D.O.F.20.4.07

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:   President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:              Member

Dated this, the   3^rd   day of May   2010

CC.81/2007

P.P.Santhoshkumar,

Proprietor Thrilokya weaving wabs,

Azhikode, Kannur 9.                                                                Complainant

South Bazar, Kannur 2.

(Rep. by Adv.O.Prasanna Narayanan)

M/s.Blue Dart Express Limited,

Sithuja Building,

S.N.Park Road, Kannur.                                                          Opposite party

(Rep. by Adv.T.Ramakrishnan)

O R D E R

Smt.M.D.Jessy, Member                                             

            This is a complaint filed by the complainant under section12 of the consumer protection act against the opposite party claiming an amount of Rs.2, 05,000/-wotwards compensation for the loss of consignment which the opposite party, a courier company is to be delivered at Argentina.

            The facts giving arise to this complaint are as follows: the opposite party is conducting both domestic and international courier service. On 16.6.06 the complainant entrusted a consignment containing handloom mutilated bathmats and sample swatches weighing 1 ½ Kg. to the opposite party with a direction to deliver the same to M/s.Fomaby Colours. S.A SUBIRIA, Argentina. By accepting the consignment opposite party issued way bill No.1405503481 of DHL Express. This way bill for the period from 1.6.06 to 30.6.06 and the particular consignment is charged for Rs.2040/-. But the opposite party did not deliver the consignment to the consignee nor was it returned to the complainant. The opposit party had accepted the consignment to be delivered at Argentina and it is the duty of the opposite party to deliver it to the consignee or to return the consignment to the complainant. The action of the opposite party amounts deficiency of service and complainant thus caused to suffer a loss of Rs.2, 05,000/- as assessed by him. Hence this complaint.

On getting complaint notice was issued to the opposite party. The opposite party appeared and filed version. The opposite party admits the fact that the complainant had booked a consignment with DHL through the opposite party. But there are some formalities to be complied by the complianant before sending a parcel to a foreign country. It is submitted that the shipment was reached at the destination in time and written notification dated 22.6.06 was served to the consignee. But the parcel was kept on hold by the customs authority in the country of destination for want of clearance which had to be obtained by the consignee on production of the relevant documents. There is no laches on the part of the opposite party in delivering the parcel to the consignee and the complaint is bad for misjoinder of parties. Hence the complaint is liable to be dismissed.

            The issues that have been taken for consideration are as follows:

1. Whether the complainant is a consumer?

2. Whether there is any deficiency on the part of opposite party?

3. Whether the complaint is entitled for the remedy as prayed in the complaint?

4. Relief and cost.

            The evidence consist of Exts.A1 to A3, proof affidavit of the opposite party and Exts.B1 to B3.

Issue No.1

            It is admitted by the opposite party that the complainant entrusted a parcel containing handloom mutilated bathmat and sample swatches to the opposite party with a direction to deliver it M/s. Fomaby Colours S.A SUBIRIA at Argentina. The opposite party accepted the parcel and issued way bill N o.140550348.

            During the time of argument opposite party raised a contention that the complaint is not maintainable on the ground that the complainant is a big business man and the parcel is entrusted with the opposite party during the course of his business activity. The opposite party also placed reliance upon an order passed by the District consumer Redressal Forum, Indore in case No.575/04. This being a question of law it is considered as a preliminary issue. It is seen from the evidence the particulars consignment involved in this case is containing handloom mutilated bathmats and sample swatches. It is clear from the averment in the complaint that those materials were sent not for sale at Argnetina. It was sent only as a sample hence the particulars transaction involved in this case cannot be considered as a business transaction meant for commercial purpose. In 2007 CTJ 1200 the Hon’ble(SCDRC) Andhra Pradesh had  an occasion to deal with same situation were in it is held that since the consignment is not meant for sale it will not come under the purview of commercial purpose and hence the contention raised by the opposite party will not hold good. On the above ground the complainant will come under the definition of a consumer as defined under section 2(1) (d) of consumer protection act and the 1st issue is answered accordingly.

Issue No.2

            The complainant booked a consignment with the opposite party for delivering it to the consignee by paying a consideration of Rs.2040/-. It neither is clear from the evidence that the consignments had not delivered to the addressee nor was it returned to the sender. It is contended by the opposite party that the shipment had arrived at the place of destination within the stipulated time and the local office of the opposite party informed the consignee to take delivery of the same. The parcel was kept on hold by the customs authority in the country of destination for want of clearance. The opposite party has not produced any single document to prove such a contention. In case of non delivery of the consignment due to  any reason what so ever on the part of the consignee the opposite party can very well taken it back to the complainant and can collect the additional expenses incurred by them from the complainant. This was not done by the opposite party. But they are contending that the DHL express is responsible for the same and they also has to be impleaded in the proceedings and hence the complaint is bad for nonjoinder of necessary party. This contention also unsustainable since the complainant has paid the amount to the opposite party and for the opposite party it is the duty of the opposite party to see that the consignment is duly delivered to the addressee.Even though the opposite party issued the way bill in the name of DHL Express there is no privity of contract between the complaint and DHL express and hence we find that DHL express is not a necessary party in this proceedings. It is pertinent to note that the booking of consignment is not in dispute and the non delivery of the same is also admitted by both sides. The consignment is also not returned to the sender. The above circumstances we find that there is clear deficiency in service on the part of the opposite party in the transaction. The issue is answered accordingly.

Issue No.3 & 4

            From the evidence adduced on the side of the complainant he forwarded a parcel containing mutilated bath mats as sample swatches weighing 1 1/2 kg. The complainant has not produced any document to show the value of the article forwarded through opposite party. The article is not intended for sale. But the complainant submitted that he would have got an order for the supply of the huge quantity of the product from the consignee if the opposite party had delivered the samples to him. Here the consignment was booked on16.6.06 and the complainant produced Ext.A3 receipt to show that some piece of samples was sent to the same consignee through professional courier’s on30.9.06 and it was properly delivered to the consignee. But there is no whisper in the complaint that after the receipt of the same the complainant had received a bulk order for the supply of material from the consignee if that be so we cannot presume that the complaint had sustained   a loss of business to the tune of Rs. 2 lakhs due to the non delivery of the article to the consignee by the opposite party. The opposite party contended that as per the terms of contract their liability is limited and hence the complainant is not entitled to get an amount as claimed in the petition.  The mention of limited liability in a very small print at the back of consignment note which has not been read by the consignor cannot restrict liability of courier company. Hence the complainant is entitled to get Rs.2040/- which he had paid to the opposite party for availing his service together with Rs.1000/- towards compensation for loss and  mental agony suffered by the complainant. The complaint is also entitled Rs.1000/- as litigation expenses. The issues 3 and 4 are answered accordingly.

            In the result, complaint is allowed directing the opposite party to pay Rs.2040/- (Rupees Two thousand  and forty only) being the amount received by opposite party at the time of entrusting  the consignments, Rs.1000/- (Rupees One thousand only)towards compensation for loss and  mental agony and Rs.1000/-(Rupees One thousand only) as litigation expenses to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite party as per the provisions of consumer protection act.

                              Sd/-                            Sd/-                                         Sd/-

                        President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Receipt issued by OP

2.Invoice dt.30.6.06 issued by OP

A3.Copyof the receipt issued by Professional Couriers to complainant.

Exhibits for the opposite party

B1.Copy of contract form

B2.Copy of power of attorney

B3.Copy of identity card of C.N.Manoj

Witness examined for the complainant: Nil.

Witness examined fro the opposite party

DW1.Manoj                             /forwarded by order/

            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur