THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.664/2015

Dated this the 22^nd day of August, 2019

(Smt. Rose Jose, B.Sc, LLB.              :  President)

                                                                        Sri. Joseph Mathew, M.A., L.L.B.    :  Member

ORDER

Present: Hon’ble Sri. Joseph Mathew, Member

            This petition is filed under Section 12 of Consumer Protection Act 1986.

            Petitioner’s case is that, he had purchased a Samsung made mobile handset Model Note-3 IMI 351540061187522 on 24/03/2015 for Rs.35,250/- from Vyber Mobiles Kozhikode. The said mobile was purchased for Mr. Abdul Sathar T.K., Bangalore. He approached the 1^st opposite party and enquired about the service and safety providing by them for sending the mobile to Mr. Abdul Sathar at Bangalore through them. The 1^st opposite party told about a newly introduced scheme of them viz. Secure Pack which guaranteed safe and secure delivery. They also informed that the said scheme specifies DTDC security Pouch with serial number for booking high value contents under PEP including mobiles. It is also stated that under this scheme no separate insurance is necessary for safe delivery of the parcel and no theft or missing of parcel is possible under this scheme etc.

            The petitioner stated that believing the words of the 1^st opposite party he entrusted the mobile with the 1^st opposite party for sending the same to Mr.
Abdul Sathar at Bangalore on 25/03/2015 under the scheme Secure Pack. The opposite party collected Rs.250/- as service charge and allotted a consignment No. 7851089 with a bar code V21916043 along with the receipt for the same. But even after days the mobile was not delivered to the addressee by the opposite party or made any contact with him though they have provided with his phone number. When he contacted the 1^st and 2^nd opposite parties in this regard they informed that on their enquiry they realised that the phone was lost and some latches caused and the 2^nd opposite party assured to compensate him for the loss suffered. The 2^nd opposite party also given him the phone number, of one Mr. Harshan, the Kerala Head of the DTDC courier service. When he contacted Harshan he agreed to return the price of the mobile in two instalments but nothing has been done as agreed. The non-delivery of the mobile to the addressee after collecting service charge for the same amounts to deficiency in service on the part of the opposite parties. This caused much mental agony, financial loss and other hardships to him. Hence this petition is filed to direct the opposite parties to pay him the purchase price of the mobile Rs.35,250/-, Rs.50,000/- as compensation for his sufferings and also cost of the proceedings.

The opposite parties filed version denying all the allegations of the petitioner as false and frivolous. It is contended that this petition is not maintainable either in law or facts of the case. The statement of the petitioner that he had purchased the mobile for and on behalf of Mr. Abdul Sathar who isresiding at Bangalore is denied not known to them.  The opposite parties admitted that DTDC is having a scheme to send costly items as Secure Pack but which is subjected to terms and conditions mentioned in the consignment Note which is the underlying contract between them and the consigner. The allegations of the petitioner that the 1^st opposite party informed him that they will deliver the consignment safely in time and no separate insurance is necessary for the parcel sent through the scheme Secure Pack is denied as not true or correct and stated that the consigner has the discretion to insure the goods through his own insurer or to declare the value of the good in the consignment note and pay additional surcharge for the carriage of such declared valuable goods.

It is submitted that for availing service under secure pack scheme it is mandatory to declare the value and opt any one of the Risk Covers and to pay applicable risk surcharge thereon at the time of entrusting such a shipment to DTDC. Moreover there is an additional service charge of Rs.35/- per shipment under this scheme. The petitioner had booked the consignment under Consignment Note No.V21916043. The No. 7851089 in the consignment note is not a consignment No. of service pack scheme as alleged but only a pouch number allotted to each consignment by the booking office for internal tracking purposes.  

The opposite party admitted that the petitioner had entrusted a parcel with the 1^st opposite party on 25/03/2015 to be delivered to the addressee at Bangalore but denied the allegation that the consignment contained a mobile phone worth Rs.35,250/-. The amount of Rs.250/- was received solely towards the freight charge for the carriage of the consignment. In the event of damage or loss to the goods their liability under the contract is limited to Rs.500/- unless the sender declares a higher value as declared value for carriage and also pays the applicable Risk Surcharge. The minimum surcharge for carriers risk is Rs.50/- or 2% percent of the declared value whichever is higher and also an additional service charge of Rs.35/ per shipment. In this case the petitioner has not paid any Risk Surcharge so as to entitle him to claim the price of the mobile. Moreover if the consigner sending any valuable goods he has to mention and declare the contents and its value after producing documents to prove the same at the time of booking and has to pay the Risk Surcharge also. Here the petitioner has not disclosed the contents of the consignment or mentioned the contents or its declared value in the Consignment Note or had paid any Risk Surcharge for availing secure pack scheme. The petitioner has no such case also. In such case he has no right to claim anything more than the amount as mentioned in the terms and conditions in the Consignment Note Leaf.

It is also contended that they will take all efforts to effect delivery of the booked consignment safely and in time irrespective of the fact that whether the consignment is booked under the Service Pack Scheme or not. They have never informed the petitioner that the consignment or the mobile phone as stated by the petitioner was lost before delivering to the addressee or agreed to pay its price by two instalments as agreed, and stated that they have delivered the consignment to the consignee at Bangalore on the very next day ie. on 26/03/2015 itself. So there is no cause for any mental agony or financial loss to the petitioner. This petition is filed without any bonafides and only with the intent to gain undue monitory benefit from them. There is no unfair trade practice or deficiency  in service on their part as alleged and the petitioner is not entitled to get any of the relief sought for in the petition and hence prayed to dismiss the petition with exemplary cost.

Evidence consists of the affidavit filed by the petitioner, Ext.s A1 to A6, B1 and B2 and deposition of PW1, the petitioner.

            Admittedly the petitioner had entrusted a consignment to the 1^st opposite party on 25/03/2015 for delivering the same to the addressee Mr. T.K. Abdul Sathar at Bangalore. The Consignment Note issued by the 1^st opposite party for the same is produced by the petitioner and marked as Ext. A3. According to the petitioner the consignment contained a mobile phone worth Rs.35,250/-. The purchase bill of the same dated 24/03/2015 is marked as Ext. A1. The petitioner also stated that as per the advice of the 1^st opposite party the consignment was sent under their Service Pack Scheme which as per the opposite party guarantees safe and secure delivery without any separate insurance. But even thenthe mobile was not delivered to the consignee by the opposite party. So they are liable to compensate his losses.

According to the opposite party the petitioner has not availed their special Secure Pack Scheme for sending the parcel as alleged for which the sender has to disclose the contents of the parcel with proof and mentioned the same and its declared value in the Consignment Note at the time booking and pay additional Risk Surcharge and additional Service charge of Rs.35/- per shipment also. The amount of Rs.250/- collected from the petitioner is only the normal charge for carriage of the consignment. Since the petitioner has not disclosed or mentioned the contents of the consignment or its declared value in the Consignment Note they are unaware of the content of the consignment and in such cases in case of any loss or damage, their liability is limited to Rs.500/- as per the terms of the contract given overleaf of the Consignment Note. A perusal of Ext. A3 Consignment Note it is found that the petitioner has not mentioned the content of the consignment or the value of the good in the Consignment Note as stated by the opposite parties. Likewise there is no evidence to see that the petitioner had availed the service pack scheme and had paid the Risk Surcharge and additional service charge for the same as stated by the petitioner. So there is no evidence before us to see that the consignment contained a mobile phone as stated by the petitioner. In the absence of evidence we cannot allow the price of the mobile phone Rs.35,250/- as claimed for by the petitioner.

According to the petitioner the opposite party has not delivered the consignment to the addressee till date. But this allegation was denied by the opposite parties and according to them the parcel was delivered to the consignee on the very next day ie. on 26/03/2015 itself. They produced the Tracking Records of Consignment No. V21916043 booked on 25/03/2015 to prove their said contention and was marked as Ext. B1. A perusal of Ext. B1 shows that the consignment was delivered at Bangalore on 26/03/2016 itself. But in Ext. B1 there is no mention regarding who had received the consignment or the relationship of the person who had received the parcel with the consignee. In Ext. A3, Consignment Note the name and address of the consignee is clearly mentioned and so the opposite parties are bound to deliver the consignment to the consignee mentioned in the Consignment Note. Customers are availing their services after paying higher amounts as service charge only for delivering the consignment to the consignees without fault. In the instant case the case of the petitioner is that the opposite parties have not delivered the consignment to the consignee whose address is given in the Consignment Note. So the opposite parties are obliged to prove that they have delivered the parcel to the concerned person mentioned in the Consignment Note. The petitioner was examined as PW1. In cross examination the opposite parties themselves had admitted that they have delivered the parcel to the security of the flat where the addressee is residing. Instead of delivering the consignment to the addressee, the delivery of the same to the security without the consent of the consigner or consignee and thereby causing loss to both the parties is deficiency in service on the part of the opposite party.

In cross examination PW1, the petitioner also deposed that he had studied only upto 10^th standard. The opposite parties have to keep in mind that all the customers approaching them are not learned persons so as to read and understand their terms and conditions mentioned in Consignment Note. So as professional couriers it is their duty to explain their terms and conditions to the customers and to ask them the contents of the parcel and its value and to mention the same in the consignment note and to advise them to insure the goods for its safety in case of loss or damage if the good is something valuable. If the party is not willing to disclose the content or declare its value then they have to endorse this matter in the consignment note for avoiding any future dispute. If the opposite party had explained their terms and conditions for sending a valuable good like the mobile phone definitely the petitioner would have mentioned the same and its value in the Consignment Note. The negligence on the part of the opposite party in this regard amounts to deficiency in service on their part.

So from the evidence it is found that the delivery of the consignment to the security of the flat instead of delivering the same to the addressee mentioned in the Consignment Note  without permission of the consigner or consignee is the reason for the loss of consignment and so the opposite party is liable to make good the loss of the petitioner  At the same time since the petitioner has not mentioned the content of the parcel or its value in the Consignment Note, the petitioner is not entitled to claim or to get the full amount of the lost article. So considering all the facts stated, we fix Rs.10000/- as compensation for the loss and mental agony suffered by the petitioner which we feel just and proper in this case.

            In the result, the petition is partly allowed and the following order is passed.

The opposite parties are jointly and severally ordered to pay Rs.10,000/- (Rupees ten thousand only) to the petitioner as compensation for his loss and sufferings and Rs.3,000/- (Rupees three thousand only) as cost of the proceedings within 30 days from the date of receipt of this order. Failing which the whole amount will carry 7% interest per annum from the date of default till payment.             

Dated this the 22^nd day of August, 2019

Date of filing: 22/12/2015

                           SD/-PRESIDENT                SD/-MEMBER

APPENDIX

Documents exhibited for the complainant:

A1. Invoice dated 24/03/2015 issued by Vyber Mobiles

A2. Brochure

A3. Consignment Note

A4. Copy of lawyer notice issued to the opposite parties

A5. Postal receipts (3 in numbers)

A6. Acknowledgement card (3 in numbers)

Documents exhibited for the opposite party:

B1. Tracking Records of Consignment

B2. Consignment Note

Witness examined for the complainant:

PW1. Afsal (Complainant)

Witness examined for the opposite party:

None

Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT