       Per contra, the OP had contended that due to paucity of space, the record pertaining to delivery status are kept and maintained for one month, therefore, the same is destroyed/ weeded out, because the complaint, if any, in the normal and usual course is received within the said period. As such, the Complainant was under contractual obligation to report the matter to the OPs within one month, which he failed to report, within the said period. The legal notice was received by the OPs on 20.05.2011 i.e. after a lapse of two years. We do no find any merit in this contention because the Complainant had been visiting the office of the OP No.1 time and again and every time, the said OP had been assuring him that they had reported the matter to its Delhi and Mumbai office. When the OPs had failed to redress his grievance, the Complainant was compelled to knock the doors of this Forum by way of filing the present complaint.

8.       The next plea taken by the OPs that the Complainant was under contractual obligation to submit his claim, for damages, for the loss of consignment, within one month from the date of booking. Again, this plea is of no help to the OP as the Complainant had never signed any agreement to this effect and no terms & conditions were made available to the Complainant. So, this contract, which is unilateral in nature does not have any legal force in the eyes of law. Moreover, the OPs had miserably failed to produce any evidence that the Complainant was a signatory to the contract. As such, OPs are estopped from raising such a plea at this stage.  

9.       The OP raised a defence that in view of Annexure C-2, their liability was limited to only Rs.100/-; that it was necessary for the Complainant to declare the value of the contents of the parcel and to get the same insured and in its absence, he was not entitled to a compensation of more than Rs.100/-. This argument does not hold any water, in as much as the consignment receipt (Annexure C-2) was prepared by the officials of the OPs and it was their duty to get the value of the parcel declared in the proper column of the same. They did not get it done. So far as the contention that the OPs were liable only to pay Rs.100/- in case of loss is concerned, there is no doubt that there is an endorsement on Annexure C-2, but it was never agreed by the Complainant. In order to limit the liability, it was necessary that the agreement to that effect should have been signed by the Complainant and in its absence the unilateral term of limiting the compensation to Rs.100/- will not be applicable. Otherwise also, it is the liability of the OPs to compensate the Complainant for the loss caused to him by misplacing the parcel.  In support of his case, learned counsel for the Complainant placed reliance on M/s On Dot Couriers and Cargo Limited Vs. Jaspal Singh and Anr., First Appeal No. 157 of 2011, decided on 19.07.2011, by our own Hon’ble State Commission.

10.      Now, it is proved beyond doubt that the OPs had not delivered the consignment at the destination and once the consignment has been taken by the OPs for its delivery, then it is the duty of the OPs to deliver the same at the destination and provide the delivery report to the Complainant. Since the OPs had never delivered the consignment at the destination, thus, deficiency is writ large on their part.

11.      From the above detailed analysis of the entire case, it is our considered view, that the present case has a lot of merit, substance and weight and it deserves acceptance. Therefore, we accept the complaint and decide the same in favour of the Complainant and against the OPs.

12.      Keeping in view the above, the OPs, shall jointly and severally, do the following:-

i]  Refund the booking charges of Rs.1000/- charged by the OPs for booking of the consignment.

ii] Pay Rs.19,999/- being the price of the Health Care Machine “V Slim”.

iii]  The OPs shall pay compensation of Rs.15,000/- to the Complainant for causing physical harassment, mental agony and lot of inconvenience.

  iv]   The OPs shall pay litigation costs of Rs.5500/- to the Complainant.

13.      The aforesaid order be complied with by the OPs, within a period of thirty days from the date of receipt of the certified copy of the order, failing which, they shall pay the sum of Rs.35,999/- along with interest @9% per annum from the date of filing of present complaint i.e. 20.05.2011, till the date of realization, besides paying the cost of litigation at Rs.5500/-.

14.      Certified copies of this order be sent to the parties free of charge. The file be consigned.