IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 18th day of November, 2019.
Present: Sri. Manulal.V.S, President
Smt..Bindhu.R, Member
CC No. 98/17(Filed on 15/4/17)
Complainant : Rajneesh Rajan,
S/o V.V.Rajan,
Varikkattu Veedu,
Kalalthoor PO,
Kuruvilangadu, Kottayam Dist.
(Adv. M.C.Suresh)
Vs
Opposite parties : 1) DTDC, Courier & Cargo,
Repted by its Managing Director,
Registered Office No.3,
Victoria Road, Bangaluru-560047.
2) DTDC Courier,
Sanjay Nagar Road,
Bareilly, Uttarpradesh-243006.
3) DTDC,
Kuravilangadu Branch,
Proprietor, Tomy Makkiyil.
( Ops.Adv. Binu Mathew & Sony
Sebastian)
O R D E R
Sri. Manulal.V.S, President
The complainant case is as follows:-
The complainant and his wife were working as Assistant Lecturers in Rohilkhand College of Nursing, Bareilly, U.P. The complainant entrusted his belongings with the courier service of the 1st opposite party at the Booking Centre at Bareilly on 3/1/2017 with consignment No.D.32219724 to be sent to his brother Rajesh Raj, at Kottayam. The consignment was having 29 Kg. After entrusting the consignment with the 1st opposite party, the complainant and his family returned to Kerala by flight after resigning his job. Apart from his belongings, the consignment consisted, 7 costly books which are direly needed for their career at Kerala and now worth Rs.50,000/-. The original certificate of the complainant and his family members were also in the consignment. Even after the lapse of a reasonable time, the consignment did not reach the destination. On 22/1/17 the complainant sent a notice but it was in vein. There after the complainant caused a lawyer’s notice to the opposite party to which no reply was sent by the opposite party. The opposite parties are duty bound to deliver the articles in time to the complainant. Due to the negligent act of the opposite party, the complainant lost their original certificates and that prevented them from getting a job in Kerala, which affected their income also. The non delivery of consignment is deficiency in service from the opposite parties. Due to the act of negligence by the opposite parties, the complainant and his family members suffered a lot and the opposite parties are liable to compensate the same. Hence the complaint.
Upon notice from the Forum opposite parties 1 to 3 appeared before the forum and filed a joint version contenting as follows.
The booking of the consignment weighing 29 Kgs under consignment note D32219724 is admitted. The complainant did not declare the contents of the consignment to the opposite party or its value at the time of booking the consignment. The complainant had not produce any evidence regarding the contents of the consignment. The complainant did not paid the additional payment like Risk Surcharge for the carriage of any alleged valuables of the consignment. On seeing the size of the consignment at the time of booking 2nd opposite party enquired about the contents of the consignment and it was disposed by the complainant that it was used blankets and bed sheets. When the 2nd opposite party requested to disclose the contents and value of the consignment and to pay the risk surcharge of 2% of the declared value for the carriers risk for the claim at the instance of damage or loss. The complainant informed that he was not having the bills and the consignment was not of any commercial value. Hence the consignment was booked and the freight charges alone was collected. The present allegation that the consignment containing goods worth Rs.1,93,150/- is an afterthought to make monetary benefits. The consignment reached at Kochi on 8/1/17. A fire tookplace at the godown of the opposite party on10/1/17 and the said consignment along with several other consignments were burned. The fire took place was due to the electrical short circuit which was beyond the control of the opposite parties. No prudent man would send the certificates etc. through the courier by surface and travel himself by flight. The improbability itself proves the falsity of the allegations. As per the terms and conditions of the contract, the liability of the opposite party is limited to Rs.100/- or the amount as mentioned in the terms and conditions written on the consignment note leaf. The complainant is not entitled to any consequences or in direct loss or damages due to the shipment under the contract. There is no deficiency in service or willful negligence on the part of the opposite parties. Complainant is not entitled to any relief.
The complainant filed proof affidavit in lieu of his chief examination and Exts. A1 to A4 were marked. The Manager Administration, Region of Kerala of the 1st opposite party filed proof affidavit for and on behalf of the opposite parties and Exts. B1 to B9 were marked.
On evaluation of the complaint, version and evidence on record we would like to consider the following points.
- Whether there is any deficiency in service or unfair trade practice
from the side of the opposite parties?
- Reliefs and costs?
For the sake of convenience we would like to consider point no.1 and 2 together.
Point No.1&2
The complainant had booked a consignment with 2nd opposite party to deliver the same to one Rajesh Raj at Kaduthuruthy, Kottayam. The consignment note bearing No.D3229724 dated nil issued by the 2nd opposite party to the complainant is produced and the same is marked as Ext.A1. The opposite parties admitted that they did not deliver the consignment to the addressee on the reason that the consignment was lost in the fire took place at the godown at Kochi. Ext.B5 First Information Statement and Ext.B6 FIR prove that the fire has been took place at the godown of the opposite parties at Kochi on 10/1/17 at 12 p.m. Ext.B7 is the report filed by the Investigation Officer before the Judicial First Class Magistrate Court and Ext.B9 is the report of the Deputy Chief Electrical Inspector of Kochi. Both reports stated that cause of fire took place in the godown of the opposite party not traced.
The opposite parties contented that the consignment had reached Kochi on 9/1/17 and was destroyed in the fire accident took place in the morning on 10/1/17. On perusal of Ext.B5 and B6 we can see that the fire accident was at 12 p.m on 10/1/17. The opposite party produced the print out of consignment tracker and marked as Ext.B3. In Ext.B3, it is stated that the consignment has received and scanned at Kochi on 10/1/17. The time of arrival of the consignment at Kochi is not recorded in Ext.B3. More over it is recorded in Ext.B3 that the consignment was in transit to Kuravilangadu and shipment was under investigation. Therefore we cannot accept the contention put forward by the opposite party that the consignment was lost due to the fire accident.
The opposite parties further contented that the complainant did not declare the contents of the consignment to the opposite parties or its value at the time of booking and did not pay risk surcharge for the carriage of any alleged valuables in the consignment. The specific case of the opposite party is that in the event of non disclosure of value of the articles and nonpayment of the risk surcharge the opposite parties are liable to pay only an amount of Rs.100/-.
Section 9 of the Carriage By Road Act 2007 provides as “(1) A common carrier shall,
- in case where the goods are to be loaded by the consignor, on the completion of such loading; or
- in any other case, on the acceptance of the goods by him, issue a goods receipt in such form and manner as may be prescribed.
(2) The goods receipt shall be issued in triplicate and the original shall be given to the consignor.
(3) The goods receipt shall be prima facie evidence of the weight or measure and other particulars of the goods and the number of packages stated therein.
(4)The goods receipt shall include an undertaking by the common carrier about the liability under section 10 or section 11”.
The liability of the common carrier as provided under Section 10 of Carriage By Road Act, 2007 read as follows. “(1)The liability of the common carrier for loss of or damage to any consignment, shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods documents or articles of the consignment, unless the consignor or any person duly authorized in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under section 11.(2) The liability of the common carrier in case of any delay up to such period as may be mutually agreed upon by and between the consignor and the common carrier and specifically provided in the goods forwarding note including the consequential loss or damage to such consignment shall be limited to the amount of freight charges where such loss, damage or delay took place while the consignment was under the charge of such carrier.
Provided that beyond the period, so agreed upon in the goods forwarding note, compensation shall be payable in accordance with sub-section(1) or section 11.
Provided further that the common carrier shall not be liable if such carrier proves that such loss of, or damage to, the consignment or delay in delivery thereof, had not taken place due to his fault or neglect or that of his servants or agents thereof”.
Section 11 of Carriage By Road Act, 2007 read as follows. “Every common carrier may require payment for the higher risk undertaken by him in carrying a particular consignment at such rate of charge as he may fix and correspondingly, his liability would be in accordance with the terms as may be agreed upon with the consignor.
Provided that to entitle such carrier to claim payment at a rate higher than his ordinary rate of charge, he should have exhibited a printed or written notice, in English and the vernacular language of the state, of the higher rate of charge in the place or premises where he carries on the business of common carrier”.
Section 12 of Carriage By Road Act, 2007 read as follows
“(1)Every common carrier shall be liable to the consignor for the loss or damage to any consignment in accordance with the goods forwarding note, where such loss or damage has arisen on account of any criminal act of the common carrier, or any of his servants or agents.
(2)In any suit brought against the common carrier for the loss, damage or non-delivery of consignment, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the common carrier, or any of his servants or agents.
(3)Where any consignment has been detained for examination or scrutiny by a competent authority and upon such examination or scrutiny it is found that certain prohibited goods or goods on which due tax was not paid or insufficiently paid have been entrusted to the common carrier by the consignor which have not been described in the goods forwarding note, the cost of such examination or scrutiny shall be borne by the consignor and the common carrier shall not be liable for any loss, damage or deterioration caused by such detention of the consignment for examination or scrutiny.
Provided that the onus of proving that such incorrect description of goods in the goods forwarding note was received from the consignor shall be on the common carrier”.
This liability of the common carrier commence from the moment of acceptance of goods either by him or through his authorized agents or employee and continues up to the delivery to the addressee, actual or constructive, and not merely upto arrival at the destination. Section 17 of Carriage By Road Act 2007 provides “ save as otherwise provided in this act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non delivery of any consignment entrusted to him for carriage, arising from any cause except the following namely
- act of God;
- act of war or public enemy;
- riots and civil commotion;
- arrest, restraint or seizure under legal process;
- order or restriction or prohibition imposed by the Central government or State government or by an officer or authority subordinate to the Central government or State government authorized by it in this behalf;
Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non delivery had the common carrier exercised due deligence and care in the carriage of consignment.
The proviso of Section 17 provides if it is proved that the common carrier could have avoided such loss or destruction, damage or deterioration or non delivery of the consigned goods, had the common carrier exercised due deligent and care in the carriage of the consignment. The similar provision has also been made under 2nd proviso to the Section 19(2) which provides as such “ provided further that the common carrier shall not be liable if such carrier proves that such loss or damage to the consignment or delay in delivery thereof, had not taken place due his fault or neglect or that of his servants or agents thereof.
The opposite parties relies on the decision of the National Commission in Desk to Desk Courier and Cargo Vs. Kerala State Electronics Development Corporation Ltd(2004 CPJ39) in that case the National Commission held that if the contents and value of the consignment are not declared in the consignment note and appropriate charges not paid to the carrier, the liability of the carrier is limited to the amounts under liability clause mentioned in the terms and conditions of the contract of the carriage.
It is admitted that the opposite parties on receipt of the articles from the complainant for transportation did not prepare any list of article, which they under took to make delivery to the addressee of the consignor as under taken by him. On perusal of the Ext.A1 consignment note we can see that there is only one entry as net weight as 29Kgs. Ext.B2 is none other than a blank form of Ext.A1 consignment note.
On going through the evidence we find that the complainant has mentioned in paragraph 12 of complaint the value of the consigned goods as Rs.1,93,500/-. It has been already discussed that at the time of booking of the consignment there was no exchange of list of goods by and between the complainant and opposite parties. It also appears that opposite party did not prepare any list as to what were the articles of the complainant received for the transportation.
In Ashish Verma Vs DTDC Courier and Cargo Ltd and others(IV 2018 CPJ 467) the National Commission has held that the deficiency is not only in respect of the loss of the packets, however, the deficiency is also in processing of receipt, dispatch and delivery of the packets. The fact of that case is similar to the case in hand. In that case the National Commission held that “ if this is just the booking receipt, then why the amount charged is not mentioned in this document. It seems that the opposite parties have not filled up this form completely to avoid their liability in future. Thus, this is clearly an unfair trade practice which has been adopted by the respondents/opposite parties and even if this is due to mistake of some employees of the company, the company would be liable for the same on the principle of vicarious liability”.
On perusal of the Ext.A1 consignment note we can see that the only entry recorded is the weight of the consignment. Ext.A1 did not contain the details of the articles and freight charges and even the date of entrustment. In the absence of the amount which the opposite party received from the complainant as freight charge in Ext.A1, we cannot accept the contention of the opposite parties that the complainant was reluctant to disclose the details of the value of the articles and pay the risk charges. The non recording of the freight charges in Ext.A1 proves the negligent manner in which the opposite parties received the consignment from the complainant. The said act of the opposite party amounts to deficiency in service and unfair trade practice as held by the Hon’ble National Commission in Ashish Verma Vs. DTDC Courier & Cargo Ltd and others.
We already discussed that the opposite parties are not succeeded to prove that the consignment was lost in the fire accident took place at their godown. The non delivery of the consignment by the opposite parties to the addressee amounts to deficiency in service. We are in the opinion that the complainant had suffered much loss and damage due to the act of the opposite party.
As discussed earlier the complainant did not produce any evidence to prove the value of the articles contain in the consignment. As per clause 15, which is printed on the reverse side of the Ext.A1 and B2 the liability of the opposite party is limited only to Rs.100/- unless the value of the articles was not disclosed to the opposite parties.
In the circumstances we allow the complaint and pass the following orders.
- We hereby direct the opposite parties 1 to 3 to deliver the articles contained in the consignment No.D-32219724 dated 3/1/17 or in alternative pay Rs. 100/- to the complainant with 9% interest from 3/1/17.
- We hereby direct the opposite party 1 to 3 to pay Rs.50,000/- to the complainant as the compensation for the act of deficiency in service and unfair trade practice.
The Order shall be complied with within 30 days from the date of receipt of copy of the order.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 18th day of November , 2019
Sri. Manulal.V.S, President Sd/-
Smt. Bindhu.R.Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1-Receipt dtd 3/1/17 Consignment No.D32219724 issued by DTDC
A2-Copy of Lawyer’s notice dtd 9/2/17
A3-Postal receipt
A4-AD card
Exhibits marked on the side of opposite party
B1- The Notary attested certified true copy of the resolutions passed at the
meeting of the Board of Directors of the Company held on 21st March at
Bangalore.
B2-The original standard consignment note leaf bearing consignment Note
No.D20972422 containing the terms and conditions of carriage with POD
Copy, Sender Copy, Accounts Copy, Recipient Copy(4 Nos)
B3-Copy of computer printout of tracking details
B4- Copy of news published in Malayala Manorama Daily
B5-Copy of First Information Statement dtd 10/1/17
B6-Copy of FIR
B7-Copy of Final Report in Crime 55/2017 of the Palarivattom Police Station
B8-The Notary attested true copy of the duplicate copy of Fire Report No.18/17
B9-Copy of Investigation Report No.B1991/17E.I.E dtd 8/3/17
By Order,
Senior Superintendent.
