BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.1341/2012

DATED THIS THE 24^th APRIL 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainants: -           

1.     Shraboni Banerjee

S/o. Somnath Banerjee,

Aged about 27 years,

R/at Flat No.217, 3^rd Floor,

7^th Phase, Koramangala

Opp. Boss Back Gate

Koramangala, Bangalore

2.     Sourendro Banerjee

S/o. Somnath Banerjee,

Aged about 30 years,

R/at Flat No.217, 3^rd Floor,

7^th Phase, Koramangala

Opp. Boss Back Gate

Koramangala, Bangalore

V/s

Opposite parties: -                 

1.     Managing Director, DTDC Ltd,

DTDC House No.3, Victoria Road,

Bangalore – 47

2.     DTDC Ltd, DTDC House No.3, Victoria Road, Bangalore – 47

Reptd by its Executive Customer

Support

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainants against the OPs, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to repay back a sum of Rs.6,500=00 being the value of goods, and to pay a sum of Rs.50,000=00 as compensation and such other relief as deemed fit, in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under.

The complainant no.1 and 2 are the sister and brother and father of the complainants’ is a businessman, and by hard earned money, the father of the complainants gave them good education and now the complainants are settled at Bangalore for their livelihood. Due to the love and affection the complainants have purchased the cloth goods worth of Rs.9,895=00 from Aditya Birla Ltd, Koramangala in order to gift the same to their father on the eve of father’s day, through HDFC bank by using debit card. After purchase of cloth goods, the complainants have sent the value of cloth goods to their father Somnath Banerjee, Durgapur by DTDC courier service on 7-6-2012 by paying the service charge of Rs.80=00 vide DTDC bill no.B 83959883. The complainant no.2 enquired about the parcel sent to their father, but to the shock and surprise, the parcel has not reached to their father. On 15-6-2012, the complainant no.2 made the complaint against non delivery of parcel to the OP. The complainants made the persistent follow up action and enquiry made with the OPs through email regarding non delivery of parcel on 19-6-2012. On 21-6-2012, the OPs have replied to the above said representations of the complainants, sought for some clarification and assured that, they will look into the matter on the same day. On 25-6-2012 again the complainants reminded the OPs with regard to the status of parcel. On the same day, the OPs sought further time and requested the complainants to bear with them. Once again the complainant made the representation through email to know the status of parcel. The OPs have not made any attempts to find out the parcel and the requests and representations of the complainants went in vain and fallen to the deaf ears of the OPs. The OPs have committed deficiency of service and their services are not satisfactory. On 20-7-2012, the OPs intimated that, the said consignment is not traceable.  With great and love affection, the complainants sent the cloth goods to their father by parcel through OPs courier service, but in time the said parcel was not reached, thereby the complainants put to great hardship, mental agony and frustration and became annoyed for non delivery of the parcel at that relevant point of time. The value of parcel goods worth of Rs.6,500=00, so the complainants are legally entitled for suitable compensation alongwith the value of parcel goods and interest. Hence, the present complaint is filed.

          3. After service of notice, the OPs have appeared through their counsel and filed objection contending interalia as under:

          The complaint of the complainants is not maintainable either in law or on facts and it is liable to be dismissed. These OPs do not know whether the complainant no.1 and 2 are the brother and sister and their father has given good education to the complainants. It is not within the knowledge of these OPs that, the complainants have purchased the cloth goods worth of Rs.9895=00 from Aditya Birla Ltd at Koramangala in order to gift the same to their father, on the eve of father’s day. It is not within the knowledge of these OPs that, what item the complainants have purchased cloth goods of Rs.5895=00. It is true that, the complainants had entrusted the consignment through OP no.1 on 7-6-2012 vide consignment bearing no.B83959883 to be delivered to consignee at Durgapur. But the complainants have not disclosed the value and contents of the consignment at the time of booking the consignment. Due to not aware of the contents and value of the consignment at the time entrusting the consignment by consignor, it is denied by the OP that, the complainants were sending the cloth to the consignee. It is not within the knowledge of OPs that, the consignment entrusted by the consignor was not reached to the consignee till 15-6-2012. After receiving the complaint about the non delivery of the consignment from the complainant to customer service support, they have made an investigation regarding the said complaint. After going through the tracking records the said consignment alongwith other 36 consignment was linked through Air Cargo from Bangalore to Kolkatta dated 8-6-2012 and it was misplaced in the Airport and it was not traceable. The complainants persistently followed up and enquired through emails, it is informed to the complainants to provide the further details regarding the consignment and the OPs also informed to the complainants that, the enquiry was conducted which takes time, and hence informed to wait for more time. It is denied by the OP that, the OP does not make any attempt to find out the consignment and other allegations made in para no.11 of the complaint is denied, but the consignment was misplaced in Air-Cargo which is beyond the control of OPs, hence there is no deficiency of service by the OPs. The allegation made by the complainants that, the consignments contained cloths to their father is not known to the consignor as the consignment was given to them is wrapped in a cover and sealed. It is specifically denied that, the consignment had contained cloths worth of Rs.6,500=00. At no point of time, the complainant had contracted nor had dealing with the OPs Company, so there is no deficiency of service by the OP. However as per the terms and conditions of the foot receipt notice of the consignment note the liability of the OPs company is limited to Rs.100=00 which is agreed upon by the OPs at the time of undertaking to deliver the consignment. The OPs has not caused any inconvenience and loss to the complainants, so the OPs company is not liable to pay a sum of Rs.50,000=00 as compensation. Hence, it is prayed to dismiss the complaint, in the interest of justice and equity.

4. So from the averments of the complaint of the complainants and objection of the OPs, the following points arise for our consideration.

1.                           Whether the complainants prove that, the OPs are negligent and there is deficiency of service on the part of the OPs in not delivering the parcel?

2.                           If point no.1 is answered in the affirmative, what relief, the complainants are entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Affirmative  

Point no.2:  The complainants are entitled to  

                   Rs.6,500=00 being the value of parcel and

and 5,000=00 towards compensation and cost of Rs.1,000=00.

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant no.2 has filed his affidavit by way of evidence and produced documents no.1 to 12, and also produced two email letters of OPs. On the other hand, one K.N.Raghavendra Rao has filed his affidavit by way evidence on behalf of the OP no.2 and no documentary evidence is produced on behalf of the OPs. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 

7. One Sourendro Banerjee, who being the complainant no.2 has stated in his affidavit that, the first complainant is his sister and father is a businessman and his father has given good education to them by his hard earned money. In view of that, they have studied well and got appointment at Bangalore and settled at Bangalore. Due to the love and affection they have purchased the cloth goods worth of Rs.9,895=00 from Aditya Birla Ltd, Koramangala in order to gift the same to their father on the eve of father’s day, and they have produced the bill for having purchased the cloth goods and paid the said amount through HDFC bank by using debit card. After purchase of cloth goods, they have sent the cloth goods to their father Somnath Banerjee residing at Durgapur by DTDC courier service on 7-6-2012 by paying the service chargers of Rs.80=00 vide DTDC bill no.B 83959883. He enquired about the parcel but that parcel has not reached to his father. On 15-6-2012 he enquired about the non delivery of parcel with the OP, and again he made the persistent demands and follow up action on 19-6-2012 with the OPs for non delivery of parcel through email. On 21-6-2012, the OPs have replied that they sought some clarification and assured that, they will look into the matter, and he furnished the details as sought for by them. On 25-6-2012 he reminded the OPs with regard to the status of parcel, and the OPs sought further time and requested to bear with them. He made the representation through emails to know the status of parcel on 25-6-2012, 2-6-2012 and 28-6-2012. Even till today the OPs have not made any attempts to find out the missing parcel and his requests and efforts made with the OPs went in vain and fallen to the deaf ears and thereby they committed deficiency of service. On 20-7-2012, the OPs intimated that, the said consignment is not traceable, and he has sent the cloth goods to his father with great love and affection on the eve of father’s day, but the said parcel was not reached in time due to negligent act of the OPs and they have committed deficiency of service. So the OPs are legally liable to pay the compensation for the value of parcel goods worth of Rs.6,500=00 alongwith cost and interest and also liable for damages and he has been travelled from Mumbai to Bangalore in Volvo Multi Axle in Sharma transport by spending a sum of Rs.2,200=00 to and fro charges. During the course of proceedings the OPs have sent the email requesting the complainant to resolve the dispute amicably out side the forum and again the OP sent an email stating that, he is agreeing to pay a sum of Rs.6,500=00 towards cost of consignment and they will bear other incidental expenses. So he filed the present complaint, and he prayed to allow the complaint and pass an order as prayed for.    

8. By a careful reading of the complaint and evidence of the complainant no.2 as mentioned above, it is made crystal clear that, the complainant no.2 has given his evidence in accordance with the averment of the complaint. Let us have a look at the relevant documents of the complainants, so as to know whether the oral testimony of the complainant no.2 is supported by documentary evidence or not. Document no.1 the complainants is the bill issued by Aditya Birla Nuvo Ltd dated 3-6-2012 in the name of the complainant no.1 for having purchased goods worth Rs.9,895=00. Document no.2 is the slip issued by the HDFC bank for having made payment of Rs.9,895=00 through debit card facility on the said date. Document no.3 is the challan issued by the OP for having received parcel from the complainant no.1 on 7-6-2012 by charging a sum of Rs.80=00 and in that challan, the address of the consignee name was mentioned as Somnath Banerjee, Durgapur, but it is pertinent to note from the said challan that, the description of article and value of goods are not mentioned, for the reasons best known to both the complainant and OPs.  Document no.4 to 5 (a) are the email letters of the complainant no.2 addressed to one Saurav stating that, the consignment sent by the complainant has not yet received, please inform the status of the same. Document no.6 is the email letter of OPs dated 21-6-2012 addressed to the complainant no.2 asking the particular destination address and contact numbers. Document no.6 (a) is the email letter of complainant no.2 intimating the destination address and contact number of the complainant no.2. Document no.7 to 11 are the email letters of  the complainant no.2 addressed to the OP stating that, the courier contains gift for his father for father’s day, but unfortunately the same was not delivered the content of the parcel garments of Louis Phillipe and value  - Rs.6500=00 approximately. Document no.12 is the email letter of OP dated 20-7-2012 stating that, they regret to inform that the said consignment is not traceable, and they regret for all the inconveniences. The complainants have produced one email letter sent by legal officer of OP in the name of complainant no.2 stating that, they received a summons from this forum in complaint no.1314/2012 and they regret that the said consignment is misplaced in transit, and requested to solve the matter amicably out side court settlement and he is awaiting reply of complainant no.2. One email sent by the legal officer of OPs is produced by the complainant, wherein it is stated that, if the complainant no.2 is agreeable to the offer of Rs.6,500=00 being the cost of the consignment and other expenses please let him know.

9. So, looking to the evidence of the complainant no.2 and documents of the complainants as mentioned above, it is no doubt true that, the complainants have sent parcel through OPs containing some articles in the name of their father, and the OPs have collected the parcel, and charged Rs.80=00 towards service charge, but the said parcel was not delivered to the consignee as mentioned in the delivery challan issued by the OPs, and that parcel has been misplaced in the transit, and in this regard, the copy of email sent by the OPs dated 20-7-2012 and email letter sent by the legal officer of the OPs are produced by the complainants, but unfortunately, the complainants have failed to mention in the delivery challan either description of the articles or the value of article, but emails correspondences between the complainants and OPs go to reveal that, the OPs have admitted in the email that parcel sent by the complainant has been lost in the transit, the OPs are ready to settle the matter out side forum. The complainants have put forth the proposal of cost of parcel of Rs.6,500=00 and other expenses and that parcel has been accepted by legal officer of OPs through his email letter produced by the complainants. This is all about the material evidence of the complainants.

10. Let us have a look at the evidence of the OPs. One K.N.Raghavendra Rao who being the OP no.2 has stated in his affidavit that, the consignment sent by the complainants was misplaced in Air-cargo which is beyond the control of OPs, so there is no deficiency of service on the part of the OPs, and the liability of the OPs is limited to Rs.100=00 in case of loss of consignment. It is denied that consignment had contained cloths worth of Rs.6,500=00. The OPs have not caused any inconvenience and loss to the complainants, so the OPs company is not liable to pay a sum of Rs.50,000=00 as compensation, so he prays to dismiss the complaint,  in the interest of justice and equity.

11. But, it is worthy to be noted from the material on records that, the OP no.2 has not produced any documentary evidence in support of his oral testimony. In the absence of producing any documentary evidence solitary testimony of the OP no.2 is unworthy of acceptance. Having considering the totality of the oral and documentary evidence of complainants, it is vivid and clear that, the complainants have proved with believable material evidence that, after booking the parcel with the OPs to be delivered to the father of the complainants, the said parcel was not delivered to the father of the complainants, as on this day. The OPs have informed the complainant no.2 through email that, the said consignment was lost in transit. The act of the OPs in not delivering the parcel to the consignee is nothing but sheer negligence and deficiency of service on the part of the OPs. Besides, the OPs have made claim to the complainant no.2 through email to settle the matter out side court amicably and they are ready to pay the value of goods i.e. Rs.6,500=00 and other miscellaneous expenses. Having agreed to settle the matter out side court by paying the value of goods and other miscellaneous expenses, it does not lie in the mouth of OPs to deny the case of the complainants in too. Viewing the case of the complainants, on the back ground of the oral evidence of the complainant no.2 and relevant documents of the complainants, it is made unambiguously clear that, the complainants who come to this forum seeking relief have proved with the believable material evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs in not delivering the parcel to the consignee, and accordingly, we answer this point a negative.

12. The email letters of the OPs produced by the complainants go to demonstrate that, the OPs are ready to pay the price of the goods i.e. Rs.6,500=00 and other miscellaneous expenses as put forth by the complainants, and accordingly, the complainants are entitled to claim Rs.6,500=00 being the value of goods, so also the complainants are awarded reasonable compensation of Rs.5,000=00 and not Rs.50,000=00 as prayed in the complaint. So the OPs are jointly and severally liable to pay Rs.6,500=00 and Rs.5,000=00 to the complainants being the value of the parcel and compensation respectively, within 30 days from the date of this order, failing which, the OPs shall pay the said amount to the complainants with 8% interest per annum on the said amount from date of this order to till the date of realization. The OPs are further directed to pay Rs.1,000=00 to the complainants towards cost of litigation, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainants is partly allowed. The OPs no.1 and 2 are jointly and severally liable to pay Rs.6,500=00 and Rs.5,000=00 to the complainants no.1 and 2 being the value of  parcel and compensation respectively, within 30 days from the date of this order, failing which, the OPs no.1 and 2 shall pay the said amount to the complainants no.1 to 2 with 8% interest per annum on the said amount from date of this order to till the date of realization.

          The OPs no.1 and 2 are further directed to pay Rs.1,000=00 to the complainants no.1 to 2 towards cost of litigation.

          Supply free copy of this order to both parties.  

          Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 24^th day of April 2013.

MEMBER                                 PRESIDENT