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Order dictated by:

Sh.Anoop Sharma,Presiding Member

1.       Vishal Mahajan has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that    complainant had hired the services of opposite party No.1 for safe and intact delivery of his consignment containing one mobile phone to opposite party No.2 for which opposite party No.1 has charged service charges. The complainant had purchased one iphone 5S Gold 5G 16 from Ebay.in online  which was supplied by opposite party No.2 against Invoice No. 10 dated 28.12.2015 on payment of Rs. 24990/-. After two months of the purchase of the mobile set, there was some problem  and the mobile set was sent to opposite party No.2 through opposite party No.1. Opposite party No.2 after necessary repairs returned the mobile set to the complainant . Again after use of the mobile set , it started creating troubles for which complainant contacted opposite party No.2 , who asked the complainant to send the mobile for repair or exchange. On the assurance of opposite party No.2, complainant sent the defective mobile in a sealed box through opposite party No.1 vide consignment No. 5221066 and handed over the custody of the sealed box containing abovesaid mobile to opposite party No.2. Opposite party No.1 made it clear to the complainant that the consignment was to reach at its destination within next 48 hours.  Opposite party No.1  delivered the box to opposite party No.2. Opposite party No.2 informed the complainant that she had received empty box from opposite party No.1 and mobile was not delivered to them by opposite party No.1. Non delivery of consigned goods intact is deficiency in service on the part of opposite party No.1. Opposite party No.2 took delivery of the sealed box containing mobile from opposite party No.1 and if the box was not intact and seals were broken then the opposite party No.2 had to refuse the delivery of the box to opposite party No.1. But opposite party No.2 took delivery from opposite party No.1 without any objection which means that box was  properly sealed  at the time of delivery to opposite party No.2. But both the opposite parties have grabbed the mobile set of the complainant by alleging that opposite party No.2 had received only empty box which is not possible as at the time of handing over the sealed box to opposite party No.1  at Amritsar , they were clearly told that the box contains mobile set of Apple Iphone. Before filing of present complaint, the complainant also served legal notice upon the opposite parties dated 27.7.2016 which was replied by opposite party No.2 alleging that they had received empty box while opposite party No.1 has not bothered to give reply to the legal notice. Due to this act of the opposite parties, complainant suffered financial loss to the tune of Rs. 24490/- as well as  mental tension, harassment and agony at the hands of the opposite parties . Vide instant complaint, complainant has sought for the following reliefs:-

(a)     Opposite parties be directed to pay Rs. 24490/- alongwith interest @ 12% p.a. from the date of consignment till final payment ;

(b)     Compensation to the tune of Rs. 20000/- alongwith litigation expenses were also demanded.

Hence, this complaint.

2.       Upon notice, opposite party No.1 appeared and filed written version in which it was submitted that courier/consignment booked by the complainant was duly received by opposite party No.2 in sealed condition at Vasundhara Ghaziabad. The consignee received the said consignment without any protest or objection whatsoever. In view of such safe delivery of the consignment, the complaint ought to be dismissed  with costs. It was admitted that a consignment was booked by the complainant to be delivered to opposite party No.2. It was denied that same contained any mobile phone , as alleged. The opposite party had no knowledge about the contents of the consignment since the same was not declared by the complainant at the time of booking. The consignment of the complainant was delivered to the consignee in safe and sound condition,  therefore, the allegation of delivery of an empty box has no force to stand. While denying and controverting other allegations, dismissal of complaint was made.

3.       Opposite party No.2 did not put in appearance despite service of notice, as such it was ordered to be proceeded against ex-parte.

4.       In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.C-1, copy of retail invoice dated 28.12.2015 Ex.C-2, copy of courier receipt Ex.C-3, copy of legal notice Ex.C-4, copy of postal receipt Ex.C-5, copy of reply to legal notice Ex.C-6 and closed the evidence.

5.       To rebut the aforesaid evidence Sh.Deepinder Singh,Adv.counsel for opposite party No.1 tendered into evidence affidavit of Sh.A.S. Bajwa Ex.OP1/1, copy of courier receipt Ex.OP1/2 and closed the evidence on behalf of opposite party No.1.

6.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

7.       Ld.counsel for the complainant has reiterated the facts narrated in the complaint and has submitted that complainant had purchased one iphone 5S Gold 5G 16 from Ebay.in online  which was supplied by opposite party No.2 against Invoice No. 10 dated 28.12.2015 on payment of Rs. 24990/-.  After two months of the purchase of the mobile set, there was some problem  and the mobile set was sent to opposite party No.2 through opposite party No.1. Opposite party No.2 after necessary repairs returned the mobile set to the complainant . It has been alleged by the complainant that again after use of the mobile set , it started creating troubles for which complainant contacted opposite party No.2 , who asked the complainant to send the mobile for repair or exchange. On the assurance of opposite party No.2, complainant sent the defective mobile in a sealed box through opposite party No.1 vide consignment No. 5221066 and handed over the custody of the sealed box containing abovesaid mobile to opposite party No.2. Opposite party No.1  delivered the box to opposite party No.2. Opposite party No.2 informed the complainant that she had received empty box from opposite party No.1 and mobile was not delivered to them by opposite party No.1. Non delivery of consigned goods intact is deficiency in service on the part of opposite party No.1. Ld.counsel for the complainant submitted that all this amounts to deficiency in service on the part of the opposite parties.

8.       Whereas the case of the opposite party No.1 is that courier/consignment booked by the complainant was duly received by opposite party No.2 in sealed condition at Vasundhara Ghaziabad. The consignee received the said consignment without any protest or objection whatsoever. It was denied that the consignment  contained any mobile phone . The opposite party had no knowledge about the contents of the consignment since the same was not declared by the complainant at the time of booking. The consignment of the complainant was delivered to the consignee in safe and sound condition,  therefore, the allegation of delivery of an empty box has no force to stand.

9.       From the facts and circumstances of the case it becomes evident that consignment booked by the complainant was duly received by opposite party No.2 in sealed condition at Vasundhara Ghaziabad. The consignee received the said consignment without any protest or objection whatsoever. On the other hand in reply to legal notice  dated 27.7.2016 sent by the complainant , opposite party No.2 has taken a stand that the courier company has delivered an empty box in the office of opposite party No.2 and this fact was brought to the notice of the complainant immediately on receipt of the empty box.  It has also been alleged by the complainant that at the time of handing over the sealed box to opposite party No.1 at Amritsar, they were clearly told that the box contains mobile set of Apple iphone.  On the other hand opposite party No.1 in its written version has contended that they had no knowledge about the contents of the consignment since the same was not declared by the complainant at the time of booking. But, however, there is nothing on record that the contents of the consignment were brought to the notice of the opposite party No.1 at the time of booking of the consignment. The onus was upon the complainant to prove that contents of the consignment were brought to the notice of the opposite party No.1. So to prove these facts, an elaborate oral and documentary evidence is required & furthermore cross examination of witnesses is also required at length , which is not permissible under summary trial. Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme Court has held that :-

“Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.”

Their lordships have further held that :-

“The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.”

10.     Consequently , instant complaint is relegated to the  Civil Court for redressal in accordance with law. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 31.5.2017