BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 520/2002

Dated : 15.06.2009

Complainants:

1. M. Ramachandran, Lekshmeevaram, Sankaranpara Lane, Mudavanmugal, Poojappura P.O, Thiruvananthapuram -12.

    

2. Deepa Udayakumar, Door No. 6/191, Ragasudha, Near Perikkappalam, Thottakkattukara, Aluva.

Opposite parties:

1. M/s Professional Couriers represented by its Area Manager/Managing Director, Thycaud, Thiruvananthapuram – 14.

    

   (By adv. Salini S. Nath)

2. The Branch Manager, Professional Couriers, Kailas Building, Poojappura, Thiruvananthapuram-14.

    

3. The Branch Manager, Professional Couriers, Bank Junction, Aluva.

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 12.04.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 15.05.2009, the Forum on 15.06.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant is the consumer of the opposite parties. On 05.10.2002 1^st complainant entrusted the 2^nd opposite party a consignment packet consisted of a D.D for Rs. 4,000/- and a digital wrist watch costing Rs. 1,500/- for delivery to his daughter, the 2^nd complainant at Aluva. The 2^nd complainant received the said consignment packet on 08.10.2002 with the D.D inside and the digital wrist watch was missing. This fact was brought to the notice of the 1^st opposite party on 11.10.2002, but the opposite parties did not care to reply. The opposite parties in order to make unjust enrichment diverted the consignment wilfully and with malafide intention. Opposite parties are liable to pay punitive damages. Hence this complaint to get back the price of the digital wrist watch along with compensation.

Opposite parties entered appearance and filed version contending that the complainants are not consumers. There is no consumer dispute or deficiency in service or unfair trade practice. Complainant had neither disclosed the contents nor the value of the contents at the time of entrusting the consignment and opposite parties were not aware of the contents of the consignment. If the value of the consignment was far in excess of the maximum limited liability, complainant ought to have taken a transit insurance cover. Opposite parties had delivered the consignment in good condition without any delay to the consignee. It is true that the complainant had informed the opposite parties regarding the alleged loss of the wrist watch on 11.10.2002 for which the opposite parties had issued a detailed reply also. The courier consignment note is the basis of the contract between parties which clearly shows the conditions of carriage and the clause limiting the carrier's liability in sufficiently bold prints which are easily readable. As per the terms and conditions if at all the 1^st complainant had suffered any loss due to the act of the opposite parties, the opposite parties' liability has to be confined to Rs. 100/- only. There is no deficiency in service or negligence on the part of opposite parties. Hence opposite parties prayed for dismissal of the complaint.

The points that arise for consideration are:-

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

2. Whether the complainant is entitled for compensation? If so, at what amount?

3. Whether the complainant is entitled to cost, if so at what amount?

In support of the complaint, 1^st complainant has filed proof affidavit and Exts. P1 and P2 were marked. In rebuttal, 1^st opposite party filed counter affidavit. Opposite parties did not file any documents.

Points (i) to (iii):- The case of the complainants is that on 05.10.2002 the 1^st complainant entrusted the 2^nd opposite party a consignment packet consisted of a D.D for Rs. 4,000/- and a Digital wrist watch costing Rs. 1,500/- for delivery to his daughter, the 2^nd complainant, Door No. 6/191, Ragasudha, Near Perikkappalam, Thottakkattukara, Aluva, that the 2^nd complainant had received the said consignment packet on 08.10.2002 with the D.D inside, devoid of digital wrist watch and that the fact was brought to the notice of the 1^st opposite party on 11.10.2002, but opposite parties did not care to reply. Ext. P1 is the copy of the consignment note. As per Ext. P1, the consignor is the 1^st complainant M. Ramachandran, the date of consignment is 05.10.2002, the weight of the consignment is not mentioned clearly, total cash/credit is Rs. 10.50. A perusal of Ext. P1 would reveal that 1^st complainant has not declared the value of the contents of the consignment. It is the case of the complainant that the consignment parcel consisted of a D.D and a digital wrist watch. It is to be noted that the complainant has not signed in the Ext. P1 consignment note. Main thrust of argument advanced by opposite parties is that the complainant has neither disclosed the contents nor the value of the contents at the time of entrustment of the consignment packet, that opposite parties were not aware of the contents of the said consignment. Opposite parties submit further that if the value of the consignment was far in excess of the maximum limited liability indicated, the complainant ought to have taken transit insurance. In this case, no transit insurance is seen taken by the complainant. Ext. P2 is the copy of the letter dated 11.10.2002 addressed to the 1^st opposite party informing him of the missing of the alleged digital wrist watch. Opposite parties submit that 1^st opposite party had received the Ext. P2 letter dated 11.10.2002 for which 1^st opposite party had issued a detailed reply. According to complainants, opposite parties did not care to reply nor did opposite parties file the copy of the reply. Complainant has no case that the consignment has not been delivered in good condition. It is pertinent to point out that the courier consignment note is the basis of the contract between parties. On perusal of Ext. P1 consignment note, it is found that complainant has neither disclosed the contents nor declared the value of contents nor put signature in Ext. P1. 1^st complainant in his affidavit deposed that 2^nd complainant had received the consignment at her residence at Aluva on 08.10.2002 with D.D inside and missed digital wrist watch and on 11.10.2002 he had sent written letter by Ext. P2 to the 1^st complainant, followed by several telephone calls and personal visits to the office of opposite parties 1 & 2, but they did not care to reply. Opposite parties did not furnish delivery slip or copy of the reply to Ext. P2. 1^st complainant has not been cross examined by the opposite parties, thereby the affidavit filed by the 1^st complainant remains uncontroverted. Deficiency in service is proved.

Regarding the quantum of compensation, it is contended by opposite parties that their liability is limited to Rs. 100/- for any cause as per contract. In this context it is to be noted that complainant has not signed in Ext. P1 consignment note. As complainant has not signed in Ext. P1, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is restricted to Rs. 100/- would rest on the opposite parties. There is no cogent and clinching evidence to prove that there is any contract/agreement between the 1^st complainant and opposite parties which restricts the compensation to be Rs. 100/-. It is settled position that meeting of minds is essential and in the absence of meeting of minds 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 to be highlighted the fact that 1^st complainant has never revealed the contents of the consignment parcel or the value of its contents in Ext. P1, nor has complainant produced any document showing the price of the lost digital wrist watch. Complainant has liability to reveal the contents, its value by way of documents. Considering all aspects of the case and evidence available on records in our opinion an amount of Rs. 2,000/- as compensation would meet the ends of justice.

In the result, complaint is allowed. Opposite parties shall jointly and severally liable to pay Rs. 2,000/- as compensation to the 1^st complainant. The said amount shall carry interest at the rate of 12% per annum if not paid within two months from the date of receipt of this order. Both parties shall bear and suffer their costs.

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 June 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

O.P. No. 520/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of Courier Consignment Note dated 05.10.2002.

P2 - Copy of the letter dated 11.10.2002 addressed to the 1^st opposite party.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT