BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> <br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> O.P.No. 55/2002 Filed on 29.01.2002<br /> Dated : 30.07.2008<br /> Complainant:<br /> George Andrews alias Andrews, George Kurian, residing at KRWA – 128, Kattachal Road, Thirumala P.O, Thiruvananthapuram from Podimattathil House, Puthupady P.O, Kozhikode.<br /> (By adv. Idicula Zachariah)<br /> Opposite parties:<br /> 1.Blue Dart Express Limited, Blue Dart Centre, Sahar Airport Road, Andheri (East), Mumbai – 400 099.<br /> 2.Babu Jacob, Executive – Sales, Blue Dart Express Ltd., T.C 9/1069, Sasthamangalam, Thiruvananthapuram – 10.<br /> (By adv. C.R. Sudheesh)<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 18.03.2005, 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 19.06.2008, the Forum on 30.07.2008 delivered the following:<br /> ORDER <br /> SMT. S.K.SREELA: MEMBER<br /> The complainant who is residing in Thiruvananthapuram is a national of USA holding social security number of USA and had permit to stay in India and his grievance is as follows: The complainant's daughter who is in USA had sent one express mail containing confidential and important documents such as statement of credit card, credit history, auto insurance etc. through Federal Express Mail service of United States. The above mentioned express mail was also entrusted to the opposite parties for delivery to the complainant at Thiruvananthapuram. Though the complainant was present most of the time at his residence at Thiruvananthapuram, the 2nd opposite party, instead of delivering the said mail to the complainant delivered the mail to one Mr. Santhosh Paul who is residing nearby the complainant's residence that too in an open condition on 24.04.2001. The mail was given to the complainant by the said Santhosh Paul in an open condition and the complainant did not get any opportunity to state the condition of the mail in the receipt brought by the delivery agents of the opposite parties. On enquiry with the complainant's daughter the complainant came to know that certain documents are missing from the said envelope. The complainant then contacted the opposite party's and Manager at Mumbai office and complained about the rough handling and delivery of the envelope in an open condition to the complainant's neighbour. Though the opposite parties promised to pay the damages caused to the complainant, no action has been taken and hence this complaint. <br /> The opposite parties have filed their version contending as follows: The complaint is not maintainable. The shipper who had booked the shipment has not disclosed the contents of the parcel to the courier staffs who had accepted the shipment for carriage. Since it was booked through Federal Express Corporation (Fedex) USA, Fedex is a necessary party and hence this is bad for non-joinder of necessary parties. At the time of delivery, the complainant's house was closed and since there was a standing instruction to deliver the shipment to Mr. Santhosh who is residing next door and in order to avoid delay the shipment was delivered to Mr. Santhosh under the bonafide belief that the complainant can collect the same immediately on his arrival and there was no special instruction to deliver the shipment “ONLY TO THE ADDRESSEE”. No documents are missing from the shipment and no complaint has been registered in the Bombay office as alleged in the complaint. If the contents were disclosed, the details of documents would be endorsed in the 'description column'. There is no deficiency of service on the part of this opposite parties. A complaint of this nature can be filed only by the shipper who had booked the shipment with Federal Express Corporation with whom Federal Express is having contractual obligations. If any claim arise out of carriage of shipment under a non-negotiable airway bill, the terms and conditions of which are binding upon the parties, can be raised only by the party who had booked the consignment for carriage. Mrs. Sherli Andrews and Federal Express Corporation are necessary parties in this complaint. Hence prays for dismissal of the complaint with costs. <br /> The power of attorney holder of the complainant has been examined as PW1 and marked Exts. P1 to P6 and MO1. 2nd opposite party has filed affidavit for and on behalf of the 1st opposite party also. <br /> The issues that would arise for consideration are:-<br /> (i)Whether the complaint is maintainable before this Forum?<br /> (ii)Whether the complaint is bad for non-joinder of necessary parties?<br /> (iii)Whether there is any deficiency in service on the part of the opposite parties?<br /> (iv)Reliefs and costs. <br /> Point (i):- The consignment has been sent from USA by one Sherli Andrews to the complainant who is the father of the said Sherly Andrews residing at Thiruvananthapuram. Complainant is the consignee and beneficiary of consignment. The complainant, being the beneficiary of the service contracted for, is a consumer entitled to file the complaint. As per this settled position we have no doubt in holding that the complaint filed by the complainant is maintainable before this Forum under the provision of the Consumer Protection Act since the complainant is the beneficiary of the services. <br /> Points (ii) & (iii):- One of the contentions raised by the opposite parties is that since the consignment has been booked through the Federal Express Corporation (Fedex) USA, Fedex is a necessary party in this proceedings and hence this case is bad for non-joinder of necessary parties. According to the complainant, the opposite parties are business associate of Fedex and to their knowledge, the opposite parties are looking after the business interest of Fedex and they are the business partner in India of the Fedex and further pleads that the mail addressed to the complainant by his daughter at USA was also entrusted to the opposite parties for delivery to the complainant at Thiruvananthapuram. Here, we have to consider the issue with regard to the contractual relationship between the complainant and opposite parties. The consignment has been entrusted to the Fedex by the complainant's daughter which is not in dispute. Now the opposite parties contend that since the consignment was entrusted for shipment to the Fedex they are also a necessary party to this case. We perused the documents and evidence on record. As per the contentions in the version, the opposite parties have admitted that they have delivered the parcel to one Mr. Santhosh, who is residing next door to the complainant's house, as per the instruction of the complainant itself, since there was a standing instruction to deliver the parcel to Mr. Santhosh and there was no special instruction to deliver the shipment 'only to the addressee'. Besides these averments in the version, there is no documentary evidence produced by the opposite party to substantiate the same. The above act of delivering the parcel belonging to the complainant reveals the fact that the opposite parties have some sort of relation with Fedex or else the opposite parties would not have agreed to deliver the parcel to the complainant. Though the affidavit filed by the opposite party stands unchallenged, it does not mean that every thing mentioned in it stands admitted and accepted unless proved by ample evidence. The opposite parties also have burden to prove their contention. Ext. P4 which is the reply sent to the complainant's lawyer, the opposite parties have admitted the delivery of the consignment to the complainant's neighbour. Opposite parties have no case that the consignment has not been delivered by these opposite parties. The opposite parties also admit in Ext. P4 that the shipment was carried under non-negotiable airway bill and the terms and conditions of Non-Negotiation Airway bill are applicable to the said carriage of shipment. There is a specific admission as above mentioned by the opposite parties with regard to the carriage of the parcel by these opposite parties. But the courier consignment note or the non-negotiable airway bill has not been produced in this case. The airway bill is the basis of the contract. The consignment was entrusted by the consignor to Fedex at USA. Hence this opposite parties does not have any relation with the consignor. The airway bill is the document which is in possession of the consignor and a copy will be with Fedex. But Fedex has not been made party in this case. The opposite parties' relation is only with Fedex. Without the airway bill/courier consignment note, the document which is the basis of the contract between the parties, we are unable to come to a conclusion with regard to the terms and conditions of the carriage, the contents, the value of the consignment etc. The complainant has claimed that the consignment was delivered to the neighbour and the complainant received the consignment in open condition and that certain valuable documents are missing also. The opposite parties contend that they had a standing instruction to deliver it to the neighbour and there was no special instruction as to 'only to the addressee'. In the absence of any evidence substantiating the contention of the opposite parties, we are of the view that the courier company had no right whatsoever to deliver the parcel to the neighbour. But for the non-production of the document, we cannot take any adverse inference also since these opposite parties are not the custodians of the same as the relation is with Fedex only, who has not been made a party also. But without the consignment note/airway bill and in the absence of a declaration regarding the contents of the consignment, renders it extremely difficult to establish the contents and thereafter to evaluate the value of the consignment and the consequential loss sustained by the complainant. As to what the consignment contained there is no evidence. There is no evidence before us to find the facts as to the contents of the parcel and that the nature and importance of these documents alleged to be missing were brought to the notice of the courier company besides the fact that the Fedex company has not been made party also. Without the airway bill and for the non-joinder of Fedex in the party array, we are unable to find any deficiency in service as against these opposite parties. As far as courier complaints are concerned, the parties are bound by the terms of the contract, and a person who signs such contract is normally bound by them. But here there is no evidence to show the terms and conditions of the contract between the parties and whether it was brought to the notice of the complainant or not or whether signed or not, the contents of the consignment declared or not. <br /> For the foregoing discussions we are of the view that without the airway bill and since the complaint is bad for non-joinder of necessary parties, we are unable to find any deficiency in service on the part of these opposite parties and these points (ii) & (iii) are found against the complainant.<br /> Point (iv):- In the above circumstance the complainant is found not entitled for any reliefs claimed. <br /> In the result, the complaint is dismissed. No order as to costs. <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, President<br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K.SREELA : MEMBER<br /> <br /> <br /> <br /> <br /> O.P.No. 55/2002<br /> APPENDIX<br /> I COMPLAINANT'S WITNESS : <br /> PW1 - Vineeth<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Photocopy of letter dated 24.08.2001 issued to the complainant by the opposite party. <br /> P2 - Original postal receipt dated 27.08.2001.<br /> P2(a) - Original postal acknowledgment card addressed to the opposite party. <br /> P3 - Copy of legal notice dated 14.09.2001 addressed to the opposite parties.<br /> P4 - Photocopy of reply letter dated 25.09.2001 to the complainant. <br /> P5 - Photocopy of article preventing identity fraud. <br /> P6 - Photocopy of article prevent identity theft – protect your social security number. <br /> III OPPOSITE PARTIES' WITNESS :<br /> NIL<br /> IV OPPOSITE PARTIES' DOCUMENTS : <br /> NIL<br /> <br /> PRESIDENT