PRESENT: Sh.Sumeet Jain, Adv. for the Complainant.

         OPs ex-parte.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, the Complainant received an order from a Dealer in Bhatinda for supply of goods (Auto Paints) of Rs.2.00 lacs, which was subject to approval of sample of goods. In pursuance of the same, it sent goods, MRP of which was Rs.6500/- and Rs.4800/- (after trade discount) for approval, through OPs vide Receipt No. DEL 421448, dated 14.4.2009, weighing 6.600 Kg from Manimajra Office and paid Rs.140/- for the same. It was assured by the OPs that the good would reach at Bhatinda within 03 days i.e. by 17.04.2009. On 18.04.2009, when the consignee informed the Complainant about the non-deliverance of the consignment, the OPs No. 2 & 3 were contacted and it was assured that the consignment would reach within 02 days, as the same was misplaced by their employees. When on 21.4.2009, the consignment did not reach its destination, OP No. 1 was contacted, who assured that goods would be traced and would be delivered to consignee within 03 days, as the same had been wrongly sent to Ahmedabad. In the meanwhile, to the dismay of the Complainant, the Dealer at Bhatinda cancelled the order placed by him, as the sample did not reach to them in time. Accordingly, a legal notice dated 14.5.2009 was served upon the OPs, but they failed to deliver the consignment. It was further alleged that on 6.6.2009, representative of OPs came to the Complainant and returned back the goods sent, in totally damaged condition, which was wrongly sent to Ahmedabad by the OPs. Representative of OPs admitted their mistake and asked the Complainant to raise a claim for the damage. On the same day, Complainant made a claim statement of Rs.4940/- (Rs.488/- for goods and Rs.140/- courier charges) and handed over the same to the representative of the OPs. Thereafter, the Complainant contacted the OPs umpteen number of times, but they failed to reimburse the claim raised. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for the following reliefs:-

a)  The OPs be directed to reimburse the claim raised of Rs.4940/- (Rs.4800/- for Goods and Rs.140/- Courier Charges).

b)  Rs.15,000/- be awarded on account of loss of business i.e. the profit which Complainant was to earn from the order of Bhatinda Dealer;

c)  Rs.50,000/- be awarded on account of loss of reputation and loss of future business and, mental agony and harassment suffered by Complainant due to deficiency in service and unfair trade practice on part of OPs; and

d)  Rs.3,000/- as litigation expenses.

e)  Any other relief which this Hon’ble Court may deem fit in the facts and circumstances of the case may also be granted in favour of the Complainant.

2]      Notice of the complaint was sent to OPs seeking their version of the case. 

3]      OPs in their joint written statement, while admitting the factual matrix of the case, pleaded that the Complainant did not receive any order from a Dealer in Bhatinda for supply of goods (Auto Paints) of Rs.2.00 lacs, which was subject to approval of sample, as alleged. It was also denied that the Complainant sent goods of Rs.6500/- of Rs.4800/- (after trade discount) for approval. It was admitted that the Complainant booked its consignment on 14.4.2009, which was to be delivered to one M/s Manish Enterprises at Bhatinda, containing liquid paint, without disclosing the contents of the consignment to the OPs. The container of the liquid paint had not been properly sealed and packed properly. Since the Complainant did not disclose the contents of consignment at the time of booking the same, OP No. 2 booked the consignment in good faith, as the OPs do not book such items. OP No. 2, thereafter, forwarded the consignment to OP No.3. It was pleaded that in transit from Manimajra to Chandigarh, the address of the consignee got blurred due to leakage of the liquid paid and was got misrouted from Chandigarh to Ahmedabad, instead of Chandigarh to Bhatinda. In these circumstances, the addresses of consignee and consignor of the consignment could not be identified and the needful could not be done and the consignment was lying in store of the OP at Ahmedabad as untraced. It was traced only when the OPs got the complaint from the Complainant regarding non-delivery of the consignment. It was pleaded that non-delivery of the consignment was neither intentional nor malafide, but due to the reasons stated above. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      Subsequently, after filing reply and evidence, nobody turned up on behalf of OPs; hence they were proceeded against ex-parte vide order dated 04.01.2010.

5]      Parties led evidence in support of their contentions.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OP No. 1, 2 & 3. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having booked a consignment of goods from Manimajra Office of the OPs with the destination as Bhatinda (Punjab) on 14.4.2009, after paying a sum of Rs.140/- for the purpose, have all been admitted. The goods were expected to reach Bhatinda within next 03 days i.e. by 17.04.2009, but the same did not reach the destination for a long time and finally, it was on 6.6.2009 i.e. after a period of about 14 months that the OPs returned the goods to the Complainant in a totally damaged condition. As a matter of fact, the goods were wrongly sent by the OPs to Ahmedabad, instead of Bhatinda and the same were lying there unattended and it was only when the Complainant asked for their disposal from the OPs that the matter came to light about the goods having wrongly been sent to Ahmedabad, instead of Bhatinda.

ii] The OPs in their written statement/ reply have admitted most of the facts of the case stating that the Complainant had never disclosed the contents of the consignment to the OPs and that the container of the liquid paint had not been properly sealed and packed, which led to leakage of the paint in the packet, resulting in the address of the consignee getting blurred and, therefore, the consignment was erroneously sent to Ahmedabad and was lying there at Ahmedabad as untraced consignment. The OPs have further stated that the lapse on their part was neither intentional nor malafide, but because of the above said reasons only.

iii] In the written statement/reply, the OPs have stated that as per the booking terms and conditions, their liability is limited to Rs.100/- only, but it is quite clear that the consignment note prepared by the OPs has not been signed by the Complainant at any place and, therefore, this condition of limited liability of OPs upto Rs.100/- only has no meaning and the same is not binding on the Complainant.

iv] There is an authority of the National Consumer disputes Redressal Commission, New Delhi, as per which when the consignment note is not signed by the Complainant and the conditions on the reverse in small print are not explained, there is deficiency of service on the part of the OP and they are liable to pay compensation to the Complainant. The head note of the relevant judgment is quoted below:-

        “III (2003) CPJ 160 (NC)

        Osuri Devendra Phanikar

        ---- Petitioner

                V/s

        Desk to Desk Couriers & Cargo Ltd.

----- Respondent

Revision Petition No.2086 of 2000

Decided on 1.8.2003

Consumer Protection Act, 1986 – Section 21(b) – Courier Services – Consignment containing important papers not delivered – Compensation of Rs.100/- granted by Forum – Appeal for enhancement of compensation dismissed by State Commission – Hence revision – Consignment note not signed by Complainant – conditions on reverse in small print, not explained – Deficiency in service proved – Compensation enhanced to Rs.5,000/-.

Result: Revision Petition allowed

Case referred:

II(2002)CPJ 243 (NC). (Referred).”

7]      From the above detailed analysis of the case, it is quite clear that there is clearly deficiency of service on the part of the OPs. Their contention that the consignment was not properly packed and that led to the leakage is not tenable, because if the packet was not in good condition at the time of its receipt by the OPs, they should not have accepted the same at all, or accepted under objection at the sole risk and responsibility of the Complainant only. Another contention of the OPs that normally they do not accept such kind of consignments, is also not valid, as in that case also they could have easily refused to accept the consignment, which was clearly not done by them. The net result of the lapses and deficiency on the part of the OPs has resulted in considerable financial loss as well as loss of reputation to the Complainant and also considerable harassment to it.

8]      Keeping in view the foregoings, it is our considered view that the Complainant’s case has a lot of merit, substance and weight in its favour. Moreover, although the OPs submitted their reply/ written statement, but have not appeared either in person or through their Counsel to argue the case. In view of this and on merit, we decide the case in favour of the Complainant and against the OPs. The OPs are directed to make the following payments to the Complainant:-

i)  To refund Rs.140/- as the courier service charges to the Complainant.

ii) To pay a compensation of Rs.5,000/- on account of harassment, as well as loss of business caused to the Complainant by the OPs for a period of more than one year.

iii) The OPs shall pay litigation costs of Rs.5,000/- to the Complainant. 

9]      The aforesaid order be complied with by the OPs within a period of 04 weeks from the date of receipt of its certified copy, failing which, they shall pay the sum of Rs.5,140/- along with interest @18% per annum from the date of booking of the consignment i.e. 14.04.2009, till the date of realization, besides paying the cost of litigation at Rs.5,000/-.

10]    Certified copy of this order be communicated to the parties, free of charge. After compliance file