BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,FATEHABAD.
Complaint No.:248 of 2015
Date of Instt.:20.10.2015.
Date of Decision: 20.07.2016.
Mandeep Singh son of Gurjeet Singh, resident of village & post office Musakhera, Tehsil Tohana, District Fatehabad.
….Complainant.
Versus
1. First Flight Couriers Limited, R.H.O. : # 895, Udyog Vihar, Phase-I, Gurgaon-122001 through its Managing Director/ Director/ Authorised Person.
2. First Flight Courier Service, Near Central Bank of India, Courier Street, Fatehabad, Tehsil & District Fatehabad through its Proprietor/ Partners.
…. Opposite Parties.
Complaint U/s 12 of the Consumer Protection Act,1986.
BEFORE: Shri Raghbir Singh, President.
Shri R.S.Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Argued by: Sh. P.K. Arora, counsel for the complainant.
Sh. N.K. Sethi, counsel for opposite parties.
ORDER:
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.
2. Briefly stated the facts of the present complaint are that complainant had sent one Mobile of Gionee model M2 purchased vide invoice No.599 dated 2.3.2015 for a sum of Rs.9800/- to Shri Avinash Thakur at the address of SSK Infotech Pvt. Ltd., Plot No.521, Udyog Vihar, Phase-5, Gurgaon through opposite party No.2 vide receipt No.091100151828 on 30.5.2015 after making the requisite payment of Rs.70/- as courier service charges to op no.1 who is working under the control of op no.2. It has further averred that the mobile sent by the complainant has not been delivered to the addressee and when the complainant contacted the opposite party no.1 then he not only failed to give any satisfactory reply to the complainant but also misbehaved with him. He stated that their work is to send the courier after receiving the charges and they are not responsible for delivery or non delivery to the addressee and complainant may do whatever he wants. Thereafter also, the complainant contacted the opposite parties but they did not give any satisfactory reply and the complainant has undergone mental agony and harassment and as such, he is entitled to compensation of Rs.5,000/- from the opposite parties beside the cost of the mobile amounting to Rs.9800/-. It is further averred that complainant got served a notice dated 27.7.2015 upon the opposite parties calling upon them to make payment of Rs.14,800/- to the complainant but in vain. Hence, this complaint.
3. Upon notice, opposite parties appeared through counsel and contested the complaint by filing reply taking preliminary objections that complainant has no cause of action; that complainant does not fall under the definition of Consumer as provided under Section 2 (i) (d) of the Consumer Protection Act, therefore, the complaint is liable to be dismissed; that the complaint is bad for mis-joinder and non-joinder of the necessary parties because the complainant has not impleaded Avinash Thakur to bring evidence on the file that said parcel/ courier has been received by him or not; that this Forum has no jurisdiction to entertain and try the present complaint because the courier parcel was to be delivered at Gurgaon and that complainant has not come to this Forum with clean hands and has suppressed the true and material facts; that complainant has no locus standi and that complainant is stopped by his own act and conduct to file the present complaint. On merits, it has been submitted that it is incorrect that plaintiff had sent a mobile Gionee through op no.2 to Avinash Thakur because one parcel/ courier having electric part was sent by the complainant which was told by the complainant at the time of sending the courier. After sending the courier, the complainant has never approached to the opposite parties. It has been further submitted that as per the courier rules, the company’s liability on the shipment is limited to Rs.100/- or cost of the reconstruction whichever is lower.’ Hence, the complainant cannot the claim of cost of the alleged parcel because the complainant at the time of sending of the parcel it was stated that there is electronic item in the parcel and it was not stated that there is mobile in the courier and as such in no manner, it can be considered that there was mobile in the alleged courier/ parcel. It has been further submitted that the weight of the parcel was 500 gram and weight of mobile of any company is not more than 150 gram and as such the question of having the mobile in the parcel does not arise. It has also been submitted that the contract of sending the courier is totally based on “Utmost Good Faith” but at the time of sending the courier/ parcel, the complainant has committed fraud with the ops. Lastly it has been submitted that the ops inquired the matter and came to know that the alleged mobile, though not admitted, is insured and as such the complainant can get the claim amount of missing of the mobile from the insurance company. With these submissions, dismissal of the complaint has been prayed for.
4. The parties then led their respective evidence by way of affidavits and documents. Learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW1/A and documents as Annexures C1 to C9. On the other hand, opposite parties tendered into evidence affidavit of Sh. Sunil Chawla, Proprietor of op no.2 as Ex.RW1/A, affidavit of Sh. Bhim Singh, Branch Head of First Flight Courier Services, Hisar as Ex.RW2/A and courier receipt as Ex.R1. The evidence of both the parties have been closed.
5. We have heard learned counsel for both the parties and have perused the case file carefully.
6. Learned counsel for the complainant has contended that complainant had purchased a mobile of Gionee company model M2 on 2.3.2015 for a sum of Rs.9800/- vide invoice No.599 dated 2.3.2015. He has further contended that on 13.5.2015 the said mobile was broken as same had fallen on the road. The mobile in question was insured with Syska Gadget Secure company of Gurgaon and therefore, the same was to be replaced by that insurance company and the complainant had to send the damaged mobile to the above said company at Gurgaon in order to take the insurance claim from the said company. He has further contended that complainant had sent his damaged mobile through courier service of opposite parties at the address of Sh. Avinash Thakur c/o SSK Infotech Pvt. Ltd., Plot No.521, Udyog Vihar, Phase-5, Gurgaon-122016 by making payment of charges of Rs.70/- to the opposite parties but the mobile has not been delivered to the addressee and the opposite parties have failed to give any satisfactory reply to the complainant despite his several requests. He has further contended that opposite parties are deficient in services and prayed that complaint be accepted.
7. On the other hand, learned counsel for the opposite parties have reiterated the averments taken in the reply.
8. We have considered the rival contentions of both the parties. The complainant in order to prove his case that he was having a mobile of Gionee company model M2 which was purchased by him on 2.3.2015 has placed on file copy of invoice No.599 dated 2.3.2015 as Annexure 1. From the said document, it is evident that complainant had purchased the mobile on 2.3.2015 for a sum of Rs.9800/-. It is further the stand of the complainant that the above said mobile was got insured by him from Syska Gadget Secure company of Gurgaon. In order to prove that the above said mobile was broken on 13.5.2015 he has placed on file mobile insurance claim form (for damage claim) wherein he described the incident of loss that on 13.5.2015 he was going on his motorcycle which slipped and the mobile of Gionee company model M2 had fallen on the road from his pocket and was broken. The complainant had filled the said insurance claim form on 18.5.2015 and also submitted the requisite documents for getting the insurance claim i.e. three photos of damaged handset (1 photo showing IMEI number and other 2 showing damages), photocopy of original bill, KYC documents, self attested photo, ID proof of complainant, insurance claim form signed by the claimant and incident report as mentioned in the mobile insurance claim form. To further strengthen his plea that mobile in question was damaged, the complainant has placed on file estimate letter of Service Zone of Gionee company as Annexure 2 and Annexure 5. From these documents, it is clear that mobile was extensively damaged and its parts were to be replaced and estimate cost of repair was given as Rs.10780/-. According to the complainant, in order to get insurance claim from the insurance company i.e. Syska Gadget Secure, Gurgaon, he had sent the mobile in question to the said company through courier service of opposite parties on 30.5.2015 but the mobile has not been delivered to the addressee by the opposite parties. The complainant has placed on file receipt of courier in this regard as Annexure 6. The opposite parties have taken a stand that complainant cannot claim the cost of the alleged parcel because the complainant at the time of sending of the parcel has stated that there is electronic item and has not stated that there is mobile in the courier and as such in no manner, it can be considered that there was mobile in the alleged courier/ parcel. Moreover, the weight of the item has been mentioned as 500 grams whereas weight of mobile of any company is not more than 150 grams. It is further the stand of the opposite parties that in any case as per the receipt of courier, their liability on the shipment is limited to Rs.100/- or cost of the reconstruction whichever is lower. However, we see no substance in the contentions of the opposite parties. The contents of the receipt of the courier has been filled in by the employee of the opposite parties and it is general practice that employees of the courier services fill the receipts without asking any material questions about the product to be sent through courier from the customer. In the receipt Annexure 6, word electronic is mentioned. The opposite parties have not shown that what is material difference between electronic item and mobile. The weight of the item is also written by the employees of the courier services by guess which is in the parcel. What may be in the parcel, but the opposite parties have not come up with a plea that the parcel was duly delivered to the addressee and therefore, it cannot be said that complainant did not send the mobile in question to the addressee through opposite parties and sent some other electronic item. The plea of the opposite parties that as per courier rules and as mentioned on the courier receipt, their liability on the shipment is limited to Rs.100/- or cost of the reconstruction whichever is lower has also not force because there is no signatures of the complainant on the receipt and therefore, it cannot be said that complainant admitted the said condition contained in the contract at the time of sending the parcel. In this regard, we are also fortified with the observations of the Hon’ble Tamil Nadu State Commission in case titled as The Franch Express Vs Natarajan 2006(1) CPJ Pg.529 wherein it has held that “once the consignment is accepted to deliver to the addressee/consignee, it is the duty of OP to have done it with promptitude and the condition, if any, imposed by OP would not limit the liability of opposite party”. Non impleading of Avinash Thakur to whom the parcel was dispatched by the complainant is also immaterial because the opposite parties have not placed on file any delivery receipt to show that the product sent by the complainant through their courier services was delivered to the said addressee and therefore, it can be easily held that mobile dispatched by the complainant through opposite parties has been lost by the opposite parties. Even the opposite parties have admitted that alleged mobile was insured and as such the complainant can get the claim amount of missing of the mobile from the insurance company and it seems that opposite parties have admitted half heartedly that mobile has been lost by them. The complainant was to receive insurance claim in lieu of the damaged mobile which has been lost by the opposite parties and without the said mobile which was a material thing for insurance company, the complainant cannot get the insurance claim. Due to the act and conduct of the opposite parties, the complainant has suffered huge financial loss. Thus, the complainant has been able to prove his case that he is entitled to amount of the mobile in question from the opposite parties besides compensation for harassment and mental agony as the opposite parties have failed to deliver the mobile to the addressee despite undertaking in this regard and charging amount from the complainant and therefore, caused deficiency in services. In this regard we are also fortified with the observations of the Hon’ble Punjab State Commission in case titled as DHL Worldwide Express Vs. AGG Exports, 2009(2) CLT 7(Punjab) wherein it has been held as under:-
“At owner’s risk- Deficiency in service- Compensation- Documents allegedly given by respondent No.1- complainant to respondent No.2 on 14.10.1997 who in turn gave on the same day to appellant- Bank which did not reach destination- Plea that appellant only liable to limited liability of US$100 repelled- Held that the terms and conditions got printed by the transporter unilaterally would not absolve the transporter from their liability when they commit deficiency in service- The liability of the appellant is not restricted rather it corresponds to the losses suffered by the consumer.
The Hon’ble National Commission in case titled as Origin Courier Service Vs. Harpreet Kaur, 2009 (3) CPJ 8: 2009 (4) CLT 436 has held as under:-
“ Compensation – An undertaking given by the petitioner- Courier that the documents would be delivered to the University on 12th August, 2004 but it was only delivered on 17th August, 2004- Plea of the petitioner that as shown on the receipt issued by the Company liability is limited to Rs.100 per consignment repelled in view of the undertaking- Four the late delivery of the documents for which stipulated date was 13.8.2004 the respondent could not get admission in the MBBS the compensation of Rs.50,000/- awarded by the State Commission for deficiency of service held neither exorbitant nor unreasonable.
9. Thus, as a sequel to our above discussion and in view of the above said legal propositions, we accept the present complaint and direct the opposite parties to pay a sum of Rs.9800/- i.e. price of the mobile in question to the complainant jointly and severally. We also direct the opposite parties to further pay a sum of Rs.1200/- in lumpsum as compensation for harassment and mental agony including litigation expenses. This order should be complied by the opposite parties within a period of one month, failing which the abovesaid amount of Rs.9800/- will carry interest @9% per annum from the date of order till actual realization and the complainant will be at liberty to initiate proceedings against the opposite parties under Section 25/27 of the Act. A copy of this order be supplied to the parties free of cost. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM
Dt.20.07.2016
(Raghbir Singh)
President,
District Consumer Disputes Redressal Forum, Fatehabad.
(R.S.Panghal) (Ansuya Bishnoi) Member Member
