BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.5/2016
Present: I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Shri Iswar Prasad Sharma - Complainant
S/0 Late Kali Prasad Sarma
H.No.4, Main Branch Road , Shantipur
P.O.Bharalumukh
District: Kamrup,(Metro) Assam
-vs-
I) FedEx Express Service (India) Pvt. Ltd. -Opposite party
No.12, Koteswar Palace.
Jiva Mahale Marg, Anndheri (E)
Mumbai-400069
Phone : 022-26833366
II) FedEx Express Service (India) Pvt. Ltd.
Guwahati, Bijay Bhawan.
Sonaram Bora Road
Near BSNL Office,Bora Service
Ulubari,Guwahati-781007
Appearance
Learned advocate Mr.P.Upadhyay, Mr.K.Das,Mr.K.Pathak, for the complainant .
Learned advocate Kumar Monoranjan Haloi for the opposite parties.
Date of argument:- 14.12.2018 and 01.06.2020.
Date of judgment: - 15.6.2020
JUDGEMENT
1) This is a complaint filed by one Sri Iswar Prasad Sharma of Bharalumukh, Guwahati, Assam, u/s 12 (1)(A) of Consumer Protection Act, 1986 . The complaint is lodged against opp.party No.1, FedEx Express Service (India) Pvt. Ltd. Mumbai and opp.party No. 2 FedEx Express Service (India) Pvt. Ltd. Guwahati, Bijay Bhawan, Sonaram Bora Road.
2) The contention made in the complaint petition is that opp.party is a private Limited Company engaged in business of Express Delivery of parcels besides courier and shipping services under the name and style of FedEx Express Service (India) Pvt. Ltd. having its head office situated at Andheri (E), Mumbai, and Branch office at Bangalore, Karnataka and Ulubari, Guwahati.
3) It is alleged that Sri Dhirtiman Sharma, is the son of the complainant booked a consignment on 10.9.2015 at the Bangalore branch office with the opposite party No. 1 for the purpose of delivery the same to the residence of the complainant at Guwahati. It is further submitted that the consignment consisted of 2 Led T.V. which were new and perfect in good condition. The opp.party agreed to delivery the goods, in good condition at the residence of the complainant and took the delivery of the consignment, containing two LED T.V. from the residence of Sri Dhirtiman Sharma at Bangalore against payment of Rs.7,791/- However, at the advice of the opposite party the consignment was insured for an amount of Rs.1,10,000/- with FedEx Express Service itself, that a receipt, vide tracking detail No. 807759317733 was issued to Dhirtiman Sharma by the agent of the opp.party.
4) The case of the complainant as it reveals from the complaint is that on 14.9.15 complainant received a call from a person who stated that he is an employee of the opp.party who wanted to know the location of the consignee. The complainant asked him to wait for half an hour and gave him the address of his house, as he was outside his home at that time. But on that time the delivery person arrived the home of the consignee and finding consignee’s wife, placed consignment packet on the floor of the entrance lobby of the complainant and took the signature of the wife of the complainant on a paper.
5) It is further alleged by the wife of the complainant asked them to wait for few minutes that her husband was not present at that time , but the delivery person told her that his job is only to deliver and get the paper signed . It was further stated by the delivery boy that he has no time to wait as he has to many parcels to deliver. It was told to the complainant’s wife that they can see the contents later on, if any complaint is there they may addressed to Fed Ex Express Service office directly who will look into the matter. Under that impression , the complainant’s wife received the parcel and the delivery person after getting the paper signed left their home immediately. In this way the wife of the complainant was not given any opportunity to verify the contents of the packages.
6) After this a few minutes later the complainant (consignee) reached home and opened the packages and found that glass/screen of one of the T.V. was broken and other T.V. had some blurred white spots on entire scene , on switching on the Led T.V. no picture was found which suggesting that T.V.had undergone some serious damage inside. After knowing about the damage of the goods the complainant intimated his son Dhritiman Sarma who had by that time gone abroad for higher studies . Dhritiman had took up the issue and faxed it about the damage T.V. It is further stated that a reply was received from the opp.party through e.mail on 16.9.15 represented by one customer relation officer stating that a shipment was delivered in intact condition and there was no outer package damage noticed by them at the time of delivery. It is further submitted that consignee did not mention any remark on the POD copy at the time of delivery and as such they express their inability to process their claim.
7) Under the above circumstances the complainant found that there is a deficiency in service and opp.party have resorted to unfair trade practice and intentionally and knowingly took risks of goods and delivered the damaged goods causing loss to the complainant.
8) It is further stated that consignee did not mention any remarks on the POD copy is tricks with malafide intention of the opp.party.
9) It is further submitted that delivery person never explain to the receiver to verify the consignment prior to signing the receipt nor suggested to write any remark to the POD copy.
10) It is further submitted that there is a deficiency of service on the part of the opp.party. The claim made by the complainant for Rs.1,10,000/-. Complainant prays for a decree amounting to Rs. 1,10,000/- along with a compensation for another amount of Rs.20,000/- for mental harassment and cost of proceeding etc.
11) The opp.party contested the complaint by filing written objectin. It is submitted that the complaint is not maintainable u/s 12(1)(a) of the Consumer Protection Act, 1986. The opp.party denied of their engagement for the purpose of delivery of any consignment. The opp.party stated that this Forum does not have the jurisdiction to adjudicate the complaint as the alleged cause of action arises at Banglore. It is further submitted by the opp.party in their written objection that the complaint is beyond the period of limitation u/s 24(A) of the Consumer Protection Act, 1986. The other allegation made by the complainant in his complaint petition are denied parawise by the opp.party. It is stated by the opp.party in their written objection that the complainant being the addressee to whom the consignment was delivered cannot be considered as the consumer and is not entitled to claim himself as consumer in the instant case.
12) It is stated in their written objection that the consignment in wrapped and sealed conditions was handed over by Dhritiman Sarma in Banglore to the opp.party and it was not possible for the officials/agents/employees of the opp.party company in Banglore to ascertain the condition of the said consignment. It is stated that the Sri Dhritiman Sarma disclosed to them that there were two LED T.V.s inside the sealed boxes and upon such disclosure the officials of the opp.party company advised to get insurance of the consignment. The complainant has not produced any document in support of such claim. It is denied by the opp.party in their written objection that the delivery person was asked to wait by the wife of the complainant and it is stated that complainant’s wife have every liability to open the packages to check the condition of the consignment , but the complainant’s wife simply received the packages being satisfied of its apparent conditions . Opposite party company strongly denies that the LED TVs were delivered in broken or damaged condition as alleged by the complainant. The opp.party stated in their written objection that the damage or defect in the consignment was not pointed out at the time of delivery and therefore there is every possibility that the LED TV sets were damaged or broken subsequently after delivery.
13) Having such pleas of the parties it is undisputed that the opp.party took the responsibility to deliver the consignment to the complainant at his residence at Guwahati and the fact remain undisputed that the consignment was delivered by the opp.party no. 1 at his Guwahati residence.
14) Now, the disputed question is -
i) whether the proceedings under the Consumer Protection Act,1986 is barred ?
ii) Whether this Forum has no jurisdiction to try this instant case ?
iii) Whether the complainant is a consumer under the provisions of the Consumer Protection Act, 1986 and if so whether there is any deficiency of service on the part of the opp.party ?
Reasons for decision
15) The above mentioned issues are discussed for determining the questions arising out of the dispute . As it reveals from the record that on 10.9.15 a consignment was booked for delivery by the complainant’s son in Banglore and it was delivered on 14.9.15 to the complainant at Guwahati . The present proceedings was initiated before this Forum on 3.2.2016 as such the plea taken by the opp.party in their written objection is without any basis as the complaint petition was filed by the complainant was within two years from the date of cause of action and as such no further discussion is necessary and the issue no. (i) is decided in favour of the complainant.
16) So far the jurisdiction point of view is concerned it is found that opp.party has a branch office at Guwahati and is carrying on business and accordingly working for gain and therefore this fact is undisputed and as such there is no bar in taking consignee at the issue no. (ii) to decided in negative .
17) Now, the vital question is to determine whether the complainant is a consumer within the meaning of Sec 2(d)(ii) of the Consumer Protection Act, 1986 and it is as below,
“ Consumer means any person who—
i) “(Hires or avails of ) any services for a consideration which has been paid or promised or partly paid or partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of ) the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person;”
18) In our present case in hand complainant is a beneficiary of Sri Dhirtiman Sharma as he is a consignee of the consignment which was delivered in his name and therefore apparently the complainant is a consumer under the said provision. Admittedly the good was handed over to the opp.party by Sri Dhritiman Sharma the son of the complainant for delivery of the same to the consignee. Hence complainant is a consumer under the Consumer Protection Act,1986.
19) Now, we have to look into the matter that there is a deficiency of service by the opp.party. After perusal of evidence available on record , it is found that the complainant made a claim for the damaged LED T.V. amounting Rs.1,10,000/- (Rupees one lakh ten thousand)only on oath but the complainant have not clearly mentioned about any voucher/invoice regarding purchase and price of the two LED TV. The complainant have exhibited the delivery copy i.e. Ext.1, Invoice i.e. Ex.2, receipt copy for the amount paid for transportation of goods i.e. Ex.3, photographs by T.V. i.e. Ex.4(i) and Ex.4(ii) and by the complainant to Shri Dhritiman Sharma i.e. Ex.5(3) and E.mails to the complainant to Shri Dhritiman Sharma i.e. Ext.5 (1), 5(2) and 5(3).
20) So far the price of the damaged goods is concerned there is no dispute as during the cross examination the opp.party have not raised any issue about the cost of it , but the pertinent question that has been made to the P.W. 1 is that on 10.9.2015 the goods were addressed to the complainant by his son by availing the service of the opp.party. It is admitted by P.W.1 that he has not availed the service of opp.party but by his son. It is further admitted by the complainant that the consignment was delivered on 14.9.15. During cross examination P.W.1 admitted that Ex.1 , Ext. A (1) and Ext A (2) are the signatures of his wife which she put at the time of receiving the parcel. During cross examination it is further admitted that his son did the packing of the parcel in front of the officials of the opp.parties at Banglore . Admittedly Ext.2 does not bear any signature or seal of any person or authority.
21) After going through the evidence of the complainant and evidence of the opp.party no. 2, wife of the complainant, it appears that the consignment was delivered not to the complainant , but to her due to absence of the complainant i.e. her husband at the time of delivery of the consignment. Cross examination of P.W.2 have not revealed any inconsistency or contradictory circumstances to disbelief the story narrated by the complainant.
22) On the other hand the opp.party while contesting the proceedings examined O.P.W.No.1 Sri Jugal Gogoi, Manager of opp.party No.1 i.e.FedEx Express Service (India) Pvt. Ltd. OPW No. 1 is authorized by the opp.party to adduce evidence and he testified Ex.A the authorization letter. He claimed that complainant had not engaged the opp.parties for the purpose of delivery of the consignment and therefore, complainant is not the consumer of the opp.parties. O.P.W.1 stated that one Sri Dhirtiman Sharma engaged FedEx Delivery Service having its branch office in Banglore for the purpose of delivery of a consignment on 10.9.2015 Sri Dhirtiman Sharma handed over the consignment in wrapped and sealed conditions at the Branch office of the opp.parties of in Banglore. He stated that no damage caused to the consignment on the part of the opp.parties . He further stated that neither the complainant nor his wife made any complaint to the employees of the opp.parties at the time of delivery of the consignment. He denied of having any damage of the consignment en route during delivery from Banglore to Guwahati.
23) O.P.W. Sri Jugal Gogoi admitted during cross examination that on 10.9.15 he was working in Guwahati Branch office of the company and he did not know who was the Branch Manager of the Banglore Branch office and he did not know how and what state the consignment were booked at Banglore. Opp.Party No.1 admitted that the consignment came to Guwahati by air. They received the consignment at the air port on 14.9.15. Sri Biraj Kalita delivered the consignment to the consignee (complainant) and Mrs. Namita Sarma received the consignment. OPW admitted that he did not see the consignment personally. He admitted the invoice value declared was Es.1,10,000/-. He did not know the total transportation charge was Rs.7,791/-.
24) We have gone through the documents submitted by the opp.parties that a consignment was sent to the complainant by one Sri Dhirtiman Sharma from Banglore to Guwahati through the opp.parties . The value of the goods in invoice is undisputed which is amounting Rs.1,10,000/- (Rupees one lakh ten thousand)only. There is no specific proof but preponderance of probability is that the opp.parties received the goods with a cost of Rs.7,791/- which has not specifically denied by the opp.parties.
25) Now , on our conscious scrutiny of the entire evidence it appears to us that there is no dispute about the receipt of the goods , admittedly two numbers of LED TV by the opp. party at their Bangalore office . The value of the goods as mentioned in the invoice (Ext-2) has not been disputed and mentioned as Rs.110000/-. It is also undisputed that the opp. Party received an amount of Rs.7791/- as transportation charges . It is evident from the record that the opp. Party suggested for insurance of the goods , but it was the responsibility of the opp. Party to get the goods insured before transportation.
26) Now , in our humble opinion , it was the duty of the opp. Party to check and verify the goods before accepting the same for transportation.
Lastly, it has come to our notice that the opp. party should have examine the goods before receiving the goods for transportation which the opp. party failed to do . If they have received the goods in packed condition from the son of the consignee and accepting its value at Rs. 1,10000/- then it was their responsibility to deliver the same with the value intact.
27) The story narrated by the complainant regarding delivery of the consignment to his wife cannot be disbelieve which is a common practice of the delivery person. Second question that has been raised by the opp. party that there is no written objection on the proof of delivery (POD) is meaningless because the delivery boy did not wait till arrival of the consignee who could have better raised the objection on the POD note.
As such this argument on the part of the opp. party is found without merit for dropping down the claim made by the consignee for want of objection on the POD note.
28) It is in our opinion that , at the time of delivery of fragile goods the delivery person ought have delivered the same to the consignee and took his note on POD preferably on presence of witness to prove that the duty entrusted on the opp. party is completed with safe & intact delivery of the goods to the consignee. This has not been done by the delivery person of the opp. party and is a deficiency of service .
Moreover , insurance of valuable goods is the responsibility and duty on the part of opp. party to ensure safety& unwanted damage of the goods taken for delivery which has not been done by the opp. party and as such there is a deficiency of service .
In the result , on the basis of the discussion made herein above the issue No-3 is decided in favour of the complainant .
29) Based on our above discussion , the complaint petition is allowed and the opp. parties are liable for the damages caused to the complainant and directed to pay the cost of the goods amounting to Rs.1,10,000/- with cost of proceeding amounting to Rs.10,000/- and also a compensation of Rs.5,000/- for causing harassment to the complainant.
The opp. parties are jointly liable for payment of the awarded amount within 45 days from the date of judgment failing which an interest @9% will be calculated on the whole amount till realization.
Given under our hand and seal today on 15th day of June,2020.
Issue free copy to all concerned for taking necessary action.
( Smt A.D.Lahkar) (Md J.Islam) (Sri A.F.A Bora)
Member Member President
