BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 24/2008 Filed on 08/02/2008

Dated: 15..03..2011

Complainant:

D.V. Padmanabhan Nair, TC. 21/260, 'Poornima', JNRA D17, Judge Road, Karamana – P.O., Thiruvananthapuram – 695 002.

(By Adv. J.C. Stephenson)

Opposite party:

M/s. Professional Couriers, 'Prasantham', TC 24/345, Near Sastham Koil, Thycaud, Thiruvananthapuram – 695 014.

(By Adv. Mahesh. N.G)

This O.P having been heard on 20..01..2011, the Forum on 15..03..2011 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant had booked a consignment to Dr. A.B.Sasidharan Nair, Amba Ayurveda Vaidyasala, Kavala, Changanacherry on 15/12/2007 and opposite party had issued a consignment note to the complainant, that at the time of entrusting of parcel to the opposite party the Booking Clerk enquired as usual about the contents of the consignment and complainant said it conained a fairly costly saree and a few newly stitched blouses costing total amount of Rs.3,500/-, that the Booking Clerk accepted the consignment along with courier charges due and prepared the consignment note which handed over to him, that at the time of entrustment of the parcel to the opposite party it was informed that the consignment would reach the destination on 17^th Monday or at the latest by 18^th Tuesday, that the consignee did not receive the consignment till 26/12/2007, that on enquiry it was informed by the opposite party that the consignment is missing from their Kottayam Office and would it trace and deliver to the consignee soon, that on 26/12/2007 complainant lodged a written complaint with the booking Office and on 29/12/2007 addressed the Area Manager of the Professional Courier, that in the end of continued contact complainant was told that the consignment is not traceable and it should be considered as lost and if proved lost he would be suitably compensated. Hence this complaint to direct opposite party to pay a sum of Rs. 3,400/- towards the cost of contents of the consignment, Rs. 20,000/- towards compensation, Rs. 30/- towards cost of courier charges and Rs. 5,000/- towards other expenses.

2. Opposite party entered appearance and filed version contending inter alia that the complaint is not maintainable either in law or on facts, that complaint is bad for non-joinder of necessary parties, that complainant is not a consumer, that a consignment was entrusted to the opposite party by the complainant but the contents in the same were neither declared by the complainant to the opposite party nor made known to the opposite party, that no reply was sent by the opposite party, that complainant has not produced any scrap of evidence to show that the consignment contained the saree and blouses, that there was no deficiency in service or negligence on the part of the opposite party, that as per the terms and conditions, if at all any loss occurred to the complainant due to act of the opposite party (not admitted), the opposite party's liability has to be confined to Rs. 100/-. Hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite party?

2. Whether complainant is entitled to compensation and cost? If so, at what quantum?

In support of the complaint, complainant has filed proof affidavit in lieu of chief examination and has marked Exts. P1 to P3. In rebuttal, opposite party has filed affidavit. Opposite party has not furnished any documents.

4. Points (i) & (ii): There is no point in dispute that on 15/12/2007 complainant had entrusted the opposite party a parcel for delivery to Dr. A.B. Sasidharan Nair, Amba Ayurveda Vaidyasala, Kavala, Changanacherry. It has been the case of the complainant that the opposite party failed to deliver the said parcel to the said consignee. Ext. P1 is the copy of consignment note No. 3652557 dated 15/12. As per Ext. P1 the weight of the said parcel is 1.500kg., consignment charge is Rs. 30/-, consignor is D.V.P Nair and consignee is A.B. Sasidharan Nair. 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 costly saree and newly stitched blouses costing totally about Rs. 3,500/-. Ext. P2(a) is the copy of the letter dated 26/12/2007 addressed to Professional Couriers, Karamana requesting him to trace the consignment and deliver to the addressee without further delay. Ext. P2(b) is the copy of the letter addressed by the complainant to the Area Manager, Professional Courier, Chenthitta requesting him to take necessary steps to trace and retrieve the parcel and to deliver it to the addressee or to return to him. Ext. P3(a) is the copy of the letter from Professional Courier, Thycaud, Thiruvananthapuram dated 12/01/2008 addressed to the complainant. A perusal of Ext. P3(a) reveals that the consignment was lost enroute to Changanassery according to their Kottayam Office, that the content and its cost have not been declared by the complainant at the time of booking the consignment as required as per the contract of Carriage Act printed in the overleaf of the consignment note, therefore, they are not liable for compensation. Ext. P3(b) is the copy of the envelope. Ext. P3( ½ ) is the original of Ext. P3(a) and Ext. P3 (2/2 ) is the original of Ext. P3(b). As per Ext. P1 it is clear that while booking the consignment, complainant has not declared the contents or the value as required as per the contract of Carriage. It is the stand of the opposite party that under such circumstance opposite party's liability is limited to Rs. 100/- for any cause as per their contract. It is pertinent to point out that the loss of consignment is evident from Ext. P3(a) letter issued by opposite party to the complainant. The loss of consignment would amount to deficiency in service on the part of the oppposite party. Deficiency is proved by Ext. P3(a). Regarding the quantum of compensation it is to be noted that the consignor has not signed in Ext. P1 consignment note. As such we deny that no such agreement taken place between the complainant and opposite party to show that the liability of the opposite party due to non-delivery of the consignment will be restricted to Rs. 100/-. It is pertinent to point out that complainant has not signed in Ext. P1 consignment note. As the complainant has not signed in the consignment note there is no meeting of minds between the consignor and consignee to create a contract. The onus of proving that compensation is restricted to Rs.100/- would rest on the opposite party. Opposite party has not furnished any documents. There is no cogent evidence to prove that there is any contract or agreement between the complainant and opposite party which restricts the compensation to be paid in case of non-delivery of the consignment only to Rs. 100/-. It is the settled position that meeting of mind 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 case of deficiency in service. It is clear from Ext. P1 that complainant had sent consignment weighing 1.500kg through the Courier but the value of the contents was not declared in it. Complainant has not furnished any material to substantiate the value of contents, but in his complaint and affidavit he has stated that the consignment in question contains costly new saree and a few stitched blouses costing Rs. 3,500/-. Further he has stated in his affidavit that the Booking Clerk at the counter had enquired and checked with him as to the contents of the consignment, that after disclosure of the same the Booking Clerk accepted the consignment along with Courier charge due as consideration, prepared a consignment note and delivered it to him. Complainant has further stated in his affidavit that the consignment was a gift to his grand daughter (D/o Dr. A.B. Sasidharan Nair), to be worn by her on the day she was celebrating the house warming of a new flat purchased in Bangalore, that the said gift was sent through her father, who would be proceeding to Bangalore to attend the function scheduled for 2/1/2008. He has further averred in the affidavit that the sentimental value of the contents of the consignment is to be considered as a treasure more than the cost value of the material. Considering all aspects of the case, and submissions of the complainant and as well as evidence on record in our opinion an amount of Rs.3,500/- as compensation would meet the ends of justice.

In the result, complaint is partly allowed. Opposite party shall pay Rs. 3,500/- as compensation to the complainant along with Rs.1,000/- as cost. The said amounts shall carry interest at the rate of 9% per annum, if not paid within 2 months from the date of receipt of this order.

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.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15^th day of March, 2011.

G. SIVAPRASAD : PRESIDENT

BEENA KUMARI .A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No: 24/2008

APPENDIX

I. Complainant's witness:

PW1 : D.V. Padmanabhan Nair

II. Complainant's documents:

P1 : Original consignment Note dated 15/12/2008

P2 : The letter dated 26/12/2007 addressed to the opposite party

P2(b) : Copy of the letter addressed by the complainant to the Area Manager, Professional Courier, Chenthitta.

P3 : The Professional Couriers envelope conveying the above communication sent by the opposite party as per details noted on the envelope addressed to the complainant.

3. Opposite party's witness:

DW1 : R.V. Sudhamani

4. Opposite party's documetns : NIL

PRESIDENT