DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No542/2008

Sh. S. K. Singh

A-88/3, SFS Flats,

Saket, New Delhi-110017                                            ….Complainant

Versus

1.      DIGI DOC POINT

          216, Abantika Building,

          J Block Market,

          Saket, New Delhi

2.      Blazeflash Couriers Ltd.

          RZ-A-144, Gali No.9,

          Road No.4, Mahipalur Extn.

          New Delhi-110037                                    ….Opposite Parties  

                                                  Date of Institution      : 23.08.08          Date of Order                : 07.04.18

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Case of the Complainant, in nutshell, is that he was in urgent need to send key of the shelf to Sh. Umeshwar Prasad Singh at Sillavrat, North Srikrishna Puri, Bording Road, Patna and, therefore, he booked the consignment containing the important key of the shelf with OP No.1 who is an authorized agent of OP No.2 on 02.08.08 with an intimation that the consignment needed to be delivered on priority basis. However, the OP No.1 failed to deliver the consignment to the addressee even after expiry of 19 days inasmuch as the status report downloaded from the website of OP No.2 on 22.08.08 clearly showed that the consignment was yet to be delivered. The matter was pursued with the OPs but in vain. Hence, pleading gross deficiency in service on the part of OPs, the complainant has filed the present complaint for directing the OPs to make immediate delivery of the above said consignment to the addressee, to pay Rs.50,000/- towards loss which he suffered due to non- delivery of  the consignment to the addressee, to pay Rs.40,000/- as exemplary cost towards damages, harassment and mental agony suffered by him due to the acts of the OPs and to pay Rs.10,000/- as litigation cost.

          OP No.1 has been proceeded exparte.

In its reply OP No.2 has inter-alia submitted that OP No.2 has not received any complaint of non- delivery from the addressee till date and, therefore, in the absence of the addressee or any positive evidence the case of the complainant does not “begin to jell.” It is stated that one envelope was received by OP No.2 through OP No.1 against Consignment Note No. 211509591 dated 02.08.08; that at time of booking the consignor had disclosed that the booked envelope was containing documents and declared its value as Rs.60/-. It is denied that the consignor had disclosed that the booked envelope was containing keys of a shelf nor the said envelope was accompanied with any pre-alert memo or caution note to suggest the same. It is stated that since the booked consignment has to pass through several hands and mode of transportation, therefore sometime it happens that the proof of delivery is lost in transit but it is rare as the OP No.2 takes care of each parcel booked by it. It is stated that undelivered envelope or the proof of delivery in respect of the impugned consignment note, in the normal course, ought to have been sent to the OP No.1 for collection by the consignor.  It is stated that in any case the case is hit by  the doctrine of limited liability as the Complainant had agreed to restrict his claim to damages of Rs.100/- only in the event of non- delivery of the envelope and, therefore, the complainant cannot claim more amount than that what was agreed upon.  The relevant term of the booking is reproduced as hereunder:-

“The liability of Blazeflash for any loss or damage to the consignment in transit or for any delay in delivery of the consignment shall be strictly restricted/limited to Rs.100/- for each domestic consignment and Rs.1,000/- for each international consignment. Further Blazeflash shall also not be responsible for any consequential losses or damages or compensation. No claim or complaint shall be entertained after one month from the date of the consignment note, as we do not keep record of pertaining to proof of delivery, after expiry of the said period. The above condition are in addition to the terms and conditions mentioned on the reverse, which have been read over to me/ us and have been understood and accepted to me/us. The consignor himself shall collect the P.O. from us within one week of booking.”

It is pleaded that if at all there is any deficiency in service the liability of OP No.2 is, thus, limited to Rs.100/-. Prayer is for dismissal of the complaint.

In the rejoinder the complainant has inter-alia stated that from a perusal of Annexure-1 (perhaps courier receipt) it is apparent that he had paid consideration of Rs.65/- for delivery of the consignment which itself negates the averment made by the OPs that at the time of booking the complainant had declared the value of envelope  as Rs.60/-. It is denied that that the case is hit by the doctrine of limited liability.  

Complainant has filed his own affidavit in evidence. The complainant has marked documents as Ex. C1, Ex. C2 in the affidavit and as Annexure C-1 and C2 in the complaint but the corresponding markings have not been done on the documents.

On the other hand, affidavit of Sh. Arvind Varshney, General Manager (Administration & Legal Affairs) has been filed in evidence on behalf of the OP No.2.

We mark the documents filed on behalf of the complainant as Mark A and Mark B for the purposes of identification.

Mark A is the copy of a courier receipt containing general terms and conditions and Mark B is the copy of tracking report downloaded on 20.08.08.

Written arguments have been filed on behalf of the complainant and OP No.2.

OP No.2 has placed reliance on number of judgments in the reply and written arguments but copies of no such judgments have been filed on the record for our perusal.

We have heard the oral arguments on behalf of the complainant and have also gone through the file very carefully.

The Complainant has not filed the affidavit of Sh. Umeshwar Prasad Singh, addressee which could be the best evidence to prove that the consignment in question was not received by the addressee even after 20.08.08. However, at the same time the OPs have also failed to place the copy of delivery report on the file.

In the courier receipt the value of the consignment had been declared as Rs.65/-.  It does not contain the fact that the envelope was containing one shelf key and the same was needed to be delivered on priority basis.  The tick mark of P has been marked on word “document”. Therefore, there is every reason to believe that the complainant had declared the contents of the consignment as having some document.

 Without going into any such dispute all what we are required to see is whether the said consignment had infact been delivered to the addressee or not. Mere failure on the part of  the complainant to file the affidavit of the addressee does not exempt the OPs from their liability to prove the delivery of the consignment and they could have very easily and legally proved this fact by  producing a copy of the delivery report or in case the same was not delivered to the addressee  for any reason to produce on file the retuned envelope containing the consignment. Therefore, in the facts and circumstances of the case, we hold that the said consignment was infact not delivered to the addressee either upto 20.08.08 or thereafter also and hence the OPs committed deficiency in service. 

The courier receipt contains general terms and conditions.  It amounts to a contract entered into between the parties. Therefore, both the parties were required to be strictly governed by the general terms and conditions in the courier receipt.  Clauses 6,8 & 10 of the terms and conditions read as under:-

“6.     The liability of BLAZEFLASH for any loss of damage to the shipment and will be strictly limited to Rs.100.00 for each Domestic shipment and 1,000/- for each international shipment. More over BLAZEFLASH shall whatsoever not be responsible for any consequential losses.”

“8.     This contract shall be modified only by mutual consent in writing and can be terminated by either party with a minimum prior written notice of one month to the other. Any such terminations shall not effect all rights and remedies accrued to any party.”

“10.   Queries on consignment should be raised within 30 days from the date despatch of consignment.”

Therefore, these clauses are different from the relevant term reproduced in the reply of OP No.2.  OP No.2 should not have tried to mislead this forum by reproducing a wrong term of the booking in its written statement.   We hope and expect that OP No.2 shall not do so in future.

 The liability of OP No.2 as per clause 6 of the general terms and conditions of the courier receipt filed on behalf of the complainant is strictly limited to Rs.100/- for each domestic shipment. This was a domestic shipment of the consignment. The complainant is bound by the said stipulation contained in clause 6. Therefore, we hold that the OP No.2 is liable to pay Rs.100/- towards loss of consignment in question to the complainant. However, the OP No.2 did not make any effort to settle the dispute and preferred to contest the complaint.  Therefore, keeping in view the facts and circumstances of the case the ends of justice would be met if the OP No.2 is also directed to pay Rs.5000/- (Rs. five thousand only) in lumpsump  to the complainant towards harassment, mental agony and cost of litigation.

In view of the above discussion, we allow the complaint against OP No.2 and direct OP No.2 to pay Rs.100/-towards loss of consignment in question and Rs.5000/- (Rs. five thousand only) towards harassment, mental agony and cost of litigation to the complainant  within 30 days of receipt of copy of this order failing which OP No.2 shall become liable to pay interest @ 6% p.a. on the amount of Rs. 5100/- from the date of filing of complaint till realization. 

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 07.04.18.