BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Pathfinder Edutech Pvt. Ltd., through its Director Mr.Krishna Murthy S at SCO No.481-482, 1^st Floor, Sector 35-C, Chandigarh.

…..Complainant

                 V E R S U S

1]  DTDC Courier and Cargo Ltd., through its Managing Director, SCO No.267, Sector 35-D, Chandigarh.

2]  Excellent Enterprises, the Management and Proprietor, SCO 85-86, (Above Sant Shoes), 2^nd Floor, Sector 17-D, Chandigarh.

                      ……Opposite Parties

CORAM:   P.L. AHUJA                    PRESIDENT

RAJINDER  SINGH  GILL            MEMBER

         DR.(MRS) MADANJIT KAUR SAHOTA    MEMBER

Argued by:    Sh.Krishna Murti, Director, O/O Complainant.

Sh.G.L.Aggarwal, Counsel for OP-1

OP-2 exparte.

PER DR.(MRS) MADANJIT KAUR SAHOTA, MEMBER

         In short, the complainant company, on 19.12.2011, sent an urgent international consignment of documents from Chandigarh to Canada, through Courier of OP No.2, an authorized agent of OP-1.  It is averred that at the time of sending the said documents, the complainant made a special request for its urgent delivery as it was containing important immigration documents of three Indian applicants, which were required to be certified by a leading Canadian Law Firm and thereafter, were to be forwarded to the concerned Canadian High Commission.  The complainant got the status on 02.1.2012 from the website of the OP No.2 that the consignment had been delivered to the consignee on 28.12.2011. However, when the client of the complainant, whose documents were sent through courier, tried to contact the OPs to know as to when & where the documents were delivered, the OPs failed to give any satisfactory reply. It is stated that ultimately on much persuasion, the OPs finally admitted that the courier was never delivered by them upon the consignee and it remained lying in their office only.

         It is averred that by not delivering the consignment to the consignee, which was containing important documents of immigration, the OPs have ruined the career of 3 innocent persons without any fault on their part.  It is also averred that due to the irresponsible behaviour & gross negligence caused by the OPs, three clients of the complainant were disqualified for the Canadian PR as the rules used to change every year.  It is submitted that the documents were sent after fulfilling all the requirements as per rules framed by the authorities for the year 2011, but due to non-delivery of documents in time, all the expenses incurred by the complainant went in vain and now it again had to incur huge expenses on meeting all the requirements for obtaining Canadian PR for his Client.  It is also submitted that due to the said deficient act of the OPs, the complainant has suffered business losses and loss of reputation, apart from the harassment suffered by the said clients. A legal notice was sent to the OPs, but it was replied.  Hence, this complaint has been filed alleging the above act of OPs as gross deficiency in service.

2]       OP No.1 filed reply stating therein that a sealed consignment was booked with it and all terms & conditions were read over to the complainant at the time of booking. The complainant had accepted the same and thus, the liability of the replying OP, in case of any damage, lost and late delivery of any kind, occurred during the course of business, is limited to the extent of US $ 100.  It is stated that the consignment had been delivered to the consignee on 28.12.2011. Earlier the consignee was not available at the given address and efforts were made to trace him but no response has been given by the consignee even connecting on telephones. It is denied that the consignment was delivered late as alleged.  Rest of the allegations have been denied with a prayer to dismiss the complaint.

         OP No.2 did not turn up despite service, hence proceeded against exparte vide order dated 13.8.2012.

3]       Parties led evidence in support of their contentions.

4]       We have heard the Director of Complainant Company, ld.Counsel for OP-1 and have also perused the record.

5]       The objection raised by the OP with regard to the complainant not a consumer and the services availed by it was for commercial purposes is not sustainable. 

6]       The complainant falls well within the definition of consumer per Section 2(1)(d) & Section 2(1)(m) of the Consumer Protection Act, 1986, which reads as under:-

  “(d)   "consumer" means any person who—

(i)       buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

(m)    "person" includes,—

(i)  a firm whether registered or not;

(ii) a Hindu undivided family;

(iii)     a co-operative society;

(iv) every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not;

7]       Moreover, the services of OPs for sending the consignment in question was hired and availed of by the complainant for consideration and it deals with the operations focusing on their day to day function and not linked with its profit making process.  More so, the OP No.1 has not been able to prove on record by way of any documents or evidence that the consignment in question so booked by the complainant was the part of its profit making process.  Therefore, the services in question availed of by the complainant does not fall within the commercial purposes.  The authorities relied upon by the OP-1 i.e. 1999 AIR SCW 3732 – Kalpavruksha Charitable Trust Vs. Toshniwal Brother (Bombay) Pvt. Ltd. & Anr. & 201(2) CPC (NC) 333 – Vijay Kumar vs. Indusind Bank, are not applicable to the present case.   

8]       The sole contention of the complainant, in the present complaint, is that due to non-delivery of the consignment in question in time, which was containing important immigration documents of three clients; the OPs have not only ruined the career of those persons/clients, but also caused loss to their business as well as reputation.

9]       On the other hand, OP NO.1 has refuted the allegations of the complainant and has asserted that it is due to non-availability of the said consignee at the given address that their efforts to trace him gone futile and at last the consignment was duly delivered to the consignee on 28.12.2011.

10]      After going through the facts & circumstances of the case and hearing the parties, it is proved on record that consignment in question was booked by the complainant with OP No.1 on 19.2.2011 having Airway Bill No.N93528834, placed on record at Page No.21. 

11]      The complainant has placed on record the Airway Bill Tracking Details No.N93528834, generated from the site of OPs, at Page No.28, which shows that the said consignment was booked on 20.12.201 and Delivered on 28.12.2011 at Able Immigration Canada, Canada. However, another Airway Bill Tracking Details of OPs, at Page No.29, shows that the same consignment was delivered on 5.1.2012 at the same address at Canada, which clearly falsifies the stand taken by the OP-1 that the consignment of the complainant was duly delivered on 28.12.2011.   Rather, it was actually delivered only on 05.1.2012. The data about the delivery of the consignment has been updated by the OP Company.  It is also not logical that one consignment has been delivered to the consignee twice on different date. 

12]      More so, the OP-1 has not been able to prove their stand by way of placing on record any document that on the day their official went to deliver the consignment, the consignee was not available at the given address.  It is totally a bald assertion, which cannot be relied upon.         

13]      Thus, from the above documents, it is proved that the consignment in question was delivered belatedly by 05.1.2012 and not on 28.12.2011 as alleged by the OP-1.  Therefore, the deficiency in service as well as unfair trade practice on the part of OPs has been proved.

14]      The OP-1 has also failed to place/brought on record any terms & conditions ever agreed upon or signed by the complainant whereby the liability of the OPs is limited to the extent of US $ 100 in case of any damage, lost and late delivery of any kind, occurred during the course of business.  Hence, such a plea of OP-1 is not tenable.

15]      While arriving to the final conclusion, we also put reliance on the judgment Pavit Garg Vs. Blazeflash Courier Ltd. & Ors, IV(2009) CPJ 271 – 2009 CTJ 1159 (CP) (SCDRC).

16]      From the above discussion, we came to the conclusion that the complainant has been fully able to prove deficiency in service and unfair trade practice on the part of OPs.  Therefore, the complaint deserves to be allowed.  The same is accordingly allowed with directions to the OPs to jointly & severally pay a compensation of Rs.20,000/- to the complainant along with litigation cost of Rs.7,000/-, within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay compensation amount of Rs.20,000/- along with interest @12% p.a. from the date of filing this complaint i.e. 12.6.2012 till its actual payment, besides paying litigation costs.

         Certified copies of this order be sent to the parties free of charge. The file be consigned.