BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE URBAN

26^th DAY OF JUNE 2015

               PRESENT:- SRI. J.N.HAVANUR                  PRESIDENT

                                SMT. M. YASHODHAMMA        MEMBER                                                         

                 O R D E R

SRI. J.N. HAVANUR, PRESIDENT              

This is a complaint filed by the complainant against the OPs.1 & 2 praying to pass an order directing the OPs to pay a compensation of Rs.1,00,000/-.

2. The brief facts of the complaint can be stated as under:

The complainant is residing in Bangalore, Viveknagar and is doing Master in Physiotherapy and he has sent a courier through DTDC courier on 15.05.2013 from Ejipura DTDC branch to Ahmedabad (Zakir Husain, 3, MInal Society, behind Royal Akbar tower, P.O Juhapura, Sarkhej Road, Ahmedabad-380055).  As per DTDC courier was supposed to reach destination in 3-5 working days.  As the courier was not delivered as per the time limit, complainant went and enquired on the same to Ejipura DTDC Branch office.  The officer of the Ejipura DTDC branch gave an update that the courier is stuck in Mumbai and it will take couple of days more to reach the destination and when complainant had been to Ejipura office many times they used to behave irresponsibly.  Complainant patiently waited for couple of more days and then he went to Ejipura DTDC and the office in charge informed that the recipient in Ahmedabad rejected the courier, so courier will be returning back to Ejipura DTDC branch soon.  Complainant called up Zakir Hussain who was supposed to receive the courier and enquired whether he rejected the courier and he informed the complainant that he has not received the courier from DTDC courier.  As per update from Zakir Husain on not receiving a call from DTDC or a direct receipt of the courier to his above mentioned address, complainant immediately approached the DTDC office in Victoria Layout, Richmond Road, Bangalore.  He is completely shocked on the misguidance by the officers in DTDC.  This was complete irresponsible act by DTDC couriers which is supposed to be a public service by common man.  This incident does not allow the complainant to rely on DTDC courier any more.  So, he approached DTDC Regional office in Chamrajpet and spoke to Mr.Mohan Raj and on the next visit i.e., on 06.06.2013 to Mohan Raj he made written agreement that Mohan Raj will investigate on the consignment which has been misplaced or rerouted and had been given a due date on or before 15.06.2013.  Again complainant approached Mohan Raj for the same on 23.08.2013 and Mohan Raj informed him and gave a letter confirming that consignment has been misplaced in transit between Mumbai to Ahmedbad.  With great regret he wants to inform the Forum that he being a student of 2^nd year MPT (Masters in Physiotherapy) of Hosmat Eductional Institute, Bangalore his research work is pending due to irresponsible act of DTDC courier service.  This is resulting in not being able to complete the research in progress and thereby it is affecting the entire future career of the complainant.  Complainant would rather say his entire career and future life is being spoiled by the irresponsible act of DTDC courier.  Complainant belongs to a middle class family and being the eldest son of his family he is responsible for the upbringing of the entire family.  His research work is still pending due to unavailability of the instrument (Algometer) which he got with great difficulty from U.S.  So, he requested to take a strong action against DTDC and provide the loss he had undergone.  Hence, the present complaint.   

3. After service of the notice, OPs-1 & 2 appeared through their counsel and filed version of OP-2 and OP-1 filed a memo adopting version of OP-2.

The averments of version of OP-2 can be stated as under:

The complaint of the complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine.  OP-2 is not aware of fact that the complainant is doing Masters in Physiotherapy.  It is not true to say that the complainant has sent the alleged Algometer through courier on 15.05.2013 under vide consignment bearing No.B94413592 at the branch of OP-2, destined to Ahmedabad as the complainant has not disclosed the content of consignment at the time of booking.  Though there is an obligation cast upon the complainant to disclose the content of the consignment, the complainant failed to do so and further the complainant has not furnished any documents or given any declaration of fact to OP-2 declaring the contents and value of the consignment which was sent.  It is true to state that the complainant has brought his grievance to the knowledge of booking franchisee and the booking franchisee in turn had asked the complainant to approach the customer care center for redressal of his grievance and customer grievance cell has informed the complainant that the consignment sent through the OP-1 was lost during transit and further asked the complainant to raise his claim application for loss of consignment.  The approval of complainants claim application was subject to the declaration of fact in respect of content and vale of the consignment given by the complainant to OP at the time of booking.  Since the complainant has not disclosed the content of the consignment in respect of its value and content, the claim of the complainant was rightly rejected by the OP.  Since the complainant has not disclosed the description and value of the consignment, the liability of OP towards non delivery, damage, loss or pilferage of same is limited to Rs.100/- as per the terms and conditions as enumerated in the consignment note.  Compensation claimed by the complainant is contrary to the agreed terms and conditions as mentioned in the consignment note.  As per the terms and conditions the liability of OP is limited to Rs.100/- if the complainant had not availed the risk coverage policy to protect the interest of the complainant and in the event of any loss or damage may happen due to non delivery of the consignment.  In the absence of such risk coverage policy availed the complainant is not entitled to claim any consequential or special damages.  The Apex Court has held that in the absence of any non disclosure of content and value of the same while booking the consignment, the liability of the OP is limited and further the OPs are not liable to pay any consequential and special damages for consignment lost.  OP is not liable to pay any loss or damages allegedly caused to the complainant.  So, it is prayed to dismiss the complaint in the interest of justice and equity.

4. So from the averments of the complaint of the complainant and version of Opposite Party-2 the following points arise for our consideration as under:

5. Our answer to the following points:

REASONS

6. So as to prove the case the complainant has filed his affidavit by way of evidence and produced documents along with complaint.  On the other hand one Sri.T.S Ramamurthy, Regional HR Manager of OP-2 has filed his affidavit on behalf of OP-2 and produced no documents.

7. Sri.Elgin John, who being complainant has stated in his affidavit that he is residing in Bangalore, Viveknagar and is doing his Master in Physiotherapy and has sent a courier (Algometer his research instrument) through DTDC courier on 15.05.2013 from Ejipura DTDC branch to Ahmedabad (Zakir Husain, 3, MInal Society, behind Royal Akbar tower, P.O Juhapura, Sarkhej Road, Ahmedabad).  As per DTDC consignment was supposed to reach the destination in 3-5 working days.  As the consignment was not delivered as per the time limit by the DTDC courier, he went and enquired on the same to Ejipura branch office.  The officer incharge of the Ejipura DTDC branch gave him an update that the courier is stuck in Mumbai it will take couple of days more to reach the destination and when he had been to Ejipura office many times later for the same they used to behave irresponsibly.  He patiently waited for a couple of more days then he had been to Ejipura DTDC office and incharge informed him that the recipient in Ahmedabad rejected the consignment.  So the courier will be returning back to Ejipura DTDC branch soon.  He called up Zakir Husain who was supposed to receive the courier and enquired whether he rejected the consignment but he informed that he has not received the courier from DTDC courier.  He immediately approached the DTDC office situated Victoria Layout, Richmond Road, Bangalore and is completely shocked on the misguidance by the office in DTDC department.  Then he approached DTDC Regional office situated in Chamrajpet and spoke to Mr.Mohan Raj on 06.06.2013 and approached Mohan Raj again on 23.08.2013 and he informed him in writing confirming that his consignment has been misplaced in the transit between Mumbai to Ahmedbad.  He being student of 2^nd year MPT at Hosmat Education Institute and his research is pending due to irresponsible act of DTDC and it has affected his entire future and career now.  In fact his entire career and future life has been spoiled by irresponsible act of DTDC courier.  He got the instrument with great difficulty from US.  Due to unavailability of the instrument his research work is pending.  So, he requests the Forum to take a strong action against DTDC and provide the loss he had undergone.  He prays compensation of Rs.1,00,000/- considering his great loss in his career life.

8. Let us have a look at the relevant documents of the complainant.  Document No.1 is the courier receipt issued by OP in the name of the complainant.  OP has collected the courier parcel to be sent to consignee by name Jakir Husain, Ahmedabad by collecting Rs.80/- and date of receipt was 15.05.2013.  In the said receipt the complainant has not disclosed the contents of the parcel or courier.  Second document is the receipt issued by Wagner instrument in the name of complainant dated 12.07.2011 for having purchased Algometer by collecting a sum of Rs.253/- including tax.  3^rd document is the letter of OP dated  12.06.2013 addressed to the complainant stating that consignment No.B94413592 dated 15.05.2013 booked by the complainant has been misplaced from Mumbai to Ahmedabad and investigation is still on process on the complaint of the complainant and they make sincere efforts to trace the consignment.  If the consignment is found, same will be returned to the complainant on or before 15.06.2013.  The complainant has produced the photo copy of the Algometer purchased and sent by him to consignee.  5^th document is the letter of OP dated 23.08.2013 addressed to complainant stating regret for misplacement of consignment and as per the contractual agreement in the event of misplacement of consignment their liability is Rs.100/- only.  So intimate the line of acceptance of complainant.  One more photo is produced by the complainant showing the testing of patient with Algometer.

9. Let us have cursory glance at the material evidence of OPs1 & 2.  Sri.T.S Ramamurthy, Regional HR Manager, Zonal of OP has stated in his affidavit that OP-2 is not aware of the fact that the complainant is doing Masters in Physiotherapy.  It is not true to state that the complainant has sent alleged Algometer through courier on 15.05.2013 under consignment No.B94413592 at the branch of OP-2, destined to Ahmedabad as complainant has not disclosed the content of the consignment at the time of booking.  The complainant has failed to disclose the content of the consignment.  Thus it is an obligation on the part of the complainant to disclose it.  It is true that customer grievance cell has informed the complainant that the consignment sent through the OP-1 was lost during transit and asked him to raise his claim application for loss of consignment.  Since the complainant had not disclosed the description and value of the consignment, the liability of OP towards non delivery, damage, loss or pilferage of same is limited to Rs.100/- as per the terms and conditions mentioned in the consignment note.  The liability of OP is limited to Rs.100/-.  OP is not liable to pay any loss or damage as prayed in the complaint.  So complaint be dismissed as against OPs.

10. On making careful scrutiny of case of the complainant on the background of oral and documentary evidence of complainant & also the oral testimony of employee of OP, it is no doubt true that on 15.05.2013 the complainant has booked one consignment with OP by paying cost of Rs.80/- to be sent to Jakir Husain, Ahmedabad and OP-1 has issued consignment receipt for having collected the consignment.  The said consignment did not reach the consignee and complainant has made the complaint with OP for non delivery of consignment.  The OPs informed the complainant that consignment booked by the complainant has been lost in the transit and they are liable to pay only Rs.100/- as per the consignment note, since the complainant has not disclosed the contents of consignment nor its value.  Now it is the specific case of the complainant that the consignment contained Algometer and it was sent to consignee residing at Ahmedabad and on account of non delivery he has been put to hardship, agony and loss of career as he is doing Master Degree in Physiotherapy etc.  It is an admitted fact between the parties that the consignment booked by the complainant with OP has not been delivered to the consignee and it was lost by OP in the transit.  It is the case of the complainant both in the complaint and during course of evidence that consignment contained Algometer and it is not delivered to the addressee and on account of it, he suffered hardship and loss of career etc.  But in order to show that the consignment booked by the complainant with OP contained Algometer valued particular amount no believable documentary evidence is produced by the complainant except stating orally.  The courier receipt produced by the complainant does not disclose either the contents of the consignment or its value.  In the absence of producing any clear and tangible documentary evidence it is not justifiable to hold on the oral testimony of the complainant that the consignment contained Algometer and its value is so much etc.  Moreover complainant has not taken steps to insure the courier at the time of booking the consignment with OP.  Further the complainant has produced one receipt dated 12.07.2011 taken in his name for having purchased Algometer by paying Rs.253/- including tax.

11. So looking to the value of the Algometer as per the receipt produced by the complainant, the value of the consignment is not more than Rs.300/- approximately.  When once consignment is booked by the complainant with OP to be delivered to the consignee it is the duty of the OP to deliver the same to the consignee safely.  Instead of it, OP has lost the consignment of the complainant in the transit causing some inconvenience and hardship to the complainant.  So taking the oral and documentary evidence of the complainant and compare the same with material evidence OP it is vivid and clear that the oral evidence of complainant that after booking consignment with OP to be sent to consignee residing in Ahmedabad, the consignment has been lost in the transit by OP is corroborated by copies of courier receipt and correspondences between the complainant and OP.  The act of OP in making loss of consignment of complainant during transit amounts to negligence and deficiency of service on the part of the OP and as such we are of the view that the oral and documentary evidence of complainant placed before the Forum are more believable, trustworthy and acted upon than the material evidence of OP.  So, we hold that the complainant has proved this point by placing clear and tangible material evidence that OPs are negligent and there is a deficiency of service on the part of the OPs in not making delivery of the parcel safely as stated in the complaint and accordingly we answer this point in a affirmative.

12. In view of our affirmative finding on point no.1 and looking to the value of the Algometer as per receipt produced by the complainant we make assessment of loss of complainant on account of non delivery of consignment at Rs.2,000/- only and not Rs.1,00,000/- as prayed in the complaint.  So the complainant is entitled to claim only Rs.2,000/- as compensation from OP.  OPs are directed to pay Rs.2,000/- to the complainant towards compensation within 30 days from the date of this order failing which OPs shall pay the said amount to the complainant along with interest @ 6% p.a from the date of complaint to till the date of realization.  OPs are further directed to pay Rs.1,000/- to the complainant towards cost of litigation and accordingly we answer this point.  In the result, for the foregoing reasons, we proceed to pass the following:    

       O R D E R

The complaint of the complainant is partly allowed.  OPs.1 & 2 are directed to pay Rs.2,000/- to the complainant towards compensation within 30 days from the date of this order failing which OPs.1 & 2 shall pay the said amount to the complainant along with interest @ 6% p.a on the said amount from the date of complaint to till the date of realization.  OPs.1 & 2 are further directed to pay Rs.1,000/- to the complainant towards cost of litigation.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 26^th day of June 2015)

MEMBER                                                                 PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 27.11.2013

1)      Sri.Elgin John.

Witnesses examined on behalf of the OP-2 dated 26.12.2013

1.      Sri.T.S Ramamurthy  

OPs      -       Nil

MEMBER                                                                 PRESIDENT

Vln*