IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 09th day of December, 2019
Present: Sri. Manulal V.S. President
Smt. Bindhu R, Member
C C No. 152/2017 (filed on 21/06/2017)
Petitioner : Sreesanth Kumar,
Sreepurushamangalam,
Thekkenada, Vaikom,
Pin – 686142.
Vs.
Opposite Party : The Proprietor
M/s. DTDC Courier,
G-129, Elambasseril Tower,
Valiyakavala, Vaikom – 686141.
(Adv. P.K. Sunilkumar, Adv. Binu
Mathew and Sony Sebastian)
O R D E R
Sri. Manulal V.S. President
The crux of the complainant’s case is as follows.
The complainant sent a mobile phone through the courier service of the opposite party to his friend at Bangalore. The opposite party levied Rs.140/- from the complainant as freight charge. After the lapse of reasonable time the consignment did not reach the destination. Then the complainant alleged a petition before the police authorities of the Vaikom Police Station. On enquiry with the police authorities, the opposite party stated that they are not liable for the non delivery of the consignment because the consignment was not insured. The opposite party is duty bound to deliver the articles in time to the addressee. The non delivery of the consignment is deficiency in service from the opposite party. Due to the act of negligence by the opposite party, complainant suffered a lot and the opposite party is liable to compensate the same. Hence the complaint.
On receiving notice from the Forum, the opposite party appeared before the Forum and filed version. The contents of the version are as follows;
The opposite party is a franchisee at of M/s. DTDC Courier and Cargo Ltd. at Vikom. That is a Company engaged in the courier / logistic business. The booking of the consignment under consignment No.R24421559 is admitted. The consignment was booked by an old man about 75 yrs and not by the complainant, Sreesanth, whose name is written in the consignment note. The consignor did not declare the contents of the consignment to the opposite party or its value at the time of booking of the consignment. The complainant had not produced any evidence regarding the contents of the concerned. The consignor did not pay additional payment like risk surcharge for the carriage of any alleged valuables of the consignment. On seeing the shape of the consignment at the time of booking and understanding the same is a non document. The opposite party enquired about the content of the consignment and it was disclosed by the consignor that it is a mobile phone and it is sent to one Bharath at Bangalore for repairing the same. The opposite party was reluctant to accept the same as consignor did not know the name or other particulars of the item. When the opposite party requested to disclose the contents and value of the consignment and pay additional surcharge of 2% of the declared value for the carrier’s risk for the claim at the instance of damage or loss, the consignor informed that he is not having the bills and the consignment is not of any commercial value. Hence the consignment was booked at Rs.140/- as freight charge alone was collected. The present allegation of the complainant that the consignment containing the new mobile phone worth Rs.12,000/- is denied. As per the terms and conditions of the contract, the liability of the opposite party is limited to Rs.100/- unless the sender declares higher value as “declared value for carriage” and also pays the applicable risk surcharge thereof carrier’s risk at the time of tendering the shipment. The complainant is not entitled to any consequential or any indirect loss or damages due to the shipment under the contract. There is no deficiency in service or wilful negligence on the part of the opposite party. The complainant is not entitled to any relief.
The complainant filed proof affidavit in lieu of chief examination and Ext.A1 and A2 were marked. Proprietor of the opposite party is examined as Rw1 and Ext.B1 and B2 were marked. One Mr. Sajeev Gopinath, who is the Kerala Regional Administration Manager of the M/s. DTDC Express Ltd. is examined as Rw2.
On the evaluation of complaint, version and evidence on record, we would like to frame the following points for consideration.
- Whether there is any deficiency in service or unfair trade practice from the side of opposite party?
- Relief and costs?
For the sake of convenience we would consider Point No.1 and 2 together.
Point No.1 and 2
It is admitted that on 13/01/2017 the consignment was booked with the opposite party under consignment note R24421559 to deliver the same to Mr. Bharath at Bangalore. The consignment note bearing No. R24421559 dtd.13/01/17 issued by the 2nd opposite party to the complainant is produced and marked as Ext.A1. Though the opposite party contented that the consignment was booked by an old man and not by the complainant, they did not adduce any evidence to substantiate their contention.
Rw1 and Rw2 deposed that the complainant did not declare the contents of the consignment to opposite party or its value at the time of booking and did not pay the additional payment like risk surcharge for the carriage of any alleged valuables of the consignment. The specific case of the opposite party is that in the event of non disclosure of value of the articles and non payment of risk surcharge the opposite parties are liable to pay only an amount of Rs.100/-
Section 9 of The Road Carriage Act 2007 provides,
9. “(1) common carrier shall, -
- In case where the goods are to be loaded by the consignor, on the completion of such loading; or
- In any other case, on the acceptance of the goods by him, issue a goods receipt in such form and manner as may be prescribed.
(2) The goods receipt shall be issued in triplicate and the original shall be given to the consignor.
- The goods receipt shall be prima facie evidence of the weight or measure and other particulars of the goods and the number of packages stated therein.
- The goods receipt shall include an undertaking by the common carrier about the liability under section 10 or section 11.
The liability of the common carrier is provided under Section 10 of the Carriage by Road Act 2007 reads as follows.
“10. (1) The liability of the common carrier for loss of or damage to any consignment shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment, unless the consignor or any person duly authorised in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under section 11”.
Section 11 of the said Act reads as follows.
“Every common carrier may require payment for the higher risk undertaken by him in carrying a particular consignment at such rate of charge as he may fix and correspondingly, his liability would be in accordance with the terms as may be agreed upon with the consignor”.
Section 12 (1) of Carriage by Road Act 2007 provides, “every common carrier shall be liable to the consignor for the loss or damage to any consignment in accordance with the goods forwarding note, where such loss or damage has arisen on account of any criminal act of the common carrier, or any of his servants or agents”.
This liability of the common carrier commence from the moment of acceptance of goods either by him or through his authorised agents or employee and continues up to the delivery of the consignee actual or constructive and not merely up to arrival at destination.
Section 12 (2) of the said Act provides that,
“In any suit brought against the common carrier for the loss, damage or non-delivery of consignment, it shall not be necessary for the plaintiff to prove that such loss, damage or non-delivery was owing to the negligence or criminal act of the common carrier, or any of his servants or agents”.
Section 17 of the Carriage By Road Act 2007 provides “save as otherwise provided in this act, a common carrier shall be responsible for the loss, destruction, damage or deterioration in transit or non delivery of any consignment entrusted to him for carriage, arising from any cause except the following namely;
- act of God;
- Act of war or public enemy;
- Riots and civil commotion;
- Arrest, restraint or seizure under legal process;
- Order or restriction or prohibition imposed by the Central government or State government or by an officer or authority subordinate to the Central government or State government authorized by it in this behalf;
Provided that the common carrier shall not be relieved of its responsibility for the loss, destruction, damage, deterioration or non delivery of the consignment if the common carrier could have avoided such loss, destruction, damage or deterioration or non delivery had the common carrier exercised due diligence and care in the carriage of the consignment”.
The opposite parties rely on the decision of the National
Commission in desk to desk courier and cargo Vs. Kerala State Electronics Development Corporation Limited (2004 CPJ39) in that case the National Commission held that if the contents and value of the consignment are not declared in the consignment note and appropriate charges not paid to the courier, the liability of the courier is limited to the amounts under limited liability clause mentioned in the terms and conditions of the contract of the carriage. It is admitted that the opposite parties on receiving articles from the complainant for transportation did not prepare in any list of articles, which they undertook to make the delivery to the addressee as undertaken by them. On perusal of Ext.A1 and B2 consignment note, we can see that there is only one entry of Rs.140/-. Ext.B2 is none other than that the office copy of the A1 consignment note.
On cross examination, Rw1 and Rw2 deposed before the Forum
that they have tried to trace out the consignment. However neither in version or nor in affidavit they did not depose that the consignment was lost in transit. The opposite party did not disclose about what happened to the consignment. According to Section 12 (2) of the Act, the complainant had no burden to prove that the non delivery of the consignment was due to the negligence or the criminal act of the common carrier or any of his servants or agents. The opposite party has no case that the non delivery was due to the reasons like act of God, act of war or public enemy, riots and civil commotions or any other reasons stated in Section 7 of the Act.
Going through the evidence, we found that the complainant has not
mentioned the value of the consigned goods. In order to prove the value of the phone, the complainant produced Ext.A2. But Ext.A2 is a print out of a photo of the bill. Without either the original or attested copy of the bill, we cannot accept the case of the complainant that the mobile phone was worth of Rs.12,000/-. It has already been mentioned that at the time of booking the consignment there was no exchange of details of articles by and between the complainant and the opposite party. It also appears that opposite parties did not prepare any details as to what were the articles of the complainant he had received for transportation.
In Ashish Varma Vs. DTDC Courier and Cargo Limited (IV-2018
CPJ 467), the National Consumer Disputes Redressal Commission has held that the deficiency is not only in respect of loss of packets, however deficiency is also in processing of receipt, despatch and delivery of these packets. In that case National Consumer Disputes Rederessal Commission held that “if this is just the booking receipt, then why the amount charged is not mentioned in the document. It seems that the opposite parties have not filled up this Form completely to avoid their liability in future. Thus this is clearly an unfair trade practice which has been adopted by respondents or opposite parties and even if this is due to the mistake of some employees of opposite parties, the companies would be liable for the same on principle of vicarious liability”
On perusal of Ext.A1 consignment note, we can see that the only entry recorded in that is the freight charges. The Ext.A1 did not contain the details of the articles. In the absence of the details of the articles and its value amount in Ext.A1 we cannot accept the contentions of the opposite parties that the complainant was reluctant to disclose the details and value of the consignment and to pay the surcharge. Non recording of the details of the articles in Ext.A1 proves that the negligent manner in which the opposite parties receive the consignment from the complainant. The non delivery of the consignment by the opposite parties to the addressee amounts to deficiency in service. Therefore we are in the opinion that the complainant had suffered much loss and damage to the complainant.
As discussed earlier, the complainant did not produce any evidence
to prove the value of the articles contained in the consignment. As per clause 15, it is printed on the reverse side of Ext.A1 the liability of the opposite parties is to limited only to Rs.100/- unless the value of the articles were not disclosed to the opposite parties. In the circumstances we allow the complaint and pass the following Order.
- The opposite party is directed to pay Rs.100/- (Rupees Hundred only) to the complainant with 9% interest from 13/01/2017 till the date of realisation.
- The opposite party is directed to pay Rs.15,000/- (Rupees Fifteen thousand only) to the complainant as compensation for the act of deficiency in service and unfair trade practice done by the opposite parties.
- The opposite party is also directed to pay Rs.2500/- (Rupees Two thousand and five hundred only) to the complainant as cost of litigation.
The Order shall be complied with within a period of 30 days from the date of receipt of Order.
Dictated to the Confidential Assistant, transcribed and typed by her,
corrected by me and pronounced in the Open Forum on this the 09th day of December, 2019.
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1 : Bill issued by opposite party (R24421559)
A2 : photograph of the details of the phone
Witness from the side of opposite party
Rw1 : Manoj P.M.
Rw2 : Sajeev Gopinath
Exhibits marked on the side of opposite party
B1 : consignment note leaf R19033052
B2 : consignment note leaf
By Order
Senior Superintendent
