Haryana

Fatehabad

CC/440/2019

Prem Sagar - Complainant(s)

Versus

Om Dot Couriers - Opp.Party(s)

Harish Mehta

23 Apr 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHABAD.

                                                                   Complaint No.:440 of 2019.                                                 

                                                                   Date of Instt.: 08.11.2019.

                                                                   Date of Decision: 23.04.2021.

 

Prem Sagar Mehta son of Shri Moti Ram Mehta, Proprietor of M/s Medicine Centre, G.T.Road, Fatehabad.                               

                                                                   Complainant

 

                             Versus

 

1.On Dot Couriers & Cargo Limited Gali, Central Bank Wali Fatehabad-125050 (Haryana) through its authorized person.

2.On Dot Couriers & Cargo Limited, 6/13 Kirti Nagar Furniture Block, Delhi 110015 through its Chairman-cum-Managing Director/Managing Director.

3.On Dot Couriers & Cargo Limited, DSS 200 Red Square Market, Backside Hotel Palki, Hisar through its Area Manager.

4.Shri K.K.Sharma, Zonal Manager On Dot Couriers & Cargo Limited, 3112, Phase-II, Chandigarh.

                                                                   Opposite parties

 

                             Complaint U/s 12 of the Consumer Protection Act,1986.

 

BEFORE:             Smt.Neelam Kashyap, President.

                             Smt. Sukhdeep Kaur, Member.

                            

Argued by:           Sh. Harish Mehta, counsel for the complainant.

                             Sh. Sandeep Tantia, Manager for opposite parties.

 

ORDER:

                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986.

2.                          On 06.07.2019, the complainant had handeover two boxes containing the medicines to Op No.1. One box was to be delivered to Ridhi Sidhi Pharma Cam 3 Rana Partap Colony, Near City Hospital, Sri Ganganagar and the same was sent vide receipt No.11008789137.  The weight of the box was 4 Kgs.440.gms and bills No.322 dated 06.07.2019 for Rs.29,975/- and 321 dated 06.07.2019 for Rs.6044/- were also attached with the box. The complainant had made the payment of Rs.200/- to the Op No.1 for the said box @ Rs.40/- per kg. Another box containing medicines weighing 4 Kgs, for which the Op had charged Rs.160/- (Rs.40 per Kg)  vide receipt No.11008789136, was to be delivered to Mahaveer Distributors 9-1^st Floor, Gurdawara Building, Railway Road, Sri Ganganagar and bill No.323 dated 06.07.2019 for a sum of Rs.35890/- was also attached with the box.  It has been further submitted that the complainant has been regularly sending the boxes through Ops for the last many years but the above said boxes have yet not been delivered to the addressee till date.  The complainant enquired the matter from Ops and requested to disclose the status of the boxes but no satisfactory reply was given.  The complainant got served legal notice to the Ops but to no avail.  The act and conduct of the OPs clearly amounts to deficiency in service.  In evidence the complainant has tendered his affidavit Annexure CW1/A and documents Annexure C1 to Annexure C13.

 3                          Upon notice, opposite parties appeared and contested the complaint by filing joint reply wherein several preliminary objections such as cause of action, mis-joinder and non-joinder of necessary parties, jurisdiction of this Commission, concealment of material facts and maintainability of the complaint etc. have been taken.  It has been further submitted that the liability of the company for any loss or damage to the shipment has been strictly limited to Rs.100/- to each shipment  which is also mentioned in clause 4 of Limitation of Liability, therefore, the complainant cannot claim the cost of the alleged parcel.  As per clause 2 (d) of the terms and conditions of the carriage that “All shippers sending high value articles of above Rs.10,000/-must declare that value and such articles insured for transit period.  The company shall not be  responsible for any damage/loss whatsoever, if the value is not declared at the time of booking. The articles must be accompanied with valid documents showing value of articles and as per clause 2 (c) of the terms and conditions of the packing, it is the “shippers” obligation to ensure that “all shipment tendered to “On Dot” for carriage are prepared and packed sufficiently to ensure transportation for ordinary care in handling but there was not sufficient and special packing of the parcel/courier.  There is no deficiency in service on the part of the OPs. Other contentions have been controverted and prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavit and documents Annexure R1 and Annexure R2.

4.                          Arguments advanced on behalf of the complainant have been heard and the documents placed on the case file have been perused.

5.                            Learned counsel for the complainant has argued the complainant is a partnership firm and is running its business for the purpose of livelihood and in the course of business the complainant had sent two boxes containing the medicines through Op No.1 and also paid requisite charges vide courier receipts Annexure C3 and Annexure C7 respectively. It has been further argued that the booked parcels were having medicines costing Rs.71,899/- and in support of this arguments he drew the attention of this Commission towards bills Annexure C4 to Annexure C6 but the same have not been delivered to the consignee yet and the Ops have failed to show the status of the same. Further, argued that the Ops have admitted their liability qua any loss/damage in their written statement but restricted the same upto Rs.100/- for each shipment but this plea is not survived keeping in view law laid down by Hon’ble State Commission Chandigarh in case law titled as On Dot Couriers Cargo Ltd. Vs. Jaspal Singh & Anr. 2011 (4) CPR 155 decided on 19.07.2011 wherein it has been mentioned that Non deliver of article-OPs directed to pay to complainant Rs.9800/- alongwith 9 % interest and Rs.10,000/- as compensation and Rs.5500/- as costs-Consignment receipt was framed by officials of the OPs and it was their duty to get value of the parcel declared in proper column. They did not get it done- In order to limit liability to Rs.100/- it was necessary that agreement to that effect should have been signed by the complainant and in its absence unilateral term of limiting compensation to Rs.100/- would not be attracted-Consignment note  on which the terms and conditions were printed was not signed by the complainant- District Forum rightly directed the Ops to refund price of article alongwith interest and also compensation of Rs.10,000/- for harassment and mental agony forced by the complainant- Appeal dismissed in liminee.

                               Per contra, it has been argued by learned counsel for the Ops that the complainant is a partnership firm and the parcels sent by the complainant firm were for commercial purposes/transactions and not for earning livelihood, therefore, the present complaint is not maintainable before this Commission as the complainant firm works for profit and loss and the Profit and Loss Sharing Ratio is mentioned in the document  Annexure C2 placed by the complainant alongwith this complaint. It has been further argued that as per Clause 2 (d) of the terms and conditions of the carriage All shippers sending high value of articles of above Rs.10,000/- must be declared that value and such articles should be insured for transit period but the complainant firm has not followed the same but despite that if this Commission concludes that there is deficiency in service on the part of Ops, in that eventuality, the responsibility of the OPs is restricted upto Rs.100/- for loss and damage for each shipment.

6.                          Before proceeding further it is desirable to discuss firstly whether the complainant falls with the ambit of consumer or not.  It is admitted fact that the complainant is a partnership firm as is evident through document Annexure C2. Perusal of this document further reveals that there are three partners in the complainant firm and the profit and loss sharing ratio is 1/3^rd to each partner. Now, we go through the paras No.2 & 3 of the complaint wherein the complainant has clearly mentioned that the booked parcels were to be delivered to Ridhi Sidhi Pharma Cam. 3 Rana Partap Colony Near City Hospital, Shi Ganganagar and Mahaveer Distributors 9-1 Ist Floor, Gurdawara Building Railway Road, Sri Ganganagar and the value of the medicines were Rs.71,899/-.  Since the parcels were booked for the delivery by a firm to another firms situated at Sri Ganganagar, therefore, it strengthens the plea of the learned counsel for the OPs that the parcels were booked for commercial purposes. It is strange that the complainant though argued that the complainant firm work for livelihood but failed to even mentioned this fact in the complaint which shows contradictory version on the part of the complainant.  Undisputedly, the complainant firm has hired the services of the Ops but that too were for commercial purposes for earning profit and it cannot be termed as work for earning livelihood by self-employment. The above facts and evidences on records conspicuously indicated that the commercial nature of transactions are involved in the present case, therefore, we have no hitch to reach at a conclusion that the present complaint is not maintainable before this Commission and the complainant has no cause of action to file the present complaint.

7.                          Keeping in view the above discussion we hereby dispose of the complaint. However, complainant is at liberty to file fresh complaint on same cause of action before appropriate Court/Commission within period of 60 days. The period during which the present complaint remained pending before this Forum is exempted for the purpose of limitation in terms of the judgment of Hon’ble Supreme Court of India in case titled as Luxmi Engineering Works Vs. PSG Industrial Institute reported in 1995(3) SCC Pg.583. Assistant of the Forum is directed to hand over original documents if any to the complainant after retaining photo copies of the same on file, on proper receipt and verification. Copies of the order be sent of parties concerned as per rule. The interim order passed by this Forum stands vacated. File be consigned to record room after due compliance.

ANNOUNCED IN OPEN FORUM                            

Dt.23.04.2021