DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 185 of 4.7.2007<br /> Decided on : 25.10.2007 <br /> <br /> Dr. Vinod Jindal S/o Sh. Kapur Chand Jindal, R/o House No. 19114, Street No. 10, Bibi Wala Road, Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. M/s. Akash Ganga Courier Limited, 16/194, 2nd Floor, Faiz Road, Karol Bagh, New Delhi through its Managing Director/Chairman.<br /> 2. M/s. Sahil Agencies, Ist Floor, Hospital Bazar, Near Jawahar Medical Store, Bathinda through its Partner/Proprietor.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. S.M. Goyal, Advocate<br /> For the opposite parties : Sh. R.B.S Sidhu, counsel for opposite party No.1<br /> Opposite party No. 2 exparte <br /> <br /> O R D E R.<br /> <br /> HIRA LAL KUMAR, MEMBER:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to deliver Ultrasound Therapy Unit Electroson 608 model machine in the same condition in which it was delivered to them or in the alternative to pay its actual market price i.e. Rs. 13,000/- and pay Rs. 20,000/- to him being damages besides cost of the complaint.<br /> 2. Briefly put the version of the complainant is as under :-<br /> He is a Physiotherapist and is earning his livelihood by providing his personal services to various customers at Bathinda with the help o different instruments and machines. He wanted to get Ultrasound Therapy Unit Electroson 608 model machine upgraded. For that purpose, he handed over the same to opposite party No. 2 which is the agent and authorised representative of opposite party No. 1 at Bathinda for transportation and for delivering the same to M/s. Electrocare System's and Services, Main Patel Road, Opposite Metro Pillar no.230, New Delhi vide receipt/booking memo No. 9656149 dated 23.3.2007 for charges of RS. 100/- to be paid at destination at the time of delivery of the machine. At the time of booking of machine, opposite party No. 2 specifically agreed and undertook to deliver the machine to the addressee on the next day of booking i.e. on 24.3.2007. Till date, the said machine has not been delivered to the addressee. Even POD showing the delivery of the machine has not been given to him. He visited the office of opposite party No. 2 time and again and also made several telephone calls to opposite parties, but to no effect. Opposite parties have miserably failed to provide the services to him. Due to non-availability of machine, he is suffering loss. The opposite parties have misappropriated the machine with dishonest intention and have caused wrongful loss to him. He sent registered notice to opposite parties on 12.6.2007 which proved futile.<br /> 3. On being put to notice, opposite party No. 1 filed reply taking legal objections that complainant has got no locus standi and cause of action against it; he has not come to this Forum with clean hands; he has concealed material and true facts; complaint is not maintainable in the present form; complainant is estopped from filing the present complaint by his act and conduct and complaint is false and vexatious. On merits, it admits that complainant has booked Ultrasound Therapy Unit Electroson 608 model with opposite party No. 2 at Bathinda which is the agent of opposite party No. 1 vide receipt/booking memo No. 9656149 dated 23.3.2007 for delivering the same to M/s. Electrocare System's and Services, Main Patel Road, Opposite Metro Pillar No. 230, New Delhi. It is averred by it that at the time of booking of the consignment at Bathinda, complainant did not pay the courier charges and told opposite party No. 2 that the same will be paid to opposite party No. 1 at the time and place of delivery of the goods to the consignee. When, complainant has not paid any courier charges to them,he is in no way entitled to any amount claimed by him. Inter-alia, their plea is that Shri Durga Nand Yada its delivery agent had gone to deliver the consignment. When he reached Shadipur Metro Station on 24.3.2007, he had gone to answer the call of nature by keeping the bag containing machine at that place. When he returned, he found the bag missing. Despite making best efforts to trace the bag, it could not be traced. In this context a report with the police at Police Station, Patel Nagar, Delhi was lodged. It denies that complainant ever visited or made any telephone call to opposite parties. It is pleaded by it that as per terms and conditions of the contract, complainant is not entitled to any claim. However it admits that as per contract printed on the memo in case of lost, theft, damages, mishandling and or/misused of booked consignment the maximum liability of the company/franchise would not exceed to the sum equivalent to four times of courier charges in any case. It denies the remaining averments in the complaint.<br /> 4. Opposite party No. 2 has been proceeded against exparte vide order dated 14.8.2007.<br /> 5. In support of his allegations and averments in the complaint, Dr. Vinod Jindal complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of Degree (Ex.C.2), photocopy of Certificate of Membership (Ex.C.3), photocopy of Courier Receipt (Ex.C.4), photocopy of letter dated 11.6.2007 (Ex.C.7), copy of legal notice dated 12.6.2007 (Ex.C.6), postal receipts (Ex.C.7 & Ex.C.8) and photocopy of invoice-cum-gate pass (Ex.C.9).<br /> 6. On behalf of opposite party No.1, reliance has been placed on affidavit (Ex.R.1) of Sh. Ashok Goyal and proforma of consignment note/memo (Ex.R.2).<br /> 7. We have heard the learned counsel for the complainant and opposite party No.1. Apart from this, we have gone through the record and considered the written arguments submitted by opposite party No.1.<br /> 8. Learned counsel for the complainant reiterated the grounds of the complaint as stated above. It was argued that complainant had handed over the machine (Ultrasound Therapy Unit Electroson 608 model) to opposite party No. 2 which the agent and authorised representative of opposite party No. 1 at Bathinda for transportation and for delivering the said machine at Delhi. It was booked vide memo No. 9656149 dated 23.3.2007 for charges of Rs. 100/- to be paid at destination at the time of delivery of the machine. Machine was to be delivered on the next date i.e. on 24.3.2007 as specifically agreed by the opposite parties. Machine has not been delivered to the addressee so far which amounts to deficiency in service on the part of the opposite parties. For this, he drew our attention to the documents Ex.C.1 to Ex.C.9. He argued that the receipt of booking (Ex.C.4) has not been signed by the complainant meaning thereby that foot note conditions are not binding upon him. In support of his arguments, he cited the authorities Nath Bros. Exim International Ltd. Vs. Best Roadways Ltd.-2000(1)Apex Court Journal-465 (S.C.), The South Eastern Roadways Vs. The United India Insurance Co. Ltd.-41, Tata Chemicals Ltd. Vs. Skypak Couriers Pvt. Ltd.-II(2002)CPJ-24(N.C.) and The Franch Express Vs. Natarajan-I(2006)CPJ-529.<br /> 9. Learned counsel for opposite party no.1 urged that value of the machine in dispute was not disclosed at the time of booking. No payment has been received for transportation of the machine from Bathinda to Delhi. Keeping in view the limited liability, at the most four times of the courier charges could be claimed by the complainant if in any case deficiency in service on the part of the opposite parties is established. No misappropriation of the machine has been made. However, theft has taken place while a person of opposite party had gone to answer the call of nature by keeping the bag nearby. No malafide intention lies on it and it was beyond their control when theft has taken place. Report was lodged with the police in this regard. Thus, at the most they can be held responsible under the limited liability. In support of his arguments, reliance has been placed on the authority Bharathi Knitting Company Vs. DHL Worldwide Express Courier-(1996)4 Supreme Court Cases-704.<br /> 10. We have given our thoughtful consideration to the rival arguments. It has been admitted by learned counsel for opposite party No. 1 that machine in dispute has been stolen from the agent of the opposite parties. But, at the same time, it has been urged that the liability of the opposite parties is limited and at the most amount @ four times of the charges could be recovered from them. The averment put forward by the complainant is that the booking receipt has not been signed by him. Hence, no contract seems to have been carried out with regard to the terms and conditions printed thereon. In support of his arguments, learned counsel for the complainant has invited attention towards the rulings of Hon'ble Supreme Court, High Court, National Commission and State Commissions as referred to above. Keeping in view the facts and circumstances, all the above rulings are applicable to the case in hand. As regards the ruling cited as Bharathi Knitting Company Vs. DHL Worldwide Express Courier (supra), Hon'ble Supreme Court has held that when complainant signs the contract documents, he would be bound by its terms and onus would be on him to prove the terms and circumstances in which he signed the contract. It reveals that the terms and conditions printed on the booking receipt are binding upon the complainant in case he has signed the said receipt in token of accepting the said terms and conditions. But, in the case in hand, position is otherwise. In this case, booking receipt has not been signed by the complainant. Thus, the ruling of Hon'ble Supreme Court cited by the learned counsel for opposite party No. 1 cannot be made applicable to the facts and circumstances of the instant case. However, ruling of Hon'ble Supreme Court put forward by the learned counsel for the complainant is very much applicable in favour of the complainant in view of the fact that the booking receipt has not been signed by him. Viewed in this context, it becomes clear that opposite parties are negligent and deficient in rendering service to the complainant by way of non delivery of the machine to the addressee at Delhi. The complainant is entitled to the price of the machine i.e Rs. 8,000/-. Act and conduct of the opposite parties must have caused mental tension and agony to the complainant for which he deserves some compensation which we assess as Rs. 1,000/-.<br /> 11. In the result, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Pay Rs. 8,000/- to the complainant being the price of the machine.<br /> ( ii ) Pay Rs. 1,000/- to the complainant as compensation under section 14 (1) (d) of the Act.<br /> ( iii ) Compliance be made within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 12. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Hira Lal Kumar)<br /> 25.10.2007 Member<br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> 'bsg'<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />