DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No 52 of 2015
Date of filing: 13.02.2015 Date of disposal: 18.8.2015
Complainant: Barun Sarkar, S/o. Tarunanda Sarkar, resident of Puratan Bazar, PO: Memari, Dist: Burdwan, PIN – 713 146.
-V E R S U S-
Opposite Party: 1. The Proprietor, DTDC Courier and Cargo Ltd., having its office at Memari Fr (KF-329), Station Bazar, Burdwan -713 146.
2. DRDC Courier and Cargo Ltd., having its Head Office at No. 3, Victoria Road, Bengaluru – 560 047.
Present: Hon’ble President: Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party: Ld. Advocate, Diganta Das.
J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice against the Ops as the Ops neither delivered the consignment to the addressee nor returned the same to the complainant-sender.
The brief fact of the case of the complainant is that due to his old age as he cannot go beyond his locality he used to communicate with other persons through telephone and courier service. The complainant booked a letter enclosing an important document before the office of the OP-1 by addressing to one Mrs. Indrani Rudra, Chinsurah, Hooghly on 14.10.2014. For booking the letter he paid Rs. 30/- and against such payment the OP-1 issued a receipt. But while the letter was not delivered to the addressee within a week from the date of its booking, the complainant rushed to the office of the OP-1 to enquire the status of service of the booked article, but the OP could not able to give any satisfactory answer to that effect. Thereafter on several occasions he visited the office of the OP-1 and requested them either to deliver the letter to the addressee or to return the same to him, but the OP-1 did not take any step in this regard. Inspite of taking stipulated charges for delivering the article to the addressee, they did not serve the same to her as well as kept themselves silent about the status of the article. Such conduct of the OP-1 reveals deficiency in service as well as unfair trade practice on behalf of the Ops and for this reason the complainant had to suffer mental pain, agony and face unnecessary harassment. Due to such action the Ops are liable to compensate the complainant. Finding no other alternative the complainant has filed this complaint before the Ld. Forum praying for direction upon the Ops either to return the letter to him or to pay Rs. 500=00, to pay compensation to the tune of Rs. 5,000=00 for harassment, mental pain and agony and Rs. 5,000=00 as litigation cost.
The petition of complaint has been contested by the Ops by filing conjoint written version wherein it is contended that the OP-1 is controlled, managed and administered by the OPO-2 and the OP-2 has constituted various franchises in one state of West Bengal as well as throughout India for providing the field of courier. It is stated by the Ops that the shipment was booked and/or the contract made following the terms and conditions and for this reason both parties have entered into an agreement. According to the Ops as there was no deficiency in service as well as unfair trade practice, they are not liable to make payment of any amount towards compensation and cost as prayed for. Prayer has been made by the Ops for dismissal of the complaint.
The complainant has filed evidence on affidavit along with some documents as well as some Rulings in support of his contention. The Ops have filed brief notes of argument with a copy to the other side.
We have carefully perused the record and connected papers and documents as available and heard arguments at length advanced by the ld. Counsel for the parties.
It is seen by us that admittedly the complainant booked one article with the OP-1 for sending the same through its service to Mrs. Indrani Rudra at Chinsurah, Hooghly on 14.10.2014 upon making payment of Rs. 30/- for service charge. But when the article was not delivered to the addressee after seven days from the date of booking the same, the complainant enquired the status of the service of the booked article, but the OP did not make any satisfactory reply to his enquiry. Thereafter though the complainant visited the office of the Ops on several occasions, but no fruitful result had been yielded. The complainant got knowledge that the addressee did not receive the said article and the OP-1 did not also return the article to the sender-complainant till filing of this complaint. The allegation of the complainant is that though he hired the service of the OP-1 against payment of due consideration of money, but the OP-1 has miserably failed to provide any service inspite of taking service charge from him. According to the complainant such action of the Ops can easily be termed as deficiency in service and unfair trade practice. Further allegation of the complainant is that the OP-1 did not bother to return the article to him as it could not deliver the item to the addressee.
We have noticed that though the Ops have contested the complaint by filing written version, but therein no plea have been taken by the Ops as to why the article was neither delivered to the addressee nor the complainant. The Ops have assigned the reason in their brief notes of argument. But it is the settled law that no leas can be taken in the BNA going beyond the pleading. Even in the evidence also parties can not travel beyond their own pleadings. Inspite of such proposition we have carefully perused the BNA filed by the Ops from where it is for the first time evident that at the time of booking the complainant was requested to insure the article as the same was valuable one, but the complainant ignored and booked the article on ‘K’ series. It is further seen by us that in the paragraph no. 12 of the BNA the Ops have contended that the complainant provided incomplete postal address of the addressee as well as the telephone number. Therefore it was not possible for the OP-1 to find out the address of the consignee. Moreover, the OP-1 advised the complainant to send consignee’s authorized person at the office of the OP-1 at Chinsurah to collect the consignment, but none came to receive the same. It is mentioned by the Ops that liability of the Ops is strictly limited to Rs. 100=00 in case of non-delivery of the item and the same is clearly mentioned in the terms and the conditions for shipment.
During advancing argument the ld. Counsel for the Ops has submitted that as the complainant did not provide the complete and correct address of the addressee, the article could not be delivered. It is further submitted that as the complainant did not provide his telephone number, it was not possible to contact with him. Though step was taken to return the article to the complainant, but as he was not available at home, article could not be returned to him. The ld. Counsel for the Ops has argued though providing of telephone numbers of the addressee as well as the sender is mandatory, but the same was not given by the complainant inspite of request.
In respect of such argument of the ld. Counsel for the Ops we are to say where the complainant had violated the mandatory terms and conditions in not providing the telephone numbers of the addressee and himself and inspite of request of the OP-1, then why the OP-1 agreed to take the article for delivery from the sender? Why the OP-1 did not refuse to take the booking of the article? No satisfactory answer has been forthcoming from the Ops in this respect. In respect of non-returning of the undelivered article to the sender we are of the view that it was the duty of the OP-1 to return the undelivered article to the sender, but the OP-1 has miserably failed to discharge its duty and such action on behalf of the OP-1 is certainly an example of deficiency in service on its part. It is argued by the Ops that due to shortage of manpower the article could not be returned to the sender. In this regard we are of the view that where there is shortage of manpower, then it was not proper for the OP-1 to carry on its business. Admittedly, the OP-1 is the franchise of the OP-2 and being principal the OP-2 is solely liable for such inaction of the OP-1 because it is well settled principle of law that due to wrong on the part of the agent, the principal should be liable. It is further mentioned by the Ops in their written notes of argument that though the complainant was requested to insure the article at the time of booking, but the complainant ignored the same and did not insure the article. In this respect of we are of the view that firstly such plea were not taken by the Ops in the written version and for this reason the same cannot be taken in the written notes of argument. Secondly, ‘insurance of any article is mandatory’ the Ops did not show us any terms and the conditions of them. Therefore, insure of the article does not arise at all. If the consumer thinks to insure the article it is his liberty and the Ops cannot create any pressure upon the complainant. Moreover in respect of such plea the Ops did not produce any cogent documentary evidence before us.
The ld. Counsel for the complainant has relied on the judgment passed by the Hon’ble NCDRC, reported in (2011) 4 (CPR) 244, wherein it has been held that non-delivery of letter documents to deficiency in serviced. We have noticed that the fact of the relied judgment is same and identical with this complaint. In another judgment as relied on by the complainant the Hon’ble NCDRC has held [reported in (2012) 3 (CPR) NC (198)] that courier service provider is duty bound to ensure safe delivery of parcel. The ld. Counsel for the complainant has also relied on several judgments in support of his contention i.e. (2014) 3 (CPR) NC (341), (2014) 3 CPR (NC) 655. We have carefully perused the judgments and in our view the facts and circumstances of those cases are almost same and identical with the case in hand. Therefore, those judgments as relied on by the complainant can be safely implemented in the instant complaint.
As the complainant has successfully proved his complaint by adducing cogent documents that there was deficiency in service on the part of the Ops, hence in our view the Ops are liable to make payment of compensation to the complainant. Further admittedly due to such deficiency in service the complainant had to approach before this ld. Forum for redressal of his grievance and incurred some expenditure for this purpose, the complainant is also entitled to get litigation cost from the Ops.
Going by the foregoing discussion and having regard to the judgments of the Hon’ble NCDRC hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The Ops shall pay either severally or jointly to the complainant to the tune of Rs. 2,000=00 (Rs. Two thousand) only towards compensation due to harassment, mental agony, mental pain and non-returning of the undelivered article to the complainant and to pay a sum of Rs. 500=00 (Rs. Five hundred) only as litigation cost within 45 (forty five) days from the date of passing of this final order/judgment. The OP-1 is also directed to return Rs. 30=00 (Rs. Thirty) only to the complainant as paid by him towards service charge at the time of booking within 45 (forty five) days from the date of passing of this final order/judgment, in default the amount of Rs. 30=00 (Rs. Thirty) only shall carry interest @9% per annum for the default period. It is further directed that the OP-1 shall return the undelivered article to the complainant within 30 (thirty) days from the date of passing of this final order/judgment, in default the complainant will be at liberty to put the entire order into execution as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
