Date of Filing:27/01/2015
Date of Order: 15/11/2016
ORDER
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed in person U/S 12 of the Consumer Protection Act, 1986 against the opposite party (hereinafter referred in short as O.P) alleging that, O.P has lost the consignment sent by the complainant and hence complainant praying for direction to the O.P to reimburse the courier cost of Rs.265/- along with the value of the goods lost amounting to Rs.45,500/-, Rs.10,000/- for inconvenience and Rs.5,000/- towards legal charges.
2. The brief facts of the complaint is that, on 20.10.2014 by availing the service of the O.P and sent the consignment through courier to Mumbai. The complainant states that, the package contained two silk sarees of value of Rs.45,500/- and O.P dispatched the same through its office on 20th October 2014 and the said package was addressed to Shreya Ghate 902, Kalpavruksha 84, Vasantha Vihar, Thane West, Mumbai and the phone number was also written on the package. On enquiring with the DTDC regarding the consignment No.F08526781 dated 20.10.2014 which were to be delivered to the consignee Shreya Gate at Thane Mumbai. On enquiry, it was revealed that the said consignment was lost by the O.P and the O.P informed that, due to unavoidable circumstance beyond the control of the O.P the consignment was misplaced during transit and it was not delivered to the consignee. As the complainant had long standing relationship and trust had sent the present parcel to DTDC but the O.P had never asked about the value of the packages, the complainant has been asked to provide declaration. Complainant alleges that, it is the duty of the O.P to follow the rules that they have laid down and every single time cannot insist on disclosure over the years of the transaction with the O.P, the O.P never been asked for any documentation nor they have asked us to open and verify any packages. One Mr. Pramod of O.P on 4.12.2014 promised the complainant that they would send someone from O.P institution to recover the package from VRL but the concerned person at VRL was not available. On 5th November upon repeated calls from the complainant side Mr.Pramod informed that, the package was lost and could not be recovered and that only compensation only could be offered by us was Rs.100/- as per their terms and conditions and as such there is a mistake on the O.P and they could have rectified, if they have made an honest effort to recover the parcel with the modern technology of tracking systems. As the O.P has lost the parcel sent by the complainant to his client and not handing over the same to the address of the consignee. The complainant states that, on account of loss of consignment she has been put to great hardship and hence filed this complaint.
3. Upon issuance of notice to O.P appeared through their counsel and filed its version. In the version O.P contended that, the complaint is not maintainable as the complaint will not come under the definition of Consumer Protection Act 1986. As the service of the O.P was engaged by the complainant is for a commercial purpose. Under these circumstances the complainant does not come under the definition of the consumer as defined under Section 2(d) of the C.P. Act 1986. O.P admits that the complainant sent the consignment bearing No. F08526781 dated 20.10.2014 through O.P party to be delivered to consignee, but the complainant had not disclosed the content and value of the consignment at the time of booking and further the complainant has not furnished the Performa invoice in respect of value of the consignment. Hence contended that, as such it cannot be presumed that the complainant had sent the alleged two silk sarees to parcel to the consignee. Further O.P contended that there is no liability arose against the O.P in case of nondisclosure by the complainant in respect of contents of consignment and its value with supported documents at the time of booking and in such absence of such declaration no liability would arise against the O.P for loss or damage caused to consignments. Further it is admitted by the O.P that due to unavoidable circumstances beyond the control of the O.P the consignment was misplaced during transit and it was not delivered to the consignee. It is denied by the O.P that the worth of the consignment of Rs.45,500/- because the complainant had not disclosed the value and contents of the consignment at the time of booking and as such O.P is not liable to compensate the complainant to the worth of the consignment and on other grounds prays for dismissal of the complaint.
4. To substantiate the above case, both the parties have filed their affidavit evidence along with documents. We have heard the arguments.
5. On the basis of pleadings of the parties, the following points will arise for our considerations are:-
(A) Whether the complainant is a consumer?
(B) Whether the complainant has proved
deficiency in service on the part of the O.P?
(C) Whether the complainant is entitled to
the relief prayed for in the complaint?
(D) What order?
6. Our answers to the above points are:-
POINT (A) : In the affirmative.
POINT (B) & (C): In the Affirmative.
POINT (D) : As per the final order
for the following:
REASONS
POINT No (A):-
7. On perusing the pleading of the parties it is not in dispute is that, the complainant in order to send some of the sarees through parcel to Mumbai availed the service of the O.P and the O.P undertook to send the parcel through courier. It is also not in dispute that the parcel of the said sarees did not reached to the destination sent by the complainant and the O.P admitted that said parcel was lost. As per the terms and conditions of the O.P agreed to pay Rs.100/- against the lost parcel and the O.P also contended that inspite of best efforts they could not trace out of the same. All these facts lead to filing of this complaint.
8. The O.P contended that, complainant is not a consumer as the complainant availed the service for commercial purpose. It is worth to note that, the word “Consumer” is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public service. Consumer is defined as, purchaser of goods or services. The comprehensive definition aims to covering every man who pays money as the price or cost of goods and service. In the present case on hand the complainant availed the service of O.P just to send sarees to Mumbai and the said service is availed not for resale to any other person. Hence complainant is obviously consumer of the O.P and the complaint is maintainable before this Forum. Hence the contention of the O.P holds no water. Accordingly we answered Point (A) in the affirmative.
Points No.(B) & (C)
9. At the outset it is not in dispute that the parcel sent through DTDC courier was misplaced and not reached to destination. Hence, the O.P did not take proper care of the consignment of the complainant and it was lost and hence it is a clear deficiency of service on the part of the O.P. That the complainant claiming value of the consignment contain sarees worth of Rs.45,500/- along with other reliefs. On perusal of the evidence placed on record at the time of sending the parcel the complainant did not disclose the particulars and its cost of the consignment. On perusal of the courier receipt dated 20.10.2014 discloses that, the recipient name is Shriya Ghate and the destination is shows as Thane, Mumbai and the same is not in dispute. On careful perusal of the receipt it discloses only the weight of the consignment. On perusal of one of the terms and conditions under the LIABILITY clause it reads as under:-
LIABILITY: In the event of damage of loss or mis-delivery of a shipment, the maximum liability assumed by DTDC on a shipment is limited Rs.100 unless the sender declares a higher value as ‘declared value for carriage’ and also pays the applicable Risk Surcharge thereof as “Carriers Risk” at the time of tendering the shipment.
10. Hence the O.P contended that he is only a liable to pay Rs.100/- as the complainant failed to disclose the value of article/consignment. The O.P also relied on the decision of the Hon’ble National Commission reported in 2004 CTJ 442 (CP) (NCDRC). On going through the above said decision the Hon’ble National Commission held in a similar case, ‘Where a parcel weighing 2 Kg 200 grams booked with the courier belongs to O.P after paying carriage charges of Rs.180/- allegedly not delivered to its addressee. Complaint filed before the State Commission claiming Rs.2,30,057/- towards the value of the electronic components contained in the parcel and the description and the value of the goods contained in the parcel not disclosed. Ultimately the Hon’ble National Commission held that, when the description and the value of the goods not disclosed not liable to pay more than Rs.100/- as per the terms and conditions printed on the consignment note. Further it was held that if the terms and conditions printed on the condition known not explained to the party it would be deemed to have agreed and accepted them as soon as it signed it. Finally the Hon’ble National Commission ordered to pay Rs.100/- with 18% per annum to the complainant.
11. The ratio of the above case aptly applicable to the present case on hand. Hence, as against the loss of consignment O.P has to pay Rs.100/- to the complainant. Furthermore, the consignment is lost and not reached to the destination even though O.P collected the courier charges of the Rs.265/- and hence O.P has to pay back the courier charges also along with Rs.100/- in toto O.P is liable to pay Rs.365/- along with interest at the rate of 18% per annum from 20.10.2014 till realization and also O.P is liable to pay Rs.2,000/- towards the cost of the proceeding and it will meets the ends of justice. In the light of above discussion we accordingly answered the Point No.(B) & (C) in the affirmative.
POINT No.(D)
12. On the basis of the findings given above on the Point No.(B) and (C) and in the result, we proceed to pass the following:-
ORDER
1. The complaint is hereby allowed-in-part with cost.
2. The O.P i.e. D.T.D.C Courier and Cargo Ltd., represented by its Chairman and Managing Director is hereby directed to pay a sum of Rs.365/- along with interest at the rate of 18% per annum from 20.10.2014 till realization to the complainant.
3. Further O.P is liable to pay Rs.2,000/- towards cost of the proceedings.
4. The O.P is hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order, failing which O.P is directed to pay interest at the rate of 9% per annum after the expiry of 30 days till realization and submit the compliance report to this Forum within 45 days from the date of receipt of this order.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 15th Day of November 2016)
MEMBER MEMBER PRESIDENT
*Rak
