DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 31^st  day of March 2012

Present  : Smt.Seena H, President

             : Smt. Preetha.G. Nair, Member       

             : Smt. Bhanumathi.A.K, Member      Date of filing :  12/07/2011           

                                                (C.C.No.103/2011)                             

Sureshkumar,

Manager,

Mobile World,

T.B.Road, Palakkad                                       -        Complainant

(By Adv.R.Udayakumar)

V/s

1.Manager,

   Trackon Courier (P) Ltd.

   M.A.K.Building,

   Canara Street, Palakkad

(By Adv.K.Dhananjayan)          

2. Manager,

   Trackon Courier (P) Ltd.

   Pandarathil Shopping Complex,

   Puthole, Thrissur

3. Manager,

   Trackon Courier (P) Ltd.

   2^nd Floor, North Plaza Building,’

   North Railway Station Road,

   Cochin – 682 018                               -       Opposite parties

O R D E R

            By  Smt.BHANUMATHI.A.K. MEMBER

Complaint in brief is as follows:

Complainant is working as a Manager in Mobile World, TB Road, Palakkad for earning his livelihood. The complainant has entrusted a parcel to Thrissur which contain two mobile phones of Nokia C6 with  the 1^st opposite party on 26/3/10 vide receipt No.233061561. At the time of entrusting   the same the opposite party promised the complainant that they would deliver the article on the next day. But the article was not reached its destination at Thrissur. On repeated enquiry the complainant was informed by the 2^nd opposite party that they have filed a complaint in Thrissur Ayyanthole Police Station as it is lost. There was no effective enquiry, the complainant filed a complaint in Palakkad South Police Station against the opposite party on 14/4/11. After this the 1^st and 2^nd opposite party filed a complaint in the  Hon’ble High Court against the complainant  and police officers of Palakkad South Police Station. Due to the above act of opposite parties the complainant lost an amount of Rs.25,100/- as the price of the mobile phones. So the complainant is seeking an order directing the opposite parties to pay an amount of Rs.51,500/- including the cost of mobile phones, compensation for mental agony, expenses towards the case filed by the opposite party in the Hon’ble High Court etc.

1^st opposite party entered appearance. 2^nd and 3^rd  opposite parties remained exparte. 1^st opposite party filed version with the following contentions.

Opposite party never promised that they would deliver the alleged article on the next day. It is a pure and voluntary action of the complainant that he has chosen the service of opposite parties 1 & 2. The complainant has never disclosed the contents in the parcel to the opposite party at the time of entrustment. If the contents are costly, it is to be informed to the courier service. The complainant has not opted the provision for  insuring the article. For any loss of articles or damage the liability of the opposite party is only to indemnify  the loss upto the tune of Rs.100/- The said condition is specifically stated in the courier note also. The complainant had been threatening the opposite party with the act of the police. When it has reached beyond the tolerable limits the opposite party moved to the Hon’ble High Court of Kerala to obtain justice.

There is no deficiency of service on the part of opposite party and pray to dismiss the complaint with cost.

Both parties  filed their respective affidavits. Ext.A1 – A6 marked on the side of the complainant.  Complainant was cross examined as PW1.

Matter heard.

Issues to be considered are

1.                   Whether the complainant is a consumer ?

2.                   Whether there is any deficiency in service on the part of opposite parties ?

3.                   If so, what is the relief and cost ?

Issue No.1

The counsel for the opposite party raised a specific contention that the complainant will not come under the definition of  Consumer as per the provisions of  Act in the light of the decision by Hon’ble Supreme Court in Birla Technologies Ltd. V/s. Neutral Glass and Allied Industries Ltd. In this decision Hon’ble apex court specifically stated that in case of goods purchased and service hired or availed of for commercial purposes, complaint before Consumer Disputes Redressal  Forum is not maintainable.

We are not seeing that the settled position of the apex court on directly related with the facts of this case.

In this case the complainant is working as a Manager in Mobile World, TB Road, Palakkad and he specifically stated in the complaint that he is doing this job for his livelihood. At the time of cross examination he  stated that he is getting Rs.10,000/- per month as salary from the Proprietor of the said institution. As a Manager the complainant is the responsible person for the loss of any articles in his custody.  So the 1^st issue is solved in favour of the complainant.

Issue No. 2 & 3

The complainant alleging deficiency in service on the part of opposite parties in missing of the articles entrusted with the opposite party. Ext.A1 document shows that on 26/3/11 One box weigh 600gm was sent through opposite party to Thrissur. In this document consignor is Mobile World, Palakkad and consignee is Mobile World Thrissur. The contents of the box is not mentioned. But the said articles is not reached its  destination. Ext.A3 is the police complaint filed by 2^nd opposite party complaining  about the missing of the two mobile phones. It shows that opposite party admits the missing of the parcel and was aware of the contents. Opposite party contents that a sender shall not sent any valuable or costly articles through courier service. But this version seems to be incorrect. Complainant was not aware of the provision for insuring the articles sending  through  courier service. So that he has not done it. At the time of cross examination the complainant deposed that “he was not aware about the provision for insuring the articles sending through courier service.   Terms and conditions were not written  on the back side of the A1 document”. Ext.A3 document the opposite party has given the details of the driver  of the vehicle and staff of that particular day.  “The parcel was loaded at the vehicle, bearing No.233061561 on 26/3/11 at 8.30pm from Palakkad  and reached at Trichur at 11 pm on the same day. This parcel was kept inside a polythene bag along with 2 other parcels. All the three parcels sent to Thrissur and it was noticed that the bag which containing the parcel was in opened condition”.

So that it is clear that no other person other than the staff of opposite parties was in the vehicle.

From the above discussions we are of the view that there is deficiency in service on the part of opposite parties.

In the result complaint allowed. Opposite parties  jointly and severally directed to pay an amount of Rs.10,000/- (Rupees Ten thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order, till realization. 

Pronounced in the open court on this the 31st day of March  2012.

   Sd/-

Seena.H

President

   Sd/-

Preetha G Nair

Member

    Sd/-

Bhanumathi A.K.

Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Original receipt issued by opposite party dated 26/3/11

Ext.A2 –  Copy of Stock Transfer Note of Mobile World

Ext.A3 –  Copy of complaint filed oppsite party  before Ayyanthole Police

             Station dtd.6/4/11

Ext.A4 –  Copy of complaint filed complainant  before Ayyanthole Police Station

Ext.A5 –  Receipt issued by Ayyanthole Police station  for the complaint

             registered with them.

Ext.A6 – Copy of Writ Petition filed by opposite party before the Hon’ble High

              Court.

Exhibits marked on the side of the opposite party

Nil

Complaint cross examined

PW1- Sureshkumar.T.S

Cost Allowed

Rs.1,000/- allowed as cost of the proceedings.