Complainant by filing this complaint has asserted that complainant regularly used the services of the op on payment of their service charges made on monthly basis and on 17.07.2012 complainant (consignor) booked at 95, Chittaranjan Avenue, Kolkata – 700012 a parcel containing 20 pcsof Tungsten Rods, 12 mm dia, for delivery to MIPALLOY – Unit – 3 (Ecd), C – 14 & C – 15, Sipcot Industrial Park, Irrungattukottai, Sriperumbudur -602105, (Consignee) with a copy of its Invoice No. 0262 dated 17.07.2012 for Rs.53,565/-.  But the op neither delivered the parcel to the Consignee nor returned the material to the complainant.  So, complainant contacted with the op several times over phone personally but of no avail.  Ultimately a notice of demand dated 27.11.2012 was sent to the op through complainant’s Ld. Advocate M/s Singhania& Co. but the op was silent.

          In the above circumstances, complainant has prayed for relief directing the op to pay Rs.53,000/- being cost of the material along with interest @ 12% p.a. till the final payment and to pay Rs.12,000/- for deficiency of service, mental agony and further litigation cost.

          On the other hand op no.2 by filing written version has submitted that no doubt complainant booked his consignment through one of their Business Associate Vishnu Enterprise, i.e. the op no.1of the instant case and all the payment transaction had been taken place between the complainant and the op no.1.  Op no.2 only allowed the op no.1 to use its consignments, Logo etc and other operational support on the basis of an agreement executed between them and there was no direct transaction between the complainant and the op no.2 and if there is any loss the op no.1 shall alone be held responsible and for existence of the agreement between the op no.1 & 2 same does not constitute a principal and agent relationship between the op nos. 1 & 2 and same is clearly mentioned in clause No.13(d) of the agreement.

          Further it is submitted by the op no.2 that the parcel booked by the complainant was not insured and as per the rules of the op no.2 a non-document consignment worth above Rs.50,000/- but less than Rs.1,00,000/- should be insuredbut here the complainant neither insured the consignment nor pay any risk surcharge and so the complainant hired the courier services for commercial purpose and the same shall be proved by the Tax Invoice of complainant as per definition of Consumer as mentioned in Section 2 (d) (ii) of the C.P. Act 1986.

          Further it is submitted that as per terms and conditions no.23 mentioned in the back side of the consignor copy specifically mentioned that without prejudice to any term contained herein above it is expressly agreed that the liability of the company for any loss or damage to the consignment or for any loss or damage due to delay in delivery, miss-delivery, or non-delivery of consignment under this consignment note is limited to Rs.100/- only without regard to actual value of consignment or to its commercial utility or to its special value of consignor.

          More particularly the company shall not be liable for any income, profits, interests and other consequential losses and as per the consignment note the said complainant had agreed to the terms and conditions that the liability of the courier service is limited and restricted to the extent of Rs.100/- only and for which the op has prayed for dismissal of this case.  Anyhow in this case op no.1 has not appeared even after service of notice.  Only op no.2 contested this case by filing written statement as stated above.

          In the above situation after submission of the evidence in chief and other materials by the parties and hearing the Ld. Lawyers of both the parties the case was finally closed for decision.

Decision with reasons

          On overall assessment of the argument as advanced by the Ld. Lawyers of both the parties and also considering the complaint including the written version of the op it is clear that op no.1 has been appointed as business associate as non-executed franchise for a period of 3 years from the date of agreement in between the op nos. 1 & 2 which is evident from the agreement submitted by the op and that agreement was executed on 7^th day of September 2012 and it was valid for 3 years from that day and after studying the terms and conditions of the said agreement it is clear that op no.1 was appointed by the op no.2 to run the business of the op no.2 in the name of the op no.2 as franchiser of all parties and the act of the op no.1 shall be treated an act of the op no.2 and it is specifically mentioned that op no.1 has supreme power to use the display, logo, trade names, brand name belonging to the op no.2 company during subsistence of the agreement and on non-exclusive basis.

          But fact remains that complainant rightly submitted the complaint against both in view of the fact that op no.1 is acting as associate of the op no.2.  So, under any circumstances op no.2 cannot deny the liability for non-rendering the requisite services as courier service in respect of the consignment which was sent by the complainant to his consignee.  Truth is that this consignment was sent through ops and it was particularly issued by Konarka Industrieswith Tax Invoice was dated 17.07.2012 and the article was consigned to Sriperumbudur M/s MIPALLOY Unit – III (Ecd) and that was received on behalf of op no.2 by op no.1and it was dispatched through First Flight Courier and practically First Flight Courier Ltd. received the article on 17.07.2012.  But after that the said consignment did not reach to the consignee and it is also proved that Konarka Industries sent a letter to the First Flight Courier at Kolkata reporting the matter of non-delivery to theM/s MIPALLOY Unit – III (Ecd) of Sriperumbudur and asked the First Flight Courier Manager operation to deliver back the same but no answer was received from the ops’ side.

          So, ultimately complainant sent demand letter on 27.11.2012 through his Ld. Advocate to the ops but ops did not answer and considering the above fact it is proved that the article was lost from the custody of the ops.  But fact remains that complainant paid all charges in advance and ops received the article but did not discharge their duties by delivering the said consignment to consignee and in this regard practically op no.1 is silent though notice was served upon him but op no.2 has tried to say that op no.2 has no liability to pay any compensation and if any compensation is required to be paid in this case it must be paid to the extent of Rs.100/- because it is specifically noted in the Tax Invoice on the backside.  But in this regard we are also considered the entire matter and it is proved that the article was lost from the custody of the ops and ops are Courier service company but they failed to discharge their liabilities and invariably for their negligent manner of service the consignment of the complainant did not reach to his consignee at Sriperumbudur which is fact.

          Now question is whether complainant is entitled to get any relief.  No doubt in this case op has challenged the status of complaint as consumer on the ground that the article was sent for commercial business and complainant is a company and for benefit and profit he sent it.  So, under any circumstances, complainant is not entitled to get any benefit as consumer.  In this regard we have gone through the provision of law and particularly the provision of 14 (i) (d) of the C.P. Act 1986 after studying the same we have gathered that complainant being a business firm, so the firm cannot get any compensation for pain and agony.  But the complainant as business firm has faced much loss in respect of consignment article which is specifically described in the Tax Invoice about its value and the nature of article and practically complainant has suffered such loss for non-delivery of the same by the op which is out come of negligence of the ops no doubt and in fact for non-delivery of the article in time to the consignee from the complainant business firm through op no doubt complainant faced loss of reputation of its business and himself  even if it was a business transaction. 

          Particularly in the instant case Couriers have not explained what really had happened to the consignment and so there was deficiency in rendering the service which tantamounts to negligence of service and therefore ops are liable to pay the amount of the goods which was lost from the custody of the op.  Now the objectionof the Couriers that liability of the op is limited to Rs.100/- does not carry any weight as the printed memo containing the above condition neither anybody nor any evidence to show that the terms of printed for consignor of consignee or that the same was agreed upon by the consignor and in this regard we have relied upon the one ruling reported in 1992 (I) CPJ 316 NC.  So, in the circumstances the op is liable to compensate the complainant for loss of goods and fact remains that complainant disclosed the value of the goods including the nature and status of the article in the consignment which was accepted by the ops after taking all responsibilities to deliver the same to the consignee and moreover in the present case the complainant as consignor disclosed the nature of the contains before handing over the same for sending the consignment to the consignee and when the consignment is lost, claim can be made and fact remains in the receipt the value of the consignment article was noted and that was accepted by the ops at the time of receiving the same.  So, Courier company the ops are no doubt liable to pay the compensation for loss of that article when complainant has suffered such loss and in the above circumstances the complainant is entitled to get relief as prayed for the negligent and deficient manner of service of the op.

          Moreover in the present case ops were aware of the commercial value of the contents of the package.  So, the standard or care ought to have been exercised by Courier company with caution.  But anyhow even after declaration was made by the complainant business men the articles were carried by Courier without any safety and for which it was lost and that has not been denied by the op for which relying upon the ruling reported in 1993 (3) CPJ 308 we are confirmed that there was no standard care in respect of the consignment on behalf of the ops for which ops are liable to pay compensation and also other litigation cost etc.

          In the result, the complaint succeeds when complainant is found as a consumer in view of the above findings of the ops.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.5,000/- against the op no.2 and same is allowed exparte against op no.1 with cost of Rs.5,000/-

          In the above circumstances both the ops jointly and severally are directed to pay the value of the lost consignment that is Rs.52,000/- with interest @ 8% p.a. over the same since the date of booking the said consignment to the ops on 17.07.2012 and till its full payment.  But no further compensation can be awarded in view of the fact the business concerned has no mental existence.  So, for mental pain, agony and harassmentno compensation is awarded and when interest is awarded further no compensation is awarded.

          Considering the unfair trade practice on the part of the op no.2 and for denying his liability to pay compensation and also shifting his liability to the op no.1 alone we have gathered that op no.2 claimed as a reputed Courier company tried to deceive the consumer by denying their liabilities and for which op no.2 has been imposed punitive damages for adopting unfair trade practice and op no.2 is directed to pay a sum of Rs. 10,000/- as punitive damages for adopting unfair trade practice and same shall be deposited to this Forum and this punitive damages is imposed only to check the op no.2’s  attitude to deny the liability in future in respect of any consumers’ grievances when any consignment is not delivered by op no.2.

          Op nos. 1 & 2 are hereby directed to comply the order as per spirit of the order within 15 days from the date of this order failing which for non-compliance of the Forum’s order and for disobeyance of Forum’s order op no.2 shall have to pay penal interest @ Rs.200/- per day till full satisfaction of the decree and even after that if it is found that op no.2 is reluctant to comply that order in that case penal proceeding shall be started and further penalty of Rs.10,000/- shall be imposed for implementation of this order.