Sri Santosh  Agarwal,Propritor of Ghanshyam Medical Stores of Hospital Road.P.O. & P.S.Alipurduar being the  complainant  has filed a complaint u/s.12 of the Consumer Protection Act,1986 against the  Opposite Party  No.1 and 2 i.e 1) First Flight Couriers Ltd and 2) Branch Office of First Flight Couriers Ltd,Propritor name  Sanjoy Saha @ Bappa Saha  alleging that on 29.7.14, he purchased  some Chocolates and one Rakhi  and after purchasing  the same he sent the same, by covered Envelope to its beneficiary  Sri Rammwas Ramesh Agarwala of Dhanbad,Pin- 82803 through First Flight Courier service in its Branch at Alipurduar on the same date. The O.P;No.2 i.e the above said Branch of Alipurduar issued a receipt bearing No E.92100097698 dated 29.7.14 on receiving a service charge amounting to Rs.120/- with an assurance to deliver the same to the addressee within ¾ days but after laps of 7/8 days the O.P did not deliver the articles to the addressee. The Complainant visited the Office of the said O.P on several occasion but in vain. Due to non-delivery of said Envelope containing some chocolates and one Rakhi is the deficiency service on the part of the Opposite Parties. Thus, the complainant suffered mental agony, harassment and monitory loss.

                 As such the complainant has filed the instant case being No. CF/27/14 along with Xerox copy of document (Annexure A) i.e.  a consignor copy of First Flight Courier Ltd dated 29.7.14 together with IPO of Rs.100/- (Rs.50/- + Rs.50/-) before this Forum for redress the dispute and has prayed for direction to the O.Ps to pay Rs.10, 000/- for compensation and further Rs.10,000/- for litigation costs and further Rs.20,000/- for mental agony due to suffering and corresponding costs etc. and some other relief/reliefs which the complainant is entitled to in equity, justice and good  conscience.

                    Notices were served upon the opposite parties and they appeared to contest the instant case by filing their respective Written Version.evidence and written argument. The O.P No.1 represented by their Junior Executive viz.Mr.Shubam Amin

                    The O.P.No.1 by filling written version denied the case contending interalia that the case is not maintainable either in law and fact they are carrying their business which is courier in nature with high reputation. The complainant has brought this case only to harass and to black mail the opposite parties. Admittedly O.P.No.2 has been functioning as franchisee at Alipurduar.The complainant neither visited the Office of O.P nor sent any claim letter pertaining to the alleged consignment. The O.P is carrying their business all over India with high reputation. The consignment bears no signature of complainant or this O.P by an agreement allowed O.P.No.2 to use its consignment logo etc. There is no direct transaction in between the complainant and this O.P. If there is any loss, the O.P No.2 shall alone will be held responsible. This O.P has filed a Xerox copy of a franchisee agreement dated 01.12.2011 in this case being Annexure-1. According to O.P there are some terms and condition in the backside of consignment copy as mentioned therein being No.1822 and 23. It is expressly agreed further liability of the Company for any loss or damage and if there is no ­delivery of consignment under this consignment notes is limited Rs.100/- to Rs.100/- only with regard to actual value of consignment.  As such this O.P prays for dismissal of the instant case with exemptory costs.

            The O.P No.2 by filing written version, evidence and written argument contended that the complainant is not a Consumer under the Provision of Consumer Protection Act.. Admittedly, the complainant attended the Office of O.P and booked one parcel under a money receipt on 29.7.14 and the detonation the parcel was Dhanbad. On that date the Internate Service was so bad, This O.P did not see the Service Station (NSS) was noticed of First Flight Courier at Dhanbad. This O.P informed the matter to the complainant and requested him to take back the said parcel and return the money receipt. The complainant requested the O.P to send the same through DTDC under proper receipt and the matter was duly informed to the complainant. Accordingly, the parcel was sent to Dhanbad in proper address. The tracking result showing the consignment issued by DTDC on 31.7/14..Annexure –A,copy of receipt dated 29.7.14(DTDC) & Annexure A and A1) . Copy of Tracking Result showing the consignment issued by DTDC on 31.7.14.

            So, this O.P has alleged that the complainant has filed this case falsely and motivatedly only to harass as well as to hamper the reputation of the Company. Thus he prays for dismissal with exemptory costs. liable in any way?

1)Whether the complainant is entitled to get relief/reliefs as prayed for?

                    DECISION WITH REASONS

            We have gone through the entire record carefully and perused the document filed by the complainant (Annexure ‘A’ in original as well as Xerox copy of it ) Also perused the document  filed by the  O.P No.2 (Annexure “A/1 and A/2).

           Heard also the argument as advanced by the Ld.Agent of the complainant as well as the O.Ps. Perused also the evidence adduced by the parties by filing affidavits and the written argument filed by both the parties.

POINT NO.1 & 2.

           The complainant  Santosh Agarwalla has filed this instant case against the O.Ps being a person  who booked a parcel in the Office  of O.P.No.2 to  send the same with this Courier Service  on  the basis of  the  receipt  as filed herein (Annexure-‘A). So, the complainant becomes a consumer when the fees have been accepted in this case. We think that there is no dispute to the effect of establishing that the complainant is being a consumer under the Consumer Protection Act.

            On considering the facts & circumstances we found that this Forum has territorial jurisdiction and pecuniary jurisdiction to try with this case.  Thus, we have no hesitation to hold that the complainant is a consumer u/s.2 (1)(s)(ii) of Consumer Protection Act  and this Forum has jurisdiction  to try this case

POINT No.3 & 4.

                    It appears from the complaint as well as the evidence of the complainant Santosh Agarwalla that he booked one parcel under a money receipt on 29.7.14 (Annexure A) and the destination of the parcel was at Dhanbad. The O.Ps are not denied the said fact of booking parcel in the Office of O.P.No.2. Admittedly on perusing the materials on record as above and the facts & circumstances it is established that the complainant had booked the said parcel mentioning the destination of it.

                        It is the case of the complainant that he purchased some Chocolates & one Rakhi on the self same date i.e 29.7.14 and after purchasing the same, it was sent by the covered envelope i.e said parcel through First Flight Courier Service in its Branch at Alipurduar to its beneficiary Sri Rammwas  Ramesh Agarwalla of Dhanbad  and a receipt was issued being No.E 92100097698 dated 29.7.14     on receiving  a service charge  of Rs.120/- with an assurance  to deliver  the same  within ¾ days. But after laps of 7/8 days the O.P did not deliver the articles to the addressee.  According to the complainant he visited the Office of the O.P at Alipurduar on several occasion but in vain. Due to non-delivery of said envelope containing some Chocolates and one Rakhi in the deficiency service on the part of the O.P. Annexure A consignor copy reveals that on 29.7.14the complainant booked an Envelope to the consignee Rammwas Ramesh Agarwalla, Dhanbad-828203-chargeble Rs.120/- weighing 300gms. The complainant   alleges that the O.P Courier Services did not deliver the said articles to the consignee in spite of attending their Office several times, but in vain.

The O.Ps denied the case of complainant. O.P no 2 clearly stated in evidences that though he received one parcel under a money receipt on 29-07-2014, but he found no Service Station and subsequently he came to know there is no service of First Flight Courier at Dhanbad and as such he requested the O.P to send the same to other Courier and subsequently having good relation       with the complainant he sent the same through D.T.D.C under proper receipt and it was duly informed to the complainant and the Tracking Result showing the consignment of D.T.D.C on 31-07-2014 at 12 P.M .

On the Contrary, O.P No 1 simply stated that they did not receive any money from complainant. The complainant sent his consignment with O.P No 2 who has been functioning as franchisee of their company. If any transition had been taken place that was made in between the complainant and O.P No 2. They are in no way liable if any loss occurs according to them O.P No 2 is alone responsible for this purpose.  He filed the photo-copy of the agreement which held bet ween the O.Ps on 1.12.2011. They claim that the terms & conditions has been mentioned in Col. No.18, 22, and 23. The consignor required to provide a declaration stating the value of consignment and details description of the materials in consignment. The Company shall not be liable due to delay in delivery, is-delivery and non-delivery of consignment for any reason whatsoever. On perusal of Photocopy of agreement it appears symmetry inbetween agreement and the Written Version as well as in evidence adduced by authorized Agent of O.P No.1...

                  On considering the case of the complainant as well as the case of the O.Ps it shows that the complainant in writing took no endeavor to make any correspondence with the O.P No.2 or no notice was sent prior to initiation of the instant case. On perusal of the Courier Act, 1865 as it refer at the time of argument that in Sec.10 that a six months notice is mandatory before institution of the instant case. We  find though in consignor’s                   it reveals  that  the envelope weighing  300 gms  but  it  does not  reflect any contents of the materials even the complainant  did not file  any money receipt relating to purchase  of  Chocolates and Rakhi as described  here in So, in this perspective  it cannot be said that the envelope contained some Chocolates  &  one Rakhi.

              Ld Agent for the O.Ps referred a Ruling Published   in Hon’ble N.C,D,R New Delhi 204 CPJ 39(NC) at the time of argument which disposed of on 17.2.2004,  on the other hand, the Ld.Agent of the complainant  referred  a  Ruling  published in (1991) 2 CPR 462/1992) 3 CPJ 111 decided on 9.5.91 and 3(2006 in support of his contention. He also referred a decision of this Forum passed in CF/3/14.

        We have meticulously gone through the above said Rulings, the photocopy of document of a receipt of D.T.D.C and Tracking Result of the matter.

       Hon’ble  National Commission in the case law as referred by O.P  observed that the value of parcel not disclosed liability  of  O.P  limited due to non-disclosure  of value and the complainant not entitled to value of loss of the parcel . Hon’ble N.C has been pleased to observe that the Respondent is not entitled to sum award by the State Commission.

          On perusal of the case law referred by the complainant as well as the Final Order passed in CF/3/14 it appears to us that the facts & circumstances of those cases are completely different in this case. The facts actually are not fitted with this case.

        In continuation of the discussion mentioned about it shows that the said envelope was received by D.T.D.C for sending the same to Dhanbad and the Tracking Result go  to show  that in consignment No.  K 72360214 was received by D.,T.D.C and  they attempted to deliver it on 31.7.12 at Dhanbad to the addressee.

         We have already mentioned that at the time of booking the complainant did not declare the value and the natur4e of the content,in question in envelope while issuing the consignor copy the  terms and condition has been mentioned therein.

      So, in the situation having heard the Ld Agents of bothsides and considering the facts & circumstances ¸we are in view that it would be appropriate that the Envelope  loss  in transit only  Rs.100/- can be awarded  as compensation at the interest of  w.e.f  the date  the envelope was booked and  due to harassment  and suffering we think that it would be suffice  Rs.1000/- be awarded  as compensation which would be given by O.P.No.1 and O.P.No.2 in equal share.

       Thus the point No. 3 and 4 are decided in favour of the compolainant.

Hence,it is,

                                   ORDER

          That the C.F case No.27/14 be and the same is allowed in part against O.P.No.1 and 2 with litigation costs of Rs.1000/- payable by O.P.No.1 & 2 jointly and/or severally to the complainant Sri Santosh Agarwalla.

         The Opposite Parties are directed to pay jointly and/or severally Rs.100/- as token compensation to the complainant for deficiency in service with interest of 9% per annum w.e.f the date of booking of envelope dated 29.7.14. The awarded amount be paid to the complainant within 45 days in default, the opposite parties shall pay Rs.100/- for each day’s delay jointly and/or severally and the amount be accumulated shall be deposited in the “State Consumer Welfare Fund”, West Bengal.

         Let a plain copy of this Final Order be supplied, free of costs, to the concerned parties/Ld Agents by hand/be sent  under Registered Post with A/D forthwith for information any necessary action, as per  Rules.

Dictated and corrected by me.