KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 217/2010
JUDGMENT DATED: 25-02-2011
PRESENT:
JUSTICE SHRI.K.R. UDAYABHANU : PRESIDENT
SHRI. S. CHANDRA MOHAN NAIR : MEMBER
1. Director General Post,
New Delhi-110 014.
: APPELLANTS
2. The Postmaster,
Civil Station.P.O,
PIN – 673 020.
(By authorised Representative:Sri.R.P.Sandeep)
Vs.
Dr.C.C.Suresh,
5/314 B, VT Road, : RESPONDENT
Eranhipalam, Civil Station.P.O,
Calicut-673 020.
JUDGMENT
SHRI.S. CHANDRAMOHAN NAIR : MEMBER
It is aggrieved by the directions contained in the order dated:10/3/2010 of CDRF, Kozhikkode in CC.392/09 that the present appeal is filed by the opposite parties who are under directions to pay to the complainant a sum of Rs.16,960/- and to pay Rs.5000/- as compensation.
2. The case of the complainant before the Forum bereft of unnecessary details is that the complainant’s son who was in Berlin, Germany sent a parcel containing certain items to the complainant and the relatives through DHL courier service in Berlin and the same was to be delivered by the opposite parties at the address of the complainant. The complainant has submitted that the items were one i-pod, one CD player and two wrist watches and when the parcel was taken open delivery as per the request of the 2nd opposite party the articles were found lost and the complainant alleges deficiency of service on the part of the opposite parties and the complaint was filed seeking compensation of Rs.75,000/- towards the value of the articles.
3. Resisting the averments in the complaint the opposite parties filed version wherein it was contended that the complaint was not maintainable as against the opposite parties as there was no cause of action against the opposite parties and the opposite parties had not obtained any consideration for the delivery of the parcel sent through the DHL courier service in Berlin. However it was admitted that the parcel addressed to the complainant was received at the 2nd opposite party’s office on 25/9/2007 through Kochi Foreign Post office but it was contended that the parcel was received in a damaged condition and the complainant was requested to take open delivery of the parcel on 25/9/2007 itself. It is their further case that the parcel did not contain any articles as alleged by the complainant and they are in no way responsible for the loss of the items if at all there were any. Contending that there was no deficiency of service, the opposite parties prayed for the dismissal of the complaint with cost.
4. Before the Forum below the complainant filed affidavit and Exts.A1 to A12 were marked on his side. On the side of the opposite party Exts.B1 to B4 were marked. It is based on the said evidence that the Forum below passed the order after adverting to the question of the complainant’s position as a consumer and the reliefs to be granted to the complainant.
5. Heard the representative of the appellants and the representative of the respondent/complainant. We have also perused the documents produced from the respective sides.
6. The representative of the appellants vehemently argued before us that the Forum below had passed the order without any jurisdiction and that the appellants were in no way connected with the loss of the articles contained in the parcel. It is argued by him that the parcel was passed through various units and the exact points where the abstraction, if any, had taken place could not be established and in such a situation the order of the Forum below directing the opposite parties to pay the amounts cannot be sustained. He has also advanced the contention that the complainant himself has stated that it might be from the office of the Customs and Central Excise authorities that the pilferage might have happened and rule 81 of the Foreign Post Manual would support that the inward foreign articles shall be submitted to the Central Excise Department for inspection and the loss might have occurred at the Central Excise Examination Department. He has also argued for the position that the Forum ought to have dismissed the complaint rather than directing the opposite parties to pay the amounts as Sec.6 of the Post Office Act gives ample protection to the opposite parties in a case where the article is lost in transit.
7. On the other hand, the representative of the respondent/complainant supported the findings and conclusions of the Forum below. However it is also argued by him that the Forum below had ordered only a nominal amount towards compensation and it was avoid a further litigation that the complainant/respondent had not filed any appeal against the order of the Forum below. It is submitted by him that the complainant’s son had purchased the items with the scholarship he got for his higher studies in Berlin and the items sent were having some sentimental value and in such a circumstance the Forum ought to have awarded a higher amount as compensation. However it is his case that Ext.A7 and A12 would clearly show that the DHL courier had accepted the items described in the complaint. He invited our attention to Ext.A7 and A12 to support his contentions and argued for the position that the appeal is only to be dismissed with compensatory cost.
8. On hearing the parties and also on perusing the documents produced by him we find that it is the admitted case of both the parties that the parcel was sent to the complainant and the complainant had taken delivery of the open parcel which contained no articles on 25/9/2007. The appellants would argue that the complainant cannot be a consumer as they have received no remuneration or consideration for the service rendered by them. It is also seen that the parcel reached the foreign post office at Delhi on 20/9/2007. It is seen that on reaching the parcel in India the Indian Postal Department was the custodian of the parcel and it was presented for customs inspection in the presence of the postal authorities. The representative of the appellants argued that the complainant himself has stated in Ext.A3 that the items were stolen by the customs people either at Kochi or Delhi as the packets were filled with papers from Customs and Central Excise Department such as Central Excise tariff, R.K.Jain Central Excise Tariff, Weekly Excise Law Times and a Weekly of Customs, Excise and Examination Laws. Though the representative would argue that the complainant was sure that the pilferage occurred at the Central Excise Department as per Ext.A3, we are not inclined to accept the said argument of the representative of the appellants. It is to be noted that after entrusting the parcel to a courier service or to the parcel department the complainant will be having no control over the items and it is the postal department/courier service who are handling the items. The sender can only imagine or apprehend or presume a point at which the loss might have occurred. It is to be found that in Ext.A3 the complainant had expressed his anguish by stating that the items might have been stolen by the Excise Department as certain papers relating to the Excise Department were seen in the parcel. The letter cannot be a conclusive proof that the items are stolen by the Excise Department. It is to be further found that on reaching the parcel in India Indian Postal Department was the custodian of the items and the parcel was presented before the Customs Department for inspection in the presence of the Postal authorities. Hence it cannot be concluded that the Excise Department was responsible for the loss of the articles.
9. The complainant has stated that the parcel contained one i-pod, one CD player and 2 wrist watches. We have perused Ext.A7 and it is found that one CD player, watches two numbers, one i-pod player were entrusted with the DHL courier at Berlin and the parcel reached Delhi Authority Post office on 20/9/2007. It is to be noted that if the parcel was received in a damaged condition it was the foreign post office at Delhi to make a complaint against the parties who had sent the same to Delhi Foreign Post Office. The complainant cannot be held responsible for the damage to the parcel. It is also to be seen that on 25/9/2007 the Calicut Post Office/ 2nd opposite party had received the parcel in a damaged condition. Hence it is the accepted case of the opposite parties that they have received a damaged parcel. If the parcel was received in such a damaged condition they ought not to have accepted the parcel. Instead of doing so, they have received the parcel and they have delivered the parcel in the damaged condition to the complainant and compelled him to take an open delivery of the parcel. We have also noted that the items were purchased as per Ext.A12 and were sent as per Ext.A7. We do not find any reasons to disbelieve the case of the complainant. We also find that Forum below had appreciated every aspect of the case in its correct perspective and as directed the opposite parties are to pay an amount of Rs.16,960/- being the value of the articles and also a nominal compensation of Rs.5000/- to the complainant. We do not find any reasons to interfere with the order of the Forum below.
In the result, the appeal is dismissed. The order dated:10/3/2010 of CDRF, Kozhikkode in CC.392/09 is confirmed. It is also made clear that the opposite parties/appellants are directed to pay the amount within one month from the date of receipt of the copy of this order failing which the total amount of Rs.21,960/- shall carry interest at 12% per annum on the date of the order of the Forum below till the date of payment. In the nature and circumstances of the present appeal the parties are directed to suffer their respective costs.
S. CHANDRA MOHAN NAIR : MEMBER
JUSTICE K.R. UDAYABHANU: PRESIDENT
VL.
