Sri. George Baby (President):

                        The complaint is filed u/s 12 of the Consumer Protection Act 1986 by the complainant for getting reliefs against opposite parties 1 &2.

                    2. The case of the complainant in brief as follows:-The complainant is the father in law of 3^rd opposite party who is now residing at Bangluru.  On 15/09/2017 the complainant entrusted his consignment to the 2^nd opposite party for the timely delivery of the same to the 3^rd opposite party.  The consignment consists of one Samsung LED TV (40’’) one dressing table with mirror fitted, aluminum cloth stand and a box full of household items. The 1^st opposite party is a parcel service company and the 2^nd opposite party is its franchisee functions at Thiruvalla.  At the time of entrustment of consignment the complainant had paid Rs. 5,350/- as a freight charge and Rs. 500/- as the risk surcharge for insurance against damage of Samsung LED TV.  The consignment was delivered to the 3^rd opposite party on 22/09/2017 and when it was opened it found that Samsung LED TV was totally damaged.  The matter was immediately reported to the 1^st opposite party through their e-mail.  As per the direction of the 1^st opposite party, the 3^rd opposite party has placed all needed records to them for the purpose of inspecting the damaged TV by the registered agency of Samsung company at Bangluru. The said TV was purchased from UAE, even though the entire formalities were compiled by the 3^rd opposite party.  The opposite parties 1 & 2 were not settled the claim.  The opposite parties 1&2 were failed to deliver the consignment of TV without damage.  It was due to the negligence of the opposite parties 1&2 that the TV got damaged in transit.  The insurance amount of Rs. 500/- was collected from the complainant as the same being the 2% of the insured value of Rs. 25,000/- and same is the purchase value of the TV.  The complainant contended that he is entitled to get the insured value of TV from the opposite parties 1 &2 as they collected risk charge of Rs. 500/-.  By seeing the wilful negligence from the part of opposite parties 1 &2 in settling the matter the complainant caused to issue a legal notice to opposite parties 1 &2 on 15/05/2018 and both the opposite parties were acknowledged the notice within the period.  The complainant contended that the failure of setting the claim is clear deficiency in service of the opposite parties.  Hence this compliant filed with a view to get compensation and other reliefs from opposite parties 1 &2.

3. The commission entertained the complaint and issue notice to opposite parties.  All the opposite parties were appeared through their counsel.  The opposite party 1 &2 filed joint written version and their main contentions are as follows:- The complaint is not maintainable either in law or on facts.  The complainant has no locus-standi to file the complaint.  The complaint is barred by limitation.  The complaint is filed to gain undue monetary benefit.  There is no privity of contract between the opposite parties and 3^rd opposite party.  It is admitted that the complainant had booked the consignment bearing No. D 35153548 on 15/09/2017 through the 2^nd opposite party.  The complainant hadneither declared the contents of the consignment nor its value at the time of booking the consignment.  No risk charges were paid to the opposite parties 1 &2.  The consignment was not insured by the complainant either his own risk or at the risk of the opposite party carrier.  It is dined that the consignment booked by the complainant consigner contained the Samsung LED TV as alleged in the complaint.  An amount of Rs. 500/- was only collected by the 2^nd opposite party as the freight charge.  It is denied that the 2^nd opposite party had collected Rs. 5,350/- towards the freight charge from the complainant.  The consignment was delivered to the 3^rd opposite party on 21/09/2017 in good condition and without any damage.  The consignee 3^rd opposite party after opening and verifying the consignment after having conformed that there is no damage to any of the good accepted the consignment.  The TV got damaged during transit is fully denied. The e-mails by the consignee to the opposite party No.1 containing false allegations.The inspection of damaged TV by the officials of the Samsung Company as per the direction of 1^st opposite party is also denied.  On receipt of e-mail and on verification it was found that the consignment was send without declaring its contents and its value and without paying any risk surcharge to the carrier.  Certain Photographs of a damaged TV were also e-mailed, but it is denied that the said photographs relate to any contents of the consignment which was delivered by the opposite parties.  It is denied by the opposite parties that any LED TV was in the consignment as alleged in the complaint.  After about four months of accepting the delivery, the complainant and the consignee started producing fabricated document and undated letters to the 1^st opposite party and raised false monetary claims.  It is denied that any original of the customer home delivery memo from UAE for the purchase of alleged TV was given to 2^nd opposite party.  However, a copy of customer Home delivery Memo dated: 26/03/2013 with a service warranty seal of Lulu, Hypermarkets Sharjah, UAE was entrusted to the opposite parties, which doesn’t relate to the alleged damaged TV.  It is however denied that the consignment contained any TV brought by the complainant from UAE.  The shipper’s/sender’s copy was a fabricated one.  Written complainant or even claim if any regarding loss or damage has to be made by the consignor within 30 days from the date of booking which has not been done.  The claim and complaint is therefore time barred.  The photographs produced are not genuine and does not relate the consignment No. D.35153548. In the event of damage or loss to goods the liability of opposite parties under the contract between the parties is limited to Rs. 100/- unless the sender declares a higher value as “declared value of carriage” and also pays the applicable risk surcharge there of as Carrier’s Risk” at the time of tendering the shipment.  Hence the liabilities of the opposite parties are limited.  The opposite parties have not committed any deficiency in service or unfair trade practice.  The complainant is not entitled for any of the relief sought in the complaint.  The opposite parties 1 & 2 pray for the dismissal of the complaint with their cost

4.  The 3^rd opposite party is a Performa opposite party, who is the consignee of the article sent through opposite party 1 &2.  The 3^rd opposite party filed his version through his counsel and the 3^rd opposite party has more or less admitted the claim of the complainant.

5.  We peruse the complaint, version and records before us and we framed the following issues for consideration.

(1) Is the complaint time barred?

(2) Whether the complainant has the right to institute this

complaint before this Commission?

(3) Whether the opposite parties 1 and 2 have committed any

deficiency against the complainant.

(4) Whether the complainant is entitled to get any reliefs?

(5) If so what are the reliefs and its quantum?

6. In order to prove the case of the complainant he had filed proof affidavit in lieu of his chief examination.  The complainant was examined as PW1.  Exhibits A1 to A9 were marked through PW1. Ext. A1 is the true copy of consignment invoice No. is D35153548 dated: 15/09/2017 issued by the 2^nd opposite party.  Ext. A2 is the copy of e-mail communication by the 3^rd opposite party to the 1^st opposite party dated:13/05/2018.  Ext. A3 is the copy of insurance claim request letter dated: 08/01/2018.  Ext. A4 is the true copy of quotation/proforma invoice dated: 24/12/2017 issued by R-Logic Technology Services(1) Private Ltd.,.  Ext. A5 is the copy of insurance claim request letter dated: 25/02/2018.  Ext. A6 is the original customer home delivery memo issued by the Lulu Hypermarket, Sharjah dated: 26/03/2013. Ext. A7 is the copy of list of items.  Ext. A8 series are the photographs(Two numbers).  Ext. A9 is the copy of the legal notice dated: 15/05/2018 issued to the 1^st& 2^nd opposite parties along with the AD cards.Ext. A10 is the consignment Note leaf bearing No. D35153548 dated: 15/09/2017.  Ext. A11 is the declaration dated: 15/09/2017. Ext. A12 is the TV Box.  For PW1’s evidence Exhibit A10 to A12 and MO1 (Damaged TV) were marked through DW1, who is the manager of OP1 &OP2.  From the side of OP1 &OP2 one witness was examined as DW1 and Exhibit B1 to B4 were marked through him.  Ext. B1:True copy of consignment invoice No. is D35153548 dated: 15/09/2017 issued by the 2^nd opposite party.

Ext. B2: copy of insurance claim request letter dated: 08/01/2018. Ext. B3: copy of insurance claim request letter dated: 25/02/2018. Ext. B4: True copy of quotation/proforma invoice dated: 24/12/2017 issued by R-Logic Technology Services (1) Private Ltd,.The 3^rd opposite party was examined as DW2.  After the closure of evidence we heard the complaint and opposite parties in detail.

7.  Point No. I & II:- For the sake of convenience and brevity we would  consider Point No. I and II together.  The case of the complainant PW1 is that he had entrusted certain items to the 2^nd opposite party for the timely delivery of the same to the 3^rd opposite party.  The 1^st and 2^nd opposite parties are parcel service company.  The 2^nd opposite party is the franchise of the 1^st opposite party.  At the time of entrustment of the consignment to the 2^nd opposite party the complainant consignor had cautioned the 2^nd opposite party with regard to the articles contained in the boxes.  The entrustment was on 15/09/2017 and the consignment number was D 35153548.  The 2^nd opposite party had collected Rs. 5,350/- as the freight charge and Rs. 500/- as the risk surcharge for insurance against the article worth Rs. 25,000/-.  The said Rs. 500/- is the 2% of the insured value.  Accordingly PW1 paid Rs. 5,850/- towards the 2^nd opposite party.  The said consignment contains one Samsung TV worth Rs. 25,000/- along with certain other house hold items such as one dressing table with mirror fitted, aluminum cloth stand etc.   The delivery of article to the 3^rd opposite party was effected on 21/09/2017 at about 8pm.  When the box was opened it was found that the TV was cracked.  Immediately on the next day i.e., on 22/09/2017 the 3^rd opposite party had intimated this matter to the 1^st opposite party through their e-mail.  But one or other reasons the opposite parties 1^st& 2^nd have not properly redressed the grievance of the complainant and as well as the 3^rd opposite party.  In the counter version of 1^st and 2^nd opposite party they have contended that the complainant consignor had neither declared the contents of the consignment nor its vale in the consignment at the time of booking.  They have no knowledge with regard to the article in the consignment.  They specifically denied the consignment contained Samsung LED TV.  If any of the reason if it is found that there was TV in the consignment and if any damage is occurred to the TV the present complainant is barred by limitations on the ground that the complaints were not preferred within time.  The opposite parties such contention is not acceptable.  From Exhibit A2 it is clear that the consignee had given a proper complaint to the 1^st opposite party through their e-mail.  The opposite parties have not a case that the mentioned e-mail address is not of themselves.  In absence of cogent evidence to the contrary we have come to a safe conclusion that the consignee had properly intimated the cracks occurred in the TV during its transit to the opposite parties.  The opposite parties have not a case that the complainant had not availed their service on payment on charges.  Even though the opposite parties are disputed the quantum of amount which received at the time of entrustment of the consignment they have not a definite case that the consignment was accepted and delivered free of charges.  From Exhibit A1 it is seen that the service of the opposite parties were hired by the complainant himself on payment of charges.  The complainant is a consumer as envisaged in the provisions of Consumer Protection Act and accordingly we found both issues are in favour of complainant and the complaint is not barred by law of limitation and the complaint by the present complainant is perfectly maintainable before this Commission. 

8.Issue No.III :- The Specific case of PW1 is that he had entrusted certain article along with one Samsung LED (40inch) TV to the 2^nd opposite party on 15/09/2017 for timely delivery of the same to the 3^rd opposite party who is the son-in-law of the of the complainant.  At the time of entrustment of such articles to the 2^nd opposite parties he had collected an amount of Rs. 5,350/- as the tariff and Rs. 500/- as the risk surcharge.  Altogether PW1 paid Rs. 5,850/- to the 2^nd opposite party in availing his service.  The consignments were delivered to the consignee on 21/09/2017 at 8PM by the delivery boys of 1^st opposite party.  When the boxes were opened it found that the TV got damaged and the matter was informed to the 1^st opposite party on the next day itself through their e-mail.  According to PW1 Rs. 500/- was paid to opposite parties as the risk surcharge for insurance against damage to the tune of Rs. 25,000/- in the event of any loss or damage to the Samsung LED TV in the consignment.  The said Rs. 500/- is 2% of the insured value of Rs. 25,000/-.  The opposite parties specifically denied all the allegations leveled against them.  The opposite parties contented that they had received only Rs.500/- from the complainant as the freight charge.  The amount shown as Rs. 5,350/- in Exhibit A1 is fabricated by the complainant, only for the purpose of achieving undue monetary gain from opposite parties 1 & 2.  In this aspect the learned counsel for PW1 asked many questions during the cross-examination of DW1.  DW1 has not specifically answered the questions of the counsel.   He had ultimately failed to prove that Exhibit A1 is a fabricated document.  One of the contention adopted by the opposite party is that the amount shown in the Exhibit. A1 as 5,350 is written by the complainant himself. On evaluation of Exhibit A1 it is seen that the entry made in Exhibit A1 is by one and same, person.  The similarities of the figures mentioned in Exhibit A1 clearly strengthen our findings.  The opposite parties have not a case that the complainant had previous rivalry with them.  It has not at all mentioned anywhere in version that for what purpose the complainant is made manipulations in Exhibit A1.  The opposite parties contention that in order to gain the undue monetary advantage from the opposite parties 1 and 2 the complainant had made all these fabrications.  It is not at all believable.  If Exhibit A1 is a fabricated document why they are not initiating a criminal proceedings against PW1.  All the circumstances proved that the opposite parties had received an amount of Rs. 5,350/- as the freight charge from PW1. Nothing has been brought out in evidence to disprove the same.  The opposite parties had contented before these commission that they had not at all aware with the fact that whether the consignment contained the Samsung LED TV.  This contention is also not acceptable in the light of Exhibit A12. Exhibit A12 box contains the 1^st opposite party’s two official stickers with “Surface SF DTDC” and “Fragile Handle with care DTDC”.  Both these stickers were affixed by 2^nd opposite party.  Exhibit A12 is clearly against all the contentions of 1^st and 2^nd opposite party.  From Exhibit A12 it is crystal clear that PW1 had sent some fragile article to 3^rd opposite party on which they would have taken much care and caution Exhibits. A8 series also strength in the case of PW1.  The opposite parties contention that the damaged TV was sent through opposite parties are not acceptable.  For the gain of a meagre amount, wecannot think that PW1 did the unscrupulous act contended like 1^st and 2^nd opposite parties.  From the available evidence it is seen that PW1 had entrusted all the articles in good condition to the 2^nd opposite party for delivery.  The damage to the TV was occurred during the transit.  It has come out in evidence that the opposite parties had collected risk surcharge for the TV.  It is also come out in evidence that the damage to the TV occurred while at the time of transportation for which 1^st and 2^nd opposite parties are liable.  The complainant had paid risk surcharge to the opposite parties 1 & 2 at the time of booking of consignment.  In that situation opposite parties are liable to the damage happened to the article during transit.  Point No.3 is also found in favour of complainant.

9.Point No. 4&5 :- In the light of foregoing discussion Point No. 4&5 is also found in favour of complainant.  The opposite parties are committed deficiency in service and opposite parties are liable to compensate the complainant.

In the result the complaint is allowed and we pass the following order.

(1) Direct the 1^st and 2^nd opposite parties to pay Rs. 25,000/-

(Rupees Twenty Five Thousand only) as the value of damaged

TV within 30 days from the date of receipt of this order failing

which, the amount carry the interest of 10% per annum from

the date of this order.

(2) Direct the 1^st and 2^nd opposite party to pay Rs. 10,000/-

    (Rupees Ten Thousand only) as compensation to the

complainant along with cost of Rs. 5,000/- (Rupees Five

    Thousand only) within 30 days from the receipt of this order

failing which the amount carry the interest of 10% per

annum from the date of this order. 

     Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 17^thday of February, 2021.

                                                                                                                                                         (Sd/-)

                                                                                                                                                     George Baby,

                                                                                                                                                       (President)

Smt. N. ShajithaBeevi (Member-I)   :  (Sd/-)

Sri.Nishad Thankappan (Member-II):  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1:T.S. Vijayakumar

Exhibits marked on the side of the complainant:

A1: True copy of consignment invoice No. is D35153548 dated: 15/09/2017

issued by the 2^nd opposite party. 

A2: copy of e-mail communication by the 3^rd opposite party to the 1^st opposite

party dated:13/05/2018.

A3: copy of insurance claim request letter dated: 08/01/2018.

A4: true copy of quotation/proforma invoice dated: 24/12/2017 issued by R-

      Logic Technology Services(1) Private Ltd.,. 

A5: copy of insurance claim request letter dated: 25/02/2018.

A6: original customer home delivery memo issued by the Lulu Hypermarket,

      Sharjah dated: 26/03/2013.

A7: copy of list of items. 

A8: the photographs (Two numbers). 

A9: copy of the legal notice dated: 15/05/2018 issued to the 1^st& 2^nd opposite

parties along with the AD cards.

A10:consignment Note leaf bearing No. D35153548 dated: 15/09/2017.

A11: declaration dated: 15/09/2017.

A12: TV Box.

Witness examined on the side of the opposite parties:

DW1:Sajeev Gopinath.

DW2:Abilash. P.

Exhibits marked on the side of the opposite parties:

B1:True copy of consignment invoice No. is D35153548 dated: 15/09/2017

issued by the 2^nd opposite party.

B2: copy of insurance claim request letter dated: 08/01/2018.

B3: copy of insurance claim request letter dated: 25/02/2018.

B4: True copy of quotation/proforma invoice dated: 24/12/2017 issued by R-

      Logic Technology Services (1) Private Ltd.,.

MO1: Damaged TV.

Copy to:- (1) T.S. Vijaya Kumar,

                    Hindu,

                    Thalavan House (Mnasa Saras),

                    Kavumbhagam P.O, Thiruvalla – 689102.  

                         (2) Rep. by its Manager,

                    DTDC Express Ltd.,

                              DTDC House, Regd. Office No.3,

                             Victoria Road, Banglore – 560047.

               (3) The Manager,

                    DTDC Express Ltd. Franchisee,                        

                    Podiyadi, Thiruvalla – 689102.

              (4)  Aravind Sowparnika,

                    Flat No. 304A, Pai Layout, Hulimavu,

                    Bangalore, Karnataka – 5600076.

               (5) The Stock File.