BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> <br /> PRESENT:<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI .A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.NO.288/2003 Filed on 29/07/2003<br /> Dated: 15..05..2008<br /> <br /> Complainant:<br /> Dr. V.I. Subramoniam, Director, Dravidian Linguistic Association, I.S.D.L. Complex, St.Xaviers College – P.O., Thiruvananthapuram.<br /> (By Advocate Shri. K.S.Vijayakumar)<br /> Opposite parties:<br /> 1.M.Mohan, Manager, (Administration), M/s. Professional Couriers, Prasantham, T.C.No.24/345, opp.Sasthamkovil, Thycaud,Thiruvananthapuram.<br /> 2.The Branch Manager, M/s. Professional Couriers, No.VI/24, Sree Ram Buildings, Kizhakkumbhagam, N.H.Road, Kazhakkuttom, Thiruvananthapuram.<br /> (By Advocate Salini S. Nath)<br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 17..05..2005 the order was not prepared accordingly. This Forum assumed office on 08..02..2008 and re-heard the complaint. This O.P having been heard on 29.04..2008, the Forum on 15..05..2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SHRI. G. SIVAPRASAD, PRESIDENT : <br /> The case of the complainant is that on 18th December, 2002 the complainant had sent a parcel of books worth Rs.971/- through the 2nd opposite party to be delivered to Dr. K.S. Musthafa, Urdu Teaching and Research Centre, Saproon, Solan, Himachal Pradesh. The 2nd opposite party collected Rs. 90/- towards parcel charges as per Consignment Note No.624871 dated 18..12..2002. The contents of the consignment was disclosed to the 2nd opposite party before fixing the parcel charges. The parcel was not delivered to the consignee till 26..12..2002. On 27..12..2002 the complainant informed the 2nd opposite party about the non-delivery of the consignment. On 21..02..2003, one Mr.Selvaraj came from the 2nd opposite party and collected the particulars of the parcel. Inspite of all these the 2nd opposite party did not even sent a reply to the letter sent by the complainant. Finally, the complainant sent a lawyer's notice dated 09..05..2003. The reply notice does not contain any information about the parcel or its delivery. Instead, a reading of the reply notice would convince that the non-delivery was willful and with intent to fraudulently obtain the books worth Rs.971/-. The action of the opposite parties is unfair trade practice and there was deficiency in service on the part of opposite parties. Hence this complaint claiming Rs. 1,100/- towards loss sustained and Rs.5,000/- towards compensation and Rs.250/- towards cost of lawyers notice and cost of this complaint.<br /> 2. Opposite parties entered appearance and filed version contending that the complaint is not maintainable eiher in law or on facts. The complaint is bad for non-joinder of necessary parties. The complainant is not a consumer and there is no consumer dispute. There is no deficiency in service or unfair trade practice on the part of opposite parties. The complainant has not availed of any services of the opposite parties by paying any consideration. The complainant had sent a parcel through the 2nd opposite party, but the contents of the same is not known to the opposite parties nor the complainant has disclosed the same to the opposite parties. The opposite parties delivered the consignment in good order and condition without any delay. The complainant is bound to prove the loss of consignment. The opposite parties had received a lawyer's notice for which the opposite parties sent a detailed reply. It is submitted that the opposite parties liability is limited. These conditions were brought to the notice of the consignor by the opposite parties at the time of entrustment of the consignment by the consignor to the opposite parties and the consignor had signed on it accepting all these which make the parties binding by the terms of the contract. As per terms and conditions, if at all any loss had occurred to the complainant due to the act of the opposite parties, the opposite parties liability has to be confined to Rs.100/-. The opposite parties does not know the contents of the consignment. The claims of the complainant is not maintainable and there is no cause of action for filing this complaint. Hence opposite parties prayed for dismissal of the complaint with cost to the opposite parties.<br /> 3. The points that would arise for consideration are:<br /> (i)Whether there has been deficiency in service on the part of opposite parties?<br /> (ii)Reliefs and costs?<br /> On the part of complainant, complainant as PW1 filed affidavit and Exts.P1 to P5 were marked. No evidence adduced by the opposite parties.<br /> <br /> 4. Points (i) & (ii): The first point requiring consideration is whether there has been deficiency in service on the part of opposite parties. The case of the complainant is that on 18..12..2002, the complainant sent a parcel of books worth Rs.971/- through 2nd opposite party to be delivered to Dr. K.S. Musthafa, Urdu Teaching and Research Centre, Saproon, Solan, Himachal Pradesh. The opposite parties failed to deliver the said parcel to the consignee. Ext.P2 is the copy of the Courier Consignment note. As per Ext.P1, the consignment note No.is 624871. Date of consignment is 18..12..2002. The weight of the said parcel is 11.600, consignment charge is Rs.90/-, consignor is DLA and consignee is Dr. K.S. Musthafa, Urdu Teaching and Research Centre, Saproon, Solan, Himachal Pradesh. A perusal of Ext.P2 would show that complainant has not declared the value of the contents of the consignment. The case of the complainant that the consignment contained books worth Rs.971/-. Ext.P1 is the copy of invoice issued by DLA Publications. As per Ext.P1 the value of books after discount 50% comes to Rs.485.50. Advance received is Rs.530/-, the balance is Rs.49.50, courier charges is Rs.90/-. Hence the balance due to DLA is Rs.40.50. Ext.P1 is dated 16..12..2002. The said value stated in Ext.P1 is not seen declared in Ext.P2 consignment note. Ext.P3 is the letter issued by the consignee to the consignor. Ext.P3 would reveal that consignee received the receipt towards the payment of the books which he had ordered from DLA. But even after one month from the date of receipt of payment, consignee did not receive the parcel of books from the courier agency. Ext.P4 is a copy of the advocate notice sent by the complainant to the opposite parties regarding the non-delivery of the said parcel to the consignee. It is stated in Ext.P4 that on 11..02..2003, complainant demanded opposite parties to furnish the delivery chalan but opposite parties have never complied. It is further stated that on 3rd April complainant sent a registered letter to the opposite parties, even after the receipt of the said letter opposite parties did not care to respond. And because of the willful negligence and deficiency in service on the part of opposite parties, the very reputation of complainant's institution was maligned. Hence opposite parties called upon to pay Rs.5,000/- towards compensation, Rs.1,100/- towards cost of books and Rs.250/- towards expenses incurred within 15 days from the date of receipt of Ext.P4 by the opposite parties. Opposite parties sent a reply to Ext.P4. Ext.P5 is a copy of reply notice sent by the opposite parties. It is replied as per Ext.P5, that as per contract of Carriage Act, a complaint whatsoever should be lodged within fifteen days of booking the consignment. Whereas, complainant lodged the complaint only on 19..03..2003 and the liability of the opposite parties is limited to Rs.100/- only for any cause. In para 7 of the version, it is stated that opposite parties delivered the consignment in good order and condition without any delay, but to substantiate it opposite parties never adduced any evidence. There is no material on record to show that opposite parties delivered the said consignment to the consignee. Complainant was not cross examined. Hence the contention in the affidavit filed by the complainant remains unchallenged. Non-delivery of the consignment to the consignee would amount to deficiency in service. Deficiency in service is proved. Regarding the quantum of compensation, the learned counsel appearing for the complainant submitted that no such agreement had taken place between the complainant and the opposite parties that the liability of opposite parties due to non-delivery of the consignment will be restricted to Rs.100/-. It is pertinent to note that complainant has not signed in Ext.P2 Courier Consignment Note. As complainant has not signed in Ext.P2 consignment note, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is restricted to Rs.100/- lay on the opposite parties. Opposite parties never adduced any evidence. There is no cogent evidence to prove that there is any contract/agreement between the complainant and opposite parties which restricts the compensation to be paid in case of non-delivery of the consignment only to be Rs.100/-. It is settled position that meeting of minds is essential and in the absence of meeting of minds any term relating to limited liability would not be part of the contract and ordinary liability would flow in cases of deficiency in service. It is clear from Ext.P2 that the complainant had sent the consignment through the courier but the value of contents was not declared in Ext.P2. The contents and cost of each item were mentioned in Ext.P1. Courier consignment note is an important document. Considering all aspects of the case, submissions of the complainant and contents in the version as well as the evidence on record in our opinion an amount of Rs. 2,000/- as compensation would meet the ends of justice.<br /> In the result, complaint is allowed. Opposite parties jointly and severally shall pay Rs.2,000/- (Rupees two thousand only) as compensation to the complainant and Rs.500/- (Rupees five hundred only)as cost of the complaint. The said amount shall carry interest at the rate of 9% per annum if not paid within two months of this order.<br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of May, 2008.<br /> <br /> G. SIVAPRASAD,<br /> PRESIDENT. <br /> <br /> BEENA KUMARI .A : MEMBER <br /> <br /> <br /> S.K. SREELA : MEMBER <br /> <br /> ad<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> O.P.No.288/2003<br /> <br /> APPENDIX<br /> <br /> 1.Complainant's witness:<br /> <br /> PW1 : Nil<br /> II.Complainant's documents :<br /> <br /> 1.Ext.P1 : True copy of Invoice No.991 dt. 16.12.2002 from DLA Publications<br /> P2 : True copy of Courier Consignment Note No.624871 dt. 18.12.2002 <br /> P3 : Letter dated 10..02..2003 issued to the complainant from Dr. K.S.Mustafa<br /> P4 : True copy of Advocate notice to the opp. Party dated 09.05.2003<br /> P5 : True copy of reply notice dated 29.05.03 issued to the complainant <br /> III.Opposite parties' witness : N I L<br /> <br /> <br /> IV.Opposite parties' documents : N I L<br /> <br /> <br /> <br /> <br /> PRESIDENT<br /> <br /> ad.<br /> <br />