Haryana

Panchkula

CC/7/2016

SWAPAN SEHGAL. - Complainant(s)

Versus

M/S SEHGAL ENTERPRISES. - Opp.Party(s)

COMPLAINANT IN PERSON.

14 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                            

Consumer Complaint No	:	7 of 2016
Date of Institution	:	11.01.2016
Date of Decision	:	14.06.2016

                       

Swapan Sehgal s/o Late Sh.Narinder Sehgal, R/o House No.541, Ahata Shekhan, Opposite-Post Office, Kalka, Tehsil-Kalka, District Panchkula-133 302.

                                                                                      ….Complainant

Versus

 

1. M/s Sehgal Enterprises, authorized agency holder of On Dot Courier & Cargo Ltd., 543, Opposite- Post Office, Kalka, District Panchkula-133 302.
2. On Dot Courier & Cargo Ltd., through its franchisee holder, SCO-8 Sbji Mandi, Opposite-Navrang Hotel, Kalka, District Panchkula-133 302.
3. On Dot Courier & Cargo Ltd, through its Manager, 8/42, Kirti Nagar, Industrial Area, New Delhi-110015.
4. Amazon.com through its director, Divyasree Trinity Building, Plot No.6, Hi-Tec City Layout, Survey Number 64, Madhapur Village, Serilingampally, Ranga Reddy District Hyderabad, Telangana-500081.

 

                                                                        ….Opposite Parties

 

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person.

                             Defence of Op No.1 already struck off.

              Mr.P.S.Bedi, Adv., for the OPs No.2 and 3.

              Op No.4 already ex-parte.

 

ORDER

(Dharam Pal,  President)

 

1. The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 with the averments that he purchased an apple I phone 4s (white, 8GB) online through Amazon.com which was received by him on 18.06.2015 vide Invoice No. TG-HYD7-152824801-961 and IMEI No. 013592006490776. After receiving the mobile phone, the complainant was shocked to see that the mobile phone’s charger point was already broken and then he contacted the Amazon customer care & told the problem. The executive of customer care told the complainant to send back the mobile phone by courier and Amazon would replace the phone after getting the old phone. Thereafter, the complainant sent back the mobile phone through OP No.1 on 24.06.2015 vide Airways bill No.636173775 and assured the complainant that mobile phone would be delivered to Amazon Company within 7 to 10 days. After passing 10-12 days, the complainant enquired the matter from the Op No.4 who told that they have not received any mobile phone till date. The complainant asked from Op No.1 who sent him to Op No.2 and the Op No.2 assured the complainant that courier would be delivered at Hyderabad shortly. The complainant visited Ops No.1 and 2 many times and many times they assured him that the mobile phone would be delivered at destination or return back to origin within 10 days. After tracking online status of the courier, the complainant came to know that on 01.07.2015, it returned to origin due to non service for destination and it is forwarded to Delhi in transit on 02.07.2015. Thereafter, the complainant visited Ops No.1 and 2 many times and made many calls to OP No.3 but to no avail. This act and conduct on the part of the Ops amounts to deficiency in service. Hence, this complaint.
2. Op No.1 through authorized representative appeared on 16.02.2016 and sought time for filing written statement and the case was adjourned to 01.03.2016 for filing written statement of OP No.1. On 01.03.2016, authorized representative for the OP No.1 again sought time for filing written statement and the case was adjourned to 17.03.2016 for filing written statement of Op No.1. On 17.03.2016, none has appeared on behalf of Op No.1 and the case was adjourned to 04.04.2016 for filing written statement of Op No.1. On 04.04.2016, again none has appeared on behalf of Op No.1 and nor any written statement has been filed after availing many opportunities and the defence of Op No.1 was struck off vide order dated 04.04.2016.
3. Ops No.2 and 3 appeared before this Forum and filed written statement by taking some preliminary objections and submitted that this Forum has no jurisdiction to entertain the present complaint because as per tracking record, the cause of action has accrued at Hyderabad as the consignment was forwarded to Delhi on 02.07.2015 at 19:15 hrs from Hyderabad. It is submitted that the present complaint is liable to be dismissed as the complainant has failed to serve a statutory legal notice u/s 10 of the Carriers Act. It is submitted that the consignment had been sent by the complainant at his own risk without handing over the bill of the purchased goods and moreover without insurance cover. It is submitted that as per terms and conditions mentioned on the consignment note, the Ops have limited its liability to a maximum of Rs.100/- per consignment for any loss to the consignment within India and to a maximum of US$ 100/- for international consignments. It is submitted that no insurance cover has been brought by the complainant at the time of booking despite specific query of the booking clerk of the Ops. It is denied that the complainant enquired about his mobile phone from Amazon. It is submitted that the complainant had never visited to the Ops No.2 and 3. It is submitted that it is clearly mentioned on the receipt that No claims shall be entertain for cash, jewelry, contrabands, passports & instruments in bearer form including undeclared items/IATA restricted items/value booking of share certificate with blank transfer deed are strictly prohibited. Thus, there is no deficiency in service on the part of OPs No.2 & 3 and prayed for dismissal of the complaint with costs.
4. Notice was issued to the Op No.4 through registered post but none has appeared on behalf of the Op No.4. It is deemed to be served and the Op No.4 was proceeded against ex-parte vide order dated 16.02.2016.
5. The complainant tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-3 and closed his evidence. On the other hand, counsel for the Ops No.2 and 3 has tendered the evidence by way of affidavit Annexure R-A and closed the evidence.
6. We have heard the complainant appearing in person and learned counsel for the Ops No.2 and 3 and have also perused the record carefully and minutely.
7. Admittedly, the complainant had placed an order with OP No.4 which was received on 18.06.2015 vide invoice No.TG-HYD7-152824801-961 and IMEI No.013592006490776. Perusal of case file reveals that the order was placed for purchase of an apple I phone 4s (white, 8GB) but after receiving the mobile phone, the complainant was shocked to see that the charger point of the mobile phone was broken. The complainant contacted the customer care of Op No.4 who told the complainant to send back the mobile phone by courier and the Op No.4 would replace the mobile phone, therefore, the complainant had returned the product to the Op No.4 through courier on 24.06.2015 who assured that the mobile phone would be delivered to Op No.4 within 7 to 10 days but the same would not reach at its destination. After tracking online status of the courier, the complainant came to know that on 01.07.2015, the mobile phone was returned to origin due to non service for destination and it forwarded to Delhi in transit on 02.07.2015. Had it been so, it was obligatory on the part of the OP No.1 to intimate the complainant with this condition but the OP No.1 has not filed any written statement to contest the claim of the complainant. It is not disputed that the mobile phone was received by the complainant on 18.06.2015 and the complainant had sent the same to the OP No.4 on 24.06.2015 as is evident through  Annexure C-2 i.e. courier receipt. Now the question arises as to whether there is any kind of deficiency in service on the part of the Ops No.1 to 3. The complainant has tendered in evidence his affidavit Annexure C-A in which he has sworn all the averments as pleaded in the complaint. In addition he has also tendered in evidence a receipt dated 24.06.2015 i.e. Annexure C-2 to prove the fact that he had booked a packet for the delivery at Hyderabad. The plea taken by the complainant that the Ops have neither delivered the courier to the addressee i.e. OP No.4 nor returned the packet to the complainant because there is nothing on the file to suggest that the packet was delivered to the address. Moreover, the Op No.1 has not filed any written statement to contest the claim of the complainant. Hon’ble Union Territory State Consumer Disputes Redressal Commission, Chandigarh in case titled as Rana Document Centre V. Pawan Kumar Goyal I (2012) 29 has held that Courier-Non delivery of letter- Deficiency in service-Unfair Trade Practice-Complaint allowed and compensation granted-Hence, present appeal-Undisputedly, letter booked was neither received by addressee nor returned to the complainant- There was privity of contract between complainant and appellant-complainant could not suffer for lapse of appellant-On account of non receipt of letter to his sister  before day of Raksha Bandhan, complainant suffered mental,  physical and emotional harassment-Deficiency in service on part of appellant proved-Compensation right granted-Impugned order upheld.
8. In view of the above discussion, it is established that Ops No.1 to 3 had not delivered the consignment at the destination, thus, it amounts to deficiency in service on their part. The complaint qua Op No.4 is not maintainable as he is the seller of the product which was not delivered to him by the Ops No.1 to 3. Hence, the complaint qua Op No.4 is liable to be dismissed and the same is dismissed qua Op No.4 accordingly. We are of the view that the present complaint deserves to be allowed qua Ops No.1 to 3 and the same is accordingly allowed. The Ops No.1 to 3 are jointly and severely directed as under:-

1. To refund Rs.13,089/- the cost of apple I phone 4s (white, 8GB) alongwith interest @ 9% p.a. from the date of booking of consignment till realization.
2. To pay an amount of Rs.10,000/- as compensation for mental agony, harassment and cost of litigation.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy. A copy of this order be supplied to the parties free of costs.  File be consigned to records after due compliance.

 

Announced

14.06.2016      S.P.ATTRI          ANITA KAPOOR          DHARAM PAL

                          MEMBER           MEMBER                             PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                          

                                                     DHARAM PAL 

                                                     PRESIDENT