BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No: 462/2016     Filed on 27.09.2016

ORDER DATED: 31.05.2018

Complainant:

(Party in person)

Opposite parties:

(by Adv. Binu Mathew)

This C.C having been heard on 28.02.2018, the Forum on 31.05.2018 delivered the following:

ORDER

SMT. LIJU B. NAIR, MEMBER:

Case of the complainant is that he had send a courier through 1^st opposite party to Delhi on 18.08.2016.  For that he was charged Rs.90/-.  That consignment was a mobile phone, cost of which was Rs.5,450/- purchased on 29.07.16 which was send to e-bay, online portal for refund of purchase price.  1^st opposite party promised to deliver the consignment within 7 days of its receival by them at Kaniyapuram office.  If this package was received by the e-bey company in time, he will get refund of Rs.5,450/- within 2 days of its receipt at e-bay.  But nothing happened and e-bay has closed his file.  So he will not get refund, which he is now claiming from 1^st and 2^nd opposite parties.  On verification with the 1^st opposite party, they gave a careless reply that the entire baggage in which his consignment was also there was lost in transit by the Indian Railways and they are tracking the same.  Till now nothing happened and so the consumer approached us claiming Rs.5,450/- along with Rs,50,000/- as compensation from the opposite parties.

Opposite parties filed version as follows.  It is not disputed that the complainant herein had booked a consignment number R23188676 dated 18.08.2016 through the 1^st opposite party for consigning it from Trivandrum to New Delhi.  At the time of booking the consignment the complainant did not disclose either the contents or the value of the consignment.  Since the consignment was packed and sealed, which appeared to be non-documents, the 1^st opposite party herein advised the complainant to declare the contents of the consignment if the same contained valuables and pay the additional surcharges as per the conditions of carriage, if the consignor wanted to claim for its value in the event of loss or damage of the consignment in transit or else the liability of the carrier is limited as per the contract and the complainant would be entitled to claim only the amounts mentioned in the limited liability clause.  The complainant however was not ready to declare the contents of the consignment and was not ready to pay the additional surcharges as per the conditions and stated that the content of the consignment was defective mobile phone and the same has no commercial value and hence he does not intend to declare any value for the same and pay additional charges as per the terms and conditions of carriage at the mention rates for the declared value.  Therefore the surcharge for consigning the same at the carrier’s risk was not paid by the complainant as per the terms and conditions of the contract of carriage.  On the basis of the above instructions given by the complainant, the 1^st opposite party booked the consignment and collected only the freight charges of Rs.90/- for carriage based on the weight of the consignment.  Therefore the present allegation in complaint that the complainant had consigned mobile phone for refund from e-bay and was worth Rs.5,450/- etc, is incorrect and denied.  No surcharge for the carriage of the item allegedly worth Rs.5,450/- was paid to the carrier.  The 1^st opposite party was never informed about the purpose for which the consignment is being booked or his understanding with e-bay company.  The averments in unnumbered paragraphs 3 of the complaint are incorrect and denied.  The complainant had approached the 1^st opposite party after about 10 days from the date of booking and reported that the consignment has not been received by the consignee.  As the online tracking details of the particular consignment booked by the complainant was not available in the computer system, the 1^st opposite party immediately contacted the 2^nd opposite party to get the update of the delivery status.  After perusing the tracking details and on enquiries it was understood that the consignment was included int he 55 bags which were forwarded through Trivandrum – Nizamuddin Express Train no.22653.  As per the information from the Ernakulam Railway officials, out of the said 55 bags only 35 were released at Delhi on 23.08.2016.  The remaining 20 bags were forwarded on 23.08.2016 through Kochuveli – Nizamuddin Express 04425 SLR No.97854 but the 20 bags has not reached Delhi and the SLR 97854 had reached Delhi empty on 25.08.2016.  The company had filed complaint dated 30.08.2016 with regard to the loss of the 20 bags.  The consignment were included in the missing 20 bags and thus these consignment was misplaced in transit by the Railways.  The same was therefore immediately informed to the consigner and the averments to the contrary are specifically denied.  Since hte value of the consignment was not declared and no additional charges for carriage of the same was paid to the carrier, the complainant was not entitled to claim any amount over and above the limited liability of the carrier as fixed under the terms and conditions of the contract of carriage between the consigner and the opposite parties.  The limited liability of the carrier and the terms and conditions of carriage are specifically mentioned in the original or consigner copy which is in the custody of the complainant.  The allegation that several enquiries were made with the opposite parties is also incorrect and denied.  When the mis-routed consignments were offered for delivery by the Railways after about two months and DTDC had retrieved the said consignments from the railway.  Immediately the consignment was delivered to the consignee on 05.11.2016.  the above said facts were also intimated to the consignor by telephone.  Though all efforts are made to deliver the consignments at the destination on the nearest date, at times delivery the consignments may not be possible due to various reasons that are beyond the control of the opposite party.  In the instant case the delivery could not take place in time due to the fault of the Railways which was beyond the control of opposite parties.  Since the consignment was booked under booking series with consignment “R”, the liability is limited to Rs.100/- or each shipment which includes all documents and parcels which are not insured or not covered under DTDC risk coverage consigned through DTDC by the shipper.  The opposite parties are not aware of the business transactions between the complainant and the so called e-bay company.  The purpose of consigning the consignment was never disclosed to the opposite parties.  There is no privity of contract between the opposite parties and the so called e-bay company.  The said allegations are made by the complainant only to suit the illegal purposes of his complaint.  As the consignor had not declared the contents of the consignment or its value at the time of booking the same for carriage with the booking office of the opposite parties, no additional payments like risk surcharge for carriage of alleged valuables were paid to the opposite parties, despite instructions given.  The complainant had not also provided for any proof regarding the contents of the consignment.  In the event of damage or loss of goods the liability of the opposite parties under the contract between the parties is limited to Rs.100/- unless the sender declares a higher value as declared value for carriage and also pays the applicable risk surcharge thereof as carrier’s risk at the time of tendering the shipment.  The minimum surcharge for carrier’s risk is Rs.50/- or 2% whichever is higher of the declared value for the carriage, which has not been paid in the instant case to entitle the sender to claim for the declared value.  The opposite parties liability is also limited under the provisions of the Carrier’s Act/Carriage by Road Act.  Moreover, if the consignor is consigning any valuable goods he has to specifically mention and declare the contents and its value and pay additional risk surcharges for sending the same through the opposite parties at the time of booking.   The sender will have to produce documents to prove the contents and its declared value at the time of booking.  In the instant case, the complainant has not produced any documents to prove the contents in the consignment.  The complainant has no case or allegation in the complaint that he had paid additional risk surcharges apart from the freight charges at the time of entrusting the same with the opposite parties for carriage.  In the said circumstances, he is not entitled to any claims other than the amount as mentioned in the terms of contract between the parties as mentioned in the consignment note leaf and is bound by the contract and as under the Carrier’s Act/Carriage by Road Act.  Moreover, the consignor is not entitled to any consequential or indirect losses or damages because of loss or damage to shipment, under the contract.  It is submitted that the consignor has to declare the value of the consignment and pay additional charges/value for its carriage and also for risk/insurance if they have to claim for its declared/actual value.  In the instant case the complainant cannot claim for any loss or damage since the consignment booked by him was delivered to the consignee on 05.11.2016 without any damage.  The consignment was delivered to the consignee as per the instructions of the consignor/complainant and as per the terms of the contract, which was accepted by the consignee in good condition and was not rejected.  The complainant is therefore stopped from raising any false claims on the aforesaid alleged cause of action.  The delay caused is due to the reasons mentioned herein above which are beyond the control of the opposite parties and there is no wilful negligence, laches or deficiency in service on the part of the opposite parties.

Issues

1. Whether the allegations are proved?
2. Reliefs and costs if any?

Issues (i) and (ii)

          After filing the complaint, complainant evaded from the scene.  He not even filed any affidavit to substantiate his claim.  No documents were marked.  Since the complainant failed to file any affidavit opposite parties also don’t care to file any affidavit.  So no evidence is before us to adjudicate this complaint, which is only to be dismissed.

In the result, complaint is dismissed.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of May, 2018.

SL