DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 593/2016
Date of Institution : 20.07.2016
Date of Decision : 24.07.2017
Himanshu Bansal son of Shri Inderjit Bansal resident of near PNB Main Branch, Saheed Bhagat Singh Road, Barnala, Tehsil and District Barnala. …Complainant
Versus
1. Madhu Courier Service, SD Sabha Complex, Handiaya Bazar, Barnala through its Authorized Signatory.
2. Jishan Khan, 5 Kavi, MD, Iqbal Road, Kolkata-700023, West Bengal. 3. E-bay India Private Limited, Corporate Office at 14th Floor, North Block, R-tech Park, Western Express Highway, Goregaon (East) Mumbai, 500063, Maharashtra, India.
4. Trackon Couriers Private Limited, A-64, Naraina Industrial Area Phase-I, New Delhi-110028 through its Authorized Signatory.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. AK Jindal counsel for complainant
Sh. Dhiraj Kumar counsel for opposite party No. 1 and 4.
Opposite parties No. 2 and 3 exparte.
Quorum.-
1. Shri S.K. Goel : President
2. Ms. Vandna Sidhu : Member
3. Shri Tejinder Singh Bhangu : Member
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant Himanshu Bansal has filed the present complaint against Madhu Courier Service and others under Consumer Protection Act 1986 (In short as Act).
2. The facts leading to the present complaint are that the complainant placed an order through online to purchase one Apple I Phone 5-S 16 GB Space Grey Colour Smart Phone for his personal use through opposite party No. 3 and the said mobile phone was supplied by the opposite party No. 2. The complainant duly received the said mobile phone alongwith online bill. It is further pleaded that the complainant used the said mobile for his personal use. However, it was found that the said mobile was defective, even the call was dropped when the complainant in contact with other phone. Then the complainant lodged his complaint with the opposite parties and the opposite parties changed/replaced the said mobile phone but the said replaced phone is also defective piece given by the opposite parties No. 2 and 3 to the complainant. The complainant again lodged his complaint through e-mail to the opposite parties No. 2 and 3 after mentioning the defect on April 22 2016, April 24 2016 and April 29 2016.
3. It is alleged that the complainant returned the said mobile through courier and the docket was handed over to Madhu Courier Service (In short opposite party No. 1) and the opposite party No. 1 issued a receipt of Trackon Courier Private Limited, New Delhi (In short opposite party No. 4) regarding the said article of courier of the complainant vide docket No. 496594139 dated 27.4.2016. It was assured to the complainant that the said docket has been delivered to the opposite party No. 2 within 3 to 4 days. However, till today the said docket has not been delivered by the opposite parties No. 1 and 4 to the opposite party No. 2 Jishan Khan even after lapse of two and half months. During this period the complainant contacted the opposite party No. 1 personally many time and also through e-mail messages but opposite parties No. 1 and 4 failed to deliver the said docket to the opposite party No. 2 or also failed to return the said docket as undelivered to the complainant. Therefore, the complainant approached personally to the opposite party No. 1 but the opposite party failed to give any satisfactory answer regarding the delivery of the docket. Thus, there is deficiency in service on the part of the opposite parties. Hence the present complaint is filed seeking the following reliefs.-
1) For directing the opposite parties to pay the amount of Rs. 25,990/- as cost of the said mobile.
2) To pay Rs. 50,000/- as compensation for mental tension and harassment
3) To pay Rs. 15,000/- as litigation expenses.
4. Upon notice of this complaint the opposite parties No. 1 and 4 appeared and filed joint written version taking legal objections interalia on the grounds of maintainability, no cause of action, no locus standi, frivolous complaint, not a consumer, bad for non joinder and mis joinder of necessary parties, no jurisdiction and estoppal. It is also submitted in the legal objections that in the absence of special risk surcharges claim value on this shipper shall in no circumstances exceeds Rs. 2,000/- for parcel and Rs. 100/- for a packet of the documents. It is further submitted that the complainant has not fulfilled any of these conditions and hence he is barred under law to retract from the contract/agreement and take advantage of his own wrong doing.
5. On merits, it is submitted that they admitted that the consignment was booked by the complainant. However there was no declaration made regarding the contents of the consignment, commercial value nor any necessary documents like invoice of the alleged items was provided at the time of booking. Due to unforeseen circumstances the consignment booked by the complainant got lost in transit between Barnala and Kolkata which despite the best efforts could not be traced out. It is further submitted that due to these reasons the opposite parties used to insist on Transit Insurance to be taken by the consignor in case the consignment is valuable which the complainant did not opt for in the present case. The complainant was offered four times courier charges as per the policy of the opposite parties lost undeclared consignments and the same was initially agreed to by the complainant. However, later on the complainant backed out of the same and has filed the present complaint. It is further submitted that there is no deficiency in service on their part. Hence it is prayed for the dismissal of the present complaint with exemplary costs.
6. The opposite parties No. 2 and 3 have not appeared despite service so opposite parties No. 2 and 3 were proceeded against exparte.
7. In order to prove his case, the complainant has tendered into evidence copy of bill Ex.C-1, copies of e-mail Ex.C-2 to Ex.C-4, copy of courier receipt Ex.C-5, copies of e-mails Ex.C-6 to Ex.C-9, copy of e-mail Ex.C-10, reply of e-mail Ex.C-11, affidavit of complainant Ex.C-12 and closed the evidence.
8. To rebut the case of the complainant opposite parties No. 1 and 4 have tendered in evidence affidavit of Ashok Kumar Ex.OP-1.4/1 and closed evidence. Written arguments also filed by both the parties.
9. We have heard the learned counsel for the parties and have gone through the record on the file.
10. The controversies in this complaint are two folds namely whether there is deficiency/negligence on the part of opposite party for not delivering the parcel containing the mobile in question to the opposite party No. 2. Secondly, if the said controversy decided in favour of the complainant then as to what liability can be fastened upon the opposite parties.
11. In order to prove that there is deficiency in service on the part of the courier service i.e. opposite parties No. 1 and 4 the complainant has placed on record his detailed affidavit Ex.C-12 wherein the complainant has specifically stated that he purchased one Apple I-Phone 5-S on line from opposite party No. 2. However, the same was defective, then he lodged a complaint with the opposite party who changed/replaced the same. The complainant further stated that the said replaced phone was also defective and therefore, he returned the said mobile through courier and the docket was handed over to opposite party No. 1. Madhu Courier Service, Barnala who issued the receipt of opposite party No. 4 Trackon Couriers Private Limited, New Delhi vide docket No. 496594139 dated 27.4.2016 and assured that the said docket will be delivered to the opposite party No. 2 within 3/4 days. The complainant further stated that the price of the said mobile was Rs. 25,990/- and the opposite party failed to deliver the said docket to the opposite party No. 2 and also failed to return the same to the complainant as undelivered. Apart from his affidavit, the complainant has placed on record on line bill of the mobile Ex.C-1 dated 18.11.2015 for Rs. 25,990/-, copies of email Ex.C-2 to Ex.C-4, courier receipt Ex.C-5 issued by Trackon Couriers Private Limited, New Delhi showing the payment of courier charges of Rs. 120/- and the name of the consignee as opposite party No. 2. Ex.C-6 to Ex.C-11 are the copies of e-mails sent by the complainant and the opposite parties.
12. On the other hand the opposite parties No. 1 and 4 have never claimed that the said docket/parcel was delivered to its destination i.e. opposite party No. 2 rather it is admitted that the consignment was booked by the complainant with them. It is also admitted by them that due to un-forceable circumstances the consignment got lost in transit between Barnala and Kolkata and despite the best efforts it was not traced out.
13. Thus, on the basis of the evidence adduced by the complainant and the opposite parties have not produced any rebuttal evidence and specifically admitted that the possibility of lost of the parcel cannot be ruled out, therefore, the first issue qua the deficiency in service/negligence of the opposite parties No. 1 and 4 is decided in favour of the complainant.
14. Now the next issue is to determine the quantum of liability on the opposite parties. The learned counsel for the opposite parties have contended that the courier receipt Ex.C-5 clearly mentions the terms and conditions for any loss of the parcel and their liability is limited. In their support the opposite party have also placed reliance upon the citations titled Sunil Chawla Versus World Pack India Limited and others reported in 2009 CTJ-CP(NCDRC) and Indrapuri Express Courier Private Limited Versus Allied Business Corporation 2007 (3) CLT-673.
15. On the other hand the learned counsel for the complainant contended that the terms of the contract should be reasonable and if these are unreasonable and opposed to public policy these will not be enforced. Moreover, in standard form contracts, the terms of the contract are pre-drafted by one of the parties and the other is supposed to sign on the dotted line, without going to the terms. In his support the complainant has placed on record case titled Lilly White Versus Munuswami reported in AIR 1966 Mad.-13 wherein it was held that an action was brought by a customer of a firm of launderers and dry-cleaners, M/s Lilly White, to whom the customer had given a new saree costing Rs. 220/- for cleaning but the same was lost. The plaintiff claimed full price of the saree i.e. Rs. 220/- but the defendant offered to pay only 50% of the price on the ground that there was a printed term on the back of the receipt given to the customer stipulating that in case of loss of a garment, the customer would be entitled to only 50% of the market price or value of the same. It was held that such a term of the contract was unreasonable and against public policy and therefore unenforceable, because if such a condition is enforced, any laundry owner will try to misappropriate new clothes.
16. Firstly, it is relevant to refer the terms and conditions mentioned on the courier receipt Ex.C-5 issued by the Trackon Courier Private Limited opposite party No. 4 at the time of booking the said parcel. The terms and conditions are as.-
“ TERMS & CONDITIONS
1. This memo is only for document/packet of papers/ parcels of Permissible Goods.
2. Trackon shall not entertain any claim for articles such as Currency, Bearer Cheques, Hundies, Rukka, Bearer Bilty, Investment Certificates, Lottery Tickets, Postal Articles and/or Similar other Documents, Gold, Silver Jewelery, Precious Stones, Liquid, Semi-Liquid, Perishable or Fragile Goods, Narcotics and/or other items which are prohibited and/or by law shall not be couriered.
3. Sender must declare the actual and correct nature of goods.
4. In case of loss, theft, damage, mishandling and/or misuse of booked consignment the maximum liability of the Company/ Franchisee shall not exceed the sum equivalent to four times of Courier charges paid/payable or as calculated as per clause 5 below.
5. If not covered by special risk surcharges, claim value on this shipper shall in no circumstances exceed Rs. 2,000/- (Rupees Two Thousand Only) For parcels and Rs. 100/- (Rupees One Hundred Only) for packet of Documents.
6. In case of valuable consignment consignor/sender must declare the value and pay the guarantee charges @ 2% FOV. No claim shall be considered without the presentation of separate receipt issued for the guarantee charges by company/franchisee. Alternatively, if goods are insured by senders a charge of 0.20% on declared value shall be levied for providing COF (Certificate of Facts) in case of mishap.
7. No complaint/claim shall be entertained by the company/franchisee after the expiry of 30 days from the date booking of consignment.
8. All disputes are subject to Jurisdiction of Delhi.
9. In case of doubt, Trackon Staff has the right to physically verify contents of the document/parcel/ packet.
17. It is also relevant to refer some front portion of the receipt Ex.C-5 which is as.-
“If not covered by special risk surcharges, claim value on this shipper shall is no circumstances exceed Rs. 2,000/- (Rupees Two Thousand Only) for parcels and Rs. 100/- (Rupees One Hundred Only) for Packet of Documents. Read Terms and Conditions Printed Overleaf Carefully.”
18. Apart from the above terms and conditions, in the case of Sunil Chawla Versus World Pack India Limited and others as referred above the Hon'ble National Consumer Disputes Redressal Commission held that if the contract does not stipulate that the courier company would be liable to reimburse the price of the goods in case of loss, delay or damage, the party dispatching the goods cannot claim the price of those goods as compensation.
19. Further, as per judgment and order reported in case titled Indrapuri Express Courier Private Limited Versus Allied Business Corporation as referred above, wherein in para No. 3 it was held that the value of the parcel as Rs. 42,000/- was not pre-declared nor the parcel was got insured for that estimated value by the respondent. Terms contained in the receipt filed alongwith the affidavit of Shyam Sunder R. Kalantri, Managing Director of petitioner constituted a contract between the parties. Liability for loss of the parcel in question under the terms was restricted to Rs. 50. The Hon'ble National Commission had taken reliance upon the decision in Bharathi Knitting Company Versus DHL Worldwide Express Courier Division of Airfreight Ltd. II (1996) CPJ-25 (SC).
20. In the present case perusal of the receipt Ex.C-5 does not indicate that the contents of parcel was declared by the complainant or there was any note of any mobile/price in the said receipt of courier Ex.C-5. So, the above said Authorities are fully applicable to the present facts of the case.
21. The citation relied upon by the complainant in Lilly White Versus Munuswami case (supra) will not help the complainant as in that case the contents i.e New Saree was already within the knowledge of the respondent.
22. As a result of the above discussion the complaint is partly accepted to the extent that the parties are bound by the terms and conditions as mentioned in the courier receipt Ex.C-5. Since this parcel was not covered by Special Risk Cover Surcharges, therefore, the opposite parties No. 1 and 4 are directed to pay four times of the courier charges i.e. 120 x 4 = Rs. 480/- to the complainant. As it is held that the opposite parties No. 1 and 4 are deficient/negligent in providing service to the complainant so the complainant has suffered mentally as well as financially, therefore the opposite parties No. 1 and 4 are further directed to pay Rs. 5,000/- (Five Thousand Only) to the complainant as composite charges which includes compensation for mental tension, harassment and litigation expenses. This order shall be complied with within 30 days from the date of receipt of this order. Copy of this order be supplied to the parties free of costs. File be consigned to records.
ANNOUNCED IN THE OPEN FORUM:
24th Day of July 2017
(S.K. Goel)
President
(Vandna Sidhu) Member
(Tejinder Singh Bhangu)
Member
