BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, FATEHABAD.
Complaint no.286/2016.
Date of instt.03.11.2016.
Date of Decision:12.10.2017.
M/s Sachin Medical Agency, Tohana Tehsil Tohana, District Fatehabad through its Proprietor Sachin Bhatia.
..Complainant.
Versus
1.M/s Vijay Enterprises, R.B. Complex, Main Bazar, Tohana District Fatehabad through its Proprietor/Partner.
2.M/s On Dot Courier, Red Square Market, Behind Palki Hotel, Hisar, District Hisar through its Manager
3.The Director, On-Dot Courier Limited, 8/42 Kirti Nagar, Industrial Area, Delhi-110015 through its Director/ Authorized Signatory.`
..Opposite parties.
Complaint under Section 12 of Consumer Protection Act, 1986.
Before Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt.Ansuya Bishnoi, Member.
Present : Sh.Sandeep Bhatia, Advocate for complainant.
Sh.Rakesh Garg, Advocate for the OP No.1.
Sh.Sandeep Tantia, Advocate for OPs No.2 and 3.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant with the averments that the complainant had sent the medicines of the value of Rs.55,000/- approximately to the Firm M/s Plus Pharmacy, Sector 67, Noida through courier service of OP No.1 on 06.02.2016 vide receipt No.638877276 having weight of 4 Kgs 250 gm. OP No.2 is the Divisional office and OP No.3 is the Head Office of the Courier Service, therefore, the complainant is a consumer of the OPs as per the definition provided in the Consumer Protection Act 1986. It is further averred that the medicines by way of parcel sent by the complainant was to be delivered within two days and when the above said medicines sent by the complainant were not delivered after passing of one week, then the complainant contacted to OP No.1 to know the reason of not delivering the medicines. It was told to the complainant that the parcel of the medicines is in transit and the same would be delivered within a very short period. However the above said medicines were not delivered to the addressee. Therefore the complainant requested to the OPs several times either to deliver the goods or to refund the cost of the same. However, the OPs delayed the matter on one pretext or the other and did not give any satisfactory reply.
2. Thereafter the complainant served a legal notice to the OPs through his counsel. However no reply to the legal notice was given to the complainant by the OPs. It is further submitted by the complainant that above said act on the part of OPs amount to deficiency in service on their part and on account of the above said act the complainant has suffered huge financial loss, mental agony and physical harassment. Hence, this complaint.
3. On notice OP No.1 appeared and resisted the complaint by filing a written statement wherein various preliminary submissions i.e. the complainant has no cause of action to file the present complaint against the OP No.1; that the complainant does not fall under the definition of consumer as provided under the Consumer Protection Act, 1986; that the present complaint is bad for mis-joinder and non-joinder of necessary parties; that this Forum has no jurisdiction to entertain and try the present complaint; that the complainant has not come to this Forum with clean hands and has suppressed the true and material facts; that the present complaint is not maintainable etc. have been raised . In reply on merits, it has been admitted that the medicines of the complainant was sent through courier of the OPs. However it is denied that the complainant falls within the definition of the consumer as the goods were delivered for commercial purposes. It is further submitted that the OPs liability for any loss or damage to the shipment has been limited to Rs.100/- to each shipment as per clause 4 of Limitation of Liability. It is also further submitted that the complainant himself did not follow the provisions of clause 2(e) of the terms and conditions of the carriage wherein it is provided that the shippers shall declare the value of the articles in case the value of the articles is more than Rs.10,000/-. Therefore answering OPs is not liable for payment of cost of medicines. It is further submitted that the terms and conditions of the courier were duly issued to the complainant and he is bound by the same and as per the terms and conditions the liability of the company is only up to Rs.100/-. The OP no.1 finally prayed for dismissal of the complaint being devoid of any merit.
4. OPs No.2 and 3 also appeared and file a joint written statement wherein the complaint has been resisted exactly on the same grounds which were raised by OP No.1 in his written statement.
5. Sachin Bhatia, Proprietor of the complainant Firm filed an affidavit Annexure CW1/A wherein the averment made in the complaint has been affirmed. The complainant also tendered in evidence documents Annexure C1 to C10 in support of his case and closed his evidence. On the other hand Satish Jangra, Authorized Signatory of the OPs No.2 and 3 filed affidavit Ex.RW2/A and Vijay Kumar filed affidavit Ex.RW1/A on behalf of OP No.1 and closed their respective evidence.
6. We have heard the learned counsel for the parties and have also examined the documents placed on the record of the case. It is the case of the complainant that he had sent the medicines of the value of Rs.55,000/- approximately to M/s Plus Pharmacy, Sector-67, Noida through the courier service of OP No.1 on 06.02.2016 vide receipt No.6338877276 and OP No.2 is Divisional Office and OP No.3 is Head Office of the Courier Service. However the above said parcel of medicines was not delivered to the destination. Therefore, the complainant made several requests to the OPs either to deliver the goods or return the cost of the same amount to Rs.55,000/-. However the OPs neither delivered the goods not returned the cost of the same to the complainant. The above said act of the OPs amounts to negligence and deficiency on the part of OPs. Therefore the complainant is entitled for return of the cost of goods along-with interest and compensation for mental agony and harassment. On the other hand it is the case of the OPs that the complainant does not fall within the definition of consumer as provided under the Consumer Protection Act, 1986, as the goods were sent for commercial purposes. Besides this the OPs liability for any loss or damage to the shipment has been strictly limited to Rs.100/- to each shipment as per Clause 4 of Limitation of liability. Moreover the complainant did not follow the provisions of Clause 2(e) of terms and conditions of carriage vide which it is provided that Shippers shall declare the value of the articles wherein the value of the goods is more than Rs.10,000/-. Therefore the present complaint is liable to be dismissed. It is not disputed that medicines of the complainant were sent to Noida through the Courier Service of Ops. It is also not disputed that the medicines were not delivered to the destination. The first issue involved in the present case for decision by this Forum is as to whether the complainant falls within the definition of consumer or not as provided under the Consumer Protection Act, 1986. Regarding this issue the complainant in his affidavit Annexure CW1/A has submitted that the medicines were sent by him for earning his livelihood by way of self employment and the medicines were not sent for any commercial purpose or investment. The onus to prove that the medicines were sent through courier for commercial purposes was on the OPs. However the OPs did not lead any evidence to prove that the medicines in question were sent for commercial purposes by the complainant. Therefore we are of the opinion that the complainant falls within the definition of consumer.
7. From perusal of the record of the case it is revealed that the value of medicines was not declared by the complainant to the OPs at the time of booking and nor the same were insured by the complainant. Therefore the complainant has violated the Clause 2(e) of the terms and conditions of carriage. Moreover as per Clause 4 of the terms and conditions of the carriage the liability of the OPs have been restricted to Rs.100/- in case of loss or damage to the goods sent through courier. Terms and conditions of carriage is Annexure R-1. It is not the case of the complainant that the terms and conditions of carriage were not communicated to him. Therefore it is proved on record that terms and conditions were communicated to the complainant. The complainant was bound to read the terms and conditions, written overleaf and also bound by those terms and conditions. As pre Clause 4 in case of loss or damage the maximum liability of the company is Rs.100/- only. In case M/s Trackon Courier Private Limited Vs. Gopal & Anr. decided on 17.03.2011 the Hon’ble Haryana State Consumer Disputes Redressal Commission has held that where a contract does not stipulate that the courier company would be liable to reimburse the price of goods in case of loss, delay or damage the party dispatching the goods cannot claim price of those goods as compensation. We are of the opinion that this Forum cannot give relief for damages in excess of the limits prescribed under the contract. Therefore the OPs are directed for making a payment of Rs.100/- to the complainant as per Clause 4 of the limitation of liability and Rs.10,000/- as compensation on account of mental agony, physical harassment and litigation charges etc. suffered by the complainant. The present complaint is disposed of accordingly. Copy of this order be communicated to the parties free of costs. File be consigned to the record after due compliance.
Announced in open Forum.
Dated: 12.10.2017.
(Raghbir Singh)
President
(Ansuya Bishnoi) (R.S.Panghal) District Consumer Disputes
Member Member Redressal Forum,Fatehabad
