By Sri. P. Raveendran, Member<br /> <br /> <br /> Brief of the complaint is that on 02.02.2007 the Complainant has sent a 'TITAN WATCH' as a parcel through Opposite Party to his friend Dr. Lakshmidasan who is residing at Trivandrum. After few days the complainant contacted Lakshmidasan and he knew that Lakshmidasan has not received the parcel sent by the complainant. After that the Complainant enquired with the Opposite Party regarding non delivery of the parcel. At that time Opposite Party informed the Complainant that the parcel will be delivered within few days. There after on 03.03.2007 the Complainant sent a written complaint to the Opposite Party regarding non delivery of the parcel to the addressee. The Opposite Party has given a photo copy of a letter dated 15.3.2007 as reply of the above complaint. In the reply it was stated that the above parcel was not received by T.P.C/ S.M.G.M. Trivandrum. It is further stated that the mistake may be excused. Hence he prayed to allow Rs.6,750/- being the cost of the watch with 12% interest, Rs. 13/- being the cost of parcel charge and Rs.5,000/- as compensation. Since there is deficiency of service on the part of Opposite Party.<br /> <br /> 2. The Opposite Party filed version. In the version Opposite Party admitted that the complainant had booked some document in usual envelop on 02.02.2007 and the consignment was addressed to one Lakshmidasan. Further stated that a customer with a parcel is expected to make a declaration as to the type of object with its time value. Usually customers are permitted to book consignments of articles, objects or things as gift, only up to the value of Rs.1,000/-. Further stated that since the consignment booked and accepted, was only a normal/ envelop/ document, as per clause 3 of the “ Terms and conditions” applicable to the customer, the consumer's loss is limited to Rs.100/- only. In the above circumstances the Complainant is not entitled to claim Rs.6,750/- or any amount either towards the value of the alleged gift or anythings towards the alleged inconvenience and compensation. Hence the complaint may be dismissed with cost of the Opposite Party.<br /> <br /> 3. The points in consideration are:<br /> 1.Whether the Opposite Party has done any deficiency in service?<br /> 2.Relief and costs.<br /> <br /> Point No.1 and 2: <br /> 4. The Complainant has filed the proof affidavit. He has also produced Ext.A1 to A4. Ext.A1 is a receipt bearing No.1610754 dated 02.02.2007 addressed to Lakshmidasan. Ext.A2 is the copy of the complaint dated 03.03.2007 sent by Complainant to the Opposite Party regarding non receipt of parcel sent by him to Lakshmidasan. Ext.A3 is the copy of reply sent to Opposite Party by T.P.C/S.M.G.M, Trivandrum stating that the parcel said to have sent was not received by them. Ext.A4 is the cash bill dated 02.02.2007 issued from Excel Watch works whiled purchasing Titan Watch. Opposite Party is also filed proof affidavit and Ext.B1 and B2 were marked. In the proof affidavit the Opposite Party affirmed that even though customers are at liberty to book gift items also, but it is to be accompanied by a separate and specific declaration. Usually customers are permitted to book consignments of articles, objects or things as gift only up to the value of Rs.1,000/-. High value gifts or articles are not usually received as a matter of strict restriction. It is further affirmed that things other than documents are being booked, if value is declared below Rs.1,000/- and if the destination is within state of Kerala, after obtaining duly filled form 27 A (R.35 (13) C of the Kerala General Sales Tax Rules 1963. Further affirmed that the consignment booked and accepted, was only a normal/envelop/document, as per clause 3 of the “ terms and conditions” applicable to the customer's loss is limited to Rs.100/- only. The liability clause is properly included in the consignor copy receipt itself. Ext.B1 is the copy of the terms and conditions of the professional couriers and Ext.B2 is the carbon copies of the declaration given as per the Kerala General Sales Tax Rules 1963 in Form 27 B by other consignors.<br /> <br /> 5. It is admitted that the Complainant has booked a parcel for sending it to Lakshmidasan and the same was accepted by the Opposite Party. Further it is seen that the above parcel item was missing. It is necessary that meeting of mind is essential and in absence of meeting of mind any term relating to limiting the liability would not be a part of the contract and ordinary liability would flow in cases of deficiency in service.<br /> <br /> 6. In support of contention of limited liability it was contented that in the consignor copy receipt, condition had been printed that the liability of the Opposite Party would be limited to Rs.100/-. We reject the plea on the ground that Ext.A1 was not signed by the Complainant,even though it was in the receipt of consignor's copy, specific attention of the Complainant was not drawn. Hon'ble National Commission came to the above contention in the case of Blue Dart Express Limited V/S Stephen Livera, R.P. No. 393 of 1997. Hence it is evident that meeting of mind was essential and in absence of meeting of mind any term relating to limiting the liability would not be part of the contract and liability would flow in cases of deficiency in service. Since it is clear that the packet was missing on its transfer from Kalpetta to Trivandrum. Ext.A4 is the bill of TITAN WATCH purchased by the Complainant on 02.02.2007. The Opposite Party has not adduced any evidence to dispute this documentary evidence.<br /> <br /> 7. How ever it is also true that the packet was not got insured. If the value of the package was Rs.6,750/-, The Complainant was also supposed to take care and insure the package. In the light of evidence the Complainant has also contributed towards the loss of package by not getting it insured. In the above said circumstances it would not be appropriate to exclusively held the appellant liable. Consequently, the Complainant would be paid 50% of the loss suffered by him . That the Complainant is entitled to get Rs.3,375/- (Rupees Three thousand Three hundred and seventy Five only) with 10% interest from the date of complaint and Rs.1,000/- as costs.<br /> <br /> 8. The decision of Hon'ble National Commission in Blaze Flash Couriers (P) Ltd V/S Rohit. J. Poladiya and another, reported in 2008 CTJ P.354 is relied in this case. Point No.1 and 2 are found in favour of the complainant.<br /> <br /> In the result, the complaint is partly allowed. The Opposite Party is directed to pay Rs.3,375/- (Rupees Three thousand Three hundred and Seventy Five only) with 10% interest from the date of complaint to till the payment is made. He is also directed to pay Rs.1,000/-(Rupees Thousand only) also to the complainant towards the cost and compensation as costs. The order is to be complied within one month from the date of this order.<br /> <br /> Pronounced in open Forum on this the 13th day of May 2008.<br /> PRESIDENT: Sd/-<br /> MEMBER- I : Sd/-<br /> MEMBER-II : Sd/- <br /> /True copy/ Sd/-<br /> PRESIDNET, CDRF, WAYANAD.<br /> APPENDIX: <br /> Witnesses examined for the complainant<br /> PW1 M.K. Prabhakaran Complainant<br /> Witness examined for the opposite party:<br /> PW1 Manoj Manager Professional curior<br /> Exhibits marked for the complainant:<br /> A1 Receipt Dt. 2.2.07<br /> A2 Copy of complaint Dt. 3.3.07<br /> A3 Copy of reply notice<br /> A4 Cash bill Dt. 2.2.07<br /> Exhibits marked for the opposite party:<br /> B1 Copy of terms and conditions of Professional curior<br /> B2 Declaration of Kerala General Sales Tax Rules<br />