Delhi

East Delhi

CC/831/2014

DEEPAK - Complainant(s)

Versus

BLUE DAST - Opp.Party(s)

10 Jul 2017

ORDER

                DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                 CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                  

                                                                                                  Consumer complaint no.        831/2014

                                                                                                  Date of Institution                08/09/2014

                                                                                                  Order Reserved on               10/07/2017

                                                                                                  Date of Order                        17/07/2017  

                                                                                                       

In matter of

Deepak Dutta, Adult    

s/o Sh Late Jagmohan Dutta

HN- 146, FF, Jagruti Enclave, Vikas Marg, Delhi 110092…………….Complainant

                                                                  

                                                                     Vs

1- Blue Dart Express Ltd.

Through Director,

4rth Floor, elegance Tower,

Plot no.- 8, Jasola District Centre,

New Delhi 110076  

 

2- Mr Aslam   

Blue Dart Express Ltd.

C-16, IInd Floor, Old Govind Pura

Radhey Shyam Park, Delhi 110091…………………………………………………….Opponents

 

Quorum          Sh Sukhdev Singh      President

                         Dr P N Tiwari               Member                                                                                                   

                         Harpreet Kaur             Member

 

Order by Dr P N Tiwari  Member 

Brief Facts of the case                                    

This complaint had been filed u/s 12 of the Consumer Protection Act, 1986 r/w sub section 2(1) (g), (o) &(r 1 ii) for deficiency in service and unfair trade practice against opponent/courier services where goods were damaged due to carriage leading to financial loss and harassment of complainant.  

Complainant booked his used household goods as one Samsung LED TV, one split air Onida AC besides other household items on 23/06/2014 through OP1 which were to be delivered to consignee’s house at Mumbai.  on 23/06/2014.

OP1 charged packing and freight charges Rs 2045/-from complainant. It was stated that the said goods were to be delivered in 3-4 days, but goods were delivered after 12 days to the consigner at Mumbai. TV was found broken at Mumbai when it was opened in front of courier person which was refused to be accepted by consignee as per Ex CW1/1. The cost of TV was Rs 51,900/-and same was purchased on 29/01/2013 vide Ex. CW1/2.       

Thus aggrieved by the deficient services provided by OP2 which led damage to TV, complainant lodged number of complaint to OP1 and even to local police and legal notice Ex CW1/3 to OPs and thereafter filed this complaint claiming a sum of Rs 1 lakh for mental agony and replacement of damaged TV with return of AC besides value of goods sum of Rs 90,000/-.

OP1 submitted written statement on behalf of OP2 also. All facts and allegations of deficient services by OPs were denied. OP1 stated that complainant had self declared goods as “household goods” and written Rs 10,000/- of their own hand and signed waybill. It was stated that their services were according the terms and conditions printed over their waybill in red which clearly stats as -  

                              “in the case of consignment contains anything of value, the company recommends insurance of the same”.

The company’s liability in this case was limited to Rs 5,000/-or the cost of reconstruction whichever was less. It also reads as per clause 8 and 9.1 as under-

“I/We hereby agree to the terms and conditions set forth on the reverse of this shipper’s copy of this non negotiable waybill and warrant that information contained on this waybill is true and correct.”

The OP also stated as per their limited liability under clause 9 & 10 of the terms and conditions of Blue Dart which stats as -

“With prejudice to the section of 9 & 10, the liability of Blue Dart Express for any loss or damages to the shipment (the terms shall include all documents or parcels consigned through Blue Dart Express) shall be lowest of (a) Rs 5,000/- or (b) the amount of loss or damage to the document/ parcel actually sustained, (c) the actual value of the document or parcel is determined regard to the commercial utility or special value to the shipper.

Clause 9.1 -

The OP had limited liability as per the clause 9.1 and  here the declared value by the complainant was Rs 10,000/- so they were only liable to Rs 5000/-. OP also referred  citations as Airpak International Pvt ltd vs KP Manu, 1997 (1) CPR 15 NC and Airpak Couriers vs S Suresh (1994) CPJ 52 were based on the judgment of Supreme Court in Bharti Kniting Co. vs Worldwide Express Courier reported in 1994 (6) SCC 704.   

Facts narrated in legal notice were denied but admitted that AC was under their custody at warehouse in Delhi because complainant refused to take at Mumbai and the same had no damage. So it was the liability of complainant to take AC from their depot. Thus there was no deficiency in their services and admitted to their limited liability only.     

Rejoinder filed with evidences on affidavit where complainant himself affirmed on oath that all the facts and evidences were true and correct. Certain email zerox and courier receipt with returned remark with a photo of damaged TV was submitted. Complainant submitted one citation as “TATA Chemicals Ltd vs Skypak Couriers Pvt Ltd, II (2002) CPJ 24 NC in CC 66/1992 decided on 14/12/2001 where it was held that the scope of limited of OP will be effective if contract had been signed by both the parties and in absence of contract, the scope of limited liability under section 9 and 10 will be effective. The terms and conditions must be read by the parties and bear signature.      

OP 1 also submitted their evidences on affidavit through Mr Rishi Raj Srivastava, Manager Lagal working at their office at OP1 where it was stated that shipment was booked on 21/06/2014 from Delhi to Mumbai and value of house hold used goods were declared by the complainant as Rs 10,000/-and the waybill was signed by complainant himself.  It was also stated that OP company always recommends for shipment insurance, but there was no insurance of household goods, so company’s liability was of Rs 5000/- only. It was stated that AC was in their custody and complainant could take at any time. 

Arguments were heard from both counsels of the parties and order was reserved.

We have gone through all the facts and evidences on record. It has been observed that household used goods were booked by the complainant and had declared the value to Rs 10,000/- and had signed also, but no transit insurance was taken by the complainant.

Before coming to the conclusion, certain points were considered as -

1-Goods were packed and booked by complainant from Delhi to Mumbai.

2- Goods were received by consignee, but no concrete evidence seen as POD and shipper slip are different and declared value of goods are same (Rs 10,000/-).

3-There was no evidence of statement given by delivery person at Mumbai before police where it was stated for replacement of TV with compensation.

4- Importance of Transit Insurance and scope of limited liability of OP in such cases. 

5- No evidence of split AC invoice or cash memo as TV value shown. So estimating value of 90,000/- could not be presumed.

We have also seen the Transit Insurance and its importance which reads as –

Definition - Inland transit insurance policy provides cover to the insured's business goods or personal belongings while being transported by land. Marine Cargo policy covers the cost of damage to goods that are imported or exported to/from the nation as well within the national boundaries through any means of transport.

CONDITIONS

 

1. Interpretation

 

This Policy and the Schedule and endorsement shall be read together as one contract and any word or expression to which a specific meaning has been attached in any part of this Policy or of the Schedule shall bear such meaning wherever it may appear.

2. Material Disclosure

 

If there shall be any misstatement, misrepresentation or omission of a material fact from the information supplied by the Insured whether by the said proposal and declaration or otherwise, this Policy shall be null and void and any moneys payable under the same shall be forfeited.

3. Reasonable Care

 

The Insured shall ensure that

 

(i) any security devices fitted in the vehicle(s) are in a proper working condition.

(ii) the vehicle/s are maintained in a an efficient and roadworthy condition.

(iii) the vehicle/s is suitable for carriage of the insured goods.

(iv) goods and/or merchandise are protected from loss or damage where the vehicle is not an enclosed body type, goods carried are covered with tarpaulin.

(v) due care and diligence is exercised in the selection of employees and selection of the contracted carriers.

 

As here in this case, there was no Transit Insurance taken by shipper so liability of full declared value cannot be taken in consideration as no concrete evidence has been filed by complainant on record. Thus, OPs cannot falls under the category of deficiency in their services as per the terms and conditions of OP and as per terms, limited liability can be fixed on OP in absence of transit insurance as per the definition under sub 2(1) (g), (o) (g) &(r 1 ii) which reads as -

Section 2(1) (g) –“deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of 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”.

 

Here in this case, contract between consignor and OP was present and damage to the said TV occurred due to transporting goods but as there was no expert evidence on record or any job sheet which could sustain the allegation of damage of TV and also in absence of insurance, complaint cannot be accepted as demanded. Mere zerox of invoice of TV in reference to Ex CW1/2 cannot be accepted.    

It is accepted that complainant has chosen a good quality courier service provider of repute and has paid their freight charges so that his used household goods can be reached the consignee in a good condition, but said product, TV, got damaged due to transporting the goods. More so non receiving of AC by complainant does not mean deficiency in service.    

 

So, we allow this complaint and pass the following order -

• OP2 is directed to get the necessary repair of LED TV and hand over to the complainant in good running condition besides the said Onida split AC be handed over to the complainant in good running condition within 30 days from the receiving of this order.
• We also award compensation of Rs 10,000/-to be paid by the OP1 for causing physical and mental harassment. This shall include litigation charges to be paid within 30 days.
• If awarded amount is not paid or order is not complied in the stipulated time, then complainant shall be entitled to recover awarded amount with 9% interest till realized.  

The copy of this order be sent to the parties as per rules and file be consigned to the record room.

 

(Dr) P N Tiwari  Member                                                                              Mrs Harpreet Kaur Member                                                                            

 

                                                   

                                                     Shri Sukhdev Singh President