Punjab

StateCommission

FA/1402/2013

M/s Trackon Courier Private Limited & others - Complainant(s)

Versus

Jaspal Singh - Opp.Party(s)

Sanjeev Sharma & Hoshiar Singh

12 Jan 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1402 of 2013

 

                                                Date of Institution: 18.12.2013

                                                Date of Decision:  12.01.2016

 

1.      M/s Track on Courier Private Limited, C-143, Naraina Industrial  Area Phase-1, New Delhi 110020 through its Assistant General             Manager.

 

2.      Trackon Courier  Private Limited, through near Post Office,  Sangrur, through its Manager.

 

3.      Trackon Courier Unit No.6-7, Steel Made Industry Estate, Marol Udyog, Maroshi Road, Andheri (E), Mumbai.

 

                                                                                                                              …Appellants/Opposite parties

                             Versus

 

Jaspal Singh son of Hardev Singh, r/o Peer Khana, V & PO Badrukhan, Tehsil & District Sangrur.

 

 

                                                                                                                          ..Respondent /Complainant

                                                           

 

First Appeal against order dated 10.10.2013 passed by the District Consumer Disputes Redressal Forum,  Sangrur

 

 

Quorum :-  Shri J. S. Klar, Presiding Judicial Member.

                    Shri.H.S.Guram, Member

Present:-

          For the appellants                 : Sh. Hoshiar Singh, Advocate

          For the respondent                : Ex-parte

         . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

          J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants of this appeal (the opposite parties in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 10.10.2013 of District Consumer Disputes Redressal Forum Sangrur, accepting the complaint of the complainant by directing the OPs to pay Rs.25,000/- as cost of I-Phone, beside payment of Rs.5,000/- as costs of litigation. The instant appeal has been preferred against the same by the opposite parties now appellants in this appeal.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that his son has been residing at London and he sent I-Phone 4G Mobile bearing no. IMEI 01275100951044 to the complainant through Air Parcel bearing invoice no.KI-6853 on 26.03.2012 from London to India. The son of the complainant asked him on telephone, if he had received the parcel of mobile phone or not? After some days, the complainant received a telephonic message from OP No.3 for receipt of the parcel. The complainant went to the office of OP No.3 and parcel was sent through consignment no.1339256 and complainant was astonished to find out that it was not in a good condition and its seal was broken. OP No.3 opened the parcel at its office in the presence of the complainant, where it was found that parcel was empty and there was no phone lying in the parcel. The complainant refused to receive the empty parcel and moved an application on 10.04.2012 to SHO City Sangrur in this regard. The complainant has prayed that OPs be directed to deliver I-Phone 4G Mobile bearing no.IMEI 01275100951044 to the complainant or in the alternative to  pay Rs.50,000/- as cost of above-said I-Phone, besides Rs.50,000/- as compensation for mental harassment and cost of litigation. 

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by raising legal objections that complaint is not maintainable in the present form. The complainant has no locus standi or cause of action to file the complaint. The concerned Forum at Sangrur has no jurisdiction to try the complaint because the jurisdiction is conferred only at Delhi Consumer Forum. The complaint is alleged to be bad for non-joinder of necessary party, as the original courier company with whom parcel was booked by the son of the complainant has not been impleaded, as a party. OPs contested the complaint of the complainant even on merits. It pleaded that neither the contents of the parcel were disclosed to the OPs/company nor the parcel was re-packed before the answering OPs. The OPs have no concern or liability with the parcel. OP No.3 telephonically intimated the complainant to collect the parcel from their branch office at Sangrur. The complainant insisted the OP No.3 to open the parcel before him and when opened, it was found empty. The answering OPs denied other averments of the complainant and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, Ex.C-1 is copy of receipt  dated 26.03.2012 recording sender's detail as Prabhvir Singh from London, which was received by Jaspal Singh, who is complainant in this case, Ex.C-2 is copy of complaint filed by Jaspal Singh to SHO Police Station, Sangrur, affidavit of Dheeraj Kumar Ex.C-3, affidavit of Jaspal Singh complainant Ex.C-4.  As against it; OPs tendered in evidence affidavit of K.S Assistant General Manager/OPs Ex.R-1 and copy of terms and conditions Ex.R-2. On conclusion of evidence and arguments, the District Forum Sangrur, accepted the complaint of the complainant by directing the OPs to pay the amount of Rs.25,000/- on account of loss of I-Phone, besides payment of Rs.5,000/- as costs of litigation to complainant. Dissatisfied with the order of the District Forum Sangrur dated 10.10.2013, the complainant now appellant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case. Evidence is required to be examined by us along with pleadings of the parties to settle this controversy. Ex.C-1 is invoice No.KI 6853, which is receipt for booking from London by Parabhvir Singh in favour of Jaspal Singh complainant in India. It was recorded in it that it was for delivery of I-Phone 4G Mobile, IMEI 01275100951044. The complainant lodged the complaint with SHO Police Station, Sangrur, copy of which is Ex.C-2 on the record. Affidavit of Dheeraj Kumar is Ex.C-3 to the effect that complainant asked him to open the parcel and when he opened it, it was empty. Affidavit of complainant Ex.C-4 is on the record that his son sent him I-Phone 4G Mobile bearing IMEI 01275100951044 bearing invoice no.KI-6853 on 26.03.2012. He further stated that the parcel was received by OP No.3 and when it was opened by the complainant, it was found empty without any I-Phone in it. To counter this evidence, OPs relied upon affidavit of K.S Narang Assistant General Manager of OPs. He has stated in his affidavit that the OPs received the parcel from original courier company at its Mumbai agent's office. The said company hired the services of OPs for delivery of said parcel to the addressee, as mentioned on the parcel. OPs denied any liability in this case. It was denied that when parcel was opened, it was found empty. Photocopy of terms and conditions has been relied upon, which is Ex.R-2 on the record. In case it is proved that terms and conditions were supplied by the OPs and they were part of the courier receipt then we have to rely upon them. In this case, the parcel was packed from London, vide Ex.C-1 and it was received by OPs and then OPs brought it for delivery to complainant from Mumbai. In these circumstances of the case, the complainant is not a party to the terms and conditions Ex.R-2; hence, they are not binding on the complainant. The question of contractual obligation would arise only in case the complainant was a party to the terms and conditions. Consequently, mere terms and conditions without any intimation thereof either to the complainant or to original person, who sent the consignment, would not constitute any binding contract, so as to bind the complainant in this case. The complainant wrote complaint to SHO Police Station, Sangrur and it has been received by the official on his behalf. Affidavit of complainant is also on the record that parcel was found without any I-Phone in an empty condition. In these circumstances of the case, OPs cannot be absolved on the mere ground that original booking agency was in London in this case. In case, it was not lost from the custody of the OPs, consequently, original booking agency being in London cannot be compelled to appear in India. Moreover, the complainant suffered loss of the I-Phone; which was sent to him by his son from London. We find that there is a deficiency in service on the part of OPs in this case. The District Forum rightly awarded the amount of Rs.25,000/- to complainant for loss of the I-Phone in the transit and Rs.5,000/- as costs of litigation. We do not find any ground to disturb the order of the District Forum passed under challenge in this case. 7.       As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed.

8.      The appellants have deposited an amount of Rs.15,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the appellants to the complainant after 45 days from the date of receipt of copy of this order.

9.      Arguments in this appeal were heard on 07.01.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

10.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                           (H.S GURAM)

                                                                              MEMBER

 

January 12, 2016                                                                

(ravi)