D.O.F:28/01/2020
D.O.O:30/11/2022
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.20/2020
Dated this, the 30th day of November, 2022
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
K.K.Radhakrishnan Nambiar
Rtd.Senior Finance Manager (State PSU): Complainant
“Geethanjali”, Karattuvayal,
PO Kanhangad 671315
And
- DTDC Express Limited
Regd.Office No.3, Victoria Road
Bangaluru 560047
- DTDC – Franchise
Ram Nagar / Mavungal Road: Opposite Parties
Sea Wind Building
Kottachery, Kottachery
P O Kanhangad 671315
(Advs:- Binu Mathew,Krishna priya.T.M &
Abdul Nasir)
ORDER
SRI.KRISHNAN.K : PRESIDENT
The Complaint is filed under section 35 of Consumer Protection Act 2019. The case of the complainant is that he is a retired Finance Manager of Steel Industries Government of Kerala undertaking presently residing at Kanhangad.
2. The Complainant sent a consignment via Opposite Party Courier Service addressed to Adit kumar of Pune, But though addressee went to collect the consignment on 05/10/2019 and 06/10/2019, delivery not effected by Ranchi office of Opposite Party though Complainant made Complaint, and tracking query is furnished no purpose is served.
3. The consignment was dress item for his daughter working as senior consultant in UK, for her performance held in Manjester. Addressee of courier is a Co-worker of his daughter, native of Ranchi and was scheduled to leave for UK on 06/10/2019. Complainant contacted Kanhangad office of Opposite Party, to locate the material back, sent whatsapp messages, but finally deleted by Opposite Party without entertaining Complainant filed claiming value of dress material, consignment charge, cost of items, mental stress and strain in total Rs. 50959/-
4. The Opposite Party filed their written version denying the allegation. Opposite Party admitted receipt of consignment produced its receipt. It is subject to conditions. If any damage or loss of goods caused, the liability is fixed to Rs.100/- only unless specifically declared the contents and value of items of consignment. Here no declaration is made as required. Opposite Party denied liability to pay compensation.
Complainant filed chief affidavit and was cross examined as PW1, Ext A1 and A2 marked Ext A1 is tax invoice for materials, Ext A2 consignment bill.
Considering the contentions and averments in affidavit following points arise for consideration.
- Whether the claim of complainant is maintainable in view of special conditions of courier service that liability is fixed unless contents and its value is not declared during consignment?
- Whether there is any Deficiency in service and whether complainant entitled to any compensation and so far what reliefs?
5. Now Coming to the merits of the case the counsel for the Opposite party submitted that there is no deficiency in service on the part of Opposite Party as alleged by the complainant. But at the same time Opposite Party No: 2 is the Franchisee of Opposite Party No:1. Consignment is received by Opposite Party No: 2 agreeing to delivery of the receiving end. Admittedly no delivery is effected nor is it returned to the complainant. There is no suggestion to PW1 that consignment is delivered or why it is not delivered or what happened to consignment. The next argument of Opposite Party is that no declaration was submitted by the Complainant, at the time of booking the consignment with Opposite Party No:2, with regard to the content of the same, and also the value thereof. Under these circumstances, the Opposite Parties were not at all liable to pay any amount. It may be stated here the complainant disclose items or its value in the declaration. But this fact was duly proved by him by way of his affidavit, which was submitted, as evidence. In case declaration had not been submitted by Complainant at the time of booking consignment, then Opposite Party No:2 could insist for the submission of the same, and in the event of non-submission of the same, it could refuse to book the same (consignment) for delivery to the consignee. At that time, the opposite party did not insist upon the complainant, that he should give declaration, with regard to the contents of the consignment and value thereof Opposite Party No:2 accepted the consignment, as it is by obtaining necessary charges. Later on they could not turn round and say that on account of non-furnishing of declaration, with regard to the contents of the consignment and value of the same, the Opposite Parties were not liable to pay damages, to the complainant when the same is not delivered to the addressee and when it is not even returned to complainant.
6. No reason are stated as to why the consignment could not be delivered to the consignee, either for want of complete address or non- availability or at least what happened the consignment. The documents Ext A1 and B1 consignment booking receipt shows the address of the consignee. It is evident , from the document that the correct address of the consignee was mentioned there in. There was no insufficiency of the particulars of address of the consignee. In case there was any difficulty, the Opposite Parties could also contact the complainant to inform why consignment is not delivered in time.
7. Submission is that as per the terms and conditions of the receipt issued at the time of booking of consignment to the Complainant, the liability of the Opposite Parties was limited to Rs.100/- only. However, it may be stated here, that Ext A2 booking receipt, does not bear the signature of the Complainant. There is nothing on the record to prove that the terms and conditions of Ext A2 were read over and explained to the complainant and the same were accepted by him. Weight of the consignment is shown as 4kg and charges collected Rs.560/-
8. We have referred the citation in Sudhir Deshpande Vs Elbee Services Ltd Bombay 1 (1994) CPJ 140 NC: The principal laid down in the case aforesaid, is fully applicable to the facts of the instant case, as Ext A2 containing the limited liability clause of the courier is not binding to the complainant, as he was neither signatory to the same, nor any evidence was led by the Opposite Parties, that the said clause was read over and explained to him. There were the unilateral terms and conditions and, as such, the Complainant was not bound by the same. The courier company’s liability printed on its receipts, which say that in case of any loss or damage the company shall not pay more than Rs.100/- is against the public policy.
9. In Surendar kumar Tyagi Vs Jaget Nursing Home and hospital and another I V (2010) CPJ 199(NC), the principal of law, laid down by NCDRC, held that the compensation should be commensurate with the loss and injury, suffered by the complainant. It may be stated here that it was clear that terms stated by the complainant in the complaint, that the items are to be carried to UK by a co-worker of his daughter for her use in the dance program there. On account of non-delivery of the consignment to the consignee, by the Opposite Parties, the complainant had to arrange to buy it again. One could image the mental tension, agony and suffering of a person, who booked the consignment to be delivered on a particular date, but the same was not delivered to the consignee. On account of this reason, a lot of mental agony and physical hardships was suffered by the Complainant. In our considered opinion there is serious deficiency in service of Opposite Party in the matter of non-delivery of consignment in time and no explanation thereof, but rather taking plea of no liability for exclusion clause.
So Opposite Party is liable to pay compensation to the complainant. Which is quantified at Rs.5000/- towards value of all items and Rs.10000/- for complaints mental tension and agony and hardships thereof and Complainant is also entitled for cost of litigation.
10. In this result complaint is allowed in part, Opposite Party No:1 and Opposite Party No:2 are jointly and severally directed to pay sum of Rs15000/- (Rupees Fifteen Thousand only) towards price of the articles lost and compensation and also pay Rs.5000/- (Rupees Five thousand only) as cost of litigation within 30 days of receipt of the order. In default the amount will carry interest at 8% per annum from the date of complaint till date of payment thereof.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exhibit
A1:- Tax invoice for materials
A2:- Consignment Bill
Witness Examined
Pw1:- K.K.Radhakrishnan Nambiar
Forwarded by Order
Assistant Registrar
Ps/
