Date of Filing : 17 March, 2020.
Date of Judgement : 30 May, 2023.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when the complainant, Mrs. Ranu Parvin, filed a complaint under Section 12 of the Consumer Protection Act, 1986, herein after called the said Act, against (1) M/s. Matrix and (2) Extra Marks Education Pvt. Ltd., herein after called the Opposite Parties or O. Ps., alleging deficiency in service occurred from the part of the Opposite Parties.
The brief statement of the complaint is that the Complainant purchased a Tablet, which is a Learning App, from the O. P. – 2 company on 06/01/2019 for a consideration of Rs.35,000/- which afterwards developed a defect for which Complainant had to send the defective tablet to the service centre of the O. P. – 2 company. She then booked a consignment with the O. P. – 1, which is a courier company, on 09/05/2019 to send the defective tablet to the service centre of the O. P. – 2 company. She paid Rs. 1,600/- for this purpose to the O. P. – 1 courier company. Later on when she enquired about her tablet the O. P. – 2 company informed her that it was not reached to their service centre. Complainant repeatedly requested the courier company about the whereabouts of her consignment and requested them to provide her the tracking number of the consignment so that she herself could track the movement of the consignment, but each time the O. P. – 1 assured the complainant that it would reach the destination within a very short time. When her defective goods did not reach its destination she lodged a GDE before the Thakurpukur Police Station on 04/07/2019 being GDE No. 375. Afterwards she sent a legal notice on 06/12/2019 to the O. P. – 1, which also yielded no result. Ultimately she filed her complaint before this Commission/Forum praying to direct the O. P. – 1 to return the tablet she had booked to send it to O. P. -2 together with a compensation of Rs.70,000/- and litigation cost of Rs.35,000/-. Complainant has no allegation against O. P. – 2.
Complainant submitted copies of (i) Receipt of Rs.35,000/- issued by O. P. – 2, (ii) a receipt issued by O. P. – 1 and (iii) the legal notice dated 06/12/2019.
This Commission/Forum served notices, after admission, to the O. Ps. to appear and contest the case. But none appears to contest and thus the case proceeded ex parte. Complainant then filed the Affidavit-In-Chief and consequently argument was heard. Complainant filed her Brief Notes of Argument and now we are in the juncture to deliver the Final Order in this case. We have to decide whether the Complainant is entitled to get relief as prayed for.
DECISION WITH REASONS
In the beginning of our discussion let us recapitulate the statement of the complaint taking into consideration of the annexed documents. Complainant sent a defective goods, i. e. the Tablet (consignment), hiring the service of the courier company, the O. P. – 1 herein above, M/s. Matrix, so as to reach the consignment to the service centre of the O. P. – 2 company, from which she purchased the goods in question. Here, we see that both the Opposite Parties did not turn up to contest the case. Had they appeared and contested the case, then it would be better for us to adjudicate the case more precisely. However, let us proceed with our discussion based on the complaint and annexure therein. Complainant, here the consignor, failed to trace the fate of her consignment as the courier company did not provide any hopeful result of her consignment. The O. P. – 2, the consignee, informed the consignor over telephone that they have not received the defective Tablet. Then a question may arise: whether the consignee/complainant should have to send a notice under Section 10 of the Carriers Act, 1865 to the courier company/O. P. – 1 prior to filing her complaint before this Commission/Forum? To answer this question let us take shelter in Transport Corporation of India Vs. Veljan Hydrair Ltd. [(2007) 3 SCC 142, Appeal (Civil) No. 3096 of 2005, decided on 22/02/2007] where it has been stated by the Hon’ble Supreme Court as follows:
“The object of the section is to put the carrier on notice about the claim in respect of the loss or damage to the consignment so that it can make good the loss occasioned. But where there is no loss or injury to the goods, but the common carrier wrongly or illegally refuses to deliver goods and the person entitled to delivery initiates action for non-delivery, obviously Section 10 will not apply. Similarly, where the common carrier informs the person entitled to delivery (consignor/consignee/owner) that the consignment is being traced and the process of tracing is still going on and requests him to wait for the consignment to be traced or delivered, but does not subsequently inform him either about the loss of the consignment, or about its inability to trace and deliver the consignment, the claim by the consignor/consignee, will not be for loss or injury to goods but for non-delivery of goods. The requirement relating to notice within six months in Section 10 will not apply to a claim based on such non-delivery. In fact Section 10 does not use the word “non-delivery” of goods, but uses the words “loss of, or injury to, goods”. A case of “non-delivery” will become a case of “loss” of consignment, only when the common carrier informs the consignor/consignee about the loss of the consignment.”
A plain reading of the above order leads us to the conclusion that in a case involving non-delivery of goods there is no need to issue notice under Section 10 of the Carriers Act, 1865. Yet, Complainant sent a Notice in the form of Written Complaint through her Ld. Advocate to the O. P. – 1.
Before coming to the conclusion we have gone through the judgement passed by the Hon’ble National Commission in M/s. Gati Ltd, -Vs- M/s. Synergetic Automation Technologies [2017(1) CPR 335 (NC); Revision Petition No. 1320 & 3436 of 2006, decided on 08/02/2017].
Now, let us come to the main issue about the delivery of goods. As the O. Ps. had not come forward to contest the case we have no other option but to consider the facts put forward by the complainant through affidavit. Complainant states that the O. P. – 2 informed over telephone that they had not received the goods and she has no allegation against O. P. – 2, though she ought to have received written statement from them. O. P. – 1 failed to produce any documentary evidence about the fate of the delivery, and the Complainant herself failed to gather information in this matter. As a common carrier, O. P. – 1 is deficient in many ways. They issued a receipt while accepting the consignment which bears no serial number. Address of the carrier is incomplete and confusing and the consignment number has not been given from which consignor can track the movement of her consignment. On repeated request O. P. – 1 failed to provide the consignment number to the consignor/complainant; even they failed to produce any evidence showing delivery of the consignment/Tablet. So the O. P. – 1 is deficient in rendering service to the complainant who hired their service assuming that they would deliver the goods to the consignee/O. P. – 2 safely. But they failed to do so. Hence, in our opinion the O. P. – 1 is liable to compensate for their service deficiency and thus the complainant is entitled to get relief. The O. P. – 1 is liable to return the consignment/Tablet to the complainant as prayed for together with compensation and litigation cost. Freight charge of Rs.1,600/- is not taken into consideration as compensation is awarded.
Hence, it is
ORDERED
That the Complaint Case No. CC/124/2020 is allowed ex parte against the Opposite Parties but without any relief against the O. P. – 2.
The O. P. – 1 is directed to return the Tablet to the Complainant and pay Rs. 20,000/- as compensation and Rs. 8,000/- as litigation cost to the complainant within 60 days from the date of this order failing which simple interest @ 9% p. a. will be imposed till full and final realisation.
