In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/98/2021.
Date of filing: 10/08/2021. Date of Final Order: 24/07/2024.
Santanu Sharma,
s/o Late Sasanka Sharma,
prop. Of “Pronita Marbels”,
of Lanin Nagar, Chinsurah Station Road,
P.O. Chinsurah (R.S.), P.S. Chinsurah, Dist. Hooghly. ..……complainant
-vs -
- Manager,
D.T.D.C. Express Ltd.,
Having its registered office at no. 3,
Victoria Road, Bangalore, 560047, Karnataka.
- A.R.C.M.,
D.T.D.C. Express Ltd.,
Having its office at 404/405, D.T.D.C. Bhavan,
Kabbi Najrul Sarani, VIP Road,
Raghunathpur, Kolkata 700059.
- Manager,
D.T.D.C. Express Ltd.,
Through its franchise: having its office at
Bankim Kanan, Chinsurah Station Road,
P.O. Chinsurah (R.S.), P.S. Chinsurah,
Dist. Hooghly, PIN. 712102.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the petitioner sent one gift parcel to his friend at Tallyganj by OP-3 being consignment no.K-26639269 after paying charges to OP-3 on 19.10.2020 and thus the petitioner is a consumer as per provisions of section 2 of Consumer Protection Act. The petitioner after searching the Track report came to the articles was delivered to the sendee but the petitioner over telephone came to know that the sendee Joydev Saha did not received any article from the men of DTDC courier service. On 20.11.2020 the petitioner saw that the track report is blank. Thereafter, it shows that the article was delivered on 20.11.2020. Actually, the Data sheet is erroneous and the said article booked for delivery on 19.10.2020 was neither received by the sendee nor returned to the sender uptill now. The petitioner contacted with the OP-3 who has given lake view branch contact no. of Babu Sona but said Babu Sona who received the material not only told with the petitioner clearly but also misbehaved with the petitioner. Then the petitioner contacted with the lake view zone Manager but he also did not answer clearly to the petitioner. The problem is continuing for months between DTDC one of the best courier service and the petitioner.
The petitioner access in his wife’s Email and sent email to consumer support of DTDC on 12.9.2020. Thereafter the petitioner sent another email on 15.12.2020 for getting feed back and requested them to give reply of said email and also informed them in default he will take the shelter of consumer Redressal Commission for his proper reliefs. The Area Operation Manager sent e-mail on that date that is on 15.12.2020 to Mr. Sougata ARCH-Kolkata to find out the truth and also asked him to resolve the issue but uptill now said goods neither returned to the petitioner nor deliver to the sendee and this petitioner is in dark regarding said goods. Actually, the OP-3 including other OPs reluctant to serve their duty to their consumer which amounts to deficiency of service and gross negligence to the consumer. The OPs failed to provide service to the petitioner after accepting requisite charges for delivery of package.
Complainant filed the complaint petition praying direction upon the opposite party to return the gifted articles i.e. one piece saree of Rs. 3200/- and 3 piece T-shirt valued at Rs. 4800/- in good condition or to pay a sum of Rs. 8000/- with interest from the date of booking on 19.10.2020 and to pay a sum of Rs. 1,00,000/- for mental agony, harassment, humiliation and to pay a sum of Rs. 10,000/- for litigation cost.
Defense Case:- The opposite party Nos. 1 to 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the consignment is booked by the complainant with no risk coverage thus the ops is in no way liable to pay any damage and/ or any compensation and if consignor/ complainant booked the consignment with no risk coverage then if there is no risk coverage on his consignment then the consignor is the sole liable of damages of the consignment, if any. The declared and/ or invoice value of the consignments Rs. 500/- as per the Shipment summary and therefore the claim of Rs. 3100/- for one piece of saree and Rs. 4800/- for one T-shirt cannot be sustained in the eye of law and as such the allegations leveled against the ops that the shipment never reached the destination where it was supposed to be delivered is totally vague and after thought made up absolutely for harassing the ops reputation in this field of courier service and the complainant failed to establish that the said consignment carries the garments with the price as mentioned in the complainant and the complainant simply declared that the consignment carried the garment with the price as mentioned in the complaint without any proof and/ or any supportive documents. The Clause 19 of the terms and conditions clearly lays down 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 a shipment of DTDC and any claim/ request received after this period shall not be entertained. As such this complaint is not maintainable purely on the basis that the complainant herein raised the issue of non delivery after the passage of one month.
The present complaint is liable to be dismissed in view of the express clause of arbitration provided in the terms and conditions mentioned on the overleaf of the consignment note. It is clearly mentioned on the consignment note itself that “Please refer to only terms and conditions printed overleaf of this consignment note before tendering a shipment of DTDC”. Clause 27 of the terms and conditions clearly lays down that in case of any dispute the matter will be referred to the arbitration of two arbitrators, one to be appointed by the sender and the other by the DTDC. Thus, in view of the arbitration clause, the present complaint is not maintainable and is liable to be dismissed and as the complainant had not issued statutory notice of claim under the Carriage by Road Act, 2007 hence the present complaint is not maintainable.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The points of considerations and / or issues which have been framed and / or taken up for consideration for the interest of proper and complete adjudication of this case and to arrive at just and proper decision, are interlinked and / or inter-connected with one another. For that reason and also for the interest of convenience of discussion, all the above noted points of considerations are clubbed together and taken up for consideration jointly.
For the purpose of deciding the fate of the above noted points of considerations, there is urgent necessity of making scrutiny of the materials of this case record as well as there is also urgency for scanning for evidence on record. After going through the material of this case record and also after examining the evidence on record this District Commission finds that the complainant has failed to produce any cogent document to show that the complainant has kept garment articles such as Sarees and T-shirts inside the said parcel which was handed over to the OP for transmitting the same to the friend of the complainant. In other words, it can be said that the complainant in support of his above noted plea of sending garments inside the parcel has adduced evidence of herself but the said evidence has not been corroborated by the evidence of any other witness. Thus it is crystal clear that the claim of the complainant of sending garments inside the sealed parcel is bereft of any supportive evidence or of cogent documents. So the complainant has failed to prove main basis of this case.
After going through the papers and documents such as receipt issued by the Ops it appears that there is an arbitration clause for deciding the fate of any disputes which are to be cropped up in between the parties. Inspite of existence of the arbitration clause, the complainant has not approached before the arbitrator and also has not taken any step for initiating arbitration proceedings to settle the dispute. Instead of adopting the said process of arbitration, the complainant has directly approached before this District Commission and has filed this case. So the case which is filed by complainant is prematured no cause of action has actually been arisen for instituting this case before this District Commission. Thus it is crystal clear that the complainant has no cause of action for filing this case and so this case is not only prematured but also not maintainable in the eye of law.
A cumulative consideration of the above noted discussion goes to show that this complaint case is not maintainable in its present form and in the eye of law. So this District Commission has no other alternative but to dismiss this case.
In the result it is accordingly,
ordered
that the complaint case being no. 98 of 2021 be and the same is dismissed on contest.
No order is passed as to cost.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
