O R D E R

Sri. P. Satheesh Chandran Nair (President):

                 The complainant filed this complaint before this Forum u/s. 12 of the C.P. Act.

                 2. The case of the complainant is stated as follows:-  On 25.08.2014 the complainant sent 162 Kgs. of goods through 1^st opposite party’s office at New Delhi to his native place at Kerala.  These goods were packed in 4 cartoons and 2 bags.  The workers of 1^st opposite party packed of these goods in front of the petitioner and these goods arrived at 2^nd opposite party’s office at Thiruvalla on 04.09.2014.  The concerned persons of 2^nd opposite party informed the arrival of the article in their office and the complainant collected the article from that office.  At the time of receiving the articles from 2^nd opposite party’s office at Thiruvalla, it is seen that the cartoons and bags were on broken stage.  The complainant has pointed out these defects to the 2^nd opposite party concerned on that time and they told to the complainant that if they did not take soon delivery of the article they have no further responsibility for the articles.  Hence the complainant taken delivery of these broken bags and cartoons.  When they opened the cartoons and bags from the complainant’s house it was revealed that some articles were lost, some are damage and some are became useless also.  It is seen that the goods covered in 2 cartoons were packed in one plastic bag at the time of delivery.  These plastic bags received only on 13.09.2014, and all the goods were useless at that time.  According to the complainant, there was about Rs.60,000/- lost occurred due to this incident.  The complainant requesting before this Forum for granting an amount of Rs.60,000/- as the price of the said useless article, for a financial loss of Rs.7,000/-, for loss of time Rs.3,000 and for mental agony for  Rs.3,000/-.

                 3. The complainant filed this complaint before this Forum and after hearing the complainant, the Forum issue notice to both opposite parties.  Even though both the opposite parties received the notice duly served, 1^st opposite party not appeared before the Forum and hence he declared exparte as on 11.03.2015.

                 4. The 2^nd opposite party appeared before the Forum and filed his version.  The contention of the 2^nd opposite party through his version is stated as follows:  2^nd opposite party contents that this petition is not maintainable either in law or on fact.  The article in question was booked the 1^st opposite party before at Delhi and the said opposite party sent this articles through 2^nd opposite party’s office at Thiruvalla.  According to him, the article received in this case was properly delivered to the complainant in the same condition it was received in the Thiruvalla branch office and he further contended that there was no chance for causing any damage to any article in the transit or in the 2^nd opposite party’s office.  The complainant never got to the notice of this complaint to the opposite party before the filing of this case before this Forum.  This 2^nd opposite party contended that the complainant had no complaint at the time of delivery of the article.  According to the 2^nd opposite party, the articles booked is noted as only Rs.15,000/- in the declaration form and in the complaint it is noted as Rs.60,000/-  If there was any damages caused to the articles the complainant would have been made a written complaint at the time of delivery.  The compensation claimed is exorbitant and the claim is also not maintainable.  According to the 2^nd opposite party the Professional Courier Ltd., Bombay is a limited company and the company is not made a party in this case.  2^nd opposite party only a franchisee at Thiruvalla and not an employee of the courier company, if any loss happened it has to be compensated only by the courier company.  The 2^nd opposite party again contended that there was no contractual agreement between 2^nd opposite party and that complainant and the said relationship was only between 1^st opposite party and complainant.  Hence the case is bad for non-joinder of necessary parties and it is liable to be dismissed with costs.  It is stated that 2^nd opposite party has committed no deficiency of service and there was no chance to cause any loss to the complainant as alleged in the case, and the complainant is not entitled to get any compensation.  According to him, the complainant filed this claim only as experimental attempt to blackmail and to harass him.  The complaint is liable to be dismissed with cost.

                 5. When considering the complaint and version and the document filed along with the complaint, we raised the following issues:

1. Whether this case is maintainable before this Forum?
2. Whether this case is defective by non-joinder of necessary parties?
3. Whether the complainant is eligible for any relief claimed?
4. Regarding cost and relief?

        6. Point Nos.1 to 4:-  For the sake of convenience we have considering all the above issues together.  On the side of the complainant the complainant’s father examined as PW1 with the permission of this Forum.  He was examined as PW1 and marked Exts.A1 and A2 (subject to proof) as well as Exts.B1 series (subject to proof) and B2.  On the side of 2^nd opposite party the 2^nd opposite party is examined as DW1 and no further document marked on his side except the above said Ext.B1 and Ext.B2.  Ext.A1 is a receipt dated 25.08.2013 issued from opposite party’s Delhi office which describes the sending of the above said article.  Ext.A2 series are the photos (4 in number) showing the details of the articles and it’s damages.  Ext.B1 is a declaration alleged to be issued from 1^st opposite party’s office which was shown to PW1 and he did not accept the signature in that document.  Hence it has been marked as subject to proof.  Ext.B2 is the delivery register produced by the 2^nd opposite party and marked through PW1.

                 7. After the examination of both sides, we heard the complainant and the counsel for 2^nd opposite party.  The complainant submitted that her daughter send the article in question through 1^st opposite party’s office at Bombay and the PW1 the father of the person who received the article from 2^nd opposite party’s office at Thiruvalla.  His definite contention is that when he receives the article almost all the articles were in damaged condition and though his daughter send these articles in 6 cartoons, only 5 cartons are found at 2^nd opposite party’s office.  The articles covered in 6^th cartoon were kept in the washing machine and in some other cartoons.  He vehemently submitted that at the time of receiving the article from opposite party’s office he has given oral complaint to the concerned regarding the loss, damage and the responsibility of 2^nd opposite party of these damages.  The 2^nd opposite party try to intimidate this PW1 when he raised the matter of damage and objection to the opposite party.  The learned counsel appearing for 2^nd opposite party vehemently argued that this petition is not maintainable before this Forum.  As far as this Forum is concerned we have not given much importance to that contention because the damages caused to this articles at 2^nd opposite party’s office and 2^nd opposite party’s office is functioning within the jurisdiction of this Forum.  The learned counsel appearing for 2^nd opposite party submitted that there is no privity of contract between the complainant and 2^nd opposite party.  When we peruse the complaint and the version filed by 2^nd opposite party it reveals that 2^nd opposite party is the authorized person of 1^st opposite party to deliver the articles in question.  It is true that there is no direct contractual agreement between this complaint and 2^nd opposite party.  When considering the nature of this case that kind of contract is impossible for the complainant because the complainant entrusted the article to 1^st opposite party for it transmission.  Hence that contention is also not sustainable.  The 2^nd opposite party again contended that he is not at all a necessary party.  It is seen from the evidence of this case that 2^nd opposite party is the person who delivered the article to PW1 from his office at Thiruvalla and it can be see that 1^st opposite party entrusted these articles to 2^nd opposite party for delivery.  Considering these facts we can come to a conclusion that 2^nd opposite party is a necessary party for this proceeding.  The 2^nd opposite party again contended that this petition is defective due to the non-joinder of necessary party.  It is true that 2^nd opposite party’s head office may be at Bombay but there is no legal bar to proceed against 2^nd opposite party without making their head office as a party of these proceedings.  Another contention put forward by 2^nd opposite party is that the material contradiction regarding the value of damaged article mentioned in Ext.A1 and Ext.B1.  It is seen that the Ext.B1 is marked as subject to proof and more over PW1 did not accept the signature in Ext.B1.  Then the remaining document is only Ext.A1 to show the value of articles.  In Ext.A1, the value of article is Rs.20,000/-.  PW1 deposed that as a result of the deficiency of service of the opposite parties, the complainant sustained a loss of Rs.70,000/- and the opposite parties are liable for this amount also.  Ext.A2 series are the photographs of the damaged goods which was received by PW1 from 2^nd opposite parties office.  It is true that this Ext.A2 series are the photocopies hence the 2^nd opposite party opposed the marking of this photos as evidence in this case.  2^nd opposite party raised objection for the marking of A2 series on the ground of non production of ‘negative’ of the Ext.B2 series.  Hence Ext.A2 series are marked as subject to proof.  Anyway regarding the damage of the article it is clear from the available evidence of this case that PW1 received damaged article from 2^nd opposite party’s office.  The question to be considered is from where this damage caused.  When DW1 is cross-examined he has given a clear answer regarding this aspect.  “ഈ article നിങ്ങളുടെ ആഫീസില് വന്ന സമയത്ത് തന്നെ പൊട്ടിയിരുന്നതാണോ”? (Q&A).  “അല്ല”.  “അപ്പോള് നിങ്ങളുടെ ആഫീസില് വച്ചാണോ നാശനഷ്ടം ഉണ്ടായത്”? (Q&A)  “അല്ല”.  If we peruse the deposition of DW1 it is clear that there was no damage caused to the articles when it arrive at 2^nd opposite party’s office.  Hence we can infer that these damages are caused from the office of 2^nd opposite party.  It is also clear from the complaint that this 2^nd opposite party shows eagerness to deliver the article to PW1, that itself shows that some kinds of mistake or defect caused in 2^nd opposite party’s office.  When we consider all these above evidence, we can arrive in a conclusion that 2^nd opposite party committed deficiency in service and 1^st opposite party is also liable for the 2^nd opposite party’s negligence and rashness in the dealing of this articles.  It is clear that PW1 firstly entrusted 1^st opposite party all these articles for transmission.  Hence the responsibility of 1^st opposite party is also has to be considered as equally as opposite party 2 for the delivery of these articles.  Both these opposite party 1 and 2 jointly and severally liable for the loss sustained by PW1.  As a result, we find that 1^st and 2^nd opposite party committed deficiency in service in this case.

                 8. In the result, we pass the following:

1. The 1^st and 2^nd opposite parties are directed to pay an amount of Rs.20,000/- (Rupees Twenty Thousand only) as the value of the damaged goods to the complainant from the date of order with an interest of 10% per annum.
2. The 1^st and 2^nd opposite parties are also directed to pay a compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant from the date of order with an interest of 10% per annum.
3. The 1^st and 2^nd opposite parties are directed to pay Rs.2,000/- (Rupees Two Thousand only) as the cost of the case to the complainant with an interest of 10% from the date of order.

         Declared in the Open Forum on this the 30^th day of April, 2015.

                                                                                  (Sd/-)

                                                                 P. Satheesh Chandran Nair,                                                                                (President)

Smt. K.P. Padmasree (Member – I)          :   (Sd/-)

Smt. Sheela Jacob (Member – II)             :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Michel Joseph

Exhibits marked on the side of the complainant:

A1    :  Receipt dated 25.08.2013 issued from opposite party office  

           at Delhi. 

A2 series :  Photos (4 in number) showing the details of the article  

                  and it damages (marked subject to proof). 

Witness examined on the side of the opposite parties:

DW1  :  K.G. Sabu

Exhibits marked on the side of the opposite parties:

B1 : Photocopy of the value declaration of the party produced by the  

       2^nd opposite party (marked subject to proof).    

B2 :  Photocopy of the Delivery register produced by the

        2^nd opposite party.

                                                                                   (By Order)

                                                                                       (Sd/-)

                                                                    Senior Superintendent.

Copy to:- (1) Alpha Joseph, Arayannasseriyil Veedu,

                   Manjadi.P.O., Thiruvalla – 698 105.                                           (2) New First Flight Courier, 2/9, Saray Juliyana,

            New Delhi – 110 025.

               (3) Professional Courier, Arco Tourist Home,

            T.K. Road, Thiruvalla – 689 101.

       (4) The Stock File.