BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.181 of 2016

Date of Instt. 21.04.2016

Date of Decision: 02.05.2018

SD Hans S/o Sh. Thoru Ram R/o H. No.8/1, Link Nagar, Ladowali Road, Jalandhar City.

..........Complainant

Versus

1. Dilbagh Singh (Franchise Officer) D.T.D.C Shop No.29 Doaba Khalsa School, Ladowali Road, Jalandhar.

2. Mr. Sandeep Duggal, Authorized Representative Manager/Incharge of D.T.D.C, Basra Complex Near Pathankot Byepass Jalandhar City.

3. Mr. Rakesh Kushwah Authorized Representative/Manager of D.T.D.C c/o D.T.D.C SCO 267 Sector 35-D Chandigarh.

4. D.T.D.C Courier & Cargo Ltd through its MD/Director Regd Office No.3, Victoria Road, Banglore560047.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Aditya Jain, Adv Counsel for the Complainant.

Sh. Sachin Sharda, Adv Counsel for OP No.1 to 4.

Order

Harvimal Dogra (Member)

1. This complaint is filed by the complainant for seeking a relief that the OP may be directed to pay the cost of LED of Rs.28,900/- along with Rs.2150/- as booking amount of the consignment with OPs and further OPs be directed to pay Rs.1,00,000/- as damages on account of mental tension and harassment suffered by the complainant and be also directed to pay Rs.1,00,000/- for deficiency in service and unfair trade practice as well as also pay the cost of the present complaint, to the tune of Rs.11,000/-.

2. Brief facts of this complaint are that the OPs are in the business of Courier & Cargo Services and running a business under the name and style of D.T.D.C Courier & Cargo and deals in courier and cargo. The complainant's son, who is residing in Banglore, got married in December, 2014 and in order to give a gift for newly wedded couple, complainant purchased one Sony LED 32R 412B of Rs.28,900/- from Rimpi Sales Corporation, Jalandhar. In order to send the said LED at Banglore, where son of the complainant is residing. The complainant availed the services of OPs and booked the said LED with OP No.1, who is Franchise of OP No.4, vide consignment No.D20223493, Franchise Code JF/506, dated 01.01.2015 for Banglore.

3. At the time of booking the aforesaid LED, OP No.1 told the complainant that in order to cover the damages to the product, the complainant should got it insured and as for which the complainant paid Rs.578/- for insurance of the said LED consignment and the complainant paid total Rs.2150/-. On 02.01.2015, the complainant approached the OP No.1 regarding statues of consignment, who handed over to the complainant consignment tracking invoice, when complainant minutely saw the detail of the consignment tracking invoice, complainant shocked to see that INV insurance amount was mentioned therein as Rs.28.90 only. When the complainant asked about the same to OPs, who told that this has been shown in their system. Son the complainant received the said consignment of LED in a broken condition, the LED was brutally damaged, which shows that the LED had been roughly handled by the OP. The complainant came to know about the said fact and at once approached OPs, but OPs did not pay any heed to the genuine request of the complainant and put off the matter on one pretext or the other. The complainant had also sent a letter dated 24.01.2015 to OPs regarding damage of LED, but OPs did not reply the same, then the OP No.1 also confirmed the said fact through letter about the consignment and its insurance amount. Thereafter, the complainant sent a legal notice, but all in vain and accordingly, necessity arose to file the complaint and hence, this complaint filed.

4. Notice of the complaint was given to the OPs and accordingly, all the OPs appeared through its counsel and filed written reply, whereby controverted the story narrated by the complainant, by taking preliminary objections that the complaint of the complainant is liable to be dismissed in view of the express clause of arbitration provided in the terms and conditions mentioned on the overleaf of the consignment note. It is clearly mentioned on the consignment note itself that “Please refer to only terms and conditions printed overleaf of this consignment note before tendering a shipment to DTDC”. Clause 25 of the terms and conditions clearly lays down that in case of any dispute, the matter will be referred to the arbitration of two arbitrators, one to be appointed by the sender and the other by the DTDC. Thus, in view of the arbitration clause, the present complaint is not maintainable and is liable to be dismissed and further averred that the complaint filed by the complainant is not maintainable because he has tried to misconstrue the contents of the policy of the complainant. On merits, it is admitted that the complainant got booked a consignment for sending to Banglore, but in regard to damage to the product, so sent by the consignment has not been denied by the OP specifically rather the OP took a plea that there is no deficiency in service on the part of the OP and as such, OPs are not not liable to pay any damages to the complainant, the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW-1 along with some documents Ex.CW-2 to Ex.CW-15 and closed the evidence.

6. Similarly, counsel for OPs tendered into evidence affidavit of the OP as Ex.OP/A and closed the evidence.

7. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

8. In this case, the complainant has submitted his own affidavit Ex.CW-1 and whereby recited the entire story as described in the complaint. Further, the OP has brought on the file bill/invoice issued by the Rimpi Sales Corporation, Jalandhar, whereby Sony LED was sold to the complainant for an amount of Rs.28,900/-, the said invoice is Ex.CW-2 and further complainant proved on the file photostat copy of the receipt issued by the OPs, at the time of booking and handing over the consignment of LED and this receipt Ex.CW-3 itself established that the OPs had charged Rs.2150/- as services charges for carrying the LED from Jalandhar to Banglore and in this receipt Ex.CW-3, the risk coverage column is also available and the liability of the risk coverage is upon the carrier not on the owner, means the risk will be covered by the carrier i.e. OPs and further complainant brought on the file copy of Consignment Tracking Invoice Ex.CW-4 and screen shot of the damage LED are Ex.CW-5 and Ex.CW-6 and then complainant sent two letters to the OP for indemnify the damages in view of the insurance policy, these letters are Ex.CW-7 and Ex.CW-8 and then complainant also produced on the file copy of legal notice Ex.CW-9 and postal receipts. In order to defuse the evidence of the complainant, OP has tendered into evidence affidavit of Rajeev Chandan as Ex.OP/A.

9. From the documents as available on the file i.e. receipt issued by the OP Ex.CW-3 itself established that the consignment of LED was booked and handed over by the complainant to OP, after making a payment of Rs.2150/- as services charges and these factum have not been denied by the OP in the written statement rather admitted that the complainant sent the consignment through OP No.4 to his son at Banglore. It is admitted that the allegations of the complainant that he got insured the consignment by making a payment of Rs.578/-, but this fact is not established because the receipt issued by the OP Ex.CW-3 does not bifurcate the amount of Rs.2150/- as insurance charge of Rs.578/-. Apart from that the complainant has not brought on the file any insurance policy. So, this version of the complainant is not established and further, complainant alleged in para No.6 of the complaint that the OP has charged a sum of Rs.578/- as insurance premium, but in the Consignment Track Invoice Ex.CW-4, the said premium amount has been shown Rs.28.90/-, but this version of the complainant is not tali with any other document, where from we can construe that the OPs have ever charged Rs.578/- as insurance premium. So, this version of the complainant is again not established from any angle.

10. Coming to the legal aspect raised by learned counsel for the OP that as per Clause-25 of the terms and conditions, this Forum has no jurisdiction because the parties has already agreed that in case of any dispute, the matter will be referred to the Arbitration and as such, this Forum has no jurisdiction. First of all, in order to give strength of this submission, the OP has not brought on the file any terms and conditions nor the said terms and conditions have been mentioned/described on the receipt Ex.CW-3 nor on overleaf of the said receipt. So, in the absence of any terms and conditions or clause, which give right to party to get the matter settled only from arbitrator. So, in the absence of that document, the version of the OP is not established. Moreover, we are of the opinion that if there is any clause in the terms and conditions for referring the matter to arbitration even then under Section-3 of the 'Consumer Protection Act', this Forum has additional remedy to entertain the complaint despite Arbitration Clause.

11. Further coming to the main controversy, whether the consignment sent by the complainant through courier of the OP was reached as destination as it is, as it was packed and handed over to the OP. Obviously, we have to accept that the product was handed over by the complainant to the OP before make a packing and seal to the said product, means that the product was in a perfect condition at that time, but the screen shots produced on the file by the complainant Ex.CW-5 and Ex.CW-6 established that the said LED was in a broken condition, when received by the son of the complainant at Banglore and moreover, this factum has not been specifically denied by the OP. So, if the facts are not denied, it presume the same are admitted. The OP has simply took the plea that there is no deficiency on the part of the OP and as such, the OPs are not liable to pay any damages to the complainant, when facts in regard to receive a broken LED by the son of the complainant, then there remains no doubt that there is a fault and negligence on the part of the OP, who under took to bear the risk, if any damages caused to the product and the said risk is owned by the OP in its receipt Ex.CW-3, wherein one column is categorically created showing risk coverage, owner or carrier, the column of the courier, is ticked by the OP at the time of issuing the said receipt. So, this factor itself is sufficient to cause liability upon the OP to indemnify the loss of the LED, to the complainant. So, with these observations, we are of the considered opinion that there is a negligence and deficiency in service on the part of the OPs, because as per settled law, when any product/consignment sent through courier, the same should be reached at the destination as it is handed over, but in this case, had not happened so. Thus, the OPs are liable to compensate the complainant by paying the cost of the product as well as compensation and litigation expenses.

12. As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to pay the cost of LED of Rs.28,900/- with interest @ 12% per annum from the date of booking i.e. 01.01.2015, till realization and further OPs are directed to pay compensation of Rs.15,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

02.05.2018 Member President