DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
BATHINDA
C.C. No. 582 of 10-09-2014
Decided on 11-08-2015
Gurpinder Kaur aged about 30 years W/o Lakhbir Singh R/o Kalgidhar Colony, Gali No. 5, Rampura Phul now resident of Johanesbarg, South Africa through attorney Mahesinder Singh S/o Mohinder Singh R/o Kalgidhar Colony, Gali No. 5, Rampura Phul.
…...Complainant
Versus
1. DTDC Courier & Cargo Ltd., Regd. Office No. 3, Victoria road, Bengaluru 560047 through its General Manager/M.D.
2. Branch Manager, DTDC Courier & Cargo Ltd., SCO 267-268, Sector 35-D, Chandigarh.
3. Manager/Authorized person, DTDC Courier & Cargo Ltd., Opposite Post Office, Rampura Phul, District, Bathinda.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
Quorum :
Sh. M.P.Singh. Pahwa, President
Smt. Sukhwinder Kaur, Member
Sh. Jarnail Singh, Member
Present :
For the Complainants : Sh. Sanjay Goyal, counsel for complainant.
For the opposite party : Sh. Ajay Kumar Yadav, counsel for OPs
O R D E R
M. P. Singh Pahwa, President
1. This complaint has been filed by Gurpinder Kaur, complainant under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act') against DTDC Courier & Cargo Ltd., and another (here-in-after referred as “opposite parties').
2. Briefly stated, the case of the complainant is that she is doing job in bank in Johanesbarg, South Africa and presently is in South Africa. She is unable to personally attend the court hearing, as such she has executed special power of attorney in favour of her brother namely Mahesh Inder Singh to file the present complaint.
3. It is alleged that complainant was pregnant. She came to her brother who is also her attorney at Rampura Phul for delivery of her child, after taking leave from job. After delivery she had to go back to Johanesberg where her husband was also doing job in the same bank. She got reserved the tickets of flight to Johanesbarg. Since complainant stayed for long period in India for delivery purposes, she required police certificate to the effect that she has not committed any crime during her stay in India. Without that certificate, she could not leave India. The complainant obtained police clearance certificate for supplying it to Mr. Parmod Kamle of Tech Mohindra Ltd., at 2nd Floor, Corporate Block, Pune, because without that certificate complainant could not get Visa for South Africa. Since Mr. Parmod Kamle was pursuing for Visa, as such that police clearance certificate was to be sent to him.
4. It is the case of the complainant that through DTDC courier, who had branch office at Ramura Phul, sent envelope containing police clearance certificate through opposite party No. 3. The opposite party No. 3 charged Rs. 260/- from complainant and issued receipt regarding consignment bearing No. V16556594 dated 26-5-14. He assured delivery within two days to be made to Parmod Kamle of Pune. It is alleged that envelope of complainant did not reach destination even after 4-5 days. The complainant contacted opposite party No. 3, who verified the status of the same from opposite parties No. 2 & 3, but no satisfactory reply was given. The complainant again contacted opposite party No. 3 and after verification from opposite parties No. 1 & 2, they confirmed that complete bag containing more than 80 envelops has been lost by them but they refused to given in writing. The complainant asked the opposite parties that since she had obtained police clearance certificate which cannot be issued twice by police authorities and it is very difficult to get the police clearance certificate and she has already booked air tickets. In case her police clearance certificate is not traced and reach the desire destination, she will have to suffer a lot but the opposite parties neither got registered FIR nor delivered the documents on desired destination.
5. It is further alleged that due to negligence of opposite parties, she had to again visit the police authorities upto Chandigarh to obtain second police clearance certificate. Ultimately after personal visits of more than 7 days, she finally got second police clearance certificate. She had to suffer a lot due to recent delivery.
6. It is alleged that ultimately the complainant had to cancel previous air line ticket and had to postpone visit of Johanesbarg. The complainant had to spend more than Rs. 40,000/- to get second police clearance certificate and further had to cancel her earlier air tickets.
It is alleged that there is clear cut deficiency in service on the part of the opposite parties. Due to this reason, the complainant is entitled to Rs. 1,00,000/- as compensation for mental and physical torture and harassment, Rs. 40,000/- as financial loss and Rs. 11,000/- as litigation expenses. Hence, this complaint.
7. Upon notice, opposite parties appeared through counsel and contested the complaint by filing written version. In written version, opposite parties raised legal objections that complainant has come to this Forum with unclean hands to grab the money of the company as parcel in question has already been delivered. The complainant is mis-stating and misleading the Forum by making a false story. The complaint is liable to be rejected on this ground alone.
8. On merits also, the opposite parties have denied the facts which were personal to the complainant mainly for want of knowledge. The delivery of parcel through opposite party No. 3 is not categoricaly denied. It is further added that neither any type of assurance was given nor any commitment was agreed by the opposite parties. It is also denied, for want of knowledge, that envelope contained police clearance certificate. It is further stated that opposite parties every time guide the consumers to get the risk charge policy or get the documents insured. When the same is not done, the documents or parcels are sent at the risk of consumer here the complainant. In such type of cases, the company is liable to the extent of Rs. 100/- to Rs. 500/-. When the parcel was sent at the risk and cost of complainant, then how can the complainant blow hot and cold in the same breath and principle of estoppel will also be applicable against the complainant. Moreover, the parcel has been delivered.
9. Both the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence affidavit of Mahesh Inder Singh dated 10-09-2014 (Ex. C-1), special power of attorney (Ex. C-2), courier receipt (Ex. C-3), copy of legal notice (Ex. C-4), copies of postal receipts (Ex. C-5 to Ex. C-7) and copies of ticket receipts (Ex. C-8 & Ex. C-9).
10. In order to rebut this evidence, opposite parties have tendered into evidence affidavits of Rajeev Chandan dated 25-11-14 & 17-04-2015 (Ex. OP-1/1 & Ex. OP-1/2 respectively) and photocopy of consignment track details (Ex. OP-1/3). The complainant has also submitted written arguments.
11. We have heard learned counsel for the parties and gone through the record and written submissions of the complainant.
12. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that complainant has also brought on record E-ticket receipts which show that originally the complainant was to depart on 4-7-2014 but as the opposite parties have failed to deliver police clearance certificate, complaint was unable to get Visa. She was to postpone her departure and forced to get the tickets cancelled. She has suffered financial loss. She was to over stay in India and to remain out of job and away from her family. As such, the complainant is entitled to compensation as claimed by her.
13. It is further submitted by learned counsel for the complainant that opposite parties cannot escape from their liability only by pleading in their reply that company is liable to the extent of Rs. 100/- to Rs. 500/-. No terms and conditions have been produced on record to prove that complainant was made aware about the terms and conditions. It is further submitted by learned counsel for the complainant that the opposite parties cannot escape from their liability only for the reason that parcel has been delivered. As per tracking record Ex. OP-1/3 also, the parcel was delivered on 7-6-2014. There is inordinate delay in delivery of parcel at the destination. The purposes of the complainant stands frustrated due to delay in delivery of the parcel. Thus, deficiency in service on the part of the opposite parties stands established from this fact also that parcel was delivered at very belated stage.
To support these submissions, learned counsel for the complainant has cited (i) 2011(4) R.C.R. (Civil) 472 case titled Trans Mediterranean Airways Vs. M/s. Universal Exports and another (ii) 2012(2) CPJ (N.C.) 167 case titled Air Star Express Courier Vs. Inder Medical Store and Anr. And (iii) 2011(4) CPR (State Commission) 155 case titled On Dot Couriers Cargo Ltd., Vs. Jaspal Singh & Anr.
14. On the other hand, the submission of leaned counsel for opposite parties is that the complainant has concocted entire version. The complainant was to prove her averments mentioned in the complaint. It is the case of the complainant that opposite parties assured delivery within 2 days. There is no document to prove such pleading. Moreover this Forum can also take due notice of the fact that delivery of parcel from Rampura Phul to Pune within two days is not possible at all. Rampura Phul is not connected with any airlines. Even there is no direct rail from Rampura Phul to Pune. It is not believable that opposite parties will assure delivery within two days and complainant will accept this assurance. The parcel was to be delivered at far distant place and it has been delivered within reasonable time. There was no contract of service by complainant with opposite parties No. 1 & 2. The complaint is not maintainable against opposite parties No. 1 & 2, The complainant has not come forward to support her averments. The affidavit of her power of attorney cannot be taken as affidavit of complainant. At the most, it can be considered as statement of witness. The complainant has to herself prove any loss due to mental and physical harassment as well financial loss, but there is no evidence. The law cited by the complainant is not applicable as in the cited cases, the parcel was not delivered at all but in this case, the parcel was delivered within reasonable time.
15. We have carefully gone through the record and have considered the rival contentions.
16. Before considering merits of the claim, we would like to make it clear that the case law relied upon by the learned counsel for the complainant is not applicable. In the cited cases, the parcel was not delivered at all but in this case, the parcel has been delivered at the destination.
17. The complainant has alleged that the opposite party No. 3 assured delivery of parcel within two days, but there is nothing on record to prove this fact. In the absence of any evidence to prove that parcel was to be delivered within two days, it is to be assumed that opposite party was duty bound to deliver the parcel within reasonable time. Admittedly, the parcel was handed over to the opposite party on 26-5-14. Keeping in view the distance, at the most parcel was to be delivered within 5-6 days but in this case as per opposite parties, parcel has been delivered on 7-6-2014. Therefore, there is delay in delivery of parcel. This delay amounts to deficiency in service on the part of opposite party No. 3.
18. The parcel was delivered to opposite party No. 3. Consideration was paid to opposite party No. 3. There was no contract by complainant with opposite parties No. 1 & 2. Therefore, the complainant is not entitled to any compensation from opposite parties No. 1 & 2.
19. When there is delay in delivery of parcel, it is to be seen for how much compensation the complainant is entitled to. Of course, the complainant has pleaded that she was to procure another clearance certificate and spent huge amount. She has also pleaded that she was also to get her air ticket cancelled, but there is nothing to show that these facts were also brought to the knowledge of the opposite parties. There is nothing to show that opposite parties were asked to deliver the parcel within bounded time and otherwise opposite parties will be liable to the consequences. In such circumstances, the complainant is not entitled to these charges. Since there is delay in delivery of the parcel, it amounts to deficiency in service on the part of opposite party No.3. Therefore, the complainant is entitled to some amount as damages.
20. Keeping in view the facts, circumstances and evidence placed on file by the parties, this complaint is partly accepted against opposite party No. 3 and dismissed qua opposite parties No. 1 & 2. The opposite party No. 3 is directed to pay Rs. 1,000/- to the complainant within 30 days from the date of receipt of copy of this order.
21. The complaint could not be decided within the statutory period due to heavy pendency of cases.
22. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
11-08-2015
(M.P.Singh Pahwa )
President
(Jarnail Singh ) (Sukhwinder Kaur)
Member Member
(Jarnail Singh )
Member
