IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 445/09 DATED 28.01.2010<br /> ORDER<br /> <br /> Complainant B.N.Narayanaswamy,<br /> S/o Late Narasimhaswamy Setty, R/at D.No.2223, Basaveswara Road, K.R.Mohalla, <br /> Mysore-570004.<br /> <br /> (By Sri. B.G.Busappaiah, Advocate)<br /> <br /> Vs. <br /> Opposite Party Professional Couriers, Domestic and International Courier and Cargo, No.463/8, 1st Floor, Bharath Commercial Complex, K.N.Agrahara, K.R.Mohalla, Mysore-570024.<br /> <br /> (By Sri. Jaganath Suresh Kumar, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 01.12.2009<br /> Date of appearance of O.P. : 16.12.2009<br /> Date of order : 28.01.2009<br /> Duration of Proceeding : 1 MONTH 12 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking a direction to the opposite party to pay compensation of Rs.1,00,000/- for non-delivery of the consignment to the consignee by the opposite party.<br /> <br /> 2. In the complaint amongst other facts, it is alleged that, daughter of the complainant B.N.Saraswathi is residing at Mumbai. To celebrate Gowri and Ganesha Festival, as per custom, on 19.08.2009 complainant booked a consignment containing Arishina-Kumkuma and Ayurvedic medical items with the opposite party to deliver to his daughter at Mumbai under bill NO.Mys/KAR/17-MYS-7191419. On the consignment, value of the items is written by opposite party as Rs.100/-, which is in correct. The complainant is deaf person. He paid Rs.40/- towards courier charges. The opposite party failed to deliver the consignment to the daughter of the complainant. During the course of correspondence between the parties, the opposite party informed that, the consignment is misplaced and not traceable. Since, the opposite party failed to deliver the consignment, the complainant himself constrained to travel from Mysore to Mumbai to console his daughter. On these grounds, it is prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version, admitted that the, complainant had entrusted the consignment and it collected Rs.40/-, the charges in the regular course of business. It is stating that, the complainant declared the value of the consignment as Rs.100/-. If the consignment was of high value, the complainant could have taken insurance cover or declared high value. Also, it is contended that, the complainant did not declare the contents of the consignment. Further, the receipt issued by the opposite party clearly states, the liability in case of loss or damage is limited to Rs.100/- only. The consignment in question was lost in transit. Other allegations are denied. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced certain documents. On the other hand, Manager of the opposite party has filed his affidavit and produced the document. We have heard the learned advocates for the complainant and the opposite party and perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that he is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Partly in the Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- At the outset, certain facts are admitted. Entrustment of consignment by the complainant to the opposite party to be delivered at Mumbai, is admitted. Also, admittedly the complainant paid Rs.40/- towards the service charges. Further admittedly, the consignment has not been delivered by the opposite party to the consignee. Hence, deficiency in service is admitted or proved.<br /> <br /> 8. Main dispute between the parties is, value of the consignment as well as the extent of the compensation.<br /> <br /> 9. The complainant claims that, the consignment contained Arishina-kumkuma and also certain Ayurvedic medicine, which was sent to the daughter as a custom to celebrate Gowri – Ganesha festival. Opposite party pleads ignorance contending that the complainant did not disclose what the consignment contained. Considering the facts, we believe the claim of the complainant that, the consignment had contained Arishina-Kumkuma and some ayurvedic medicine. <br /> <br /> 10. Now, point would be the value of the said Arishina-Kumkuma and the medicine. As rightly submitted for the complainant, market value of the Arishina-Kumkuma may be 25 paise or 50 paise, but sentimental value needs to be taken into consideration. Because according to the complainant, as custom, to perform Gowri-Ganesha Pooja, the complainant – father had sent the same to his daughter. Likewise, the medicine, that is, the leaves of some plants, some time even may not be have value for somebody or at the most, value may be few paisas. But, the medicine may save the life of man, which cannot be valued. In this background, we have to assess the damage or compensation and not on the basis that, the value mentioned on the consignment as Rs.100/-.<br /> <br /> 11. Much is argued regarding the value of the consignment and it was submitted for the opposite party that, if the consignment had more valuable one, the complainant ought to have informed the same to the opposite party and the same could have been covered insurance etc., But, as noted above, in all cases, market value or price alone cannot be taken into consideration. In addition to the fact noted in the earlier paragraph, take for example that, for a student appearing to an examination so far concerned to him, value of the Hall-ticket cannot be assessed, but for others it is a waste paper, which even may not cost a pai. <br /> <br /> 12. The complainant claims that, since the consignment was not delivered, he personally went to Mumbai to console his daughter and spent lot of money for which tickets are produced. This aspect, we do not wish to appreciate and on that count, under the circumstances, we feel it not just to award any compensation. <br /> 13. As regards the liability of the opposite party mentioned in the receipt at Rs.100/-, there is no sufficient and cogent evidence to hold that such binding contract was entered into between the parties. Merely because, the complainant has signed the receipt cannot be concluded that, the complainant agreed or admitted for the said limited liability. <br /> <br /> 14. We do appreciate that the opposite party fairly admitted the loss of consignment, but it is relevant to note that, in spite of lot of conversations and correspondences between the parties, and even the opposite party admitting the liability atleast to certain extent, though expressed willingness to pay that amount, till to day, that is not paid. When the consignment was lost, if the opposite party had paid the amount to the complainant atleast to the extent of the admitted liability, then, it was different aspect. The complainant had to make lot of correspondences and then to file the complaint by engaging advocate. Under the circumstances, reasonable compensation shall have to be awarded to the complainant.<br /> <br /> 15. Accordingly, we answer the point partly in affirmative.<br /> <br /> 16. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs.3,000/- to the complainant towards compensation within a month from the date of the order, failing which the amount shall carry interest at the rate of 10% p.a.<br /> 3. The opposite party shall pay a sum of Rs.2,000/- towards cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 28th January 2010)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />