Date of filing: 31.12.2013.
Date of disposal: 28.10.2014.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – II:
VIJAYAWADA, KRISHNA DISTRICT
Present: Smt N. Tripura Sundari, B. Com., B. L., President (FAC)
Sri S. Sreeram, B.Com., B.A., B.L., Member
Tuesday, the 28th day of October, 2014
C.C.No.67 of 2014
Between:
M/s Jaay & Harry Woxman (India), Rep: by its Proprietor, Dasari Amareshvar, Hindu, Aged about 35 years, Having its Registered Office at J & H House, Northern End, D.No.29-26-65, Jadagamvari Street, Suryaraopet, Vijayawada, Krishna District.
…..Complaina
And
M/s Vijay Couriers, Rep: by B. Murali, Hindu, Aged about 45 years, D.No.29-19-49, Dornakal Road, Vijayawada – 2, Krishna District.
.. … Opposite party.
This complaint coming on before the Forum for final hearing on 13.10.2014, in the presence of Sri D. Anil Kumar, advocate for complainant; Sri A. Sainadh Babu, advocate for opposite party and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Sri S. Sreeram)
This is a complaint filed by the complainant under Sec.12 of Consumer Protection Act against the opposite party directing to restore the consignment covered by invoice Nos.UJJ-39 and UJJ-40, dt.15.6.2013 and 15.6.2013 respectively covered by receipt No.65843, dt.15.6.2013 issued by opposite party, alternatively to pay the cost of consignment being Rs.48,902-75 + Rs.21,561.60 = Rs.70,464.35 ps including with interest at 24% p.a. from the date of consignment till date of payment, to compensate the complainant with a sum of Rs.2,00,000/-, costs of complaint and for other reliefs.
The brief averments of the complaint are as follows:
1. The complainant during the course of business used to consignee the medicines required by the doctors and in that process, he booked three cartons bound to be delivered to the consignee M/s.Aravind Medical Hall, M/s.Pavan Eye Hospital, in the premises of Dr.D.Niranjan, Laxmi Nagar, Godavarikhani with invoice Nos.UJJ-39, dt.15.6.2013 for Rs.48,902.75 and UJJ-40, dt.15.6.2013 for Rs.21,561.60 ps through the opposite party courier vide receipt No.65843, dt.15.6.2013. The opposite party took delivery of said consignment from the complainant through Mr.Suresh, said to be the opposite party courier boy. But the opposite party has not delivered the same to the consignee and on the other hand, the opposite party represented that the said consignment cannot reach the destination as the same appears to have been committed theft during transit. On the other hand on continuous persuasions from the complainant, the opposite party addressed a letter dt.22.6.2013 stating that they are taking necessary steps. But nothing was materialized till now and as such the opp.aprty acted negligently and committed default. The complainant got issued a legal notice dt.28.8.2013 to the opposite party and the opposite party received the same on 30-8-2013 and kept silent. Hence, the complaint.
2. After registering the complaint, notices were sent to the opposite party. The opposite party filed version denying the allegations made in the complaint and contended that Mr.D.Amareswar who is no other than the brother of opposite party’s employee by name Smt.Indira approached the opposite party and requested to send three packets to Godavarikhani to Pavani Eye Hospital, but not to Mr.Aravinda Medical Hall and requested to send the same to special cargo. Due to obligation of Mr.D.Amareswar, the opposite party obliged the same and sent the same without taking any amount. It is further contended that the consignment was booked by D.Amaresawr only but not M/s.Jay and Harry Woxman (India) Ltd., and the complainant also did not declare the value of consignment or description of articles and also not insured the articles. It is further contended that as per the postal and courier services, the liability was limited and restricted up to Rs.100/- as per condition No.5 of the receipt. The opposite party further contended that the opposite party sent the 3 packets of consignment through their special agent Mr.D.Balakrishna of Machilipatnam who booked a ticket in APSRTC bus from Guntur to Godavarikhani bearing No. AP 21 Z 0188 and boarded the bus on 15-6-2013 along with luggage which were kept in the back cabin of bus and that after reaching the bus to Hanumakonda, the passengers and the said Balakrishna found that the back cabin of bus was break opened and the bags and baggages were found missing and in that regard, report was given to APSRTC authorities and also to police, but of no use. It is further contended that in spite of requests made by opposite party, the complainant has not produced the descriptive particulars of goods and not produced way bills. At last it is contended that the complainant is not maintainable as there is no money paid by the complainant for consignment and the complainant did not disclose the descriptive particulars of the goods and prayed to dismiss the complaint.
3. The complainant filed his chief affidavit reiterating the material averments of the complaint and got marked Ex.A1 to A5 on his behalf. The proprietor of opposite party filed affidavit and got marked Ex.B1 to B3.
4. Heard both sides and perused the record. Opposite party filed written arguments.
5. Now the points that stood for consideration are
- Whether there is any deficiency of service on the part of opposite party in not delivering the consignment to destination?
- If so, to what relief.
Point No.1
6. The undisputed facts in this case are that the opposite party is running a courier service under the name and style of M/s.Vijay Couriers at Vijayawada and it is a proprietory concern rep.by its proprietor Sri B.Murali. The complainant is also a proprietory concern rep.by its proprietor Sri D.Amareshwar who is dealing with distribution of medicines. In the process of business, the complainant booked three cartons which were bound to be delivered at M/s.Aravind Medical Hall, M/s.Pavan Eye Hospital, in the premises of Dr.D.Niranjan, Laxmi Nagar, Godavarikhani with the opposite party couriers under Ex.A2, which contains consignment bill bearing No.65843 on 15.6.2013. The case of the complainant is that the said consignment was not delivered at the destination till now. In this regard, the contention of the opposite party is that, out of intimacy with the opposite party, they have booked the consignment with free of cost and the said consignment was sent through their special agent Mr.Balakrishna who booked a ticket in bus bearing No. AP 21Z 0188 and during transit, the said consignment was found missing. B3 ticket show that one Mr.Balakrishna booked ticket to go to Hanumakonda on 15-6-2013. The further contention of opposite party is that immediately they reported the matter to police as well as APSRTC authorities, but in vain. Ex.B2 letter addressed by said Balakrishna to APSRTC authorities and Ex.A1 and A3 correspondence between the opposite party and complainant also discloses the fact that theft had been occurred during transit and the consignment booked by complainant were lost and not reached the destination. Though the opposite party contended that they reported the matter to police and APSRTC authorities, but no piece of paper such as FIR etc., are filed in proof of same. As such it is clear that the consignment booked by complainant was not delivered and the loss of consignment by courier is deficiency in service on the part of opposite party.
7. Now coming to the contentions of opposite party that they have booked the consignment with free of cost is concerned, it is the contention of opposite party that out of intimacy with D.Amareswar being relative of employee of opposite party, they have not collected the amount. In this regard, the contention of complainant is that he has paid the consideration for booking the goods. In support of his case, the complainant filed a letter addressed by opposite party to complainant along with a memo requesting to arrange Rs.2,020/- towards courier charges for the month of June, 2013. In the said letter, the receipt No.65843 under which the complainant booked the consignment was also mentioned and against it, a sum of Rs.450/- is charged. Further the said letter discloses that the complainant is a regular customer to opposite party. As such the contention of the opposite party that they have booked the consignment without collecting money cannot be accepted.
8. The other contention of opposite party is that the complainant not specified the value of the goods in the receipt or any where. In this regard, the oral contention of complainant is that they have affixed the value of the goods on the carton boxes, which were lost. Admittedly the consignment receipt was raised by the opposite party and at the time of booking, it is the duty of the opposite party to mention the value of goods in the receipt as there is a specific block in the receipt as ‘declared value’. In the present case, the opposite party kept the said block left. Further the complainant filed the invoices under Ex.A2, which discloses the value of product as Rs.48,902.75 ps and 21561.60 ps. In view of the above circumstances, this Forum has no option to accept the contention of complainant that the goods worth Rs.70, 464.35 ps were consigned through opposite party by the complainant.
9. The other contention of the opposite party is that the complainant has not taken steps to get consignment insured. In this regard, the complainant has not placed any material to show that they have insured the consignment. As per clause No.4 of bill under Ex.A2/B1, the customers are only advised to get the parcels insured. Further it seems that the opposite party has not insisted the complainant to get the consignment insured. If the complainant get insured the parcel or not, the opposite party is bound to deliver the goods at destination. In the preset case, the goods were lost during transit and as stated above loss of consignment by courier is deficiency in service. As such the opposite party is bound to make the loss good occurred to complainant.
10. It is the further contention of opposite party is that as per Ex.A2, the liability of opposite party in any case of loss or damage shall not exceed to Rs.100/-. Admittedly the complainant accepted the terms mentioned on the Ex.A2/B1 bill and as per clause No.5, the liability of opposite party is only Rs.100/-. The consignments will be booked through courier on good faith by the customers like complainant and in the present case also, the complainant booked a valuable goods worth nearly Rs.70,000/- with a good faith that the opposite party will deliver the consignment. But the consignment was lost during transit by way of theft, but not due to any floods, accidents, fire etc., Further it seems that the opposite party has not taken any steps for restoration of consignment except filing the letters addressed to APSRTC. As such the contention of opposite party that its liability is restricted to Rs.100/- cannot be accepted.
11. Now coming to the decisions relied on by the opp.parrty, in the first case i.e. F.A.No.156/1992 of Hon’ble National Commission, there is no evidence that complainant paid charges for courier and as such the complainant is not a consumer. But in the case on hand, as stated in para No.7 of this order, the complainant clinchingly proved that he has paid Rs.450/- for consignment. As such the said decision has no bearing to the facts of the case in hand. So far the 2nd decision i.e. FA No.65/1992 of Hon’ble National Commission, in the said order, the Hon’ble National Commission held that loss of consignment by courier is a deficiency in service, but before courier is held liable for loss, the consignee should disclose the value of consignment and ought to have taken steps to get consignment insured. With great respect to the above order, as concluded by us in para No.8 and 9 of this order, it is the duty of opposite party to disclose the value of consignment in the note. However there is negligence on the part of complainant in not getting the goods insured which were valuable. As such we are inclined to fasten liability on both parties.
12. In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.35,232/- (Rupees thirty five thousand two hundred and thirty two only) being half of the cost of goods with interest at 9% p.a., from the date of complaint i.e., 31.12.2013 till realization to the complainant, besides costs of Rs.2,000/- and compensation of Rs.5,000/-. Time for compliance is one month. The other claims of complainant shall stands dismissed.
Typewritten by Steno N. Hazarathaiah, corrected by me and pronounced by us in the open Forum, this the 28th day of October, 2014.
PRESIDENT (FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: -None- For the opposite parties: -None-
Documents marked
On behalf of the complainant:
Ex.A1 Photocopy of courier receipt and letters.
Ex.A2 15.06.2013 Photocopies of invoices and mail.
Ex.A3 26-06-2013 Original copy of letter issued by OP to complainant.
Ex.A4 28-08-2013 Photocopy of legal notice got issued by complainant to OP.
Ex.A5 Postal acknowledgement.
On behalf of the opposite party:
Ex.B1 Photocopy of terms and conditions of courier receipt.
Ex.B2 Photocopy of letter issued to Depot Manager , APSRTC, Kareemnagar by Balakrishna.
Ex.B3 Photocopy of ticket details.
PRESIDENT (FAC)
