| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/491/14 Date of Institution: - 02.05.2014 Order Reserved on:- 10.05.2024 Date of Decision: - 07.10.2024 IN THE MATTER OF: Fazlu Rehman Proprietor A1 Rehman Associates 13, IInd Floor, Commercial Complex, Sheikh Sarai-II New Delhi - 110017 .….. Complainant VERSUS Ms. Shalu Chauhan Exc. – Customer Service Blue Dart Express Limited Regional Office (North), 04th Floor, Elegance Tower, Plot No. 8, Non Hierarchical Commercial Centre, Jasola, New Delhi - 110025 .…..Opposite Party Per Dr. Harshali Kaur, Member - The facts of the case, briefly stated, are that the complainant sent a parcel through the OP courier services and paid a sum of Rs.180/- for the same. He was issued a customer code no.5050002 and Docket No.30163856255 along with a receipt (Annexure-A) on 16.09.2013. The complainant states that he had sent three passports in the package from New Delhi to Chennai to reach the address specified by him on 17/18.09.2013.
- When the courier package did not reach the destination,the complainant inquired about the whereabouts of his package from the OP, as the packet contained essentialdocuments.After several follow-ups, personal visits and calls, the OP sent an email dated 24.09.2013 confirming that the shipment that was sent to Chennai and contained the complainant’s package was untraceable and could not be located. Aggrieved,the complainant demanded damages from the OP,but instead of resolving his grievance,the OP sent an email dated 26.10.2013 denying the complainant’s claim and stating that they would instead handle his claim as per company policy (Annexure-C).
- The complainant was under substantial financial loss due to the loss of the critical documents, which were three passports of the complainant’s clients. He sent several emails to the OP to no avail. Thus, he filed the present complaint under section 12 of the Consumer Protection Act, 1986, alleging deficiency in service on the part of the OP. He has prayed for directions to the OP to refund his claim amount of Rs.2 lakh and pay him compensation for the mental torture, pain and agony he faced due to their negligence to the tune of Rs.2,50,000/- along with Rs.25,000/- towards litigation charges.
- Onnotice, the OP filed their reply raising preliminary objections that the OP is a commercial concern and hence is not a consumer as per the Consumer Protection Act, 1986, as he has himself stated that the shipment caused loss to his client, thus clarifying that the services of the OP were taken for commercial purpose and for generating profit.
- Further, the OP alleges that the complainant did not disclose to the OP that the package contained valuable documents at the time of booking the consignment. He also did not take the insurance offered by the OP to insure the valuable papers in case of loss. The airway bill contains a column for special instructions to be filled by the client/senderif the consignmentis of value, which should have been disclosed when booking the courier.
- The OP stated that the complainant has not brought on record any evidence to show that he re-issued the passports or that he suffered any monetary loss after the loss of the consignment.The OP stated that the complainant booked the parcel/shipment through the agent of Crown Couriers to be shipped to Chennai on 16.09.2013 vide AWB No.60163853255 without declaring the contents of the parcel nor insuring the same. The shipment booked by the complainant was received at Adyar Depot, Chennai, on 17.09.2013.
- On 17.09.2013, the delivery personnel of the OP, who was on his delivery run in Gandhi Nagar, Adyar area, had gone to deliver a parcel toanother consignee. His field bag was stolen, resulting in the loss of the 34 shipments left in the bag. Only on 21.09.2013, via email, the complainant clarified for the 1st time that the parcel contained three passports. On 24.09.2013, a complaint was lodged with the Commissioner of Police, and the complainant was also informed of the loss of the package. Hence, the OP has not been deficient, andthe case should be dismissed with cost.
- The complainant filed his affidavit to be read in evidence without filing the rejoinder,reiterating the averments made in the complaint. The OP filed the affidavit of Mr. Rishi Raj Srivastava, Manager-Legal and Contracts, North, echoing the statements in the reply. Thereafter, both parties filed their respective written arguments, and we heard the arguments from the OP, giving the complainant the liberty to address oral final arguments within 07 working days.
- We have carefully gone through the facts and circumstances of the present complaint and have perused the documents placed on record by the contesting parties.
- The admitted facts of the case are that the complainant,on 16.09.2013 booked a courier service of the OP to send a package to his office in Chennai from New Delhi. He paid Rs.180/- for this package. The complainant’s package was to be received in Chennai on 17.09.2013.
- However, the complainant’s package did not reach the desired destination, and the OP later informed him via email dated 24.09.2013 that his package was lost along with 34 other parcels as the OP delivery personnel’s bag was stolen by some miscreants.
- The complainant informed the OP that the package sent by him contained three passports with all documents of their clients and the complainant came under a heavy financial burden as they had to pay the fee for getting all the documents in duplicate. The complainant thus sought damages from the OP when the OP vide email dated 26.09.2013 denied their claim and instead wrote that the complainant’s claim would be dealt with as per OP company policyreflected on the air waybill issued by the OP towards the consignment. The complainant thus filed the present complaint before this Forum, seeking a resolution to his grievance.The OP has taken the preliminary objectionthat the complainant is a commercial entity and, hence,is not a consumer under the Consumer Protection Act 1986 since the complainant had hired the services of the OPto gain profit from his clients.
- The OP further stated in their testimony that the criminal incident was beyond their control and that the officials of the OP had taken due diligence in reporting the matter to the concerned authority. It was the complainant who neither informed the OP that he was sending valuable documents through the package booked nor did he opt for insurance to safeguard the critical documents, which he could have easily done. The complainant has alsoclaimed a hefty sum from the OP towards damages but has not filed any documentary proof as to who paid the cost of re-issuance of the documents and passport of his clients. Under the circumstances, the complaint deserves dismissal.
- In our view, we feel it prudent to decide on the preliminary objection raised by the OP before we decide on the merits of the case.
- The OP hasstated that since the complainant,through his proprietor, booked the OP's service for his clients to gain commercial profit, he isnot a consumer. However, a bare perusal of the definition of ‘Consumer’ as given in Section 2 (1) (d) of the Consumer Protection Act, 1986 clarifies what constitutes commercial purpose: -
[Explanation. —For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;] In his complaint, the complainant admitted that the complainant’s firm is a proprietorship firm through which he earns his livelihood. Hence, in our view, he is adequately covered under the Consumer Protection Act and is a ‘consumer’. - Now, coming to the merits of the case. It is admitted by the OP that the consignment booked by the complainant did not reach the specified address due to the theft of the delivery personnel’sfield bag in which he was carrying the complainant’s and 34 other consignments. The OP duly informed the Police Commissioner and sent an email dated 24.09.2013 to the complainant on the same day it was confirmed that the bag was untraceable.
- The complainant's caseis that the complainant had sent documents which did not reach his clients for which he has claimed damages. However, the complainant has not filed any cogent documentary evidence to show that he had informed the OP that the documents in the booked consignment were essential. He also did not opt for insurance to safeguard the vital package against unforeseen loss.
- Further, the complainant states that he spent a substantial amount of money to re-issue all the documents lost by the OP due to the theft. However, the complainant has not filed any documents to show that duplicates of the lost records were ever retrieved for reasons best known to him,which he could have done in the form of photocopies of the duplicate documents or affidavits of the clients or receipt of the amount paid for retrieval of duplicate documents paid by the complainant or his firm.
- Hence, we do not feel that the complainant deserves to be compensated to the tune of Rs.2 lakh as prayed by him. However, the OP’s employee undeniably lost the field bag due to his negligence, as mentioned in their testimony,wherein the field bag was stolen while the OP delivery personnel had gone to deliver a package to a customer. Therefore, he left his field bag unattended, which resulted in the bag being stolen.
- The OP has also admitted that two other incidents of theft were reported to the Police Commissioner in their letter dated 24.09.2013, which leaves no doubt in our mind that they were aware that miscreants were making the delivery executives their target and indulging in such burglaries. The OP should have tightened their security to keep the consignments safe, which they did not do and hence were deficient in service.
- Thus, allowing the complaint, we feel that the ends of justice shall be adequately served if the OP paid the complainant the loss as per the OP company policy along with damages. Annexure A, the air waybill issued by the OP, clarifies that the liability of the OP in case the complainant’s shipment is lost, is Rs. 5000/-.
- Accordingly,we direct the OP to pay the complainant Rs. 5000/- per their policy for the admitted loss of the package/consignment, along with Rs.10,000/- towards compensation for mental agony and harassment, including litigation costs.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 07.10.2024.
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