Haryana

Ambala

CC/254/2018

M/s Carezone Health Care - Complainant(s)

Versus

D.T.D.C. Courier - Opp.Party(s)

18 Jun 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint case no.        :  254 of 2018

                                                          Date of Institution         :  10.08.2018

                                                          Date of decision   : 18.06.2019.

 

M/s Carezone Health Care through Proprietor Shri Suraj Bisht, 15, near Dhulkot Gurdwara, Senanaar, Ambala City.

                                                                                       ……. Complainant.

 

1. D.T.D.C. Courier HUB Express Ltd., Macchi Mohalla, Palledar Mohalla, Ambala Cantt.
2. DTDC Express Ltd., Regd. Office No.3, Victoria Road, Bengluru – 560047.

 

               ..…. Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member,

Shri Vinod Kumar Sharma, Member.                 

                            

Present:       Shri Neeraj, Advocate, counsel for complainant.

Shri Bhupinder Singh Walia, Advocate, counsel for OPs.

 

Order:        Smt. Neena Sandhu, President

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to them:-

1. To refund the courier charges of Rs.768/-.
2. To pay Rs.1,00,000/- on account of loss of business.   
3. To pay Rs.40,000/- as compensation for the mental agony and physical harassment suffered by him.
   382.  

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that on 23.06.2018, the complainant had sent a parcel through OPs to M/s Maahi Medical Hall, Chhoti Bazaar, Near Pani Ki Tanki state, 09, Bahraich (Uttar Pradesh)-271801 by courier by paying a sum of Rs.768/-. As the parcel was very urgent and the OPs assured that the parcel will be delivered within two or three days to the addressee. The complainant verified from the addressee regarding the parcel, but it was not received by the addressee. He inquired from the OPs about the whereabouts of the parcel, but they did not give satisfactory reply and were hitting around the bushes. Non delivery of the parcel to the addressee, has caused loss to the business and the proprietor of the complainant suffered a lot of mental agony and physical harassment. By not delivering the parcel to the addressee, the OPs had committed deficiency in service. Hence, the present complaint.

2.                Upon notice, OPs appeared through counsel and filed written version and has raised preliminary objections that this Forum has no jurisdiction to adjudicate the matter involved in the present complaint; complainant is not consumer as he had sent the parcel to the addressee for the commercial purpose; in view of the Clause No.25, regarding arbitration, the complainant has no locus-standi to file the present complaint. On merits, it is stated that the complainant had not disclosed any booking particulars. Even the receipt, vide which goods were booked, had not been produced. If any goods as alleged by the complainant were booked with the OPs, then in the normal circumstance, he would have given the number of the receipt and also would have attached its copy with the complaint, but the complainant neither gave the receipt no. nor attached the copy of receipt with the complaint. Even the complainant had not disclosed as to which articles were actually sent by him. From these circumstances, it can safely be inferred that the complainant has concocted the story simply to get the compensation from the OPs. There is no deficiency in service on the part of the OPs, therefore, complaint filed by the complainant may be dismissed with heavy cost.

3.                The ld. counsel for the complainant tendered affidavit of Suraj Bisht, Proprietor of complainant’s firm as Annexure CW-1/A alongwith documents as Annexure C-1 to C-4 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs tendered affidavit of Tajinder Singh, Assistant Manager- Security and Vigilance, Chandigarh Regional office, DTDC Express Ltd. as Annexure OP-A alongwith and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel for parties and carefully gone through the case file and also the written arguments filed by the learned counsel for the OPs.

5.                At the outset, the ld. counsel for the OPs has raised objection that the complainant is not a consumer qua the OPs as envisaged u/s 2(1)(b) of the Consumer Protection Act, 1986, because, they are doing the business of medicine and had hired their services for the commercial purposes. In para No.9 of the complaint, it is stated that the complainant had suffered loss in the business, as such, the complainant is not a consumer, therefore, complaint filed by the complainant is liable to be dismissed on this ground only.

6.                To this effect, the ld. counsel for the complainant has argued that Shri Suraj Bisht is the proprietor of M/s Carezone Health Care i.e. complainant and is doing the business of medicine, for earning his livelihood by way of self employment and hired the services of the OPs by paying the consideration amount of Rs.768/- to deliver a parcel to the addressee. Thus, as per explanation of Section 2(1)(d) of the Consumer Protection Act, 1986, which reads as under:-

          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. The complainant is a consumer.

7.                The complainant in this case is running a proprietorship concern. There is nothing on record that proprietor of the complainant firm is doing the business at a very large scale by employing number of persons with an intent to earn huge profit and is not doing business, by way of self employment with a view to earn his livelihood. Therefore, the complainant falls within the definition of consumer as envisaged u/s Section 2(1)(d) of the Consumer Protection Act, 1986.

8.                The ld. counsel for the OPs has raised another objection that in view of the Clause No.25 regarding arbitration, of the terms and conditions printed on the backside of the receipt, the present complaint is not maintainable before this Forum. The ld. counsel for the complainant has argued that being a consumer, complainant is entitled to file a complaint before this Hon’ble Forum as per the Section 3 of the Act, The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. In the case of Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd., 2015 (3) CLT 16, the Hon’ble National Commission has held that the provisions of Section 3 of the Consumer Protection Act are in addition to the other remedies available to a consumer. The availability of arbitration as a remedy does not debar the complainant from approaching a consumer forum in the case of deficiency in the services rendered to the consumer by the service provider or adoption of unfair trade practice. In view of the Section 3 of the Act and the law laid down by the Hon’ble National Commission in the aforesaid case, this objection raised by the ld. counsel for the OPs, is baseless, hence, rejected.  

9.                 On merits, the ld. counsel for the complainant has argued that on 23.06.2018, Shri Suraj Bisht, the proprietor of the M/s Carezone Health Care i.e. complainant booked a parcel with the OP No.1, to send it to the addressee by paying consideration amount of Rs.768/-. However, the OPs neither delivered the said parcel to the addressee nor had given any satisfactory reply to the complainant.

10.              On the contrary, the ld. counsel for the OPs has argued that the parcel/consignment was not insured by the consignor as per the policy of the company. If the parcel is not insured, then the liability of the company is restricted to Rs.100/- only. The complainant had neither given the description of the goods nor its value contained in the parcel. He has not produced the receipt vide which goods were booked. As the complainant had not booked any parcel with the OPs, therefore, question of suffering any loss, does not arise. The complainant has concocted a story simply to extract money from the OPs. Therefore, the present may be dismissed with heavy cost.

11.               The complainant in order to prove this fact that he had booked a consignment with the OPs, has placed on record a copy of consignment receipt as Annexure C2, tracking report Annexure C3 and copy of the consignment register of OP No.1, for the period from 02.06.2018 to 28.06.2018 Annexure C4. From the copy of the consignment register of OP No.1 (Annexure C4), it is evident that on 23.06.2018, complainant booked a consignment with the OPs at Ambala having consignment No.D43828242 and the OPs charged Rs.768/- as courier charges. This fact that the OPs booked the parcel of the complainant vide Consignment No.D43828242 to deliver it to the addressee, gets fortified from the consignment receipt Annexure C-2. From the tracking report of the consignment bearing No.D43828242 Annexure C3, it is evident that the said consignment was not delivered to the addressee till 19.07.2018. No such document has been produced by the OPs to prove this fact that they have delivered the said consignment to the addressee or returned the same to the complainant. The allegations of the OPs that the complainant did not disclose the items contained in the parcel, is baseless, because, the OPs should not have accepted the consignment without the declaration of the contents of the parcel. Even the plea of the OPs that as per policy of the company, the liability of the company is restricted to Rs.100/-, in case, the consignment is not insured, is also not tenable, because, the OPs have not produced any policy document containing such terms and conditions in this regard. Even it is not the case of the OPs that at the time of booking of the consignment, they apprised the complainant to get the parcel insured and inspite of that, the complainant refused to get the same insured. Facing with this situation, we do not hesitate to conclude that the OPs have failed to prove their case. Neither by delivering the parcel to the addressee nor returning the same to the complainant, the OPs have committed deficiency in providing services to the complainant and are thus liable to indemnify the complainant for the loss suffered by the complainant.

12.              Now the question which arises for consideration is what should be the quantum of indemnification. From the Invoice dated 23.06.2018 Annexure C1, it is evident that the medicines which the complainant had handed over to the OPs to send it to the addressee, were worth Rs.40,076/-. The OPs have not raised any doubt about the said invoice. Therefore, we are of the view that the OPs are liable to indemnify the complainant to the tune of Rs.40,076/- for the actual loss suffered by the complainant, and not Rs.1,00,000/- as sought for by the complainant. The Ops are also liable to refund the courier charges of Rs.768/-. As such, the OPs are liable to pay Rs.40,844/- to the complainant alongwith interest. The OPs are also liable to compensate the proprietor of the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.

13.              In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs in the following manner:-

1. To pay Rs.40,844/-, alongwith interest @ 7% per annum w.e.f. 10.08.2018 i.e. the date of filing the present complaint till its realization.
2. To pay Rs.3,000/- as compensation for mental agony and physical harassment suffered by the proprietor of the complainant.
3. To pay Rs.2,000/- as litigation expenses.

 

14.              The OPs are further directed to comply with the aforesaid directions within the period of 30 days from the date of receipt of the certified copy of this order, failing which, the awarded amount shall carry interest @ 9% per annum for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :18.06.2019.

 

                        Sd/-                               Sd/-                                  Sd/-

          (Vinod Kumar Sharma)       (Ruby Sharma)                  (Neena Sandhu)

              Member                            Member                            President