Kerala

Kottayam

CC/313/2012

SHIJU CP - Complainant(s)

Versus

DTDC COURIERS&CARGO LTD. - Opp.Party(s)

31 Oct 2014

ORDER

Consumer Disputes Redressal Forum, Kottayam
Kottayam
 
Complaint Case No. CC/313/2012
 
1. SHIJU CP
ARACKAL HOUSE,ERAYILKADAVU P.O,KOTTAYAM
...........Complainant(s)
Versus
1. DTDC COURIERS&CARGO LTD.
MANAGER,M/S DTDC COURIER & CARGO LTD.,NO.3,VICTORIA ROAD,BANGLORE
2. DTDC COURIER& CARGO LTD.
MANAGER,M/S DTDC COURIER &CARGO LTD.,GOOD SHEPHERD ROAD,KOTTAYM
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Bose Augustine PRESIDENT
 HON'BLE MR. K.N Radhakrishnan Member
 HON'BLE MRS. Renu P. Gopalan MEMBER
 
For the Complainant:
For the Opp. Party:
ORDER

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

 

Present:

 

Hon’ble Mr. Bose Augustine, President

Hon’ble Mr. K.N. Radhakrishnan, Member

Hon’ble Mrs. Renu P. Gopalan, Member

 

CC No. 313/2012

Friday, the 31st day of October, 2014

 

Petitioner                                            :         Shiju C.P.

S/o. Paulose,

                                                                   Arackal House,

                                                                   Erayilkadavu P.O.

                                                                   Kottayam.

                                                                   (Adv.A. Sunitha)                                                                                                                      Vs.

Opposite Parties                                 :    1) Manager

                                                                   M/s. DTDC Courier & Cargo Ltd.

                                                                   No.3, Victoria Road,

                                                                   Bangalore.

                                                              2)  Manager,

                                                                   M/s. DTDC Courier & Cargo Ltd.

                                                                   Good Sphered Road,

                                                                   Kottayam

                                                                   (Adv. Binu Mathew)

 

O R D E R

 

Hon’ble Mr. Bose Augustine, President

          The case of the complainant filed on 17/10/2012 is as follows.

          The complainant is working as a sales executive of Densply India Ltd. engaged in the sale and marketing of dental equipments.  The job of the complainant is canvassing orders from doctors and forward it to the company for supply.  According to the complainant, on 27/09/2012 for forwarding an order to the company, he had entrusted a consignment with the opposite party by paying Rs.130/-.  The consignment contains order form, cheque for advance payment, Form 16, ID proof of the doctor.  While entrusting the consignment, the opposite party agreed to deliver the consignment to the consignee on the next day itself.  Believing the opposite party, the complainant entrusted the article with the opposite party, as he has to achieve his target of the month of September.  Since there was no reply from the company, the complainant contacted in the head office of the company, and he knew that consignment was not delivered to the head office till that time.  The complainant contacted the opposite party and the opposite party intimated that the consignment was lost and could not be traced out.  According  to the complainant, he has lost the order and he could not achieve his proposed target of the month of September.  Thereby his net salary was diminished considerably and he had lost incentives too.  According to the complainant, the non delivery of the consignment to the consignee amounts to deficiency in service and unfair trade practice on the part of opposite party.  Hence this complaint, claiming damages and costs.

          The opposite party filed version contenting that the complainant is not a consumer.  The service availed by the complainant is in connection with his commercial/business activity.  According to the opposite party, they collected Rs.130/- as fright charge and the consignment of the complainant was delivered to the consignee in Bangalore.  The statement made by the complainant that the consignment contained order form, cheque for advance payment, Form 16, ID proof etc. is not correct.  And complainant had not produced any evidence to prove that consignment contains the above said items.  According to the opposite party, the complainant had not declared the contents of the documents to the 2nd opposite party at the time of booking or disclosed it’s contents in the consignment leaf while the same was booked.  And he never disclosed the purpose for which he was sending the said consignment to Bangalore.  Moreover, the value of the goods was not declared while booking the consignment.  No additional payment for carriage of valuables or for risk, was paid by the complainant.  According to the opposite party, they never assured the complainant that the documents will be delivered to the consignee on the next day itself.  According to the opposite party, a message on 28/09/2012 from the branch office of opposite party regarding the lost of some consignment including the complainant’s consignment and the same may be intimated to all the customers whose consignments were lost which is to enable them to take necessary precautions.  And on 28/09/2012, the opposite party also received the same information from the franchisee of the company taking care of the delivery of the consignments that about 15 consignments, which were missing / stolen from the bag of the courier boy and the same was irrecoverably lost.  Then immediately on the same day, the opposite party informed the complainant through mobile phone.  The phone number of the complainant was got from the consignment leaf.  According to opposite party, the 2nd opposite party apologized the complainant for the loss of the consignment and offered to refund the freight charge charges.  The claim of the complainant are fanciful, exaggerated, remote and has no nexus to the incident and the opposite parties are not liable to pay any consequential damages especially the terms of contract of carriage.  And the liability of the 1st opposite party for the loss of goods under the contract between the parties is limited to Rs.500/- and the liability is also limited under the provisions of the Carriers Act.  The consignor is consigning any valuable goods he has to specifically mention and declare the contents and its value and pay additional charges for sending the same at the time of booking.  The complainant has not produced any documents to prove the contents in the consignment.                            The complainant has no case that, he had declared the contents of the consignment and pay additional charges while entrusting the same with the opposite party 2.  According to the opposite party, the loss of the consignment was not due to any fault, and the same was beyond the control of the opposite party.  And there is no deficiency in service or unfair trade practice on the part of opposite party and they prayed for the dismissal of the complaint with their cost.

 

Points for determinations are

  1. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
  2. Relief and costs?

Evidence in this case consists of the proof affidavits of both sides.  Ext.A1 to

A3 documents from the side of complainant and Ext.B1 to B5 documents from the side of opposite party.

Point No.1

          The complainant alleges deficiency in service on the part of opposite party for the loss arised in respect of failure to deliver the goods at the destination.                The opposite party admitted the loss of the consignment booked by the complainant from the custody of opposite parties Indira Nagar Franchise.                       The opposite party issued instructions to the complainant about the said facts.  According to the opposite party, the complainant had not declared the contents of the documents or value of the consignments to the 2nd opposite party at the time of booking.  No additional payment for carriage of valuable or for risk was paid by the complainant.  As per Section 10(1) of the Carriages Act, for the loss of consignment, liability is limited to such amount as may be prescribed under the terms of contract.  In the consignment note leaf liability is limited to Rs.500/-.  So according to opposite party, the limit of the liability is itself for Rs.500/-.

          Admittedly the consignment was not delivered to the consignee and the same was lost in transit.  In our view, the act of opposite party in not delivering the consignment amounts to deficiency in service.  Admittedly complainant has not adduced any evidence to prove the value of consignment.  According to opposite party, the liability is limited to Rs.500/- for the loss.  In our view, the said argument of the opposite party is not sustainable because mere mentioning of some terms and conditions in the over leaf of the receipt cannot be termed as a condition in an agreement between the complainant and opposite party.  Admittedly neither the complainant nor the opposite party entered into a special contract with regard to the limit of liability.  So the absence of a special contract signed by the both parties, the opposite party cannot escape from the liability by limiting the same.  We are of the opinion that, entrustment of a consignment in insuring goods, the opposite party is answerable for the loss of goods.  In our view, the things happened may cause much hardship, loss and suffering to the complainant.                    So, opposite party is liable to compensate the complainant.  Point No.1 finds accordingly.

 

 

Point No.2

          In view of findings in Point No.1, the complaint is allowed in part.  In the result,

  1. The opposite party is ordered to pay Rs.5,000/- as compensation to the complainant.
  2. The opposite party is also ordered to pay Rs.2,000/- as litigation cost to the complainant.

Order shall be complied with within 30 days of receipt of copy of the order.

If not complied as directed, complainant is entitled 15% interest for award amount from the date of Order till realization.

Pronounced in the open Forum on this the 31st  of October, 2014.

Hon’ble Mr. Bose Augustine, President              Sd/-

Hon’ble Mr. K.N. Radhakrishnan, Member      Sd/-

Hon’ble Mrs. Renu P. Gopalan, Member           Sd/-

 

Appendix

Documents of the petitioner

Ext.A1 : Consignment Receipt  No.C09485973

Ext.A2 : Letter dtd.01/10/12 issued by the opposite party to the petitioner

Ext.A3 : Computer print out of the performance  slip of August 2012

Ext.A3 (a) : Computer print out of the performance  slip of September 2012

Documents of the opposite party

Ext.B1 : Copy of consignment no.V09485973

Ext.B2 : Consignment Receipt No. V13050393

Ext.B3 : Photocopy of e-mail message dtd.28/09/2012

Ext.B4 : Photocopy of letter dtd.01/10/2012 issued by opposite party

Ext.B5 : Photocopy of notarized copy of the affidavit of Mr. Rajamani dtd.29/09/2012.

 

      By Order

 

        Senior Superintendent

 
 
[HON'BLE MR. Bose Augustine]
PRESIDENT
 
[HON'BLE MR. K.N Radhakrishnan]
Member
 
[HON'BLE MRS. Renu P. Gopalan]
MEMBER

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