Kamal Kantt Jain has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to pay Rs.26,465/- as value of P.D.I. and free service coupons which have been lost by the opposite party assured and promised to be delivered to addressee Mr. Yogesh B. Sikachi, Manager QA Bajaj Auto Ltd. Aurangabad within three days of booking dated 9/12/2005 and also for payment of interest at the rate of 18% per annum over the said amount since 12/12/2005 to up to date and to pay Rs.20,000/- as compensation for harassment, inconvenience besides Rs.5000/- as costs of the complaint. <br /> 2. The complainant averred in his complaint that the complainant is running a Bajaj Auto Agency and is an authorised dealer for Bajaj Auto Ltd. at Faridkot and Kotkapura and Mr. Kamal Kant Jain is proprietor of M/s Scooter Aid Centre, Faridkot. The complainant booked a parcel which contained free service and PDI coupons with the opposite party No. 2, being agent of opposite party No. 1 on 9/12/2005 vide receipt No. 073006862. It was assured by opposite party No. 2 that the said parcel shall be delivered at its destination at Aurangabad i.e. to Mr. Yogesh B. Sikachi, Manager QA Bajaj Auto Ltd. Aurangabad within three days. The complainant orally inquired about the dispatch and reach of the parcel to its destination but no tangible reply was given by the opposite party No. 2 except only that the matter is processed to inquire about reaching of said parcel to its destination. The complainant has inquired from the addressee i.e. Manager QA Bajaj Auto Ltd. to whom the said parcel was booked and it is intimated through mail that the said parcel has not been received till 25th June, 2006. The parcel was booked on 9/12/2005 with the opposite party No. 2 agent of the opposite party No. 1 but neither any communication is made in respect of loss nor the same has been delivered at the destination. So it is clear cut deficiency in service on the part of the opposite party as the requests being made by the complainant to opposite party No. 2 and thereafter to opposite party No. 1 but no reply has been given or tangible happened so as to deliver the said parcel at its destination. Due to this act of the opposite parties the complainant has suffered a loss of Rs.26,465/- as the reimbursement of the said amount shall stand unpaid to the complainant against the said coupons being sent apart from damages for mental harassment. The complainant has already received intimation from Sh. Yogesh B. Sikachi that due to non receipt of free service coupons batch 06112005 the claim of the complainant cannot be settled and credited in account of the complainant unless the coupons physically produced and presented. The complainant is also entitled to the damages and interest @ 18% per annum over the said amount as claimed above with the costs of the complaint. The complainant is also entitled for damages to the tune of Rs.20,000/- for harassment being suffered by the complainant and costs of the complaint to the tune of Rs.5000/-. Hence this complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 5-2-2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice the opposite parties appeared through Sh. P. Betab Advocate and filed written reply taking preliminary objections that the complainant is not entitled for any relief from this Hon'ble Forum as the complainant is not a consumer within the preview of the definition of Consumer as defined under Section 2(d) of Consumer Protection Act, 1986 besides that the courier services are availed for commercial purpose. The present complaint does not disclose any cause of action. Filing of the present complaint is nothing but an abuse to the process of law and filed with the sole intention to extract money from the opposite party No. 1 and 2 and to malign their reputation without any fault on their part. The complainant has not come with clean hands and suppressed the true material facts from this Forum. With prejudice to legal rights and contentions of the opposite parties the terms and conditions mentioned on the consignment note the opposite party No. 1 and 2 have specifically limited its liability to a maximum of Rs.100/- per consignment for any cause of domestic and to a maximum of US$ 100/- for international consignments. But in this complaint the complainant is not even entitled to claim any amount much less Rs.100/- as per the terms and conditions of the opposite party as mentioned on consignment note in the eventuality of loss and damages by the opposite party as the present envelope has already been delivered to the addressee and proof of delivery shall be placed on record which is not traceable as due to sealing problem of Delhi H.O. and opposite party No. 1 was compelled to shift all their office goods to different places. However the internal on line report also confirms that the said consignment has been delivered well in time. So the present complaint is liable to be dismissed. On merits its admitted that the complainant had booked a consignment on 9/12/2005 to be delivered to Mr. Yogesh B. Sikachi. It is wrong that the complainant have book the parcel which contains the free service and PDI coupons and that the opposite party No. 2 assured the same would be delivered within 3 days. The complainant never declared the value of the consignment. Upon asking of the booking Clerk about the contents of the consignment and if the same requires insurance the complainant had replied that the said consignment contains a motor spare parts and declared the weight of the parcel of 1.6 Kg and paid Rs.160/- but never declared the value of the consignment and consignment does not require any insurance. After receipt of the courier the opposite parties got in touch with the complainant and handed over the original proof of delivery to him and tried to satisfy the complainant that the said consignment has been delivered well in time. All the allegations of the complainant are false and frivolous. So the complaint be dismissed with heavy costs. <br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, courier receipt dated 9/12/2005 Ex.C-2, copy of coupons list Ex.C-3, letter dated 11/1/2007 of Bajaj Auto Ltd. Ex.C-4, carbon copy of notice Ex.C-5, postal receipt Ex.C-6, affidavit of Kamal Kant Jain Ex.C-7 and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Rakesh Kumar Branch Incharge of the opposite party No. 2 Ex.R-1, on 27/8/2007 the counsel for opposite parties pleaded no instruction from the opposite parties, so the evidence of opposite parties stands struck off vide order dated 27/8/2007. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant submitted that the opposite parties have not delivered the packet containing the free service coupons worth Rs.26,465/- to the destination at Aurangabad which was booked with opposite party No. 2, agent of the opposite party No. 1 on 9/12/2005. <br /> 9. Learned counsel for the opposite parties have submitted that as per terms and conditions of the receipt of parcel the complainant at the most can be compensated with the damages of Rs.100/- only. The complainant is not a consumer. <br /> 10. Learned counsel for the complainant has submitted that the complainant is consumer of the opposite parties who have provided services for delivery of the packet to the destination. <br /> 11. From the perusal of the receipt Ex.C-2 issued by the opposite party No. 2 it is made out that the complainant has sent a packet weighing 1.700 Kg. from Faridkot to Aurangabad for its delivery for Y.B. Sikachi after receiving the amount of Rs.160/-. The opposite parties are going business of courier and cargoes and they are providing services to the customers after receiving carriage amount. So the complainant as per receipt Ex.C-2 is held to be a consumer of the opposite parties. <br /> 12. The complainant in his affidavit Ex.C-1 has substantiated his pleadings to the effect that the packet containing free service and PDI coupons worth Rs.26,465/- booked on 9/12/2005 for its delivery to Mr. Yogesh B. Sikachi Manager QA Bajaj Auto Limited Aurangabad vide receipt dated 9/12/2005 has not been handed over to the addressee. <br /> 13. Complainant deposed that he inquired about the delivery of the packet from time to time. It was no received by the addressee uptill 25/6/2006. Complainant received intimation Ex.C-4 from the addressee that the coupons have not been received by the addressee so credit cannot be issued unless they received the physical coupons from the complainant. <br /> 14. Complainant served legal notice Ex.C-5 dated 16/9/2006 to the opposite parties as per pleadings of the complainant but the opposite parties have not submitted any reply to the above noted legal notice. <br /> 15. There is simple denial by the opposite parties in their written statement for want of evidence is not helpful to the opposite parties. So it is held due to the deficiency of service of the opposite parties the packet containing free coupons have not been delivered to the addressee on behalf of the complainant by the opposite parties. <br /> 16. As per T.E. Mohammed Kunhi Versus Professional Couriers reported in 1998 Consumer Protection Judgments-222 that if the courier fails to deliver consignment the liability is absolute. Liability can be restricted by contract person who pleads limiting liability has to prove the same. Consignment note is to be signed by the consignor. So stipulated limited liability is not binding upon the consignor without signing the note. <br /> 17. It is found held Sudhir Deshpande Versus Elbee Services Ltd. Bombay reported in 1994 Consumer Protection Judgments- 140 (NC) that if the consignment does not reached destination then complainant is entitled to compensation who has booked the envelope containing documents. <br /> 18. As per Manager, Skypak Agency and Anr. Versus K.K. Karunakaran Pillai reported in 1 (1995 ) Consumer Protection Judgments-106 that the complainant is not bound by the terms and conditions mentioned on the consignment note. So the complainant can recover compensation from the courier on account of deficiency of services. Even in this authority there was only a delay of one month in delivery of packet so liability was held to be not restricted to Rs.1000/-.<br /> 19. In view of the above noted facts and circumstances the opposite parties are held to be deficient in providing services to the complainant for delivery of packet containing free service coupons booked by the complainant with the opposite parties for its delivery at Aurangabad. The complaint of the complainant is accepted. Accordingly the opposite parties are directed to make payment of the amount value of the coupons i.e. Rs.26,465/- and costs of the complaint Rs.500/- in total Rs. 26,965/- to the complainant within one month from the date of the receipt of the copy of this order, failing which the opposite parties shall pay interest on the amount of Rs.26,965/- at the rate of 12% per annum from the date of the decision of the complaint till the realization of the amount. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 4/10/2007<br /> <br />