The case of the complainant, in short, is that the complainant purchased a mobile handset from Smart Zone, M.G. Road, Birpara, P.S. Birpara, District- Alipurduar on 13/01/2017 and after purchase the said mobile phone the complainant decided to gift it to his friend Nudasar Ali Bhat. Thereafter the complainant sent the mobile set through courier service i.e. O.P.No.2 on 14/01/2017 as he agreed to provide the service and the O.P.No.2 received the charge of Rs.500/- and issued receipt being consignment No.V33659542 and it i.e O.P.No.2 assured the complainant that the consignment would reach to the recipient within seven days at his residential address at Srinagar, Pin- 191101.
The further case of the complainant is that even after elapsing many days, the complainant did not get any positive information from his friend and accordingly he tried his best to trace out the parcel by visiting the outlet of O.P.No.2 but never got any satisfactory reply. The complainant also observed in the website of the DTDC which speaks that the consignment has not been delivered to the recipient.
Hence, the complainant has prayed for the cost of the mobile phone amounting to Rs. 11,000/- as well as booking charge of Rs.500/- and also an amount of Rs. 30,000/- for his mental agony and also prayed for cost of reputation of Rs. 30,000/- and the litigation cost of Rs. 500/- from the O.Ps.
In the instant case appearance is made on behalf of the O.Ps through their Law-Officer (East) Sri Sabarna Sengupta and filed W/V in support of their case.
The O.Ps have stated that the petition is not maintainable in law or facts and there is no cause of action against the O.Ps and the case is barred by limitation. The O.Ps also stated that the instant case fails due to non joinder of necessary parties and the complaint fails due to lack of jurisdiction. It has been also averred by the O.Ps that it is true that courier service made a consignment and assured the complainant that the consignment definitely delivered the mentioned place and received charges of Rs.500/-. It is pertinent to mention here that courier services always assured its customer for better service and always fulfill its words and that the statement made by the complainant that from the website of DTDC, he found that consignment has not been delivered to the recipient is need a strict proof. The O.Ps have stated in their W/V that the instant case fails miserably due to non joinder of necessary parties and whether the consignment was delivered or not can only be ascertained by the addressee and no one else. The O.Ps further stated that the there is no negligent on the part of the O.Ps.
The O.Ps have denied the other allegations as made by the complainant and has prayed for dismissal of the case as the same is not maintainable.
The complainant filed some photocopies of documents in support of his case.
The complainant filed evidence on affidavit. The O.Ps did not file any evidence on affidavit and as per submission of Ld. Agent for the O.Ps the W/V filed by the O.Ps are treated as evidence in this case. On perusal of the materials, it appears that those are nothing but reiterated version of complaint and W/V.
The complainant has also filed written argument. The O.Ps have also filed written argument.
We have gone through the materials on record very carefully and also perused the documents which are lying on record and also heard arguments of the parties.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of this case all the points are taken up together for consideration for the sake of brevity and convenience as these points are interlinked to each other.
It is a fact that the complainant has been entitled to avail service of the O.Ps with the strength of consignment receipt being No. V33659542 dated 14/01/2017 which was issued by O.P.No.2 in favour of complainant for a consideration amount of Rs.500/- in connection with sending his Mobile Phone Set (Model-G10NEE F103 pro) to his friend Nudasar Ali Bhat,S/O. Ali Mohammad Bhat, resident at Air Port, Pantha Chowk, Srinagar, Pin- 191101. Therefore as per provision laid down u/s. 2(1)(d)(ii) of the Consumer Protection Act, the complainant is a consumer.
The complainant resides under P.S. Falakata, District- Alipurduar and O.P No.2 DTDC Courier Service Ltd. is also situated within the territorial jurisdiction of P.S Alipurduar and District-Alipurduar. Negotiation for consignment the mobile phone set was taken place between the complainant and the O.P.No.2. O.P.No.2 is the Branch of O.P.No.1. Total claim amount is Rs.72, 000/- which does not exceed the pecuniary jurisdiction of this Forum. Hence, this Forum has both territorial as well as pecuniary jurisdiction to entertain this case.
The Cash Memo (Bill No. 50 dated 13/01/2017) issued by SMART ZONE in the name of Khokan Kar Chowdhury speaks that the complainant purchased a mobile phone set (Model-GIONEE F103 Pro) at price Rs. 11, 000/- only and the consignment Receipt being No. V33659542 dated 14/01/2017 speaks that complainant sent the mobile set to Mudasir Ali Bhat, S/O. Ali Mohd Bhat, Air Port, Panth Chowk, Srinagar, Pin-191101. But it is unfortunate that the recipient got no receipt the said mobile set up till now and that is why the complainant took this legal recourse against the O.Ps. The mobile phone purchase Bill No. 50 dated 13/01/2017 issued from Smart Zone proved the ownership of the complainant and consignment receipt being No.V33659542 dated 14/01/2017 issued by DTDC Express Limited established the negotiation between the parties for sending the mobile set to the recipient in Srinagar, Pin-191101.
The O.P side pleaded that the consignment has been delivered. Therefore the burden of proof is shifted to the shoulders of the O.Ps. The O.Ps ought to disprove the plea of non-delivery of mobile phone set to the recipient at Srinagar by proving the facts of delivery by way of adducing documentary or oral evidence of by both. On scrutiny of the materials on record not a scrap of paper is found to show that the article has been delivered to the recipient. Mere evasive stpatements of the O.Ps in supporting their plea of delivery is not believable. The complainant has proved his case but the O.P side failed to disprove the complainant’s case. Therefore, we have no hesitation to say that there is deficiency in service on part of the O.Ps. As such the O.Ps are liable to compensate the complainant
Thus the points for consideration are disposed of accordingly.
Fees paid are correct.
Hence, for ends of justice, it is,
O R D E R E D
that the instant case be and the same is allowed on contest against the O.Ps.
The complainant Khokan Kar Chowdhury do get an award of Rs. 11, 000/- for loss of his mobile phone set and also do get another award of Rs. 500/- for his consignment charge and also do get another award of Rs. 8000/- for his harassment and mental agony and also de get another award of Rs.500/- for his litigation costs, i.e total award amount is Rs. 20, 000/- (Twenty thousand) only.
Both the O.Ps are directed to pay the decreetal amount carrying 50% (i.e Rs. 10, 000/-) each to the complainant within 30(thirty) days from this day failing which the complainant will be at liberty to put this decree/award into execution according to law.
In case of execution the complainant will be entitled to 8% interest on decreetal amount per annum from the date of filing this case from 21/02/2017 till realization of the entire decreetal amount.
The O.Ps are at liberty to pay the decreetal amount to the complainant jointly also.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
