THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.19/2012

Dated this the 3^rd  day of September   2015

          ( Present:  Smt. Rose Jose, B.Sc, LLB.                            :  President)               

                        Smt.Beena Joseph, M.A                                   : Member

                        Sri. Joseph Mathew, MA, LLB                          : Member

ORDER

By Rose Jose, President:

          The petition was filed under Section 12 of Consumer Protection Act, 1986 on 13/01/2012 seeking relief for getting sum of Rs.10,000/- as the value of Mobile and also compensation and cost.

The case of the petitioner is as follows: The petitioner is a vehicle driver, he has ordered a full touch screen mobile of Airmas Technologies, Bombay through Gati shipping Cargo Ltd. and it has received by him on payment of Rs.3,198/- on 24/07/2011. Soon after the purchase, he has noticed the malfunctioning of the mobile and he informed the same to the company, as per their suggestion, he send back the mobile to the company in Bombay on 23/08/211 through the 1^st Opposite party and paid the charge of Rs.210/- (Rs.150/- as Tariff charge +  Rs.60/- as risk charge). First opposite party is the branch of 2^nd opposite party. But without delivering the consignment(bearing No. 05592796), it was again send back to the first opposite party’s office. On 30/08/2011 the first opposite party informed the petitioner to collect the consignment, but when the petitioner approached the 1^st opposite party for collection, he was told that it was misplaced and told him to come on another day for collection. Thus, as per their instruction, he went to the 1^st opposite party’s office 5 times. In spite of repeated demands and requests, to get back the mobile or the value of the same, opposite parties were not ready to settle and compensate the petitioner. On 28/09/2011, he sent a registered lawyer notice to the opposite parties, but they have not replied or provide any remedy. Hence he filed this petition for deficiency in service of opposite parties.

After serving notice, opposite parties appeared and filed their version and contended that it is the fault of the consignor that he has not come to receive the returned consignment on 28/08/2011, same day when it has reached at the 1^st opposite party’s office which is the branch of the 2^nd opposite party, D.T.D.C. Courier Service and the statements made in the complaint are baseless and time barred. The petitioner had come to collect the parcel only in the 2^nd week of September, then it was misplaced irrecoverably from the storage rack, and on knowing this fact they have informed him to raise a claim with the company with regard to the loss of the consignment with all relevant documents. Instead of making a complaint before the 2^nd opposite party, the company, he sent a lawyer notice. On receipt of the lawyer notice, they have contacted the complainant and requested him to submit the claim for settlement. For the said reason, opposite parties had not replied to the lawyer notice, and hence there is no deficiency in service and are not liable to compensate the petitioner with an amount of Rs.10,000/- or any other amounts. Opposite parties were always willing to settle the disputes as per the terms and conditions. Hence opposite party prays to dismiss the petition with cost.

The points for consideration are:

1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled to get the relief as prayed for?
3. Relief or cost?

Issue No. 1-3:-     The specific case of the petitioner is that the opposite parties have failed to handover the consignment which was entrusted with them on 23/08/2011 to the complainant himself in the situation of the non delivery of the parcel which contains the mobile to the consignee in Bombay. 1^st opposite party admitted the fact that mobile had misplaced by them and it has lost. Petitioner averred that the non-delivery of the consignment to the petitioner was negligence and deficiency in service on the part of the opposite parties and it causes financial loss, mental agony and other miseries which amounts to Rs.10,000/-. But the opposite party has denied the said averment and stated that, complainant has not approached them on 28/08/2011 to collect the returned undelivered consignment, but the petitioner averred that opposite parties have informed him only on 30/08/2011 and on the same day itself he went to collect the consignment but he was told that the consignment was misplaced and to go and come another day for collection. Opposite party contended that they were ready to settle the matter, on the production of the claim form and also the consignor copy etc., but the petitioner has not approached them to get back consignment as per their direction.

Evidence consists of Chief Affidavit and Ext. A1 to A5 and deposition of complainant as PW1.

          Ext. A1 is bill of the mobile, A2 is the consignor copy, A3 to A5 are the acknowledgment and legal notice and receipts. The Exts. clearly proved that petitioner’s case and especially Ext. A2 and A3 are clear out evidences for the averments of the petitioner. Opposite party has admitted all these facts but the issue raised is only with regard to the non-submission of the claim form by the complainant and also contention of the opposite party that the petitioner’s absence for the collection of the mobile, the consignment on 28/08/2011, but they have not produced any evidence oral or documentary in support of their contentions to prove the same.

          More over there is nothing on record to show that the opposite parties had made any genuine attempt to settle this matter till the filing of this petition. They can very well settle the matter at the initial stage itself, when they realized that the consignment was lost from their office. As a layman, ie. driver, he has already spend the amount for the mobile, but he didn’t get it’s facility. He has to wait years for his relief and hence he has to be compensated.

          Considering the entire evidences, we are of the opinion that there is deficiency in service on the part of the opposite parties in view of the admitted failure, in return of the consignment to the consignor. In view of the findings in Point No. 1-3, the petitioner is entitled to get reliefs but considering the compensation he has not produced anything to prove the actual loss sustained by him and hence the prayer can’t allowed as such.

          In the result, the petition is ordered as follows: Opposite parties are jointly and severally ordered to pay the value of the mobile, the sum of Rs.3,198/- (Rupees three thousand one hundred ninety eight only) as per Ext. A1, Courier Charge Rs.210/- (Rupees Two hundred ten only) as per Ext. A2 and to pay compensation of Rs.3,000/- (Rupees three thousand only) and also Rs.1,000/- (Rupees one thousand only) as cost for the proceedings to the petitioner.  Comply the order with, within 30 days from the date of receipt of this order. Failing which it will carry 12% interest from the date of complaint till realization.

Dated this the 3^rd  day of September, 2015.

Date of filing: 13.01.2012.

SD/-PRESIDENT               SD/-MEMBER                          SD/- MEMBER

APPENDIX

Documents exhibited for the complainant:

A1.The bill of the mobile issued by the opposite party to the complainant.

A2. Consigner copy issued by the first opposite party

A3. Lawyer notice issued to the opposite party with acknowledgment receipt

      dtd.28.09.2011

A4. Acknowledgment card

A5.Acknowledgment card dtd.07.10.2011

Documents exhibited for the opposite party:

Nil

Witness examined for the complainant:

PW1.Abdul Saleem (complainant)

Witness examined for the opposite party:

 None

                                                                                                                                              Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT