The opposite party filed version denying all the allegations of the petitioner as not true or correct. It is contended that this petition is barred by limitation and the petitioner is not a consumer as per the provisions of the Consumer Protection Act since the petitioner is a trader engaged in commercial activities and the service availed from them is for commercial purpose and the compensation is sought for to make good the loss allegedly suffered by him due to non-trading and therefore this petition is not maintainable also. Admittedly the petitioner had booked a consignment bearing No. 101386418 through the DTDC Malaparamba Franchisee to be consigned to the consignee at Chandigarh on Cash on Delivery (COD) basis on 03/09/2015. The said consignment was delivered to the consignee on 11/09/2015 also. The DD given by the consignee was immediately forwarded back to the booking station to be delivered to the consignor but unfortunately the consignment was irrecoverably lost in transit. The said fact was immediately informed to the consignor on the enquires made by him. They also assured to the petitioner that they had intimated the consignee regarding the fact of loss of the DD and requested him to make arrangements for providing a duplicate/fresh DD after cancelling the lost one as in the procedure followed in cases of loss of Negotiable Instruments like DD. As such the consignee gave the duplicate DD to them and immediately on receipt of the same it was delivered to the petitioner on 22/11/2018.
The opposite party further contended that, the petitioner has not even mentioned the value of the item consigned and claimed for losses for the delay in getting the money and trading with the same. It is submitted that they are collecting consignments for carriage subject to the terms and conditions mentioned in the sender’s copy of consignment note. As per the terms in the contract, in the event of damage or loss to goods or misdelivery of goods their liability is limited to Rs.100/- unless the sender declares a higher value as “declared value for carriage” and also pays the applicable Risk Surcharge thereof as “Carriers’ Risk” at the time of tendering the shipment. Their liability is limited under the provisions of the Carriers Act/Carriage by Road Act also. Moreover the consignor is not entitled to any consequential or indirect losses or damages due to loss or damages or delay to shipment under the contract. So there is no deficiency in service on their part as alleged. They have delivered the duplicate of the lost DD immediately on receipt of the same from the consignee without delay. They cannot be held liable for the delay on the part of the consignee in providing the duplicate of the lost DD to them. All other allegations of the petitioner was denied as false and baseless. This petition is vexatious and frivolous and filed with the only intend to extract some amount illegally from them. They are not liable to compensate the petitioner in any manner for his alleged loss and the petitioner is not entitled for any of the reliefs sought for in the petition and hence prayed to dismiss the petition with cost to them.
Evidence consists of the affidavit filed by the petitioner, Ext. A1 to A10 and deposition of PW1.
The opposite party have a case that this petition is barred by limitation and the petitioner is a trader engaged in trading of used electronic goods which is commercial in nature and the compensation is seeking for the loss suffered by him due to non-trading and for these reasons the petition is not maintainable before the Fora as per Sections of Consumer Protection Act. But in the petition the petitioner had stated that he is engaged in the said business for earning his livelihood as a means of self-employment. Engaging in a trade for earning livelihood is exempted from the purview of commercial purpose as per the exclusion to Section 2 1 (d) ii of Consumer Protection Act. Regarding limitation, as per the petition the consignment was sent on 03/09/2015 and this petition is seen filed on 27/11/2015 which is well within the limitation period as per Section 24 A of Consumer Protection Act. Hence the said contentions of the opposite party is not sustainable.
According to the opposite party their liability regarding damage or loss to goods or misdelivery of goods is limited to Rs.100/- as per the consignment contract between the parties unless the sender declares a higher value as “declared value for carriage” and also pays the applicable Risk Surcharge thereof as “Carriage Risk”. Here they had informed the consignee the fact of the loss of the DD and immediately on receipt of the duplicate DD from the consignee they had delivered the same to the consignor without delay. So there is no deficiency in service on their side as alleged. But it is to be noted here that, in the version the opposite party has not mention on which day they had informed the matter of loss of the DD to the consignee or on which day they had given the lost letter to the consignee for arranging a duplicate of the lost DD from the bank.
According to the petitioner the consignment number mentioned on the consignment note allows the consignment to be tracked on its journey from the sender to the receiver on the DTDC website whereas once the consignment booked on COD basis is delivered, no further updates are available to track the CDD on the return journey to the sender of the consignment. To prove the same the petitioner had produced the “Printout of the result displayed by DTDC” consignment tracking system for his consignment No. 101386418 and was marked as Ext. A7. A perusal of Ext. A7 shows that DTDC website is not reflecting the status of the CDD as stated by the petitioner. Moreover it is seen that in case of insured consignments the DTDC will initiate proceedings to get the insurance claim processed in case of loss or damage but in this case the consignment was insured and it was delivered but the linked CDD was delayed and the opposite party didn’t take any steps to settle the matter. Since the CDD is distinct from an ordinary DD, the CDD falls outside the scope of the terms and conditions in the consignment note. So we are of the view that the clause on the consignment note which limits the opposite party’s liability in case of loss or damage to a consignment on transit do not apply in a case of negligence involving the CDD.
Moreover in this case, the case of the petitioner is regarding delay in delivering the duplicate DD by the opposite party and not of any loss or damage to the consignment. Ext. A1 to A4 are the e-mails dated 07/10/2015, 10/10/2015, 14/10/2015 and 25/10/2015 sent by the petitioner to the officials of the opposite party requesting to take immediate steps in this regard and seeking prompt payment. Though the opposite party stated in their version that immediately on knowing the fact of loss of consignment it was informed to the petitioner on the enquires made by him, but these e-mails are not seen replied by the opposite party. Actually instead of waiting for an enquiry from the petitioner, they ought to have intimate the fact of loss of the DD to the consignee immediately and to sent a lost letter to him for arranging a duplicate DD from the bank. If the opposite party had done so, the delay would have been avoided. Ext. A8 is the e-mail sent by the staff of the opposite party to their another staff dated 10/10/2015 wherein it is stated “spoken to consignee Mr. Harry, he had received the consignment and handed over the DD for Rs.12,550/- towards COD collection, now as per our COD team, they have forwarded the same to the booking branch Calicut. Unfortunately the DD is misplaced by the branch. Now customer is insisting us to give a lost letter for them to provide in the bank for the further banking procedures”. From Ext. A8 it is found that the opposite party has not given the lost letter to the consignee till 09/10/2015. Loss or damages may occur to a consignment on transit due to many reasons but if it is happened due to the reasons beyond the control of the service provider, it cannot be considered as a deficiency in service on the part of the service provider. But it is the bounded duty of the service provider to intimate the fact of loss or damage to the party concerned immediately on knowing the same and to take necessary steps to trace out the article or to compensate the consignor for his losses as per their rules. Here in this case it is found that there was inordinate delay on the part of the opposite party in issuing a lost letter to the consignee for presenting the bank to arrange a duplicate DD. Evidence also shows that only after repeated e-mails requests from the petitioner the opposite party had taken steps to issue the lost letter to the consignee in this regard. The negligent attitude of the opposite party is the reason for the delay in getting the CDD to the petitioner. This is deficiency in service on the part of the opposite party for which they are liable to compensate the petitioner reasonably for his loss and sufferings. The petitioner was cross examined by the opposite party as PW1, but nothing has been brought out from the petitioner in favour of the opposite party by this examination. Considering the facts of the case we are of the view that allowing an amount of Rs.2,000/- as compensation to the petitioner for his losses and mental agony is just and proper in this case.
In the result, the following order is passed.
The opposite party is ordered to pay Rs.2,000/- (Rupees two thousand only) as compensation and Rs.1,000/- as cost of the proceedings to the petitioner within 15 days from the date of receipt of this order. Failing which the whole amount will carry 12% interest per annum from the date of default till payment.
Dated this the 6th day of September, 2018
Date of filing: 27/11/2015
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of e-mail sent by the complainant
A2. Copy of e-mail sent by the complainant
A3. Copy of e-mail sent by the complainant
A4. Copy of e-mail sent by the complainant
A5. Summary of communications/e-mails
A6. Tracking result
A7. Copy of consignment note
A8. Copy of e-mail sent by the opposite party
A9. Copy of consignment note
A10. Copy of consignment note
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
PW1. Srikanth R. (Complainant)
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
