IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 18th day of April, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 45/2020 (filed on 03-03-2020)
Petitioner : Tinku Scaria,
Pottamkullam House,
Kollad,
Kottayam – 686004.
Vs.
Opposite parties : 1) Ecom Express Private Limited,
Delivery Centre, Aymanam,
Kottayam, Kerala 686014.
(Adv. Jayakrishnan R. for OP 1 & 2)
2) Ecom Express Private Limited,
Ground Floor, 13/16 min, 17min
Samalka, Old Delhi,
Gurugram Road Kapashera,
New Delhi – 110037.
3) Syska House, Plot No.89,90,91,
Lane No.4Sr.No.232,1/2,
Airport Rd, Sakore Nagar,
Lohegaon, Pune,
Maharashtra – 411014.
O R D E R
Sri. K.M. Anto, Member
The complaint is filed under Section -12 of the Consumer Protection Act 1986.
The complainant purchased a bulb produced by the 3rd opposite party from the 1st opposite party through online which was found defective. Upon complaint, the 3rd opposite party assured to take return and replace it with a new one within 15 days. After 15 days when the complainant contacted the 3rd opposite party he was informed that the product was despatched through the 2nd opposite party and the tracking number was 2582706768. On 6th February 2020 the complainant received a SMS from the 2nd opposite party that the product is out for delivery. When on the next day the complainant tracked the product with the above tracking number, it was shown that the product was delivered. But the complainant did not get the product. On every call they kept on saying that the product would be delivered on the 3rd day and lastly the delivery was assured to be done on 26th but nothing could be received by the complainant and hence the case is filed for compensation for the deficiency in service on the part of the opposite parties.
The 1st and 2nd opposite parties appeared on summons and filed version. In their version opposite parties 1 and 2 contented that they had duly delivered the consignment in favour of the complainant on 6.02.2020. As the product was delivered which is evident from the records, there is no cause of action for the complaint and the complaint is liable to be dismissed.
The 3rd opposite party did not appear or file version and hence set ex-parte.
The complainant filed exhibit A1 to A3 and the opposite parties 1 and 2 filed Exhibit B1 through their respective proof affidavits.
On a factual evaluation we would frame the following points:
- Whether there is deficiency of service on the part of the opposite party and
- If so what is the compensation?
The case of the complainant is that though the product ordered from the 3rd opposite party by him was shown delivered, the same was not actually delivered to him. Thus the 1st and 2nd opposite parties have committed deficiency in service which is to be compensated.
We see that though the opposite parties content that they had already delivered the product to the complainant, they have failed to produce some documents which show that the complainant has acknowledged the receipt of the product.
The courier companies are expected to assure the delivery of the goods which are entrusted with them for delivery, to the correct addressee on time.
The duty and liability of the Common carrier is well illustrated in the carriage by Road Act. In Carriage by Road Act, 2007 Under Section 8, every consignor is required to issue a ‘goods forwarding note’ which would declare inter alia value and nature of the consignment. Consignor is responsible for the correctness of the particulars in the goods forwarding note, and is liable to indemnify the common carrier for any loss or damage suffered by him by reason of incorrectness or incompleteness of the particulars on the note.
As per Section 10 of the Act, the liability of a common carrier for loss of, or damage to any consignment, ‘shall be limited to ten times the freight paid or payable (as per Rule 12 of the Carriage by Road Rules, 2011) having regard to the value, freight and nature of goods, documents or articles of the consignment, unless the consignor or any person duly authorised in that behalf has expressly undertaken to pay higher risk rate fixed by the common carrier.
Further Under Section 11. Carriage by Road Act, 2007 Rights, Duties and Liabilities of Common Carriers As per Section 10 (2), for any delay in delivery up to the mutually agreed period, the liability is limited to the freight charge. Under Section 12, a common carrier is liable to the consignor for the loss or damage to any consignment, where such loss or damage has arisen on account of any criminal act of the common carrier, or any of his servants or agents. The Plaintiff does not bear the onus to prove such negligence or criminal act.
Again in Section 17 of the Act, a common carrier is responsible for the loss, destruction, damage or deterioration in transit or non-delivery of any consignment entrusted to him for carriage, arising from any cause except acts of God; war, riots and civil commotion; arrest, restraint or seizure under legal process; or an order, restriction, or prohibition imposed by the Government. However, even in above cases, common carrier is required to exercise due diligence and care to avoid such loss, destruction, damage or deterioration.
Here in the case on hand, the opposite party has failed to explain the status of the consignment and failed to prove the delivery with any cogent evidence. Though they have produced Ext.B1, it is not signed by the complainant acknowledging the delivery. Hence on the ground of law and on facts we find that there is negligence on the part of the 1st and 2nd opposite parties in not effecting the delivery of the consignment booked by 3rd opposite party against the order of the complainant. The complainant being a genuine consumer of the opposite parties is to be compensated.
Thus the complaint is allowed and 1st and 2nd opposite parties are directed to deliver the product Syska smart bulb with 2year warranty with the same price or refund the amount of Rs.599/- and an amount of Rs. 5000/-as compensation for the mental agony and Rs.2000 towards litigation cost.
The order shall be complied within 30 days from the date of receipt of order. If not complied as directed, the amounts will carry 9% interest from the date of order till realization.
Pronounced in the Open Commission on this the 18th day of April, 2022
Sri. K.M. Anto, Member Sd/-
Sri. Manulal V.S. President Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Out of delivery sms screenshot from Ecom Express
A2 – Tracking details in Ecom Express site
A3 – Email Conversation of Syskas
Exhibits marked from the side of opposite party
B1- Copy of the delivery report
By Order
Assistant Registrar
