Punjab

Moga

CC/16/139

Rashvir Singh - Complainant(s)

Versus

DTDC Courier - Opp.Party(s)

In person

14 Dec 2016

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 139 of 2016

                                                                                      Instituted on: 19.08.2016

                                                                                      Decided on: 14.12.2016

 

Rashvir Singh, age 52 years, (date of birth 12.05.1964), s/o Balwinder Singh, r/o Village Jalalabad East, Tehsil Dharamkot, District Moga.

                                                                                ……… Complainant

 

Versus

1.       DTDC Courier Service, Guru Ramdas Market, Tempuan Wala Addam, Main Bazar, Moga, through its Prop/Partner.  

 

2.       DTDC Courier Limited, Redg. Office No.3, Victoria Road Bengaluru- 560047, through its Prop/Partner.

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President,

                   Smt. Bhupinder Kaur, Member.

 

Present:       Sh. Rashvir Singh, complainant in person.

                   Sh. Ramandeep Singh Aulakh, Advocate Cl. for opposite parties.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against DTDC Courier Service, Guru Ramdas Market, Tempuan Wala Addam, Main Bazar, Moga, through its Prop/Partner and others (hereinafter referred to as the opposite parties) directing them to give pair of shoes of the complainant or to refund Rs.6000/- the price of the shoes. Further opposite parties may be directed to pay Rs.5000/- as compensation for mental tension and agony to the complainant.

2.                Briefly stated the facts of the case are that the son of the complainant, who lived in Canada sent a pair of shoes make Nike, company size 8, Coloar white worth 120 Dollar i.e. in Indian currency Rs.6000/- to the complainant. Opposite party no.1 is the branch office of opposite party no.2 which is running a business of courier. The complainant sent pair of shoes make Nike, size 8, through opposite party no.1, vide receipt no.Z66312771 dated 05.10.2015 to his friend Santosh c/o Doctor Livtar Singh Chawla, 7-A, Tagore Nagar, Ludhiana and deposit the necessary charges with opposite parties. However, till today, the said Santosh has not received the said shoes. The complainant approached the office of opposite party no.1 and told them about the non receipt of the same, but they did not pay any heed to the request of the complainant and harassing the complainant unnecessarily. There is deficiency in service and trade mal practice on the part of opposite parties. Hence this complaint.

3.                Upon notice, opposite parties appeared through counsel and filed their written reply taking certain preliminary objections that the complaint is liable to be dismissed on the ground that as per clause 25 of the terms and conditions printed in the back of receipt, it is provided that in case of any dispute, the matter will be referred to the arbitration of two arbitrators, one to be appointed by the sender and the other by the DTDC. Thus, in view of the arbitration clause, the present is not maintainable and is liable to be dismissed as such; that the complaint is liable to be dismissed on the ground that the complainant has not made claim within time. Clause 17 of the terms and conditions clearly lays down that "all claims in respect of loss of damage of consignment shall be made within a period of 30 days from the date of tendering a shipment to DTDC. Any claim/request received after this period shall not be entertained; that the parcel/consignment was not insured by the consigner as per the policy of the company. If the parcel is not insured, then the liability of the company is restricted to Rs.100/- only. The complainant had not got the goods insured and therefore, the complainant cannot shift the burden of his loss upon the opposite parties; that the complainant has tried to misconstrue the contents of the policy of the company. On this point alone this complaint is liable to be rejected as false; that otherwise also as provided under rule 12 of the Carriage by Road Rules 2011 framed under the Carriage by Road Act, 2007, the liability of the opposite parties, if any, for loss or damage of the consignment in dispute is limited to 10 times of the freight charges taken from the complainant. Thus, the complainant is not entitled to the compensation as claimed by him. On merits, it has been submitted that while booking the parcel, the complainant did not disclose that the same are contained pair of Nike shoes and therefore, the opposite parties do not know whether the said parcel contained shoes or it was empty. Moreover, the shoes in question have been sent to Santosh through, Dr. Livtar Singh Chawla and there is nothing on the file that it was not received by Dr. Livtar Singh. Not only this even the affidavit of either Dr. Livetar Singh Chawla nor of Santosh has been produced with the complaint. Apart from this, opposite parties are not liable for the lost of shoes in question, if any, because the parcel/consignment was not insured by the consignor as per the policy of the company. If the parcel is not insured, then the liability of the company is restricted to Rs.100/- only. The complainant had not got the goods insured and therefore the complainant cannot shift the burden of his loss upon the opposite parties. All other allegations made in the complaint has been denied and a prayer for dismissal of the complaint alongwith heavy costs has been made.

4.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex. C-1 alongwith copies of documents Ex. C-2 and Ex.C-3 and closed the evidence. 

5.                On the other hand, opposite parties tendered in evidence duly sworn affidavit of Sh. Kanwaljit Singh, Manager - Administration Ex.OPs-1 and copy of authority letter Ex.OPs-2 and closed the evidence.

6.                We have heard the complainant in person and ld. counsel for opposite parties and have very carefully gone through record placed on file.

7.                Complainant argued that his son sent a pair of shoes from Canada to him, price of which was 120 dollor in Indian Currency Rs.6000/-. The complainant sent the same shoes to his friend namely Santosh, through opposite party no.1 and also paid the necessary charges to opposite party no.1 for delivering the same. But to the surprise of the complainant, till date the said shoes had not received by his friend. The complainant approached opposite parties several times and brought this fact to their knowledge, but they did not pay any heed to the request of the complainant. There is deficiency in service and trade mal practice on their part. As such, the complainant is entitled to the price of the shoes alongwith compensation.

8.                To controvert the arguments of complainant, ld. Counsel for opposite parties argued that that as per clause 25 of the terms and conditions printed in the back of receipt, it is provided that in case of any dispute, the matter will be referred to the arbitration of two arbitrators, one to be appointed by the sender and the other by the DTDC. Thus, in view of the arbitration clause, the present complaint is liable to be dismissed. Further as per clause 17 of the terms and conditions clearly states that "all claims in respect of loss of damage of consignment shall be made within a period of 30 days from the date of tendering a shipment to DTDC. Any claim/request received after this period shall not be entertained. In the present case, the complainant failed to make claim within time. Further the parcel/consignment was not insured by the consigner as per the policy of the company. If the parcel is not insured, then the liability of the company is restricted to Rs.100/- only. Further as per rule 12 of the Carriage by Road Rules 2011 framed under the Carriage by Road Act, 2007, the liability of the opposite parties, if any, for loss or damage of the consignment in dispute is limited to 10 times of the freight charges taken from the complainant. Thus, the complainant is not entitled to the compensation as claimed by him. Further argued that while booking the parcel, the complainant did not disclose that the same are contained pair of Nike shoes and therefore, the opposite parties do not know whether the said parcel contained shoes or it was empty. Moreover, the shoes in question have been sent to Santosh through, Dr. Livtar Singh Chawla and there is nothing on the file that it was not received by Dr. Livtar Singh. Further the affidavit of either Dr. Livetar Singh Chawla nor of Santosh has been produced with the complaint.

9.                We have heard both the parties and also gone through the file, evidence and arguments lead by the both the parties. The case of the complainant is that his son sent a pair of shoes from Canada to him. The complainant further sent the same shoes to his friend namely Santosh, through opposite party no.1 and paid freight charges to them for delivering the same. But despite that opposite parties failed to deliver the said shoes at the destination, which amounts to deficiency in service and trade mal practice on the part of opposite parties. In support of the pleadings, the complainant adduced the copy of the receipt dated 15.10.2015 issued by opposite parties as Ex.C-2, at the time of dispatching the said shoes. The complainant succeeds to prove his case. On the other hand opposite parties failed to produce on record any documents showing the said clauses, as mentioned in written reply. Admittedly, the complainant booked the parcel with opposite parties, which was not delivered by them at the destination. The acts of opposite parties for not delivering the shoes at the destination amounts to deficiency in service and mal trade practice on their part.

10.              In view of the above discussion, the present complaint in hand is allowed and opposite parties are directed to pay Rs.6000/- to the complainant i.e. price of the shoes in question which was not delivered by them at the destination alongwith interest @ 9% p.a. from 05.10.2015 when they received the shoes till final realization. Opposite parties are further directed to pay Rs.5000/-(Five thousand only) as compensation for mental agony and harassment faced by complainant and Rs.2000/-(Two thousand only) as litigation expenses to the complainant. Compliance of the order be made within 30 days from the receipt of copy of this order, failing which, complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of costs. File be consigned to the record room. 

Announced in Open Forum

Dated : 14.12.2016

                                         (Bupinder Kaur)                       (Ajit Aggarwal)

                                              Member                                     President