BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 529 of 2015
Date of Institution: 4.3.2015
Date of Decision :21.04.2016
Dilnivaz Singh son of S. Rajinder Singh, permanent resident of House No. 73, Village Raipur Khurd, Tehsil Ajnala Distt.Amritsar and correspondence address :Shop No.2, Nanak Traders, Baba Deep Singh Market, Ravidass Road, Hall Bazar, Amritsar
Complainant
Versus
- M/s. Mandeep Networks (Telecom) Inside Fruit Shop, Main Chowk, Dera Road, Ajnala Distt.Amritsar
- DTDC Courier & Cargo Limited having its office at City Centre, Near Bus Stand, Amritsar, through its Principal Officer
Opposite Parties
Complaint under sections 11 & 12 of the Consumer Protection Act, 1986
Present: For the Complainant : In person
For the Opposite Parties No.1 & 2 :Sh.Ajay Shanker,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Earlier the instant complaint was dismissed in default by this Forum vide order dated 13.7.2015. But, however, in appeal case was remanded back by the Hon’ble State Commission, Punjab vide its order dated 10.8.2015 directing this Forum to decide the complaint in accordance with the provisions of the Act.
2. Dilnivaz Singh has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that complainant purchased one mobile set i.e. Auxus Nuclea for Rs. 15,990/- through online from Iberry India, 4/42, Building No.4, Second Lane Beach,Chennai Tamil Nadu vide invoice No. IbberyNV497 dated 18.9.2014. Opposite party No.1 is engaged in the business of courier service at Ajnala, whereas opposite party No.2 is the local office of DTDC Courier and Cargo at Amritsar and as such the present complaint is being filed against them. The aforesaid mobile phone developed some problem and its software got corrupted during warranty period and after discussion with the company, the complainant sent back the mobile set to the company at 4142, Building No.4, Second Lane Beach, Chennai-Tamil Nadu for its repair through opposite party No.1 vide courier receipt No. 727523651 dated 30.7.2014 on payment of courier service charges to the tune of Rs. 150/-. At the time of receiving the consignment , opposite party No.1 assured the complainant that the courier will reach its destination within 3-4 days. The consignment was sent to the company through opposite party on 30.7.2014 but despite lapse of consideration period, the said consignment has neither been delivered to the consignee nor returned back to the complainant . The complainant approached the opposite parties several time and brought to their knowledge the fact that the consignment has not been reached its destination. But the opposite parties put off the matter under one pretext or the other . It is also pertinent to mention here that the complainant also recorded the conversation of the opposite party in his mobile phone in which the opposite parties have admitted their fault. The opposite party had received courier charges to the tune of Rs. 150/- from the complainant for delivering the courier at its destination and by not delivering the consignment at its destination or returning the same to the complainant, complainant has suffered loss of Rs. 15990/-. It is, therefore, requested that opposite party may be directed to pay the price of the mobile phone i.e. Rs. 15990/- alongwith interest @ 18% p.a. from 30.7.2014 till refund and also to return Rs. 150/- charged by the opposite party towards courier charges. besides compensation of Rs. 50000/- and allowing charges of filing complaint and any other additional or alternative relief which the complainant may be found entitled to.
3. Upon notice, opposite party appeared and filed written reply contesting the claim of the complainant taking certain preliminary objections therein inter alia that complainant has approached this Forum with unclean hands ; that as per the policy of the company if the parcel is not insured by the consignor/complainant or it is not covered under the risk charge policy of the company, then the company’s liability is restricted to Rs. 100/- only. In the present matter, the complainant neither had adopted the risk charge policy of the company nor insured the parcel, so the company is not liable for any damage or loss ; that at the receipt issued at the time of booking is itself a contract between the parties. Clause 5 of the receipt clearly lays down that the DTDC for any loss or damage to the shipment will be strictly limited to Rs. 100/- for each shipment, which items include all documents or parcels consigned through DTDC by the shipper. Now in the present matter , the complainant neither has adopted the risk charge policy of the company nor insured the goods , as such the company is not liable for any damage or loss. Besides section 8 of the Goods forwarding note also lays down that the complainant has defaulted himself and has not performed his own legal duties. On merits, it is admitted to the extent that the courier services were availed by the complainant for delivery of some parcel. It is denied for want of knowledge that the parcel contained the goods detailed in the complaint. It was submitted that the complainant neither has adopted the risk charge policy nor insured the product, so there cannot be any kind of assurance. A contract was executed between the parties at the time of booking of the parcel and the parties are bound by the same. A prayer for dismissal of the complaint with costs has been made.
4. In his bid to prove the case, complainant Dilniwaz Singh made into the witness box as his own witness and filed duly sworn affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copy of visiting card of Mandeep Networks Ex.C-2, copy of courier receipt Ex.C-3, copy of order statement Ex.C-4, copy of invoice Ex.C-5, copy of e-mail Ex.C-6, CD Ex.C-7 and closed his evidence.
5. To rebut the aforesaid evidence, opposite parties No.1 & 2 produced Rajeev Chandan on behalf of DTDC Courier & Cargo Ltd , who tendered his duly sworn affidavit Ex.OP1 ,2/ and closed evidence on behalf of the opposite parties No.1 & 2.
6. We have heard the complainant and the ld.counsel for the opposite parties and have also carefully gone through the record.
7. On the basis of the evidence on record, ld.counsel for the opposite parties has vehemently contended that the complainant though availed the courier service of the opposite party for sending goods in a parcel, yet the consignor/complainant did not cover the parcel in dispute either under risk charge policy of the company or got the goods insured. In such a situation for any loss or damage to the shipment will be strictly limited to Rs. 100/- per shipment as per clause 5 of the courier receipt. Courier receipt is an agreement inter-se parties and the terms and conditions mentioned overleaf are binding inter-se parties. The complainant cannot wriggle out from the terms and conditions mentioned overleaf on receipt Ex.C-3. It is further contended that instant complaint is nothing but an abuse of the process of the court and the same deserves to be dismissed with costs.
8. However, from the appraisal of the facts and circumstances of the case, it becomes amply clear that the shipment sent vide parcel through courier receipt issued by the opposite party did not reach the destination nor the parcel received back undelivered. It was incumbent upon the opposite party to have proved that the shipment reached the addressee. There is no evidence to substantiate the said fact. In such a situation, it will have to be presumed that the shipment was lost in transit. Although as per clause 5 of the conditions printed on the overleaf of receipt Ex.C-3, the liability of the opposite party is strictly restricted to Rs. 100/-. However, for forbearance in not supplying the goods to the addressee at the given address on the part of the DTDC courier and Cargo Ltd, amounts to deficiency in service. The opposite parties could very well produce the receipt regarding the delivery of the parcel in dispute to the consignor before this forum. But, however, for the reasons best known to the opposite parties, no such evidence was brought on record. The omission on the part of the opposite parties in not producing the requisite evidence abovestated, amounts to dereliction in service on their part , for which the opposite party is liable to compensate the complainant. Although the complainant has produced on record invoice/bill of the mobile handset in dispute Ex.C-5 , which shows the value of the mobile handset in dispute to the tune of Rs. 15,990/-, yet as per courier receipt Ex.C-3, the liability for any loss or damage to the shipment will be strictly limited to Rs. 100/- per shipment as per clause 5 of the courier receipt .Keeping in view the facts and circumstances of the case, it would be reasonable to allow compensation to the tune of Rs. 5000/- to the complainant. Besides that the complainant shall also be entitled to be paid Rs. 100/- as per clause 5 of the courier receipt , for the loss or damage to the shipment in dispute. The opposite party is granted 30 days’ time for the compliance of the order from the date of receipt of copy of this order ; failing which awarded amount shall carry interest @ 6% p.a. from the date of passing of the order until full and final recovery. . The complaint stands allowed accordingly. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 21.4.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) Member
