By Dr.K.Radhakrishnan, Member :

                   Case of the complainant is that on 12.09.2017 he entrusted a CD with the second opposite party to send through their courier service to the addressee K.S. Stephen, Kanchappilly House, Chapal Lane, Aluva. The addressee is the husband of his sister. The second opposite party has charged Rs.40/- towards courier charges and has given a receipt. It was promised by Mrs. Vijitha a staff at the counter that the addressee will receive the CD within two days. Brother in Law at Alwaye was also informed the same. Even on 16.09.2017 the CD was not received by the addressee by which the second opposite party was contacted again. As informed by them the CD was returned in the absence of any contact numbers. Contact No. was  then furnished as required and he was waiting with an a ardent hope of delivery of the CD without any further delay.

                   2. On 20.09.2017 complainant contacted them over phone. No satisfactory response. On 25.09.2017 once again contacted the second opposite party in person due to the non delivery of the CD. No satisfactory reply was given with regard to the non delivery. If it was non delivered or returned the same could have been given back. The second  party was not bothered to do that instead, behaved roughly and even not allowed to speak through phone or to contact them. The CD was very important to the complainant as it contained a Dance Programme  for practicing by his sister in order to stage at a function on 28.09.2017 at Aluva. Owing to the act of the second opposite party by failing to discharge the-service undertaken is a serious shortcoming, imperfection and a clear cut inadequacy in the nature of performance.

                   3. Complainant as well as his sister have cut a sorry figure and lost their pride and prestige before the public which cannot be compensated in money. However, the second opposite party is liable to compensate being deficient in service and  has further no repentance for his misdeeds. He may be directed to pay Rs.40/- courier charges, Rs.50/- charges of the CD and Rs.25,000/- towards compensation for mental agony and other in conveniences besides costs.

                   4. Admitted the case, Notice ordered, opposite parties appeared through counsel. Version was filed.

                   5. In the version the opposite party has submitted all the defense versions available to an opposite party with a liberty to this forum to choose the appropriate one. Owing to space constraints only very few statements are reproduced here in below. The opposite party has categorically denied major pleas. There are no direct admission by the opposite parties. Where as this forum has to presume or read and select between the lines.

                   6. As stated the complaint is not  maintainable either in law or on fact. The complainant has no locus  standi to file this complaint. Moreover the complaint is barred by limitation and this Hon’ble Forum is not having the jurisdiction to entertain the same. The complaint is also highly belated. Even from the averments in the complaint  it is clear that the  services alleged to have been availed by the complainant  from the opposite party is for commercial purpose and hence the complainant is not a consumer as defined under the “consumer protection Act,1986 and hence the complaint is not maintainable”.

                   7. Also states that there is no consignment note to identify the consignment number and therefore cannot identify any transactions and flatly denies of any transactions as such between the opposite party and the complainant. As reiterated by the opposite party the complainant had never send any consignment or consignment containing any CD through the opposite parties. The complaint is filed with a malafide intention to gain undue monetary benefit. Without prejudice to the above the opposite party further submitted their liability is limited to Rs.100/- unless the sender declares a higher value as declared value for carriage and also pays the applicable Risk Surcharge there of as ‘ Carrier Risk’ at the time of tendering the shipment.

                   8. In the instant case the complainant has not produced any documents to prove the contents in the consignment. Even as per the complaint, he has only paid the freight charges and nothing else. The original consignment note of the subject booking is in the custody of the complainant. Complaint being frivolous and vexatious be dismissed with exemplary costs to the  opposite parties.

                   9. The case then posted for evidence. The points for consideration are the following.

1. Is there any deficiency in service on the part of second opposite party?
2. 2) If so, Reliefs and costs?

              10. The complainant appeared before the Forum and submitted proof affidavit and produced one document which was marked as Ext. P1. Ext.P1 is the consignment Note Bearing the number R27142490. From the side of opposite parties neither proof affidavit nor documents produced.

                   11. In the instant case the opposite party has not submitted any evidence to show that their domestic courier and logistics service are carried out in such a way that no customer can ever find any fault with them. The Ext.P1 document bearing the consignment NoR.27142490 clearly establishes that the opposite party has accepted an item to send trough their courier service to the addressee. It is also evident that the opposite party has charged Rs.40/- towards the service charges. Having issued a consignment note accepting an item whether the contents declared or not, the opposite party has a bounden duty to deliver with in a reasonable time to the addressee. Since the opposite party has not produced any contra evidence to rebut the Ext.P1 other than a solemn statement of flat denial, this Forum has to translate the legislative intention of the enactment. Consumer protection Act, 1986 ie, better protection of the interests of the consumer.  The provision of this Act are in addition and not in derogation of the provision of any other law for the time being in force. Manifestly provision of this Act grant additional remedy to the consumers.

                   12. Where the fee is charged but no service rendered or where a trader delays or intentionally or otherwise   not deliver the goods to the consumer because of which consumer suffers, it shall amount to unfair trade practice. We are therefore convinced  that the complainant version of sending CD costing Rs.50/- is believable though it was not delared in  the consignment note. The flat denial of everything and putting all the defenses in one box to suit the circumstances with the choices will not rescue opposite parties. The non delivery of the CD is a serious deficiency in service and unfair trade practice.

                   13. We allow the complaint and direct the 2^nd opposite party to pay Rs.90/- (40+50) being the service charge and CD charge, plus compensation of Rs.10,000/- (Rupees Ten Thousand Only) and Rs.2500/- (Rupees Two Thousand Five Hundred Only) towards costs within 30 days from the receipt of this orders if not paid in time, will carry 12% interest till payment.

                   Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 16th day  of  December  2019.

Sd/-                     Sd/-                                         Sd/-

Sreeja S.              Dr.K.Radhakrishnan Nair          P.K.Sasi,                             

Member               Member                                        President.                                                                

                                        Appendix

Complainant’s Exhibit                                   

Ext.P1  Consignment Not Bearing the Bo.R27142490

                                                                                 Id/-

                                                                                      Member