DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.82 of 11.3.2008<br /> Decided on : 4.6.2008 <br /> <br /> Oriental Bank of Commerce, A body of corporate constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act 40 of 1980, having its Head Office at Harsha Bhawan, E-Block, Cannaught Place, New Delhi and having amongest other branches, a Branch at Civil Lines, Bathinda through its Sr. Manager & Principal Officer Sh. D.N Goyal. <br /> .... Complainant<br /> Versus<br /> <br /> 1.Flight Despatch Courier & Cargo Limited (India) Pvt. Ltd., H.O. Shop No. 3, Padmavti C.H.S Ltd., Jn. Of Azad Road & N.P Road, Off. Azad Road, Vile-Parle (East) Mumbai-400059 through its Managing Director.<br /> 2.Flight Despatch Courier & Cargo Limited (India) Pvt. Ltd., Branch Offices, 34 Fish Market, Bathinda through its Incharge/Manager Mr. Varinder Kumar.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant :Sh. Rajneesh Kumar Rampal,Advocate<br /> For the opposite parties : Sh. Ashok Gupta, counsel for opposite party No.2.<br /> Opposite party No. 1 exparte<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to pay it Rs.26,300/- which has been paid to Smt. Harjit Kaur due to deficiency in service on their part; Rs.1,00,000/- as compensation, besides costs of the complaint. <br /> 2. Brief facts of the case are that Harjit Kaur W/o Late Sh. Nazar Singh, resident of H. No. 24723, Gali No. 10/2, Baba Deep Singh Nagar, Bathinda has her Saving Bank Account with the complainant bank. Cheque No.829259 for Rs. 1,90,831/- drawn on State Bank of Patiala, Bathinda was presented by her for encashment. Some signatures were required on the cheque which were not available on it. Complainant booked parcel with opposite party No. 1 through opposite party No. 2 for delivery of this cheque to Harjit Kaur vide despatch No. 1852 dated 2.1.2006. Assurance was given by the opposite parties that the envelope containing the cheque would be delivered to her on the next day. Cheque did not reach its destination. Same was lost by the opposite parties. This fact came to its (complainant's) knowledge only in the month of March, 2006 when Harjit Kaur had visited it and made inquiries about the encashment of the cheque. She had told that envelope containing cheque was not received by her. Thereafter, opposite parties were approached and they through their letter dated 20.3.2006 intimated that aforesaid envelope was lost in their office. It is alleged by it that cheque has been lost due to negligence and irregularities committed by the opposite parties. Complaint under section 12 of the Act was preferred by Harjit Kaur before this Forum seeking compensation from it. Direction was given to it to pay Rs.25,000/- as compensation alongwith interest @ 9% P.A and also Rs.1,000/- as costs vide order dated 29.6.2007 passed in Consumer Complaint No. 89 of 4.4.2007. Appeal preferred by it has been dismissed. It has to undergo uncalled for litigation by spending huge amount both at Bathinda as well as Chandigarh besides payment of compensation, interest and costs totalling Rs. 26,300/-. Opposite parties were called upon by way of serving registered notice dated 6.10.2007 to admit its lawful claim but to no effect. In these circumstances, there is deficiency in service and unfair trade practice on the part of the opposite parties. <br /> 3. Registered A.D post notice was issued to opposite party No. 1 on 27.3.2008. Neither registered cover nor A.D was received till 29.4.2008. Accordingly, opposite party No. 1 was deemed to have been duly served. No-one came present on its behalf. Accordingly, it has been proceeded against exparte.<br /> 4. Opposite party No. 2 filed reply taking legal objections that complainant has got no cause of action and locus-standi to file the complaint against it. It is merely a franchise of opposite party No. 1 and getting commission only; complaint is not maintainable in the present form; complainant is not consumer; it has not approached this Forum with clean hands; there is no provision of subrogation of rights in the Act; mixed questions of law and facts are involved and as such, this Forum has no jurisdiction to entertain and try the complaint; complainant is estopped from filing the complaint by its act and conduct; complaint is bad for non-joinder of Harjit Kaur and misjoinder of parties; its liability is limited to the extent of Rs. 100/- only; complaint is barred by time and it is false and frivolous. On merits, its plea is that it has no knowledge about the interse proceedings between Harjit Kaur and the complainant. It may be possible that sealed envelope was handed over to opposite party No. 1 without disclosing that cheque was in it. Moreover, cheque was not shown to it. Acknowledgment receipt dated 20.3.2006 was given under the influence of complainant out of the way although it was not bound to give any letter. Letter was given to save the skin of the bank officials. It is not binding upon its (opposite party no. 2) rights. As per courier, its liability is upto the extent of Rs.100/- only. This is printed on the face of the receipt. It was not made party in the complaint filed by Harjit Kaur. It admits the receipt of the notice. Inter-alia, its plea is that notice was illegal and on that account its reply was not given. It does not admit the remaining averments in the complaint. <br /> 5. In support of its allegations and averments in the complaint, complainant-Bank tendered into evidence affidavit (Ex.C.1) of Sh. D.N Goyal, its Branch Manager, photocopy of authority letter dated 31.12.2007 (Ex.C.2), photocopies of letters dated 20.3.2006 & 6.10.2007 (Ex.C.3 & Ex.C.4), photocopy of postal receipt (Ex.C.5), photocopies of order dated 29.6.2007 & 7.9.2007 (Ex.C.6 & Ex.C.7), photocopy of one page of despatch register (Ex.C.8) and photocopy of general power of attorney (Ex.C.9).<br /> 6. On behalf of opposite party No.2, reliance is placed on affidavit (Ex.R.1) of Sh. Varinder Kumar, photocopy of letter dated 6.1.2004 (Ex.R.2) and specimen of courier receipt (Ex.R.3).<br /> 7. We have heard the learned counsel for the complainant and opposite party No.2. Apart from this, we have perused the record. <br /> 8. One of the objections taken by opposite party No. 2 is that mixed questions of law and facts are involved in this case for which detailed investigation is required and as such, this Forum has got no jurisdiction to entertain and try the complaint. This objection is not tenable. None of the parties has brought to our notice that any other evidence than the one already led by them was to be produced. They have closed evidence of their own. Moreover, matter has been set at rest by their Lordships of Hon'ble Apex Court of India in the case of CCI Chambers Co-operative Housing Society Ltd. Vs. Development Credit Bank Ltd.-III(2003)CPJ-9(SC)by holding that merely because recording of evidence is required or some questions of law and facts arise which need to be investigated and determined, cannot be a ground for shutting the door of any Forum under the Act to the person aggrieved. Similar view has been held by their Lordships of the Hon'ble Apex Court in the case of J.J. Merchants Vs. Shrinath Chaturvedi-III(2002)CPJ-8 (S.C.). Hence, we hold that this Forum is well within its right to entertain and try the complaint.<br /> 9. Contention of learned counsel for opposite party No. 2 that complaint is bad for non-joinder of Harjit Kaur as party, is not entertainable. No relief has been sought against her by the complainant. Deficiency on the part of opposite parties is required to be determined. No deficiency against Harjit Kaur has been alleged. She is not necessary party to the complaint. Apart from this, non-joinder of a party is no ground to throw away the complaint to the waste paper basket. For this reference may be made to the authority Smt. Savita Garg Vs. The Director, National Heart Institute-2004(2)CPC-675(SC). <br /> 10. According to opposite party No.2, complainant is not consumer as it is involved in bulk financial activities and matter is commercial one. This argument does not cut any ice. It cannot be said that complainant had hired services of the opposite parties for earning profit. Services were availed for some specific purpose. Its allegation is that they were not rendered properly. What opposite parties was to render was only service. It was hired for consideration. Accordingly, complainant is consumer. For this, reference may be made to the authority M/s. Gulab Industries Private Limited Vs. M/s. R.N.G Suiting Limited-2004(1)CPC-417.<br /> 11. Learned counsel for opposite party No. 2 argued that complaint is not within time as version of the complainant is that it had booked parcel with opposite party No. 1 through opposite party No. 2 vide despatch No. 1852 dated 2.1.2006. It could file the complaint within two years from 2.1.2006 onwards. This complaint filed on 11.3.2008 is not within time. In our view, this submission does not carry conviction in the facts and circumstances of this case. No-doubt, envelope was booked vide despatch No. 1852 dated 2.1.2006. Question is as to when complainant came to know about the loss of the letter containing the cheque. From the affidavit Ex.C.1 of Sh. D.N Goyal, Branch Manager, it becomes evident that complainant came to know from Harjit Kaur in the month of March, 2006 that cheque in question was not delivered to her. Opposite parties conveyed through letter dated 20.3.2006 that letter was lost in their office. Hence, loss of the letter containing the cheque came to the knowledge of the complainant for the first time with letter dated 20.3.2006. Accordingly, cause of action accrued to it for filing the complaint on 20.3.2006. Therefore, this complaint filed on 11.3.2008 is well within time.<br /> 12. Mr. Rampal, learned counsel for the complainant argued that envelope containing cheque No.829259 for Rs.1,90,831/- was booked with opposite party No. 1 through opposite party No.2 vide despatch No. 1852 dated 2.1.2006 as is evident from Ex.C.8. It was not delivered to Harjit Kaur addressee. Cheque was lost due to the negligence of the officials of the opposite parties in the performance of their duties. Hence, deficiency in service on their part is proved.<br /> 13. Mr. Gupta, learned counsel for opposite party No.2 argued that opposite parties were not aware about the contents of the envelope. It was not disclosed that the envelope contained cheque. Even otherwise, liability of the opposite parties is only upto the extent of Rs.100/- per courier in view of the terms and conditions printed on the back of the courier receipt as is clear from the copy of the specimen of receipt Ex.R.3. According to the terms and conditions, it has been made clear that under the existing regulation of any authorities IATA restricted Material of hazardous goods: Negotiable instruments in bearer form, are not accepted under any circumstances. All the items are accepted entirely at the risk and responsibility of the shipper. <br /> 14. We have considered the rival arguments. Complainant reiterates his version in the affidavit Ex.C.1 of Sh. D.N Goyal, its Branch Manager. Opposite party Flight Despatch Courier & Cargo Limited (India) Pvt. Ltd. Admits through its letter dated 20.3.2006 that letter under despatch No. 1852 dated 2.1.2006 was lost in its office. So far as affidavit Ex.R.1 of Sh. Varinder Kumar is concerned, it stands amply rebutted with the affidavit Ex.C.1. Opposite party No. 2 has not placed and proved on record copy of courier receipt issued to the complainant on 2.1.2006 bearing signatures of any of its officials. This could show that terms and conditions printed on its front page and on its back were there. Since, copy of the courier receipt issued to the complainant is not on the record, complainant cannot be said to be bound by the terms and conditions recorded in the specimen of the courier receipt Ex.R.3. Had such courier receipt been signed by any official of the complainant, it could be said to be bound by its terms and conditions. Accordingly, opposite party No. 2 cannot derive any benefit from Ex.R.3. To the contrary, it is evident from Ex.C.1 that the envelope booked with opposite party No 1 through opposite party No. 2 was containing cheque for Rs. 1,90,831/-. Opposite company admits that letter was lost in its office. So far as Ex.R.2 which is the letter of the complainant to Sh. Varinder kumar of Flight Despatch Courier Service is concerned, it does not advance the cause of the opposite parties. There is nothing in it that complainant accepted terms and conditions recorded in the specimen of the courier receipt Ex.R.3. Cheque sent through envelope has been lost by the Courier Company. No reasonable and probable explanation has been furnished for loss of the letter under despatch No. 1852 dated 2.1.2006 by the opposite parties. Accordingly, deficiency in service on the part of the opposite parties towards the complainant is proved. For this, we get support from the observations in the authority M/s. Srushti Apparels Pvt. Ltd. Vs. M/s. Blue Dart Express Pvt. Ltd.-II(1993)CPJ-656. <br /> 15. Now question arises as to which relief should be accorded to the complainant. Harjit Kaur to whom the envelope containing the cheque was addressed had filed Consumer Complaint No. 89 dated 4.4.2007 before this Forum. It was decided on 29.6.2007. Copy of the order is Ex.C.6. Complaint was allowed with costs of Rs.1,000/- and opposite party No.1 was ordered in that complaint to pay Rs.25,000/- to her. Appeal preferred by the complainant (in this case) against that order was dismissed on 7.9.2007 as is evident from Ex.C.7. Complainant has to comply with the order of this Forum and the order of Hon'ble State Commission. It has to undergo financial loss due to the deficiency on the part of the opposite parties as they lost the envelope containing the cheque. Terms and conditions recorded in Ex.R.3 cannot be said to be binding upon the complainant. Hence, liability of the opposite parties cannot be restricted to Rs.100/- only. Primary deficiency was on the part of the opposite parties due to which complainant has to pay Rs.25,000/- as compensation alongwith interest and Rs.1,000/- as costs as is evident from the record of this case. Accordingly, direction deserves to be given to the opposite parties to pay Rs. 25,000/- to the complainant alongwith interest @ 9% P.A on Rs.13,000/- from 6.8.2007 and on Rs.12,000/- from 17.1.2008 till payment. Complainant is also craving for compensation of Rs.1,00,000/-. There is no case to allow it in view of the relief which is going to be accorded as above. Out of interest and compensation, one can be allowed.<br /> 16. In the result, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Pay Rs. 25,000/- to the complainant alongwith interest @ 9% P.A i.e. on Rs.13,000/- from 6.8.2007 and on Rs.12,000/- from 17.1.2008 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 17. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> <br /> Pronounced (Lakhbir Singh)<br /> 4.6.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> 'bsg' <br />