Andhra Pradesh

Chittoor-II at triputi

CC/9/2018

G.K.Yasoda, W/o Y.B.Pavan kumar, - Complainant(s)

Versus

M/S DTDC Express Ltd., Rep. by its authorized signatory. - Opp.Party(s)

A.Sudarsana Babu

03 Oct 2018

ORDER

Filing Date: 05.02.2018

Order Date:03.10.2018

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE TENTH DAY OF OCTOBER, TWO THOUSAND AND EIGHTEEN

 

 

 

C.C.No.09/2018

 

 

Between

 

 

G.K.Yasoda,

W/o. Y.B.Pavan Kumar,

Flat No.302, 3^rd floor, B1-Block,

Sri Sai Residency,

Thummalagunta Road,

Tirupati.                                                                                             … Complainant.

 

And

 

 

1.         M/s. DTDC Express Ltd.,

            Rep. by its authorized signatory,

            Having its registered office at

            No.3, Victoria Road,

            Bengaluru – 560 047.

 

2.         M/s. DTDC Express Ltd.,

            Rep. by its authorized signatory

            Having its registered franchise at

            No.7-166, Santhi Nagar,

            M.R.Palle,

            Tirupati – 517 502.                                                              …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 26.09.18 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.A.Sudarsana Babu, counsel for complainant, and Sri. G.Guruprasad, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12(1) of C.P. Act 1986, praying for direction to the opposite parties to pay Rs.36,200/- along with interest at 24% p.a. right from the day of the courier i.e. 02.11.2017 till the date of realization, to pay compensation of Rs.1,00,000/- towards mental agony suffered by the complainant and to pay costs of the litigation.  

 

2.  The allegations made in the complaint are as follows:- The complainant purchased 1) K-12 Lenovo Tablet (add-on-BYJUS) – TS – 103559-LT-103559, 2) Home demo – 9^th state (SD Card – BYJUS) May 2019, 3) Home demo – 10^th state (SD Card – BYJUS) May 2020 and 4) Home demo – 8^th state (SD Card – BYJUS) from BYJU’S the learning app for an amount of Rs.36,200/- for her son Hemanth Sai vide tax invoice dt:11.10.2017, order dt:08.10.2017 and order No.100191543. She remitted the said amount from her Bajaj Finserv Privilege Card vide account No.2030400120547122 and the said amount has been has been remitted vide deal ID No.CS728015311671. However, she wanted to return the product, as she was not satisfied with its performance and as such she communicated the same to BYJU’S, and in response they sent a mail asking the complainant to send the product to their office address to process refund of the amount. In the said mail under note they mentioned “please avoid Indian Post Courier for sending the product back to us and try to use private courier service only”.  Opposite party No.1 has registered office at Bangalore, opposite party No.2 has franchise at Tirupati. On 02.11.2017 she couriered the said product through opposite party No.2 to the address described therein and for that opposite party No.2 charged Rs.510/- as risk surcharge vide consignment No.V38219441. As she has not received any communication from the BYJU’S with regard to refund of the amount, she contacted them and was surprised to know that BYJU’S did not receive the courier and as such they are unable to settle the amount. She and her husband contacted opposite party No.2 number of times personally to know about the courier. Opposite party No.2 has given evasive and negligent reply on every occasion. Having disgusted with the attitude of opposite party No.2, she sent mail communication with DTDC customer support team and for that they replied by mail that “consignment No.V38219441 has been delivered as per information received and the case is being effectively closed on 17.11.2017 at 1.29 p.m.”. When complainant contacted BYJU’S, they replied they were not in receipt of any courier. When she made effort on track shipment status on 25.11.2017 it has shown the status as “in transit”. When she further made efforts to know about the facts, she came to know that a person by name S.Sathyavelu, made a complaint dt:15.11.2017 with Chamarajapeta P.S. stating that he is working as OTC in DTDC and on 13.11.2017 while travelling by auto from Bengaluru KSRTC bus stop towards chamarajapeta and while getting down out of two bags he was carrying, he forget to take one bag and only one bag with him. Thereafter, on noticing that the other bag was kept in the auto, he lodged a complaint with Chamarajapeta P.S. From the above facts it is clear that the opposite parties failed to deliver the courier booked by the complainant. The opposite parties 1 and 2 concocted stories in order to escape their liability. Therefore, it is clear case of deficiency in service. She also issued notice dt:28.11.2017 but the opposite parties did not comply her request. Hence, she had no option but to approach this Forum to seek redressal.

3.  Opposite party No.2 filed the written version and the same is adopted by opposite party No.1 by filing adoption memo, which is part of written version of opposite party No.2. They contended as follows:- At the outset the complaint averments are denied. The complaint averments that she booked learning material for her son vide tax invoice dt:11.10.2017 vide order dt:08.10.2017 and order No.100191543 and that not having satisfied with the performance of the said product, she intimated the same to BYJU’S and that on mail intimation from BYJU’S, she returned the said product  through DTDC courier and that the said courier booked by the complainant did not reach the destination are not correct. It is specifically denied that on 02.11.2017 the complainant couriered the product through opposite party No.2 to the address described therein as Bangalore by paying Rs.510/- towards risk charges vide consignment No.V38219441. It is further denied that on enquiry from BYJU’S, she came to know that the courier did not reach them. It is denied that DTDC customer support team informed the complainant through mail that the consignment No.V3829441 has been delivered as per information received and the case is being effectively closed on 17.11.2017. Even assuming that the said mail was sent through DTDC customer support team, it is wrong information. The track shipment status as on 25.11.2017 shows that the courier is in transit. The averments with regard to one Sathyavelu, OTC of DTDC, lodged a complaint with Chamarajapeta P.S. stating that out of two bags he was carrying on 13.11.2017 from Bangalore KSRTC Bus Stop, he had forgotten to take one bag back from auto and that after noticing the same presented a complaint as he failed to find the auto. It is admitted that, they received legal notice issued by the complainant. One Y.B. Pavan Kumar (consignor) booked the consignment through opposite party No.2, but the value of the contents was not disclosed by him. The consignor paid freight charges / courier charges of Rs.510/- only. The parcel is not insured. The consignor has not paid any risk charges to opposite party No.2. Therefore, even if there is any liability on the part of opposite parties, it is only to the extent of Rs.500/-. Anyhow there is no negligence or deficiency in service on the part of opposite parties. There is no cause of action to file the complaint. Therefore it is prayed to dismiss the complaint.

4.  The complainant filed chief affidavit as P.W.1 and got marked Exs.A1 to A10. On the side of opposite parties 1 and 2, one P.Chandrasekhar, proprietor / authorized signatory, M/s. DTDC Express Ltd. filed the chief affidavit. Both sides filed the written arguments.

5.  The point for consideration is whether there is deficiency in service on the part of opposite parties? If so, to what extent the complainant is entitled for the reliefs sought for in the complaint?

6.  Point:-  The complainant relied upon the following decisions 1) Apex Court Judgment between M/s. Spring Meadows Hospital & Anr. Vs. Harjol Ahluwalia through K.S.Ahluwalia, delivered on 25.03.1998 in Civil Appeal No.7858 of 1997.   2) Chattisgarh State Consumer Disputes Redressal Commission judgment between  Rajendra Jain and Ors. Vs. Manish Agarwal, delivered on 27.11.2009 in Appeal No.682/2009.

7.  In the decision 1^st cited, it is held that “in view of the comprehensive definition of the term ‘consumer’ even a member of the family cannot be denied the status of consumer under the Act and in an action by any such member of the family for any deficiency of service, it will not be open for a trader to take a stand that there is no privity of contract”. In the decision 2^nd cited it is held as follows “from the affidavit of the complainant as well from the documents, we are satisfied that it was amply proved that articles valuing Rs.12,847/- were handed over to the appellants for sending it to Singh Communications, Bhopal through their courier service and courier charges Rs.50/- was paid. Thus, their services were hired by the complainant by paying courier charges and they committed deficiency in service in not delivering the articles at the given address and so are liable to pay compensation equivalent to cost of the articles, which have been missed by them without delivery. So far as contention of learned counsel for the appellant that the appellants are liable to pay only amount of Rs.100/- to the complainant / respondent as per terms of the appellants printed in the receipt, is concerned, we do not find much force in this contention. There was no such agreement executed between the parties. It was unilateral term and there is nothing to show that this term was accepted by the complainant / respondent.

8.  The opposite parties relied upon the following decisions 1) CPJ 1996 Vol.II (SC) Page.25 between Bharati Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., 2) CPJ 2007 Vol.IV (NC) Page.165 between Indrapuri Express Courier Pvt. Ltd. Vs. Allied Business Corporation.

9.  In the decision 1^st cited it is held that “we have considered the submissions of the counsel for the parties on the facts of the case and having regard the earlier decisions of this Commission. The consignment containing the documents sent in the cover had been accepted by the appellant and was subject to the terms and conditions mentioned on the consignment note. The complainant had signed the said note at the time of entrusting the consignment and had agreed to and accepted the terms and conditions mentioned therein. Clauses 5 and 7 of the terms and conditions as also the important notice mentioned on the consignment note are reproduced: Clause.6 – “Limitation of liability: without prejudice to Clause.7 the liability of DHL for any loss or damage to the shipment, which term shall include all documents or parcels consigned to DHL under this Air bill and shall not mean any one document or envelope included in the shipment is limited to the lesser of – (a) US $100 (b) The amount of loss or damage to a document or parcel actually sustained; or (c) The actual value of the document or parcel as determined under Section.6 hereof, without regard to the commercial utility or special value to the shipper. Clause.7 – Consequent damages excluded: DHL shall not be liable in any event for any consequential or special damages or other indirect loss however arising whether or not DHL had knowledge that such damage might be incurred including but not limited to loss of income, profits, interest, utility or loss of market. Important Notice – By the conditions set out below DHL and its servants and agents are firstly not to be liable at all for certain losses and damages and secondly whether they are to be liable the amount of liability strictly limited to the amount stated in condition and customers are therefore advised to purchase insurance cover to ensure that their interests are fully protected in all event”. Under Clause.5 of the terms and conditions of the contract, the liability of the appellant for any loss or damage to the consignment was limited to US$100. Clause.7 of the contract specifically provided that the liability of the appellant for any consequential or special damages or any other indirect loss, that may occur including the loss of market or profits etc. was excluded. It is also pertinent to note that despite the advice in the important notice, the complainant did not disclose at the time of consignment the contents of the cover and also not purchased the insurance cover to ensure that their interests are fully protected in all events.” In view of the above consideration and findings, we are of the opinion that the National Commission was right in limiting the liability undertaken in the contract entered into by the parties and in awarding the amount for deficiency in service to the extent of the liability undertaken by the respondent. Therefore, we do not think that there is any illegality in the order passed by the Commission. Mr. Krishnamani has brought to our notice that there are number of judgments covering divergent views. In view of the view we have expressed above, it is now settled law and the Tribunals would follow the same. Lastly, it is contended that besides the amounts awarded by the State Commission, liberty may be given to the appellant to pursue the remedy available in law. It is needless to mention that the remedy available at law would be pursued accordingly to law.”  In the decision 2^nd cited it is held that “value of parcel not pre-declared at time of booking, terms contained in receipt constitute contract between parties, showed liability for loss of booked parcel limited to Rs.50/- only, amount of Rs.47,000/- awarded by Fora below modified, reduced to Rs.50/-.

10.  Obviously the said decisions were pressed into service by the counsel for opposite parties to contend that in the instant case also even if assuming that there is liability on the part of opposite parties 1 and 2, the liability is only to the extent of Rs.510/- since the consignor in this case had not pre-declared the value of the parcel at the time of booking the courier.  

11.  The contention of opposite parties 1 and 2 that the complainant cannot be termed as consumer under the C.P.Act cannot be accepted by us in view of Hon’ble Apex Court Judgment in Civil Appeal No.7858 of 1997 relied upon by the complainant. 

12. We have gone through the documents submitted by the counsel for complainant. BYJU’S tax invoice which is marked as Ex.A1 shows that she purchased learning material worth of Rs.36,200/- from BYJU’S. Ex.A2 shows that complainant paid an amount of Rs.36,200/- through Bajaj Finserv. Ex.A3 is email sent by BYJU’S support to the complainant asking her to send back the product for arranging refund of the amount. Ex.A4 is courier receipt issued by DTDC, Tirupati, by charging Rs.510/-, which was paid by Dr.Y.B.Pavan Kumar, husband of the complainant. Ex.A5 is mail containing 3 messages from customer support team of DTDC to complainant stating that consignment No.V38219441 has been delivered as per information received and the case is being effectively closed as on 17.11.2017 at 1.29 p.m. Ex.A6 is track status report of the said consignment in question and it shows that tracking No.V38219441 last status ‘in transit’. Ex.A7 is legal notice issued by the complainant counsel dt:28.11.2017 alleging deficiency in service on the part of opposite parties 1 and 2 and further demanding Rs.36,200/- being product cost + courier charges of Rs.510/- and an amount of Rs.50,000/- towards deficiency in service. In Ex.A7 it is stated that she booked the consignment on 02.11.2017 and mail communication dt:10.11.2017 and 17.11.2017 received by her stating that the consignment has been delivered whereas the acknowledgement dt:15.11.2017 states that on 13.11.2017 the consignment was lost and it shows the deficiency in service on the part of courier service. Ex.A8 is acknowledgement of opposite party No.2 for receiving the original of Ex.A7. Ex.A9 is copy of acknowledgement issued by Chamrajpeta police wherein the contents show that one Sathyavelu working as OTC in DTDC on 13.11.2017 was carrying the courier bags from KSRTC Bus stop to Chamrajpeta, in auto, out of two bags he was carrying, he left one bag in the auto by mistake and thereafter searched for the said auto but could not find the same and hence lodged a complaint. E.A10 is receipt showing that BYJU’S received Rs.36,200/- from the complainant.

13. Basing on the above said documentary evidence, the counsel for complainant vehemently argued that it is clear case of negligence and deficiency in service on the part of opposite parties and as such the relief sought by the complainant can be considered. It is further argued that the question of limited liability as contended by the opposite parties does not arise in this case, as the consignment itself lost and the opposite parties are not in a position to give proper explanation for non-reaching of consignment at the destination.

14.  It cannot be disputed that the complainant has booked learning material worth Rs.36,200/- through DTDC courier i.e. opposite parties. It cannot be disputed that the worth of the product purchased by the complainant is Rs.36,200/- in view of Ex.A10 which is the receipt issued by BYJU’S. The complainant filed the track history of the consignment No.V38219441 and it shows that the consignment booked by her did not reach the destination. It shows that the consignment was in transit. No doubt under Ex.A5 the customer support team sent a mail to complainant stating that the consignment No.V38219441l has been delivered and the case has been closed on 17.11.2017. The track history of the consignment is contrary to ExA5, it is for the opposite parties to show which is correct whether tracking history of the consignment is correct or the customer support team version is correct. At para.9 of the written version, the opposite parties on one hand admitted that DTDC customer support team replied by email that consignment No.V3829441 has been delivered, but on the other hand they stated that the information is not correct and the information has mistakenly given by opposite parties. They admit that as per track shipment status as on 25.11.2017 the status of the consignment is in transit. Thus the opposite parties have not taken definite stand with regard to the delivery of the consignment in question.  

15.  The complainant in order to prove her case that the consignment did not reach the destination i.e. BYJU’S filed Ex.A9, which is police complaint given by OTC of DTDC by name Sathyavelu. It shows that he was carrying two bags in the auto in Bangalore and left one bag by mistake in the auto and thereafter searched for the auto and he could not find the same and then he lodged a complaint with Chamrajpeta P.S. The opposite parties clearly suppressed this fact in the written version as well as in the evidence affidavit. There is possibility of lost bag containing the consignment of complainant. It is for the opposite parties to come out clearly with regard to the delivery of the consignment booked by the complainant.

16.  We are therefore of the view that the complainant justified in contending that there is deficiency in service on the part of opposite parties, since the consignment containing learning material did not reach the addressee i.e. BYJU’S and had it been reached to BYJU’S, they could have refunded the amount to complainant. Hence, we are of the view that there is deficiency in service on the part of opposite parties 1 and 2. With regard to limited liability, we rely upon the decisions rendered by the complainant counsel and held that opposite parties are liable to pay the cost of the product. Accordingly, this point is answered.

17.  In the result, complaint is partly allowed directing the opposite parties to pay Rs.36,200/- (Rupees thirty six thousand two hundred only) (cost of the consignment) with interest at 6% p.a. from the date of courier i.e. 02.11.2017 till the date of realization, and also to pay compensation of Rs.5,000/- (Rupees five thousand only) towards deficiency in service and costs of Rs.2,000/- (Rupees two thousand only) towards litigation expenses. Two months time is granted to comply the above said order. If they failed to comply, the compensation awarded shall also carry interest at 9% p.a. from the date of this order, till realization.                    

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 3^rd day of October, 2018.

 

        Sd/-                                                                                                                     Sd/-                                          

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: G. K. Yasoda (Evidence Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: P. Chandrasekhar (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of BYJU’S the Learning App Tax Invoice, Dt: 11.10.2017.
	Photo copy of BAJAJ FINSERV Sales Transaction Details (System Generated Customer Copy). Dt: 07.10.2017.
	Photo copy of Mails sent by BYJU’s Support.
	Original copy of DTDC Courier Receipt.  DTDC Consignment No:V38219441.
	Photo copy of DTDC Courier Customer Support Team Mails.
	Photo copy of Track Shipment Status. Booking Date and Last Status           Date : 02.11.2017.
	Office copy of Legal Notice. Dt: 28.11.2017.
	Acknowledgement Card in original from Opposite Party. No.2.
	Photo copy of Acknowledgement from Siddaraju ASI, Chamaraipet PS, Bangalore. Dt: 15.11.2017.
	Original copy of BYJU’S (The Learning App) Receipt vide bearing No.TLI709001949. Dt: 07/10/2017.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

-NIL-

 

                                                                                                                         Sd/- 

                                                                                                                President (FAC)

 

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

          

    

   Copies to:- 1.  The complainant.

                        2.  The opposite parties.