BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No.718 of 2015
Date of Institution: 18.12.2015
Date of Decision: 26.7.2016
Smt.Amarjit Kaur aged 53 years wife of S. Jaswant Singh,resident of Namdhari Sweets, Main Road, Haripura, Amritsar
Complainant
Versus
- Mr.Ashwani Bhatia Franchises Holder of DTDC Courier and Cargo Ltd., 3 / 4, Dilawari Tower, Near Raj Hotel Court Road, Amritsar
- Mr. Subash Chakarborty, Managing Director DTDC Courier and Cargo Ltd.,Regd.Office No.3, Victoria Road, Bengaluru 560047
Opposite Parties
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant: In person
For the Opposite Parties: Ex-parte
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Amarjit Kaur, complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant sent consignment vide courier dated 5.6.2015 i.e. two consignments containing two packets having weight of 10K.400 Gms and 5KG 700 Gms from Majith Mandi branch, Amritsar for its destination to Bengaluru addressed to Herbalife International Pvt.Ltd. Condor Mirage 101/1, Richmond Road, Richmond Town , Bengaluru 560025. The packet containing weight of 10 kg 400 gram consignment was RTO due to the reason that invoice was not available according to the office of opposite party whereas the complainant came to know that due to negligence the consignment belonging to some other parties containing liquor fell to the consignment of the complainant due to which consignment of the complainant become spoiled and useless which fact came to the notice of the complainant at a later stage. It is pertinent to mention over here that consignment containing weight of 10 K 400 Gram was undelivered whose value was Rs. 18704/- which contained Herbal products having No.D222872010 and another consignment having weight of 5.700 gm bearing No. D22287211 was delivered. Later on the consignment containing weight of 10 kg 400 gram was sent again by the opposite party whereas consignment containing 5 kg 700 gram weight was already delivered. After due enquiry made by the complainant from opposite party No.1, this fact came to the notice of the complainant that consignment has not been delivered and the opposite party asked the complainant to enquire the same from Bengaluru office as to why consignment has not been delivered to its destination. The complainant sent various emails to opposite party No.2 from 21.9.2015 to 21.10.2015 and the opposite parties replied to the same of the emails. It is further to be mentioned over here that on 6.10.2015 mail status shows that “it is delivered and updated as well” but the complainant enquired the fact from its destination and came to know that consignment has not reached its destination. However, after due enquiry made by the complainant opposite parties discontinued conversation with the complainant on this point. The complainant felling aggrieved at the hands of the opposite parties asked for DRS scan copy from where the complainant came to know that consignment has not reached its destination. The complainant served legal notice dated 18.11.2015 through his counsel S. Baldev Singh Gill,Advocate Amritsar to the opposite parties, but the opposite parties neither replied to the legal notice nor refunded the cost of the consignment as required for alongwith compensation. The complainant has sought for following reliefs vide instant complaint :-
(i) opposite parties be directed to refund the cost of consignment amounting to Rs. 18704/- alongwith interest @ 24% p.a. from 5.6.2015 till date.
(ii) Compensation of Rs. 40000/- may also be awarded.
(iii) cost of complaint may also be awarded.
Hence, this complaint.
2. Upon notice, opposite parties appeared and filed written version contesting the claim of the complainant taking certain preliminary objections stating therein that complainant has not approached this Forum with clean hands and the story made by the complainant was just with a view to grab money from the opposite parties ; that complainant has neither adopted the risk charge policy of the company nor insured the goods so the company is not liable for any damage or loss. The complainant now cannot be put the burden of her own fault on the shoulders of the company. As per clause 5 of the courier receipt, 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 consignee by the shipper ; that as per section 8 of the goods forwarding note, complainant has defaulted himself and has not performed her own legal duties. Therefore, the complaint as framed is not maintainable. On merits, it is denied that there is any act of negligence or deficiency in service on the part of the answering opposite parties. The complainant has neither adopted risk charge policy nor insured the product, so there cannot be any kind of assurance . Also a contract was executed between the parties at the time of booking of the parcel and the parties are bound by the terms of the contract so executed . The complaint on this ground is also seems to be fishy and is liable to be ignored and a prayer for dismissal of the complaint with cost was made.
3. In her bid to prove the case complainant made into the witness box and tendered her duly sworn affidavit Ex.C-1, copy of courier receipt Ex.C-2, copy of legal notice dated 18.11.2015 Ex.C-3, copy of email Ex.C-4 and closed her evidence.
4. Opposite parties did not led any evidence and was ordered to be proceeded against ex-parte vide order dated 1.6.2016.
5. We have heard the complainant and have carefully gone through the record on the file.
6. There is no denying the fact that complainant booked two packets having weight of 10 kg 400 Gms and 5 Kg 700 gms containing herbal products on 5.6.2015 for shipment to Bengaluru addressed to Herbalife International Pvt.Ltd. Conder Mirage 101/1, Richmond Road, Richmond Town Bengaluru 560025 through opposite party No.1. Out of those two consignments, consignment containing 10 Kg 400 Grams was not delivered at its destination. Opposite parties, when on enquiry, replied to the email on 6.10.2015, copy whereof is Ex.C-4 ,which shows that the consignment has been delivered and updated as well. But however, an enquiry made from the destination, it came to know that consignment has not reached its destination. The complainant served legal notice dated 18.11.2015 through his counsel S.Baldev Singh Gill,Advocate to the opposite parties, copy whereof is Ex.C-3. But however, opposite parties neither made any reply to the notice nor refunded the cost of the consignment so far. The opposite parties are deficient in service. It is an admitted fact that the consignment in dispute was not covered under the risk charge policy of the complainant nor the consignment was insured . So much so even the value of the consignment was not made known to opposite party No.1 . In such a situation, as per clause 5 of the agreement any damage to the shipment or loss, the damages will be strictly limited to Rs. 100/- for each shipment, which items include all documents or parcels consigned through consignee by the shipper. Reliance in this connection can be had on Hanish Kumar Vs. DTDC First Appeal No. 1269 of 2011 decided on 4.3.2015 ,wherein it has been laid down that the terms and conditions , which are printed on the overleaf of this receipt, are an agreement between the parties. Clause 5 is dealing with the limitation of liberty , laying down that law of 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. Even section 8 of the Good forwarding note makes the position further clear in regard to the shipment which has neither been insured nor was under the risk cover note which reads as under :-
S.8 : Good forwarding note
(1) Every consignor shall execute a goods forwarding note, in such form and manner as may be prescribed, which shall include a declaration about the value of the consignment and goods of dangerous or hazardous nature.
(2) The consignor shall be responsible for the correctness of the particulars furnished by him in the goods forwarding note.
(3) The consignor shall indemnify the common carrier against any damage suffered by him by reason of incorrectness or incompleteness of the particulars on the goods forwarding note.
A perusal of section 8 of the Carriage Act reveals that the complainant while making the shipment did not disclose the value of the consignment to the consignee. Therefore, complainant has defaulted herself and has not performed her own legal duties. As such, the complainant is not entitled to full value of the undelivered consignment & her just entitlement is restricted to Rs. 100/- only.
7. From the aforesaid discussion, it emerges that the complainant is entitled to a sum of Rs. 100/- only as against value of the shipment in dispute. However, for the negligence and deficiency in service on the part of the opposite parties, complainant is entitled to compensation to the tune of Rs. 10000/- while litigation expenses are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of orders ; failing which, complainant shall be at liberty to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 26.7.2016. /R/
