| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 396 of 23.12.2022 Decided on : 13-7-2023 Dr.Jagpal Singh Chahal aged about 60 years S/o Joginder Singh R/o 85, Phase-III, Model Town, Bathinda ........Complainant Versus DTDC Express Limited through its MD/ Chairman, Registered Office:3, Victoria Road, Bengaluri-560047; Regional Head, DTDC Express Limited, Regional Office: 209/201, Opposite Healing Touch Hospital, Chandigarh-Ambala Highway, Ambala City; Manager, DTDC Express Limited, Shop No.1, 45 Foot Road, New Shakti Nagar, Dr. Mela Ram Hospital Street, Bathinda; Mithlesh Kumar, Authorized Franchisee, DTDC Express Limited, Opposite:Maheshwari Nursing Home, Maheswari Chowk, 100' Road, Bathinda.
.......Opposite parties Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Sandeep Baghla, Advocate. For opposite parties : Sh. Amandeep Mittal, Advocate for OPs No.1 to 3. Sh. Navneet Kataria, Advocate, for OP No.4. ORDER Lalit Mohan Dogra, President The complainant Dr. Jagpal Singh Chahal (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against DTDC Express Limited and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that the complainant had booked a package through the opposite parties-Courier Service from their Authorized Franchisee i.e. opposite party No.4 vide consignment No. 7D5051451 on 19.4.2022. The said consignment consisted of a Laptop make HP Pavallion Core 17 (6th Gen)- (16 GB/2 TB HDD/Window 10/4 GB Graphics) W6T21PA worth Rs.78,990/- and Men Shoes worth Rs.170 Pounds, purchased from abroad. The said Laptop had been purchased vide invoice dated 12.9.2016 from Tech Connect Retail Private Limited, Bhiwandi (Mumbai) vide Tax Invoice No.2750116309 IV for a sum of Rs.78,990/-. Likewise, the Men Shoes had been purchased by son of the complainant from Matches Fashion for a sum of Rs.170 Pounds vide invoice dated 2.12.2021 and a sum of Rs.14,102/- had been paid towards duty i.e total sum of Rs.29,500/-, respectively had been incurred on the said Shoes. After booking of the consignment, the Authorized Franchisee i.e opposite party No.4 had issued consignment receipt No. 7D5041451 dated 19.4.2022 in favour of the complainant and a sum of Rs.1,500/- were charged (although a sum of Rs.1,200/- was reflected in the said receipt issued), for the transportation of the said Docket to Pune, where the son and daughters-in-law of the complainant are residing. However to the dismay, shock and surprise of the complainant the said consignment had not reached the destined address at Pune. The complainant had repeatedly requested the opposite parties to look into the matter and to affirm the delivery of the said consignment of the aforesaid articles at Pune. However, the opposite parties have been evading to the same on one pretext or the other. It is further alleged that the complainant had also given a written complaint dated 10.6.2022, to opposite party No.3 requesting it to trace the said consignment and to deliver the same and this was followed by multiple complaints and correspondence with DTDC Customer Support. Although the Customer Support had acknowledged the complaints of the complainant and had apologized for the inconvenience but nothing fruitful had accrued there from despite the acknowledgement and admission by Customer Support of DTDC vide their e-mails dated 10.6.2022, 12.6.2022, 18.6.2022, 22.6.2022 (twice), 27.6.2022 and 14.7.2022, with respect to the said loss of consignment. The complainant alleged that the complainant has been running from pillar to post requesting the opposite parties to trace the said consignment that has been lost in their possession but the opposite parties in connivance with each other have been evading to the same on one pretext or the other. The complainant had also got served a legal notice dated 12.9.2022 through registered post dated 17.9.2022 upon the opposite parties calling upon them to settle the claim of the complainant, but to no effect. The opposite parties had neither replied to the notice nor settled the claim of the complainant in pursuance of their ill designed motive to misappropriate the articles of the complainant. On this backdrop of facts, the complainant has prayed for directions to opposite parties to pay sum of Rs.1,09,900/- i.e. Rs.78,990/- being the cost of Laptop and Rs.29,500/- being the cost of Shoes and Rs.1500/- being the courier charges paid by the complainant to the opposite parties with interest @ 18% p.a. on the above said amounts and Rs. 1,00,000/- as compensation for mental tension, agony, harassment and botheration etc. Upon notice, opposite parties No.1 to 3 appeared through counsel and contested the complaint by filing written written reply raising preliminary objections that there is Express provision provided in the terms and conditions mentioned on the overleaf of the consignment note. It is clearly mentioned on the consignment note itself that "Please refer to only terms and conditions are printed overleaf of this consignment note before tendering a shipment to DTDC". Clause 25 of the terms and conditions clearly lays down that in case of any dispute, the matter will be referred to the arbitration of two arbitrators, one to be appointed by the sender and the other by the DTDC. Thus in view of the arbitration clause. The complainant has not made claim within time. Clause 17 of the termss and conditions clearly lays down that "all claims in respect of loss or damage of consignment shall be made within a period of 30 days from the date of tendering a shipment to DTDC. Any claim requests received after this period shall not be entitled. Thus the complainant made claim regarding compensation on account of irrational, unjust, illegal and unfair trade practices after 30 days of the sending of packet. Therefore, this complaint is not maintainable. It has been pleaded that the complaint filed by the complainant is not maintainable because he has tried to misconstrue the contents of the policy of the company. On this point alone this complaint is liable to be rejected as false. The terms and conditions, which are printed on the overleaf of this receipt, are an agreement between the parties, clause 5 is dealing with the limitation of liberty laying down that law of 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. Clause 5 of the terms and conditions of this receipt, which constitute an agreement between the parties clearly lays down that the liability of the DTDC for any loss or shipment or for any loss or damage of the shipment will be strictly limited to Rs. 100/- only for each shipment, which item includes all documents or parcels consigned through DTDC by the shipper. On merits, the opposite parties No. 1 to 3 admitted booking of the consignment. It has been pleaded that at the time of booking of the consignment, the complainant failed to disclose the contents of the same and now is trying to encash good will from the opposite parties by annexing these bills/invoice and the same is not believable as the contents of the same were not disclosed. Even otherwise, the laptop bill which has been annexed with the complaint pertains to the year 2016 and the shoes invoice annexed with the complaint does not have a specific date. Thus, these bills are false and fabricated. It is pertinent to mention here that the complainant has declared the invoice value as Rs. 1500/-. Thus, the liability, if any, of the opposite parties is only Rs. 1500/- as disclosed by the complainant. The opposite parties No. 1 to 3 denied all other averments of the complainant. In the end, the opposite parties prayed for dismissal of complaint. Upon notice, opposite party No.4 appeared through counsel and contested the complaint by filing written reply raising preliminary objections that the above noted complaint is not maintainable in its present form. The complainant has no locus standi or cause of action to file the present complaint. The complaint is bad for mis joinder of party i.e. the opposite party No.4 who has been unnecessarily dragged as party to the present complaint. The complainant has not approached this Commission with clean hands rather he has intentionally concealed the true and material facts. On merits, it has been pleaded that complainant had produced a packed consignment before opposite party no.4 and never disclosed to the opposite party no.4 that the same is containing a Laptop make HP Pavallion Core 17 (6th Gen) allegedly purchased by him for Rs.78,9901- and the Men Shoes for a sum of 170 Pounds allegedly purchased vide invoice dated 2.12.2021. It has also been pleaded consignment was sent to the DTDC Hub by the opposite party no.4 in the same packed condition from where, the same was sent to the Ambala Office of DTDC for further dispatch to the concerned city for delivery of the same to the consignee. The opposite party No.4 had delivered the aforesaid sealed parcel in the Hub Office of DTDC and thereafter the opposite party No.4 has nothing to do with the aforesaid parcel which was to be delivered by the local office of DTDC where the parcel was to be delivered to the consignee at Pune. The opposite party No. 4 denied that complainant ever lodged any complaint with the opposite party No.4 as alleged. In support of his complaint, the complainant has tendered into evidence his affidavit dated 23.12.2022 (Ex. C-19) and documents (Ex.C-1 to Ex.C-18). In order to rebut the evidence of complainant, the opposite parties No.1 to 3 have tendered into evidence affidavit of Hirender Kumar dated 28.1.2023 (Ex. OP-1/1) and closed the evidence. The opposite party No.4 has tendered into evidence affidavit of Mithlesh Kumar authorised franchisee dated 11.7.2023 (Ex. OP-4/1) and closed the evidence. The learned counsel for the complainant has argued that complainant had sent consignment containing one laptop worth Rs. 78,990/- and a pair of shoes worth Rs. 14,102/- to pune vide receipt Ex. C-4. However, the said consignment did not reach at its destination at Pune and after number of inquiries, complainant had given written complaint Ex. C-5. Thereafter complainant also sent various e-mail to the opposite parties but the opposite parties kept on giving false promises and till date the said consignment has not been returned to the complainant and had also did not reach the destination causing loss to the complainant which amounts to deficiency in service on the part of the opposite parties. The learned counsel for the complainant has also referred follwoing case law:- 2017 (2) CPJ 355 (NC); 2011 (2) CPJ 124 (NC); 2003 (3) CPJ 15 (NC); 2006 (4) CPJ 358 (NC); Roadwings International Vs. Hindustan Copper Ltd. (NCDRC New Delhi) – First Appeal No. 455 of 1996 D/d 18-8-1998; 2011 (2) CPJ 124 (NC) and 2014 (4) CPJ 467 (NC). On the other hand, learned counsel for opposite parties No. 1 to 3 has argued that complainant is bound by terms and conditions as mentioned on the back side of receipt and liability of the opposite parties is only upto Rs. 100/- as per clause '5'. It is further argued by learned counsel for the complainant that complainant had declared value of the items as Rs. 1500/- and has also argued that as per clause 25, the matter is to be referred to the Arbitrator. The learned counsel for opposite party No. 4 has argued that complainant had not delcared the nature of items being sent and opposite party No. 4 had only received parcel for further delivery to opposite party No. 3 and as such, there is no liability of opposite party No. 4. We have heard learned counsel for the parties and gone through the file carefully. It is admitted fact that complainant had booked one parcel from Bathinda to Pune through opposite party No. 4 authorized franchisee after making payment of Rs. 1200/-. It is further admitted that said parcel/consignment did not reach at its destination. To prove his case, complainant has placed on record all the receipts, correspondence exchanged with the opposite parties, copy of invoice of Laptop and shoes, sent through opposite parties. The only contention of the opposite parties is that the complainant is bound by the terms and conditions written on the back side of the booking receipt Ex. C-4. However, we have gone through the receipt and it does not bear signatures of the complainant at any place. It has been repeatedly held by the Hon'ble National Commission, New Delhi, and in the judgements referred above that complainant is not bound by terms and conditions which are not signed by the complainant and which were not read over and explained to the complainant. The plea of the opposite parties that complainant failed to disclose contents of parcel is also not acceptable, as all such parcels, pass through scanner and as such, question of non-disclosure does not arise. As far as question of liability is concerned, the opposite parties cannot escape from their liability by merely offering Rs. 1500/- to the complainant inspite of the fact that complainant has duly placed on record copies of bills of the items dispatched through opposite parties. Accordingly, this Commission is of the view that complainant is definitely entitled to compensation equivalent to the cost of items sent through the opposite parties. As far as the plea of opposite parties No. 1 to 3 regarding clause of Arbitration is concerned, this Commission is of the view that Consumer Commission is not bound by the Arbitration Clause and complainant has rightfully availed the remedy available with this Commission as remedy available to Consumers under Consumer Protection Act is in addition to and not in derogation of the provisions of any other law. Moreover, the opposite parties have not explained whether the said arbitration clause was read over or explained to the complainant at the time of receiving the consignment. Keeping in view the facts, circumstances, evidence and case law referred above, this Commission is of the considered opinion that complainant has fully proved his case and deficiency on the part of the opposite parties. As such, this complaint is partly allowed. Since the laptop of the complainant is old one of year 2016, as such, value of laptop is assessed as Rs. 50,000/-. The opposite parties are directed to pay Rs. 50,000/- as cost of laptop instead of bill amount of Rs. 78,990/- and Rs. 29,500/- as cost of shoes and duty (Total amount of Rs.79,500/-) to complainant. The said compensation shall carry interest @9% p.a. from the date of filing of complaint till realization. The complainant is also held entitled to consolidated compensation of Rs. 10,000/- on account of mental tension, harassment and cost of litigation. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 13-07-2023 - (Lalit Mohan Dogra)
President (Shivdev Singh) Member
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