West Bengal

Birbhum

CC/15/26

Ranjan Bhattacharjee - Complainant(s)

Versus

D.T.D.C Courier and Cargo Ltd - Opp.Party(s)

Anup Bhattacharya

23 Jun 2017

ORDER

The case of the complainant No.1 Ranjan Bhattacherjee and complainant No. 2 Atreyee Bhattacherjee, in brief, is that the complainant No. 2 Atreyee Bhattacherjee in order to participate in a sculpture orientation exhibition-cum-competition at Panaji, Goa, booked three sculptures on 27.03.2014 out of which one was made of cement and other materials and two made of metals.

            In presence of both the complainants on 27.03.2014 said articles were booked in office/business dealing centre of O.P No. 1 D.T.C, Santiniketan and O.P No.1 issued a money receipt amounting to Rs. 4420/- on 27.03.14 at 7.45 p.m. and it is appearing from the said money receipt that all kinds of necessary charges as mentioned in the said money receipt was taken / receipt by the O.P No.1 and all charges are covered within the said amount.

            It is the further case of the complainants that during transaction or while in the custody of the O.P No.2 the cement made Shivomurti (an idol) was broken/damaged due to come into contract with fire which was noticed from the persona web site of O.P No.2 DTC, North 24 parganas by tracking the same through consignment number as appearing in the money receipt issued by O.P No.1 who is an agent of O.P No.2.

            The said Shivomurti though was delivered on 04.04.14 but in broken condition to one John Luis Bais, at Panaji and the complainant for the first time received said unfortunate news /information from said John Luis and Smt. Mukta Gupta, both are organizer of said exhibition on 07.04.14.

            It is the further case of the complainants after receiving such unfortunate information on 07.04.14 the complainants without wasting any time rush to the business centre/ office of the O.P No.1 at Santiniketan and ultimately one office staff of O.P No.1 confessed the real truth and suggested them to​ move to the internet surfing for getting authenticate/actual information and accordingly from the web site of O.P No.2 they came to learn the said definite information.

Before filing of the present case complainant No.1 sent Advocate’s letter to the both O.Ps on 14.04.18 claiming damage but no consequence.

            Hence, this case for negligence on the part of the O.Ps and deficiency in service claiming Rs 1 lakh as compensation, Rs. 1,50,000/- for pain and sufferings and Rs. 1,00,000/- Arts and Skills and cost of materials, Rs. 7000/- for exhibition entry and Rs. 40000/- for litigation, totaling Rs. 2,97,000/-.

            The O.P No.1 DTDC Courier and Cargo Ltd. Santiniketan has contested the case by filing written version denying all material allegations of the complainant contending, inter alia, the complainants has no locus standi to file this case and the case is not maintainable.

            It is the specific case of the O.P No.1 that the Idol was made of cement, nor made of stone as stated in the complaint. At the time of booking risk charges was not paid by the complainants’ side and according to terms and conditions complaint, if any, must be intimated within one month but in this matter the complainant was made after 5months of booking.

            It is further case of the O.P No.1 that from the receipt of the office of the O.P No.1 dated 28.08.14 it is available that the complainant side put his signature there being aware of the necessary points/matter with regards to sending of the same in destiny and there is /was no document to show the actual price of the Idol and it is also pointed out by the complainant side that the Idol was not sent for commercial purpose but for an educational exhibition. So, there is no financial loss of the complainants.

            It is the further case of the O.P No.1 that the Shivomurti was sent in a wooden made box and the same was wrapped with cloth and straw and the said box was locked but in the exhibition spot it was found without wooden box., cloth and straw, so it is crystal clear that no such mistake or fault took place under the custody of the O.P No.1.

            Ultimately the O.P No.1 submitted that there was no negligence on their part and the case is liable to be dismissed.

            The O.P No.2 DTDC Centre and Cargo Raghunathpur Baguiati, Kolkata has also contested the case by filing written version denying all material allegation of the complaint contending, inter alia, the case is not liable and the complainants has not cause of action to bring this case.       

            It si the specific case of the O.P No.2 is that it is fact that Atrayee Bhattacherjee booked one article on 27.03.14 at 7.45 P.M. At the time of booking the booking person requested Atreyee to insure those goods because those goods are valuable goods. But she ignored and booked that article on “D-series” she also did not declared the value of the sculptures which she sent through O.P No.1 Courier.

It is the further case of the op No.2 that the shipment as booked or contract is made following the​ terms and conditions where the both parties agreed and signed the contract/consignment is valid as both parties are competent to made contract.

            Ultimately the O.P No.2 prayed for dismissal the case with cost.

Considering the complaint and other materials on record with think following points are to be decided in this case.

1.  Whether the complainants are consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service or unfair trade practice on the part of the O.P.?
4. Whether the complainants are entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant No.1 Ranjan Bhattacherjee has been examined as P.W.1 and he submitted some documents. 

O.Ps have not adduced any oral documents but submitted some written documents.

Argument of the Ld. Advocate/Agent of the both parties has been heard.

Point No.1:- Evidently the complainants sent the article in question from Santiniketan to Goa for exhibition-cum-competition through O.Ps DTDC Cargo service on payment of necessary charges.

So relations between the consumers and the service provider has been established.

So, the complainants are consumers under the O.Ps.

Point No.2:- The office of the O.P No.1 is at Bolpur and part cause of action of this case is also arisen within jurisdiction of this Forum.

Total valuation of the case is Rs. 2,97,000/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:- Both points are taken up together for convenience of discussion as they are related to each other.

            The complainant in their complaint and P.W. 1 Ranjan Bhattacherjee in his evidence stated that the complainant No. 2 Atreyee Bhattacherjee in order to participate in a sculpture orientation exhibition-cum-competition at Panaji, Goa, booked three sculptures on 27.03.2014 out of which one was made of cement and other materials and two made of metals.

            In presence of both the complainants on 27.03.2014 said articles were booked in office/business dealing centre of O.P No. 1 D.T.D.C, Santiniketan and O.P No.1 issued a money receipt amounting to Rs. 4420/- on 27.03.14 at 7.45 p.m. and it is appearing from the said money receipt that all kinds of necessary charges as mentioned in the said money receipt was taken / receipt by the O.P No.1 and all charges are​ covered within the said amount.

            The original receipt dated 28.03.14 issued by O.P No.1 DTDC courier and Cargo Ltd. Santinniketan Office shows that three pieces of cement and bronze sculptures were sent to Goa to one Mr. Jhon Luis Dias by the Complainant No.2 Aytree Bhattacherjee through said courier and O.P No.1 received total Rs. 4420/- covering charges of a) tariff (include of FSC and ST), b) Vat, c) Risk charge and d) service tax.

            P.W.1 Ranjan Bhattacherjee in his evidence further stated that during transaction or while in the custody of the O.P No.2 the cement made Shivomurti (an idol) was broken/damaged due to come into contract with fire which was noticed from the personal web site of O.P No.2 DTC, North 24 parganas by tracking the same through consignment number as appearing in the money receipt issued by O.P No.1 who is an agent of O.P No.2.

            The said Shivomurti though was delivered on 04.04.14 but in broken condition to one John Luis Dais, at Panaji and the complainant for the first time received said unfortunate news /information from said John Luis and Smt. Mukta Gupta, both are organizer of said exhibition on 07.04.14.

            He further stated that on receiving such information they rushed to the office of O.P No.1 and as per advice of one of the staff of the said office on searching the web site of O.P No.2 they were confirmed about the incident.

            It appears from the assignment details dated 24.04.14 that articles were delivered to John Dias on 04.04.14.

            Web site report shows that there is remarked to the effect that on 03.04.14 as 12.50P.M. shipment on hold due to damage by fire.

The O.P No.1 and 2 also have not denied the factum of booking of three sculptures from their Santiniketan Office for sending the same to Goa for exhibition and delivery of shipment was made in damaged condition due to fire.

            During hearing of the argument Ld. Advocate/Agent of the O.Ps submitted that before filing of the case a notice was to be served upon the O.Ps by the complainant.

            In view of the judgement passed by Hon’ble National Commission in Delhi-Assam Roadways Corporation =Vs.= B.L. Sharma case dated 12.12.2002 according to Sec. 10 of  Couriers Act and ruling passed by Hon’ble Apex Court in 1997(1)SSC757 before filing of suit within six months of the time when intimation of loss or injury to the goods came is to be served upon O.Ps. If a notice as required by Sec.10 is not issued a suit would not be lie against common carrier.

            Hon’ble National Commission has been further pleased to hold that a proceeding before a consumer Forum comes within terms suit.

​

            In the present case we find from the copy of the Advocate’s letter dated 14.08.14 issued by Mr. Anup Bhattacherjee, Ld. Advocate on behalf of the complainants to the O.Ps and speed posts receipts that notice was duly served upon the O.Ps within six months from the date of knowledge of mischief.

            We find that it is the specific case of the O.P No.2 that at the time of booking the booking person requested Atreyee to insure those goods because those goods are valuable goods. But she ignored and booked that article on “D-series”.

            But the O.P No.2 did not adduce any evidence on that point.

            Even during cross examination of P.W.1 Ranjan Bhattacherjee no suggestion was given to him on that point.

            We further find that from the receipt issued by the O.P No.1 that Rs. 4420/- was received from the complainant No. 2 including “risk charges”.

            During hearing of the argument the Ld. Advocate/Agent of the O.P submitted that in the present case the complainants have claim huge amount as compensation. But they are entitled to get only Rs 100/- according to condition mentioned on the reverse side of the receipt.

            In support of his contention he cited a judgment passed by Hon’ble Apex Court in Bharati Knitting Co. =Vs.= DHL World Wide Express Courier reported in 1996(4)SCC 704, where manufacturer appears to have an agreement with German Byer for summer season for 1990 and consignment contained goods with documents. But due to some problem regarding said documents said consignment was not reached in due time and the season was over.

            Consignee agree to pay only DM 35000/- instead of invoice value DM56469.93p. Manufacturer took shelter of Hon’ble State Commission and Hon’ble State Commission has been pleased to allow Rs. 21469.03p. as DM. But on appeal Hon’ble National Commission has been please to hold that the appellant is only entitled to get to the extent of Rs. 3515/- with 18%interest. On Appeal Hon’ble Apex Court has been pleased to confirm said judgement.

            In the present case admittedly the consignment was delivered at Goa in damaged condition due to fire.

            The complainant in their complaint and evidence stoutly claimed that said damaged was caused due to negligence of the O.Ps and their employees.

            No suggestion was given to PW1 during his cross examination on this point.

            The O.Ps also did not adduce any evidence denying the said allegation.

            During hearing of the argument Ld. Advocate/Agent of the complainant submitted that the act of caught fire of sculpture cannot be treated as an act of God and onus is not upon the complainant to prove the negligence on the part of the O.Ps. 

​

            In support of his contention he cited a Judgment passed by Hon’ble Apex Court in Patel Roadways Ltd.=Vs= Birla Yamaha Ltd. case on 28.03.2000 in Appeal(civil) No. 9071/96, where in a case of sending of garments through Patel Roadways Ltd. the consignment were destroyed due to fire in go-down. Hon’ble Supreme Court has been pleased to hold that an act of God will be an extraordinary occurrence due to natural causes, which is not the result of any human intervention and which could not be avoided by any amount of foresight and care, e.g. a fire caused by lighting but an accidental fire though it might not have resulted for any act of omission of the common carrier, cannot be said to be an act of God.

            Hon’ble Apex Court further pleased to observed “even assuring that the general principle in case of tortuous liability is that the party who alleges negligence against the other must prove the same, the said principle has no application to a case covered under the carrier’s Act. This is also the position notwithstanding a special contract between the parties.”

            Ld. Advocate/Agent of the complainants further submitted that even it there was no insurance then also the O.Ps did not deny their liability.

            In support of his contention he cited another judgement passed Hon’ble Supreme Court in Nath Brothers Exim International Ltd.=Vs.= Best Road Ltd Case on 27.03.2000, where a consignment of 77 packages of Mulberry / Natural silk garment were sent from Noida to Bombay for export by Best Road Ltd. at owners risk and destroyed due to fire in a go-down.

            Hon’ble Apex Court pleased to hold that Sec.8 of the Carriers Act dealt with liability of common carrier for loss or damage caused by the neglect of the courier or his agent. The O.P is liable to be damaged to the complainants even if goods are not insured.

            Hon’ble Apex Court further pleased to hold that even if it were found that the defendant took as much care of goods as a man of ordinary prudence, would under similar circumstances, the defendant would be liable if the loss was not occasion by way of act of God or the King’s enemies, which, in case of republic states would mean the enemies of State.

            He cited another ruling reported in I(2015)CPJ 151(Tripura), where household articles were sent by truck and said truck was hijacked. The articles were not insured.

            Hon’ble State Commission has been pleased to hold that it is not necessary to the plaintiff to establish negligence of other side.

            Hon’ble State Commission further pleased to hold that expression “at own risk” does not exempt a carrier from his own negligence or the negligence of his servant or agent.

            Considering overall matter into consideration, fact and circumstances of the case and relying upon the rulings cited above, we are constrained to hold that there was negligence and deficiency in service on​ the part of the O.P No.1 and 2 DTDC and O.Ps are liable to pay adequate compensation to the complainants.

            In the present case the complainants have been claiming Rs 1 lakh as compensation, Rs. 1,50,000/- for pain and sufferings and Rs. 1,00,000/- Arts and Skills and cost of materials, Rs. 7000/- for exhibition entry and Rs. 40000/- for litigation, totaling Rs. 2,97,000/-.

            We find that in the present situation there is no objective slandered to assess the compensation of the complainant No.2 in different heads.

            But it is evident that an young girl / sculpture has lost an opportunity to participate to an important exhibition held at Goa, which certainly caused tremendous pressure upon her mind and caused mental pain and agony to her, which cannot be compensate by money value.

            However, we think ends of justice may be met up if Rs. 1,50,000/- as total compensation is awarded to the complainant No.2 and both the O.Ps are jointly and severally liable to pay the same as they have vicarious liability.

Thus both these points are decided in favour the complainants in part.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 26/2015 be and the same is allowed on contest with cost  of Rs. 2000/-.

The O.Ps (1. D.T.D.C Courier and Cargo Ltd. Santiniketan and 2. D.T.D.C Courier and Cargo, DTDC Bhwan, 404-405, Kaji Nazrul Islam Sarani,VIP Road, Raghunathpur, Baguiati, Kol 700 059Dist. North 24 Parganas) are directed to pay Rs. 1,50,000/- as total compensation to the complainant No.2 and they are liable to pay the same jointly and severally within one month from the date of receipt of a copy of this order failing which the complainant shall be at liberty to resort to due process of law and procedure. 

Copy of this order be supplied to the parties each free of cost.