BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> <br /> O.P.No. 209/2004 Filed on 14.05.2004<br /> Dated : 30.04.2008<br /> Complainant :<br /> <br /> Alex M.J, Rohini, Opposite Al-Utuman School, Kazhakuttom, Thiruvananthapuram. <br /> <br /> Opposite party : <br /> <br /> M/s Professional Couriers, Prasantham, T.C 24/345, Opposite Sasthankovil, Thycaud, Thiruvananthapuram. <br /> <br /> This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 05.10.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 11.04.2008, the Forum on 30.04.2008 delivered the following:<br /> <br /> <br /> ORDER<br /> <br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> <br /> This complaint is filed for directing the opposite party to pay the complainant an amount of Rs. 3340/- with interest at the rate of 18% from 13.03.2004. Further relief sought for is for awarding Rs. 10000/- towards compensation and Rs. 5000/- towards costs. It is stated in the complaint as follows: The complainant on 13.03.2004 sent a gift parcel to his friend H.K.Guptha at Gorakhpur. The consignment note number was 4085508. At the time of entrustment of parcel to the opposite party it was informed that the consignment will reach Gorakhpur within two days. On 17.03.2004 complainant contacted the consignee at Gorakhpur. It was informed by the consignee that the parcel has not been delivered. Thereafter the complainant approached the opposite party and informed them regarding the non-delivery of the consignment. The opposite party replied that the consignment will reach the consignee immediately. Thereafter a number of enquiries were made by the complainant, but opposite party behaved in an indifferent manner and the response was not encouraging. On 06.04.2004 a written complaint was forwarded to the opposite party informing the non-delivery of the consignment. The opposite party gave a reply on 12.04.2004 to the effect that the consignment has been lost and requested the complainant to declare the contents. Thereafter the complainant informed the details of its contents and its value. On 27.04.2004 the opposite party sent a letter stating that their liability is limited to Rs. 100/- only as per the contract. The complainant has not signed the consignment note. Hence conditions are not binding on the complainant. The loss of the consignment constitutes deficiency in service for which the complainant is entitled the value of the consignment and compensation. Hence complaint is filed for directing opposite party to pay an amount of Rs. 3340/- with interest at 18% , Rs. 10000/- towards compensation and Rs. 5000/- towards costs. <br /> <br /> Opposite party never turned up instead of notice. No version filed. Opposite party set exparte. <br /> <br /> The points that would arise for consideration are:-<br /> (i)Whether there has been deficiency in service on the part of opposite party ?<br /> (ii)Reliefs and costs.<br /> <br /> On the part of complainant, the complainant in support of his contention has filed his own proof affidavit and marked 3 documents Exts. P1 to P3. <br /> <br /> Points (i) & (ii):- The first point requiring consideration is whether there has been deficiency in service on the part of opposite party. The case of the complainant is that on 13.03.2004, the complainant entrusted the opposite party a gift parcel for delivery to his friend H.K. Guptha, Nahar Road, Azad Chawk, Gorakhpur. The opposite party failed to deliver the said gift parcel to the consignee. Ext. P1 is the copy of the consignment note. As per ext. P1 the consignment note number is 4085508. Date of consignment is 13.03.2004. The weight of the said parcel is 3 kg. Consignment charge is Rs. 315/-. Consignor is Alex M.J and consignee is M.K. Gupta, Gorakhpur, U.P. A perusal of Ext. P1 would show that complainant has not declared the value of the contents of the consignment. It is the case of the complainant that the consignment contained gift items. Ext. P2 is a copy of the declaration regarding the value of contents of the parcel submitted to the opposite party. As per Ext. P2 the value of the contents of the consignment is Rs. 3025/-. But the said value is not seen declared in Ext. P1 consignment note. Complainant in his affidavit deposed that on 06.04.2004 he had forwarded a written complaint to the opposite party informing the non-delivery of the said consignment and opposite party gave a reply on 12.04.2004 to the effect that the said consignment has been lost and requested the complainant to declare the contents of the consignment. As such complainant informed the details of contents of the consignment by way of Ext. P2. On 27.04.2004 the opposite party sent a letter to the complainant that their liability is limited to Rs. 100 only as per contract. Copy of the said letter dated 27.04.2004 sent by opposite party is marked as Ext. P3. In Ext. P3, it is stated by the opposite party that the contents of the parcel mentioned in the complainant's letter is entirely different from that of mentioned earlier. It was said food items only. Ext. P3 further reveals that while booking the consignment complainant have not declared the contents or the value as required as per contract of carriage. Under such circumstances it is contended by the opposite party that their liability is limited to Rs. 100/- for any cause as per their contract. The loss of consignment is evident from Ext. P3 notice issued by the opposite party. It would amount to deficiency in service on the part of opposite party. Deficiency in service is proved. Regarding the quantum of compensation, the learned counsel for the complainant submitted that no such agreement had taken place between the complainant and the opposite party that the liability of opposite party due to non-delivery of the consignment will be restricted to Rs. 100/-. It is pertinent to note that complainant has not signed in the Ext. P1 consignment note. As complainant has not signed in consignment note, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is restricted to Rs. 100/- lay on the opposite party. Opposite party never turned up inspite of notice. No version filed. Opposite party set exparte. There is no cogent evidence to prove that there is any contract/agreement between the complainant and opposite party which restricts the compensation to be paid in case of non-delivery of the consignment only to be Rs. 100/-. It is settled position that meeting of minds is essential and in the absence of meeting of mind any term relating to limited liability would not be part of the contract and ordinary liability would flow in cases of deficiency in service. It is clear from Ext. P1 that the complainant had sent consignment weighing 3 kg through the courier but the value of contents was not declared in Ext. P1. The contents and the cost of each item were mentioned in Ext. P2. As per Ext. P2 the value of the consignment has been Rs. 3340/-. Considering all aspects of the case, and submissions of the complainant as well as the evidence on record in our opinion an amount of Rs. 2000/- as compensation would meet the ends of justice.<br /> <br /> In the result complaint is allowed. Opposite party shall pay Rs. 2000/- as compensation to the complainant and Rs. 500/- as cost of the complaint. The said amount shall carry interest at the rate of 9% per annum if not paid within two months of this order. <br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th April 2008. <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> S.K.SREELA : MEMBER<br /> <br /> <br /> O.P.No. 209/2004<br /> <br /> APPENDIX<br /> <br /> I COMPLAINANT'S WITNESS : <br /> <br /> PW1 - Alex M.J<br /> <br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Copy of Courier Consignment Note dated 13.03.2004.<br /> P2 - Copy of declaration regarding value of the contents of the parcel submitted to the opposite party.<br /> <br /> P3 - Copy of the letter dated 27.04.2004 sent by the opposite party to the complainant.<br /> <br /> III OPPOSITE PARTY'S' WITNESS :<br /> <br /> NIL<br /> <br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> <br /> NIL<br /> <br /> <br /> PRESIDENT<br />