IN THE CONSUMER DISPUTES REDRESSAL  COMMISSION, KOLLAM

Dated this the   10^th      Day of  November  2021

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

        Smt.S.Sandhya Rani, Bsc, L.L.B,Member

                   Sri.Stanly Harold, B.A.LLB, Member

                                                    CC.23/18                                              

Sajju Viswanathan                                                           :                                              Complainant

Manchu Nivas

Padinjattinkara

Kottarakkara, Kollam-691506

                                                V/s

1. Jayasree                                                                 :         Opposite parties

       DTDC , Opp.Mannam Memorial School

      Near Kottarakkara Railway Station

      Padinjattinkara, Kottarakkara,

      Kollam.

2. Sajeev

         Regional Manager, DTDC

         Amman Nagar-158, Ayoor Road

        Pattathanam, Kollam.

3. Bindu

        DTDC, No.59/3358

       APM Building

       North Railway Station

       Cochin, Pin-682018

4. Mohan Raj.R

Customer Support Manager

DTDC Express Ltd.

269, Lahari Towers

1^st Main Road, Albert Victor Road

Chamarapet, Bangalore-560018.

5. Tulasiram

         DTDC

      54/8 Near Sakra World Hospital

       Near Outer Ring Road

      Devar Besanahalli

     K.Agrahara, Bangalore-560103.

     [By Adv.Binu Mathew& Adv.Anjith.G.R]

FINAL    ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M, President

          1. This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

          2. The averments in the complaint in short are as follows:-

          On 31.08.2017 the complainant had purchased one VU 32D7545 Ultra High Definition 32 Inch LED TV from Electro Duniya #39/2 Yash Avenue, Dasarahall, Bangalore by paying Rs.15,800/-.  It was a brand new TV working on good condition which is having Ultr High Good Definition(UGD), A+ Grade panel with 178 Degree viewing angle,  advanced technologies with direct Led Display type.  One year warranty was also provided.  On the same day evening he entrusted his friend Mr.Karthik to send the TV to his home at Kottarakkara, Kollam district.  Accordingly he sent the LED TV through DTDC Devar Besanahalli Branch, Bangalore(1^st opposite party) as per invoice No.D35620726 by paying Rs.1750/- including the charges for insuring the item fully.  As the DTDC Kottarakkara branch had handled the TV negligently it was completely broken and damaged.  This resulted in irreparable mental agony, valuable time waste, apart from financial loss.  The complainant brought the matter to the 2^nd and 3^rd opposite parties by filing complaint on 08.09.2017.  But they have not sent any reply.  Later the complainant sent e-mail and brought the matter to attention of the 4^th opposite party and also send a letter stating his grievance on 29.01.2017.  In response  to the communication of the complainant the 4^th opposite party agreed to pay Rs.5000/- as repairing cost or if the complainant leave the TV 4^th opposite party agreed to pay Rs.10,000/- as price of the same.  On contacting with VU TV service centre, the estimate for  repairing the value of the panel is Rs.13056/- plus service cost of Rs.1500/-.  The DTDC is not willing to compensate  the complainant fully for their negligence and deficiency in service.  Hence the complaint.

          3. The opposite parties resisted the complaint by filing a detailed joint written version by raising the following contentions.  The complaint is not maintainable either in law or on facts.  The complainant is not a consumer as defined u/s 2(1)(d) of the Consumer Protection Act.  He has not availed any service from the opposite parties for consideration.  Hence he has no locus standi to file the complaint.  It is further contented that this Forum/Commission is having no jurisdiction to entertain the above complaint and that the complaint is barred by limitation.  The complainant had not given notice or any complaint within the statutory time limit regarding the alleged short delivery, damage, loss etc. as contemplated under Carriers Act or Carriage by Goods Act and as contemplated under the agreed terms and conditions of carriage.  Hence the complaint is not maintainable at all.  DTDC Express Limited formerly known as DTDC Courier&Cargo Ltd. is engaged in the business as Couriers and Cargo movers and have offices all over India and at various international destinations.  Opposite parties are individuals who are employees working at the various offices of  DTDC.  The 1^st and 5^th opposite parties is the delivering and booking Franchisee of M/s.DTDC Express Ltd. located at Kottarakkara and Bangalore respectively.  The individuals shown in the complaint as opposite parties have no personal business transactions or other transactions either with the complainant, Consignor or Consignee and they are not personally liable for any wrongs as falsely alleged in the complaint against the company.  Hence they are wrongly arrayed as opposite parties and the complainant may be directed to delete them from the party array.  The company has been doing business since early 1990’s and has considerable Goodwill and reputation in the courier industry. 

          4. However the opposite parties would admit that a walk-in customer/consignor had booked a Consignment through the 5^th opposite party under Consignment No.D 35620726 weighing about 13.5 Kgs to be consigned to the Consignee, in Kottarakkara, Kollam.  A freight charge of Rs.1750/- alone was collected from him for the service.  But at the time of booking the Consignor had not declared the contents of the consignment nor its value and did not also produce any documents in support or evidencing the same.  Hence the opposite parties were not aware of the contents of the consignments booked or its value.  The complainant had also not paid any additional charges to carry any valuables or to insure the contents of such alleged consignment.  The consignment was brought for booking in a packed carton and hence the opposite parties had no opportunity to see the contents of the same.  By seeing the size of the consignment and its weight it was advised by the 2^nd opposite party to declare the content and value of the consignment with documentary proof and to pay the additional surcharge as required under the terms and conditions of carriage, if the consignor wanted to claim for the actual value declared in the event of any unfortunate loss or damage to the consignment at the hands of the opposite parties.  The complainant did not declare the value of the consignment and pay any additional amounts as surcharge at the rate of 2% of the declared value.  But instructed that there is no requirement to declare the contents or the value of the same as it has no value at all.  He also stated that he is not having any bills to declare the content in the consignment.  Therefore the 5^th opposite party under the instruction of the consignor booked the consignment by weighing and collecting freight charges of Rs.1750/-  based on the weight of the consignment.  The consignment was booked for carriage by surface mode only.  The purpose for which such items were sent to the consignee was also not disclosed to the opposite parties.  The complainant has no case that consignor had declared the contents of the consignment at the time of booking of the consignment.  The original booking copy of the consignment is with the consignor.  The allegation that the complainant had brought one LED TV on 31.08.2017 and the same was consigned in the said consignment is denied by the opposite parties.  In the ordinary course of business the opposite party will issue a receipt of entrustment of article known as the shipper/consignor copy to the consignor which would contain the terms of carriage  which is in the custody of  the consignor and the complainant.  The same is not transferable or negotiable under the contract.

          5. When the consignment reached Kollam at the destination for delivery the consignee who is shown as Saju Viswanathan did not accept the consignment by stating that it is damaged.  The consignment was offered for delivery at the destination to the consignee in the same condition as entrusted to the opposite parties for carriage and there was no damage to the consignment and therefore the denial to accept the consignment was wrong.  Hence the consignment was returned to the consignor, who accepted the same without any complaint from the opposite parties as there was no damage to the same.  When the complainant had raised an oral complaint regarding the damages caused  to the consignment at the destination, the opposite parties had made a thorough investigation and found that the allegations are false, which was immediately intimated to the complainant.  The complainant was requested to raise a claim with the opposite party, if the content of the consignment and its value was declared and additional surcharge was also paid to the opposite parties/carrier.  Opposite parties had received a communication on 08.09.2017 raising false and frivolous contentions, claims and allegations.  The complainant’s contentions and claim in the said letter are absolutely false and specifically denied.  The complainant has no case that he had declared the contents, value and paid additional charges for carriage of the goods as per the terms and conditions.  Therefore the present allegation and claim in the complaint that it was an LED TV which was consigned to the complainant himself is against facts, merely an afterthought and hence denied.  However there is no damage as alleged by the complainant to the consignment booked.  The consignment was returned to the consignor in good condition.  The consignor had made no complaints while receiving the consignment back as there was no damage.  Therefore the above complaint is false and frivolous. 

6. The complainant is not the consignor of  the consignment and there is no privity of  contract between the complainant and the opposite parties.  There is no deficiency in service on the part of the opposite parties.  There is no cause of action for the complaint.  There is also no gross negligence on their part as alleged.  The exaggerated false claim of the consignment at Rs.15800/- under various heads is absolutely false and specifically denied.  The claim of Rs.75000/- as compensation is also false and denied.  The opposite parties are not liable to make good any such exaggerated claim for any such alleged loss sustained nor is the complainant entitled to such fanciful illegal claims.  It is denied that the consignment booked by the complainant contained brand new LED TV, as alleged.  The opposite parties denied the allegation that the complainant had suffered mental agony and loss of time. 

          7. Opposite parties collected consignments for carriage subject to terms and conditions that are specifically mentioned in the Consignment Note.  In the event of damage or loss to goods the liability of the opposite parties under the contract between the parties is limited to Rs.100/- or as mentioned in the contract unless the sender declares a higher value as “declared value for carriage” and also pays the applicable Risk Surcharge thereof as “Carrier’s Risk” at the time of tendering the shipment.  The minimum surcharge for ‘Carrier’s Risk’ at the time of tendering the shipment is Rs.50/- or 2% whichever is higher of the ‘declared value for carriage’ which has not been paid in the instant case to entitle the sender to claim for the declared value.  The opposite parties liability is also limited under the provisions of the Carriers Act/Carriage by Road Act.  Moreover, if the consignor is consigning any valuable goods he has to specifically mention and declare the contents and its value and pay additional Risk Surcharges for sending the same through the opposite party at the time of booking.  The sender will have to produce documents to prove the contents and its declared value at the time of booking.  In the instant case, the Consignor has not produced any documents to prove the contents in the consignment.  The Consignor has not paid additional risk surcharges apart from the freight charges at the time of entrusting the consignment with the opposite parties for carriage.  In the said circumstances, the consignor is not entitled to any claims/amounts other than the amount as mentioned  in the terms of contract between the parties as mentioned in the consignment note  and is bound by the contract and as under the Carriers Act/Carriage by Road Act.  Moreover, the consignor is not entitled to any consequential or indirect losses or damages because of loss or damage to shipment, under the contract.  In the instant case no mental agony or financial loss or damage is caused at the hands of the Carrier to the Consignor.  The above complaint is without merit and filed on an experimental basis to gain undue monitory advantage from the opposite parties and prays to dismiss the complaint with exemplary costs to the opposite parties.

8.       In view of  the above pleadings the points that arise for consideration are:-

1. Is not the complaint maintainable?
2. Whether there is any deficiency in service or any unfair trade practice on the part of the opposite parties?
3. Whether the complainant is entitled to get the relief sought for?
4. Whether the complainant is entitled to recover the cost of the damaged TV/repairing charges, service charges and courier charges as prayed for?
5. Whether the complainant is entitled to get compensation from the opposite parties, if so what would be the quantum of compensation to be awarded?
6. Reliefs and costs.

9.   Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P7 and P8 series documents.  Opposite parties have not adduced any evidence either oral or documentary,  though sufficient opportunity was granted for adducing evidence.

10.  Heard both sides.  Both advocates have not filed any notes of argument, though sufficient opportunity was granted.

Point No.1

11.     According to the complainant he purchased one brand new 32 inch LED TV as per Ext.P2 Tax invoice from the electronic shop at Bangalore by name Electro Duniya for Rs.15800/- and it was in a  good working condition.  As the complainant was busy with his work he entrusted his friend Mr.Karthik to send the same to his home at Kottarakkara  through courier service.  Accordingly his friend brought the same to DTDC Devar Besanahalli branch Bangalore and entrusted the same to 5^th opposite party as per Ext.P1 courier bill and also paid  Rs.1750/- as charges required.  It is the further case of the complainant that due to negligent and deficiency in service of DTDC, Kottarakkara the LED TV booked was completely broken and damaged and thereby he sustained monitory loss as well as mental agony.  Though the fact was brought to the DTDC, Kollam Regional Manager(2^nd opposite party) and their Cochin Office (3^rd opposite party) they have not responded.  Hence he sent e-mail as well as a  letter stating his grievance to the 4^th opposite party.  But in response to the letter the 4^th opposite party agreed to pay Rs.5000/- to repair the TV or Rs.10,000/- as price of the TV if he is ready to leave the TV.  On  enquiry it was revealed that the repairing costs of the TV panel alone is Rs.13056+1500.  But according to the complainant the DTDC is not willing to compensate the complainant fully and hence he filed the complaint.  The main contention of the opposite party is that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act as he has not availed any service from the opposite party by paying consideration and therefore he is having no locus standi to file the complaint and this Commission is having no jurisdiction to entertain the complaint.  The term consumer is defined u/s 2(1)(d) of the Consumer Protection Act.  Accordingly consumer in respect of any service means any person who hires or avails of any service for consideration and includes any beneficiary of such service other than the person who availed or hired such service for consideration when such service are availed of with the approval of the 1^st mentioned person.  In this case the consignment containing  LED TV was booked as per invoice No.D35620726 by Mr.Karthik who has been deputed by the complainant.  Even though the said Karthik was booked consignment at Bangalore it was on behalf of the complainant herein.  The said Karthik who is a friend of the consumer has also entrusted Ext.P1 Courier Bill to the complainant which itself would indicate that the said Karthik has booked the consignment on behalf of the complainant.  Therefore the complainant is the beneficiary of the act of booking the  consignment by the said Karthik.  Hence we are of the view that the complainant would come within the ambit of consumer as defined u/s 2(1)(d)(ii) of the Consumer Protection Act 1986.

          12. Yet another ground urged by the opposite parties  is that the complaint is barred by limitation since the complainant had neither given notice nor filed any complaint within the statutory time limit regarding damage as contemplated under Carriers Act or Carriage by Goods Act and as contemplated under the agreed terms and conditions of carriage.  In view of the materials available on record we find little force in the above contention. Ext.P1 courier bill/consignment note makes it clear that the consignment has been booked on 01.09.2017.  Ext.P5 is a copy of non delivery run sheet issued by the DTDC, Kottarakkara branch(Point of delivery) wherein  it is stated that on 07.09.2017 the consignment was received at Kottarakkara but the article has been returned to the place from where it was consigned as the customer was not received the item due to damage.  Ext.P7 series are copy of e-mail communication send by the complainant to opposite party No.4&5 and its reply.  The above communications are dated 19.09.2017.  At the  end of page no.1  of the above communication which is addressed to Mr.Mohanan, Customer Support Manager, DTDC, Bangalore, it is seen stated  that VU 32D7545 Ultra High Definition 32 Inch LED TV A+ Grade panel was entrusted to 5^th opposite party at Bangalore and obtained a courier bill and paid Rs.1750/- as courier charges for transmitting the same to the complainant’s residence at Kottarakkara that the TV got completely damaged and UHD panel was completely broken due to the negligence of the staff of DTDC and hence the complainant demanded Rs.15800+courier charges 1750/-.  The above communication has been seen received by the addressee who replied it by stating that “we would like to inform you as per our system records your shipment is insured for Rs.10000/- only as such we cannot admit claim amount beyond the declared value”.

13.     In view of the above materials on record it is cristal clear that the complainant has intimated the fact that the new TV consigned at DTDC, Bangalore has been received at Kottarakkara and he has also demanded the value of the same along with courier charges within 12 days from the date of receipt of getting intimation that the consigned article is available at Kottarakkara branch in a damaged condition and 19 days from the date of tendering the shipment of DTDC, Bangalore.  Clause 19 contained on the overleaf of Ext.P1 original courier bill would clearly indicate that all claims in respect of loss or damage of consignment shall be made within a period of 30 days from the date of tendering shipment to DTDC any claim request received beyond this period shall not be entertained.  In view of the materials available on record it is clear that the complainant lodged a claim before the opposite party No.4&5 were the consignment was booked within 19 days from the date of tendering the shipment to DTDC.  It is also clear from Ext.P3 document that the opposite parties have offered only Rs.10,000/- towards the loss sustained by the complainant but the complainant was not amenable for the same as the value of damaged TV is Rs.15800/-.  In view of Ext.P3 reply communication and also in view of the evidence tendered by the complainant that he was not amenable for the offer made by the consignor the cause of action would start from the date of denial of the claim lodged by the complainant.   In view of Section 24(A)  of the Consumer Protection Act 1986 the complainant is entitled to file the complaint before the Forum within 2 years from the date of which the cause of action has been arisen.  In view of the reasons stated above we hold that the complaint is within time and not barred by limitation as contented in the joint written version.  Point answered accordingly.

Point No.2 to 5

          14. The oral evidence of PW1 coupled with Ext.P1 consignment note/courier bill and Ext.P2 Tax invoice would indicate that the complainant had purchased the VU 32D7545 Ultra High Definition 32 Inch LED TV by paying Rs.15,800/- as per Ext.P2 invoice and he packed the same and entrusted to his friend Mr.Karthik to send the same to the home of the complainant at Kottarakkara.  Accordingly the said Karthik brought the consignment to the 5^th opposite party and entrusted the same by paying Rs.1750/- as total amount  of  courier charges which includes the tariff FSC+taxes, value added service charges, risk charge etc.  It is also clear from Ext.P1 courier bill itself that the person who consigned the article has declared the total value of the consignment for carriage/e-way bill as Rs.13000/-.  The above document would cut the very root of the opposite parties contention that the consigner has not declared the value of the consignment nor paid additional risk charges.  Ext.P4 to P7 would clearly indicate that the consignment was found damaged at the time of taking delivery and therefore the addressee/complainant has not taken delivery of the same but intimated the fact to the opposite party vide e-mail communication dated 19.09.2017 and letter dated 29.01.2017 and raised compensation to the tune of Rs.15800+1750 paid as courier charges.  But admittedly the opposite parties have not paid the same.    It is admitted towards the end of paragraph No.7 of the written version that opposite parties had received a communication dated 08.09.2017 but according to them claim raised in that communication are absolutely false.  It is further contented that the complainant has not declared the content of the consignment, its value nor paid any additional charges to cover the risk(risk charges).  The above contention is devoid of any merit in the light of oral evidence of  PW1 coupled with Ext.P1 to P5, P6 series documents.  Ext.P1 consignment note issued by the 5^th opposite party while booking the consignment itself would indicate that the name and value and weight of  the consigned article has been declared by the person who consigned the article Column No.10 specifies charges under head (a) to (d).  Column No.(d) refers to total amount covered under a,b&c  as Rs.1750/- which would indicate that the same would cover risk/insurance charges.  The risk charge is explained under clause 16 of  reverse side of Ext.P1 document.  If the value of article is up to 50000 risk charge is 2% of the total value.  Rs.13000/- is declared as the total value of consignment for carriage under column No.4. 

15.     It is true that the  description of content is written as LCD TV instead of LED TV which is not a serious  matter in view of the admission of opposite parties in the written version as well as in Ext.P3,P5&P6 series documents.  It is to be pointed out that the name of the article and other details in Ext.P1 courier bill has been filled up by the 5^th opposite party and not by the complainant.  The weight of the consignment has been recorded as 13.5 kg.  It is true that the total value of the consignment was declared as Rs.13000/- only that may be for reducing the risk charge.  Any how it is evident from Ext.P1 document that the amount of  Rs.1750/- includes risk charge shown in clause 16 contained in the reverse side of Ext.P1 courier bill.  As the article is totally damaged and repair charge as per Ex.P3 document is more than the declared value,  the complainant is entitled to get the declared value of the damaged TV and the opposite party is bound to pay the same as they have seen collected risk charges.

16.     It is brought out in evidence through the oral evidence of PW1 and Ext.P4 and P5 documents  that as the consigned LED TV was damaged the complainant has not taken delivery of the same was returned to the office where the consignment was booked.  In view of the materials discussed above it is clear that there is negligence and deficiency in service on the part of all the opposite parties.  It is also brought out in evidence that the complainant has sustained much mental agony apart from financial loss due to the damaged condition of his LED TV.  Therefore the complainant is entitled to get compensation for  mental agony sustained by him.    The complainant would claim Rs.75000/- as compensation which is highly excessive and exorbitant as contented by the opposite parties.  In view of the facts and circumstances of the case and the value of the TV damaged we are of the view that compensation to the tune of Rs.5000/- will meet the ends of justice. 

17.     The complainant has claimed return of courier charges including risk charges paid.  But it is highly unfair to claim return of the courier charges along with risk charge paid.   Simply because the amount of courier charges and risk charges were paid the complainant is entitled to get the declared value of the amount and compensation.  Therefore we are inclined to decline the prayer to return the courier charges levied by the opposite parties.  The points answered accordingly.

Point No.6

          In the result complaint stands allowed in the following terms.

1. Opposite party No.1 to 5 are directed to pay Rs.13000/- being the declared value of the consigned  LED TV to the complainant along with interest @ 6% p.a from the date of complaint till realization.
2. Opposite parties are further directed to pay Rs.5000/- as compensation and Rs.3000/- as costs of the proceedings to the complainant.
3. Opposite parties No.1 to 5 are directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is at liberty to recover Rs.13000+5000+3000=Rs.21000/- along with interest @ 9% p.a except for costs from the date of complaint till realization from opposite parties No.1 to 5 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Commission this the   10^th   day of  November   2021.

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

    Stanly Harold:Sd/-

    Forwarded/by Order

   Senior Superintendent

INDEX  

Witnesses Examined for the Complainant:-

PW1            :  Sajju Viswanathan

Documents marked for the  complainant

Ext P1         :   Original courier bill

Ext.P2         :   Tax invoice

Ext.P3         :   True copy of estimate cost from VU tech.

Ext.P4         :   Original receipt from DTDC, Kottarakkara

Ext  P5        :   True copy of non delivery run sheet

Ext.P6         :   Copy of e-mail communication between complainant and customer support manager, DTDC.

Ext.P7         :    Letter from customer support manager, DTDC

Ext.P8 series:     Postal receipts

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:- Nil

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

       Stanly Harold:Sd/-

     Forwarded/by Order

      Senior Superintendent