BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 552 of 2015
Date of Institution: 3.9.2015
Date of Decision:26.04.2016
Shri Malkiat Singh son of Sh.Bawa Singh, resident of House No. 6,7 , Gali No.1, Guru Nanak Avenue, Ghanupur Kale, Sher Shah Suri Road, Amritsar
Complainant
Versus
- The Manager/Principal Officer, DTDC Courier & Cargo Limited, DTDC House, 3, Victoria Road, Bangalore-560047
- Branch Officer/Branch Incharge/Principal Officer, DTDC Courier & Cargo Limited, City Centre, Amritsar
- Dealer DTDC Courier & Cargo Limited, Khandwala, G.T. Road, Chheharta,Amritsar
Opposite Parties
Complaint under sections 12 & 13 of the Consumer Protection Act, 1986
Present: For the Complainant : Sh.R.S.Baweja,Advocate
For the Opposite Parties 1 to 3 : Sh.Ajay Shanker,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Malkiat Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant has got booked one parcel with opposite party No.3 vide receipt No. N95806374 containing original documents such as original certificate of date of birth and original driving license of his son Randhir Singh, who is resident of USA at 5360-N-ROSALIA Avenue Fresno-CA 93723 USA bearing contact No. 5597768255 in the name of Lovepreet Kaur, who is daughter in law of the complainant as addressee of parcel in USA. The parcel was got booked with the opposite parties having its branch office at Chheharta, Khandwala, Amritsar on 26.6.2015 and they charged Rs. 1750/- as services charges from the complainant. But till date the parcel has not been delivered to Lovepreet Kaur . The parcel of complainant was containing two important documents in original, which were required by son of the complainant very urgently in USA. Both these two documents were required by the son of complainant for deciding the matter regarding issuance of permanent residence to the son of the complainant and for issuing of driving license at USA. Son of the complainant could not produce these documents to the appropriate authority at USA at specified time, as such, he has been denied status of permanent residence which is of great value. On denial of permanent residence status, a great loss has been caused to the complainant. The complainant visited the premises of the opposite parties many times to enquire about the fate of parcel, but to no avail. The aforesaid acts of opposite parties in providing negligent services to complainant has caused lot of mental agony and has further caused loss of financial loss to the complainant for which the opposite parties are liable to pay damages and compensation to the complainant. It is, therefore, requested that opposite parties may be directed to pay Rs.2,00,000/- as damages and compensation to the complainant for causing mental harassment,besides compensation of Rs. 50000/- for causing mental stress and agony . It is further requested that opposite parties may further be directed to pay compensation of Rs. 25000/- for the loss of original documents and allowing charges of filing complaint and any other additional or alternative relief which the complainant may be found entitled to.
2. Upon notice, opposite parties appeared and filed written reply contesting the claim of the complainant taking certain preliminary objections therein inter alia that complainant has approached this Forum with unclean hands ; that as per the policy of the company if the parcel is not insured by the consignor/complainant or it is not covered under the risk charge policy of the company, then the company’s liability is restricted to Rs. 100/-to Rs. 500/- only. In the present matter, the complainant neither had adopted the risk charge policy of the company nor insured the parcel, so the company is not liable for any damage or loss ; that at the receipt issued at the time of booking is itself a contract between the parties. Clause 5 of the receipt clearly lays down that the DTDC for any loss or damage to the shipment will be strictly limited to Rs. 100/- for each shipment, which items include all documents or parcels consigned through DTDC by the shipper. Now in the present matter , the complainant neither has adopted the risk charge policy of the company nor insured the goods , as such the company is not liable for any damage or loss. The following Rules of Carriage by Air Act 1972 which excludes the liability of the consignee i.e. of opposite party in the absence of the consignment note. The consignor is otherwise responsible if any damage is caused to the consignee or carrier.
5.(1) Every carrier of goods has the right to require the consignor to make out and hand over to him a document called an ‘air consignment note’; every consignor has the right to require the carrier to accept this document.
(2) The absence, irregularity or loss of this document does not affect the existence or the validity of the contract of carriage which shall, subject to the provisions of Rule 9, be nonetheless governed by these rules.
6.(1) The air consignment note shall be made out by the consignor in three original parts and be handed over with the goods.
(2) The first part shall be marked ‘for the carrier’ and shall be signed by the consignor. The second part shall be marked ‘for the consignee’; it shall be signed by the consignor and by the carrier and shall accompany the goods. The third part shall be signed by the carrier and handed by him to the consignor after the goods have been accepted.
(3) The carrier shall sign an acceptance of the goods.
(4) The signature of the carrier may be stamped ; that of the consignor may be printed or stamped.
(5) If, at the request of the consignor, the carrier makes out the air consignment note, he shall be deemed, subject to proof to the contrary, to have done so on behalf of the consignor.
7. The carrier of goods has the right to require the consignor to make out separate consignment notes when there is more than one package.
8. The air consignment note shall contain the following particulars:
(a) the place, date of its execution ;
(b) the place of departure and of destination ;
(c) the agreed stopping places, provided that the carrier may reserve the right to alter the stopping places in case of necessity, and that if he exercises that right the alteration shall not have the effect of depriving the carriage of its international character ;
(d) the name and address of the consignor ;
(e) the name and address of the first carrier ;
(f) the name and address of the consignee, if the case so requires ;
(g) the nature of the goods ;
(h) the number of the packages, the method of packing and the particular marks or numbers upon them ;
(i) the weight, the quantity and the volume or dimensions of the goods
(j) the apparent condition of the goods and of the packing ;
(k) the freight, if it has been agreed upon, the date and place of payment, and the person who is to pay it ;
(l) If the goods are sent for payment on delivery, the price of the goods, and if the case so requires, the amount of the expenses incurred;
(m) the amount of the value declared in accordance with rule 22(2) ;
(n) the number of parts of the air consignment note ;
(o) the documents handed to the carrier to accompany the air consignment note ;
(p) the time fixed for the completion of the carriage and a brief note of the route to be followed, if these matters have been agreed upon ;
(q) a statement that the carriage is subject to the rules relating to liability contained in this schedule .
9. If the carrier accepts goods without an air consignment note having been made out or if the air consignment note does not contain all the particulars set out in rule 8(a) to (i) inclusive and (q) the carrier shall not be entitled to avail himself of the provisions of this schedule which exclude or limit his liability ;
10.(1) The consignor is responsible for the correctness of the particulars and statements relating to the goods which he inserts in the air consignment note.
(2) The consignor will be liable for all damage suffered by the carrier or any other person of the irregularity, incorrectness or incompleteness of the said particulars and statements.
11(1) The air consignment note is prima facie evidence of the conclusion of the contract, of the receipt of the goods and of the conditions of carriage.
(2) The statements in the air consignment note relating to the weight, dimensions and packing of the goods, as well as those relating to the number of packages, are prima facie evidence of the facts stated ; those relating to the quantity , volume and condition of the goods do not constitute evidence against the carrier except so far as they both have been, and are stated in the air consignment note to have been, checked by him in the presence of the consignor, or relate to the apparent condition of the goods.
3. On merits, it is admitted to the extent that the courier services were availed by the complainant for delivery of some parcel. It is denied for want of knowledge that the parcel contained the goods detailed in the complaint. It was submitted that the complainant neither has adopted the risk charge policy nor insured the product. A contract was executed between the parties at the time of booking of the parcel and the parties are bound by the same. A prayer for dismissal of the complaint with costs has been made.
4. In his bid to prove the case, complainant Malkiat Singh made into the witness box as his own witness and filed duly sworn affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copy of voter ID card Ex.C-2, copy of Aadhar Card Ex.C-3, copy of courier receipt Ex.C-4, copy of postal receipt Ex.C-5, copy of legal notice Ex.C-6, copy of the receipt Ex.C-7 and closed his evidence.
5. To rebut the aforesaid evidence, opposite parties No.1 ,2 & 3 produced Rajeev Chandan on behalf of DTDC Courier & Cargo Ltd , who tendered his duly sworn affidavit Ex.OP1 ,2,3/ and closed evidence on behalf of the opposite parties No.1 , 2 & 3.
6. We have heard the ld.counsel for the parties and have also carefully gone through the record.
7. On the basis of the evidence on record, ld.counsel for the opposite parties has vehemently contended that the complainant though availed the courier service of the opposite party for sending goods in a parcel, yet the consignor/complainant did not cover the parcel in dispute either under risk charge policy of the company or got the goods insured. In such a situation for any loss or damage to the shipment will be strictly limited to Rs. 100/- to Rs. 500/- per shipment as per clause 5 of the courier receipt. Courier receipt is an agreement inter-se parties and the terms and conditions mentioned on the courier receipt are binding inter-se parties. It is further contended that instant complaint is nothing but an abuse of the process of the court and the same deserves to be dismissed with costs.
8. However, from the appraisal of the facts and circumstances of the case, it becomes amply clear that the shipment sent vide parcel through courier receipt issued by the opposite party did not reach the destination nor the parcel received back undelivered. It was incumbent upon the opposite party to have proved that the shipment reached the addressee. There is no evidence to substantiate the said fact. In such a situation, it will have to be presumed that the shipment was lost in transit. Although as per clause 5 of the terms and conditions , the liability of the opposite party is strictly restricted to Rs. 100/-. However, for forbearance in not supplying the goods to the addressee at the given address on the part of the DTDC courier and Cargo Ltd, amounts to deficiency in service. The opposite parties could very well produce the receipt regarding the delivery of the parcel in dispute to the consignor before this forum. But, however, for the reasons best known to the opposite parties, no such evidence was brought on record. The omission on the part of the opposite parties in not producing the requisite evidence abovestated, amounts to dereliction in service on their part , for which the opposite party is liable to compensate the complainant. Although the complainant has calculated his damages to the tune of Rs. 2,00,000/- as damages and compensation to the complainant for causing mental harassment to the son of the complainant and his family member, besides compensation of Rs. 50000/- for causing mental stress and agony caused to the complainant and further demanded Rs. 25000/- for the loss of original documents, yet there is no evidence to substantiate the said imaginative figure. Moreover, while awarding damages, this Forum shall have to compensate the actual loss. It is not the function of the Forum to enrich a particular party by awarding fanciful or excessive damages, at the cost of the other party.
9. Keeping in view the facts and circumstances of the case, it would be reasonable to allow compensation to the tune of Rs. 10000/- to the complainant for the loss of original documents. Besides that the complainant shall also be entitled to be paid Rs. 500/- as per clause 5 of the courier receipt , for the loss or damage to the shipment in dispute. The opposite party is granted 30 days’ time for the compliance of the order from the date of receipt of copy of this order ; failing which, awarded amount shall carry interest @ 6% p.a. from the date of passing of the order until full and final recovery. . The complaint stands allowed accordingly. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 26.4.2016
/R/ ( S.S.Panesar ) President
( Kulwant Kaur Bajwa) (Anoop Sharma) Member Member
