BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 569 of 2015

Date of Institution: 11.9.2015

Date of Decision  :21.04.2016

Dr. Vaneet Gupta, MDS Final Year, Room No.2, B-Block, Boys Hostel, Pb.Govt.Dental  College and Hospital, Near Shivala Bhaiyyan,Amritsar 143001 (Pb) Contact No. 919872163889

Complainant

Versus

DTDC Courier Services, Shop No. 73,  City Centre, Opp.Sangam Cinemas, Near Bus Stand, Amritsar, Contact No. 9653495206 (Sunil Branch Executive)

       Opposite Party

Complaint under Consumer Protection Act, 1986

Present:    For the Complainant                  :         In person

                For the Opposite Party     :         Sh.Ajay Shanker,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Order dictated by:

Sh.S.S. Panesar, President.

1.       Dr.Vaneet Gupta has brought the instant complaint under the Consumer Protection Act, 1986 on the allegations that complainant is a MDS final year student  at Pb.Govt. Dental College and Hospital, Amritsar and have sent the bone graft (which was taken from Tata Memorial Hospital,Mumbai) by DTDC Courier Service, Batala Road, Amritsar with CN No. Z58163303 on 4.8.2015 which was to be delivered at Patiala on or before 6.8.2015 as ensured.  The bone graft was sent for the purpose of periodontal surgery which was planned to be done on 8.8.2015. But the graft has not been delivered till date with no accurate information about the position of graft, instead false assurances/information were given on repeated visiting to the office of the opposite party. Verbal complaint has also been filed number of times and even to the Executive Manager of the branch, but no action has been taken except false assurances. The surgery was to be performed on patient suffering from Chronic Periodontitis with severe bone loss with poor systemic health conditions. In case there is no control of infection, it may even lead to death of the patient due to bacterial endocarditis. But the surgery has to be postponed a number of times and it is pending till date which in itself is a matter of mental harassment mainly to the patient. The complainant has enclosed the estimated loss due to negligence on the part of DTDC Courier Services as under:-

It is, therefore, requested that opposite party may be directed to compensate for misplaced package/economical loss and loss for mental harassment on the part of the patient, team of concerned doctors and that of the complainant, besides allowing charges of filing complaint and any other additional or alternative relief which the complainant may be found entitled to.

2.       Upon notice, opposite party 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. Besides section 8 of the Goods forwarding note also lays down that the complainant has defaulted himself and has not performed his own legal duties. 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 is further stated that the complainant has made a false statement that goods had to be reached within 48 hours when the insurance policy or risk charge policy has not been adopted by the complainant. The complainant knows well that an agreement has been executed as elaborated in the earlier paragraph of the reply. A prayer for dismissal of the complaint with costs has been made.

3.       In his bid to prove the case, complainant Dr.Vaneet Gupta made in 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 courier receipt Ex.C-2 and closed his evidence.

4.       To rebut the aforesaid evidence, opposite party produced Rajeev Chandan  on behalf of DTDC Courier & Cargo Ltd , who tendered his duly sworn affidavit Ex.OP1 in support of the allegations made in the written reply. Besides producing copy of the company policy Ex.OP2 and closed evidence  on behalf of the opposite party.

5.       We have heard the complainant and the ld.counsel for the opposite party and have also carefully gone through the record.

6.       On the basis of the evidence on record, ld.counsel for the opposite party 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/- per shipment as per clause 5 of the courier receipt. Courier receipt is an agreement inter-se parties and the terms and conditions mentioned overleaf are binding inter-se parties. The complainant cannot wriggle out from the terms and conditions mentioned overleaf on receipt Ex.C-2. 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.

7.       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 conditions printed on the overleaf of receipt  Ex.C-2, the liability of the opposite party is strictly restricted to Rs. 500/-. 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 party could very well produce the receipt regarding the delivery of the parcel in dispute to the consignee before this forum. But, however, for the reasons best known to the opposite party, no such evidence was brought on record. The omission on the part of the opposite party 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. 24,300/- (Rs. 6300/-, Rs. 10,000/-, Rs.2000/-, Rs.3000/- & Rs. 3000/-) , 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.  Keeping in view the facts and circumstances of the case, it would be reasonable to allow compensation to the tune of Rs. 5000/- to the complainant. 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 : 21.4.2016

/R/                                                                        ( S.S.Panesar )

President

                                                                   ( Kulwant Kaur Bajwa)                                                                                        Member