DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 475 of 30-10-2015

Decided on : 26-04-2017

Pawan Kumar S/o Chiranji Lal Prop. M/s. Chiranji Lal Pawan Kumar (Sangat Wale) Wholesale & Retail of Bidi, Cigarette & Confectionery Merchants, Shop No. 26-27, Red Cross Shopping Complex, Mall Road, Bathinda, through his Attorney Ram Gopal S/o Powan Kumar

…...Complainant

Versus

1. On Dot Couriers & Cargo Ltd., Corporate Office : 8/42, Kirti Nagar, Industrial Area, New Delhi 110 015 through its Managing Director

2. On Dot Couriers & Cargo Ltd., Railway Road, Near Shiv Mandir, Bathinda, through its Proprietor/Manager

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Sh. Jarnail Singh, Member

Present :

For the complainant : Sh. Vakeel Singh, Advocate.

For the opposite parties : Sh. Rajan Sharma, Advocate.

O R D E R

M. P. Singh Pahwa, President

1. Pawan Kumar, complainant (here-in-after referred to as ' complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against On Dot Couriers & Cargo Ltd., and another(here-in-after referred to as 'opposite parties).

2. Briefly stated, the case of the complainant is that he is running wholesale and retail of Bidi, Cigarette and confectionery merchants under the name and style of M/s. Chiranji Lal Pawan Kumar (Sangat Wale) in Shop No. 26-27, Red Cross Shopping Complex, Mall Road, Bathinda. He is proprietor of the said concern. The business is being run by him with the help of his son Ram Gopal who is well conversant with the business and transactions with all the parties. The complainant has authorized his son to file the complaint on his behalf.

3. It is pleaded that opposite party No. 1 is a Courier Company. Opposite party No. 2 is the Area/Branch Office of the opposite party No. 1 at Bathinda. The complainant is distributor of Shambu Khaini Pvt. Ltd., Delhi. The said company issued discount scratch coupons of the value of Rs. 200/-, Rs. 150/-, Rs. 100/-, Rs. 40/-, Rs. 30/-, Rs. 25/-, Rs. 20/-, Rs. 15/- and Rs. 10/- for sale promotion on sale of Shambu Khaini. The said vouchers are being encashed by complainant from Mr. Sachin Kundra, House No. 19, Kalia Colony, Near Verka Milk Plant, Jallandhar who is holding C & F of the said company.

4. As per complainant, the customers who purchased Khaini of the value disclosed by the company, was handed over the scratch coupon by the complainant. On scratch of the coupon, the discount was given by complainant to the customers on the counter itself. The complainant encashed 452 coupons of Rs. 10/- each, 315 of Rs./ 15/- each, 229 of Rs. 20/- each, 122 of 25/- each, 94 of Rs. 30/- each, 49 of Rs. 40/- each, 75 of 40/- each, 20 of Rs. 100/- each, 2 of Rs. 150/- each and 2 coupons of Rs. 200/- each issued by the said company of the total value of Rs. 25,920/-.

5. It is pleaded that aforesaid total coupons worth Rs. 25,920/- were packed in a parcel/envelop by the complainant alongwith list thereof. He booked the same with the opposite parties for its delivery to Mr. Sachin Kundra, House No. 19, Kalia Colony, Near Verka Milk Plant, Jallandhar on 23-09-2015 vide AWB No. 637929988. The complainant waited for the reimbursement of the said coupons from Mr. Sachin Kundra, for sufficient time. Ultimately, he approached Mr. Sachin Kundra for sending the amount against vouchers sent by him through opposite parties, but he was astonished to know from Mr. Sachin Kundra that the envelope/parcel sent by him through opposite parties did not reach to Mr. Kundra. The complainant approached opposite party No. 2 to know whereabouts of the parcel and the person to whom the delivery has been given, but the opposite party No. 2 did not give any reply. Thereafter complainant asked opposite party No. 2 to reimburse the value of the coupons i.e. Rs. 25,920/- but they refused to do so.

6. It is alleged that opposite parties have misappropriated the coupons and have caused loss to the tune of Rs. 25,920/-. The complainant is entitled to recover this amount with interest @ 18% p.a. from 23-9-2015 till payment.

7. It is also the case of the complainant that he has suffered mental tension, agony and loss of physical health due to adamant attitude of the opposite parties and due to not providing service by them. He is entitled to Rs. 25,000/- as compensation.

8. On this backdrop of facts, the complainant has alleged deficiency in service on the part of the opposite parties and has filed this complaint to claim aforesaid reliefs in addition to Rs. 5,000/- as litigation expenses.

9. Upon notice, opposite parties appeared through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised legal objections that complaint is not maintainable in the present form. That the complainant booked one envelop with opposite parties against consignment note dated 23-9-2015 which in the normal and usual course was delivered to addressee. At the time of booking, the contents of the packet and its value was not disclosed by the complainant nor it was accompanied with any document to suggest the same. No such articles/vouches as mentioned in the complaint were even sent by complainant against said consignment note. If the complainant have informed that the packet was containing valuable articles/vouchers, then the opposite parties must have advised him to sent the said packet under insurance cover by paying additional charges/premium. Moreover, the opposite parties have not received any complaint for non-delivery of consignment from addressee till date. The complainant has not placed on file any evidence/proof that the addressee has not received the booked packet. The damages claimed are hypothetical, speculative, fake, fictitious, bogus and devoid of merit.

10. It is further submitted that if it is assumed that booked packet has not been delivered to the consignee, due to one reason or the other, it has to be treated as lost in transit. If there is deficiency in service due to non delivery, the liability of the opposite parties is limited to Rs. 100/- only. This fact is clearly mentioned on the receipt issued by opposite parties to the complaint. That complainant is running a business of wholesale and retail of Bidi, Cigarette etc., He is running the said business for commercial purposes. This Forum has got no jurisdiction to try and entertain the complaint. That complainant has not come to this Forum with clean hands. He has suppressed material facts from this Forum. The complainant is not entitled to any relief. That complaint has been filed on false and fabricated facts. It is liable to be dismissed. That contents of complaint are misconceived, misleading and afterthought. Complaint is liable to be dismissed and lastly that complainant has no locus standi or cause of action to file the complaint.

11. On merits, the opposite parties have denied all the material averments and reiterated their stand as taken in legal objection and detailed above. In the end, the opposite parties have prayed for dismissal of complaint.

12. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit dated 8-7-2016 (Ex. C-1), Detail of coupons (Ex. C-2), sample copy of discount and scratch coupons (Ex. C-3), photocopy of courier receipt (Ex. C-4) and copy of letter from Sachin Kundra (Ex. C-5).

13. In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 1-11-2016 of Ramesh Kumar (Ex. OP-1/1).

14. The complainant and opposite parties have submitted written arguments.

15. We have heard learned counsel for the parties, gone through the record and written arguments of the parties.

16. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that complainant has sent one parcel/envelope through opposite party No. 1 to Mr. Sachin Kundra. This fact is not denied by the opposite parties. Moreover, the receipt Ex. C-4 also proves this fact, The version of the complainant is that this parcel was not delivered to the addressee i.e. Mr. Sachin Kundra. The certificate Ex. C-5 was signed by Mr. Sachin Kundra confirming that he has not received the parcel. Moreover when the receipt of parcel is admitted by the opposite parties, it was to be proved by the opposite parties that the same has been delivered to addressee but no document has been produced by them to prove this fact. The only evidence produced by the opposite parties is the affidavit of one Ramesh Kumar. He is Manager of the opposite parties posted at Bathinda. The parcel was to be delivered at Jallandhar. No official from Jallandhar has come forward to prove that parcel was actually delivered to the addressee. Therefore, it is to be accepted that courier/envelope/packet was not delivered to the addressee. The complainant has also pleaded that parcel was containing number of coupons detailed in Ex. C-2. Receipt Ex. C-4 also proves that weight of the parcel was about 2 Kg. As per complainant he has sent coupons worth Rs. 25,920/-. The sample coupons are also placed on record as Ex. C-3 to prove the case. In this way, the complainant has suffered loss to the tune of Rs. 25,920/-. He has already enchashed coupons to the customers. Therefore the loss of Rs. 25,920/- by complainant due to deficiency in service of the opposite parties also stands established. The complainant has also suffered mental tension and harassment for non-delivery of parcel. Therefore, he is entitled to compensation of Rs. 20,000/-.

17. To support his submissions, learned counsel for the complainant has relied upon following case law :-

18. (i) Decision of Hon'ble State Commission, U.T. Chandigarh, rendered in FA No. 79 of 2012 decided on 27-03-2012 in case titled On Dot Courier Vs. Nano Biotech

    (ii) Decision of Hon'ble State Commission, Punjab, Chandigarh, rendered in FA No. 1214 of 2007 decided on 30-3-2012 in case titled On Dot Courier & Cargo Ltd., Vs. Ved Store

    (iii) 2010 (2) CPJ 232 case titled Tirtha Traders Authorized Distribution of And site and others Vs. Blaze Flash Courier Ltd., and others

    (iv) 2008(4) CPJ 514 case titled Lakshmi Medical Agencies Vs. On Dot Courier and Cargo Ltd., and Another

    (v) 2012 (2) CPJ 167 case titled Air Star Express Courier Vs. Inder Medical Store and Another

19. On the other hand, learned counsel for opposite parties has submitted that of course the complainant booked one parcel for delivery to Mr. Sachin Kundra but complainant has failed to prove its contents. There is nothing to show that envelope was containing any coupon worth Rs. 25,900/-. The complainant has relied upon receipt Ex. C-4. The complainant has not controverted the conditions printed on the receipt. It is categorically mentioned that no claim shall be entertained for cash, jewellery, contrabands, passports and instruments in bearer form including undeclared items. Had the complainant declared the value of these articles, the opposite parties would have advised him to get the parcel insured to cover the loss. It is also mentioned in the said receipt that 'Shipper sending valuable articles must get them insured for transit'. In these circumstances, the complainant was himself at fault. The complainant has sent envelope/parcel through ordinary course. As such, he is not entitled to any compensation as claimed by him.

    In support of his submissions, learned counsel for the opposite parties has cited : 2002 (1) CPJ 1 case titled Best Electrodes Industry Vs. M P Audhogik Kendra Vikas Nigam (Rawa) Ltd., & Ors.

20. We have carefully gone through the record, case law cited by parties and have considered the rival contentions.

21. It is pleaded by complainant that he booked one envelope/packet for delivery to Mr. Sachin Kundra at Jallandhar. The complainant has also produced receipt Ex. C-4 to prove this fact. The opposite parties have admitted that they have received one packet/envelope from the complainant but further version of the opposite parties is that it was delivered to the addressee. This fact was to be proved by the opposite parties but they have not produced any evidence to prove delivery of parcel/envelope/packet to the addressee. The only evidence produced by the opposite parties is affidavit of Ramesh Kumar. He is posted at Bathinda. He cannot prove delivery of envelope/packet. Moreover, it was to be proved by some documentary evidence and the name of person who has received the packet/envelope was also to be disclosed but there is no such evidence from the side of the opposite parties. Therefore, it is accepted that packet/envelope received from the complainant was not delivered to the addressee. This act of the opposite parties amounts to deficiency in service.

22. Now the next part for decision is amount of compensation. The complainant has pleaded that packet/envelope was containing coupons worth Rs. 25,920/- and the amount was to be reimbursed by addressee. The complainant himself has placed on record receipt Ex. C-4. The complainant has not disputed the condition mentioned in this receipt. It is printed on this receipt, with bold letters, that no claim shall be entertained for sending cash, jewellery etc., unless specifically declared. It is also printed that Shipper sending valuable articles must get them insured for transit'. Admittedly complainant has not got the envelope/packet insured to cover the loss. As per section 10 of Carriage by Road Act, 2007, the liability of the common carrier for loss of or damage to any consignment shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment, unless the consignor or any person duly authorized in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier U/S 11. In this case, the consignor has not prescribed the value of articles. The complainant has admittedly sent only coupons/documents.

23. The case law cited by learned counsel for the complainant are not helpful to him as the facts of the cited cases are clearly distinguishable in the following manner :

    (i) The case On Dot Courier Vs. M/s. Nano Biotech (supra) relates to booking of parcel containing medicines worth Rs. 91,800/. The parcel was also to be delivered to another Pharmaceuticals Company. But in this case, the documents/coupons were sent and not any goods were sent through opposite parties.

    (ii) In the case of On Dot Courier Vs. Ved Store (supra) although the complainant has sent reimbursement claim form alongwith coupons for the value of Rs. 56,041/- but this amount was specifically mentioned on the booking form filled in by the complainant. In this case, the complainant has not disclosed the value of coupons/documents sent by him.

    (iii) The case of Tirtha Traders Vs. Blaze Flash Courier (supra) relates to parcel containing led torch light i.e. goods and not any documents.

    (iv) Similarly the case of Laxmi Medical Agencies Vs. On Dot Courier (supra) also relates to transportation of medicines for delivery to another medical store.

    (v) In the case of Air Star Express Courier Vs. Inder Medical Store (supra), the complainant has sent parcel which are goods and not documents.

24. In the case of transportation of documents, if the complainant has not disclosed the value of goods, the opposite party was having no reason to inquire about the value of such type of goods. As such, case law cited by learned counsel for the complainant is clearly on distinguishable facts.

25. In view of what has been discussed above, this complaint is partly accepted against the opposite parties. The opposite parties are directed to pay Rs. Rs. 2,000/- (Two thousand only) as cost and compensation to complainant jointly and severally, within 30 days from the date of receipt of copy of this order.

26. The complaint could not be decided within the statutory period due to heavy pendency of cases.

27. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    26-04-2017

    (M.P.Singh Pahwa )

    President

     

     

     

    (Jarnail Singh )

    Member