DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 42 of 9.2.2007<br /> Decided on : 6.7.2007 <br /> <br /> Ved Store, The Mall, Opposite Dr. Mohan Lal Garg Nursing Home, Bathinda through its Proprietor Naresh Kumar S/o Sh. Ved Parkash, resident of Bathinda. <br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1. On – Dot Couriers and Cargo Limited, Regd. Office : R-551, Main Shankar Road, New Rajinder Nagar, New Delhi-110060 through its Managing Director.<br /> 2. Incharge/Branch Manager, On- Dot Couriers and Cargo Limited, Railway Road, Above Shanti Photo Studio, Bathinda.<br /> 3. Sodexho Pass Services Private Limited, Ist and IInd Floor, Indabrator Building, NESCO Complex, Gate No. 3, Western Express Highway, Goregaon (E), Mumbai-400063 through its Managing Director.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Sanjay Goyal, Advocate<br /> For the opposite parties : Sh. Rajan Sharma, counsel for opposite parties No.1&2 <br /> Opposite party No.3 exparte. <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to reimburse it through its Proprietor the claim amount of Rs. 56,041/- alongwith interest @ 18% P.A from 21.11.2006 till payment; pay Rs. 20,000/- as compensation and damages on account of loss, harassment and mental tension, besides costs of the complaint.<br /> 2. Version of the complainant as emanates from the complaint itself culminating into its filing may be stated as under :-<br /> Opposite parties No. 1 & 2 are carrying on business of courier service. They claim that they are the best service provider in this field. Opposite party No.2 is the branch office of opposite party No.1 at Bathinda. On 21.11.2006, complainant had sent courier to opposite party No.3 through opposite party No.2. A sum of Rs. 50/- was charged by opposite party No.2 with the assurance that the envelope/parcel would be safely delivered to opposite party No.3 within 2/3 days. Thereafter, its Proprietor visited opposite party No.2 many a times to inquire the fate of the courier and for getting the receipt regarding delivery. Opposite parties continued putting off the matter one one pretext or the other. Reimbursement claim form alongwith coupons, value of which was Rs. 56,041/- was sent by it. On inquiry, opposite party No.3 intimated that courier has not yet reached it from opposite parties No. 1 & 2. On 29.12.2006, letter was sent by the complainant to opposite party No.1 with the request that receipt regarding the delivery of the courier to opposite party No.3 be issued and it be compensated for harassment. Opposite party No. 1 paid no heed and refused to adhere to its requests. It is alleged that the attitude of opposite parties No. 1 & 2 has caused considerable anxiety, mental tension and botheration. It has been deprived of the use of the amount of coupons which was to be reimbursed by opposite party No.3 at the time of delivery of the courier to it. Due to non delivery of the courier, amount has not been paid to it by opposite party No.3 and it is losing interest. There is deficiency in rendering service and unfair trade practice on the part of the opposite parties.<br /> 3. On being put to notice, opposite parties No. 1 & 2 filed reply of the complaint taking preliminary objections that complaint does not disclose any cause of action against them; its filing is an abuse of the process of law as it has been presented with sole intention to extract money; complainant has not come with clean hands and has suppressed material facts. Similar complaint against them was filed by the complainant which was dismissed by this Forum with cost of Rs. 500/-. Cost has not been paid till date. As per terms and conditions, they have limited liability to a maximum of Rs.100/- per consignment for any cause of domestic and to a maximum of US$ 100/- for international consignment. In this case, complainant is not entitled even to claim Rs.100/- as the consignment/envelope was not booked. Proprietor of the complainant was regularly visiting the office of opposite party No.2 to seek opportunity to cause wrongful loss to them. Finding opportunity, he had picked up two of the first copies of consignment note and filled the columns of his own without the consent and knowledge of opposite party No.2. He could not take away the third copy and the same remained in its office. When opposite party No.2 could not find first two copies of the consignment note in his office, he thought that consignment note might have come incomplete from the office of opposite party No.1. It being so, he did not bother about it. He wrote letter dated 29.10.2006 to opposite party No.1. On merits, they admit that they are carrying on business of courier service and opposite party No.2 is the branch office of opposite party No.1 at Bathinda. Opposite party No.2 is only a franchisee of opposite party No.1 and is not its self office. They deny that complainant had booked consignment on 21.11.2006 against payment of Rs. 50/-. Consignments are booked solely at the risk of the consignor and no valuable security or such articles of the like nature are booked unless they are insured. When consignment was not booked, the question of sending reimbursement form alongwith coupons does not arise. Letter dated 29.12.2006 was not received. Complainant could not book consignment with them as he had litigation with them in the past. They deny deficiency in service and unfair trade practice on their part. They refute the remaining averments in the complaint.<br /> 4. Sh. K.S. Sidhu had appeared on behalf of opposite party No.3. Memo of appearance was presented by him on 19.3.2007. On 13.4.2007, no-one came present on behalf of opposite party No.3. Accordingly, it was proceeded against exparte.<br /> 5. In support of its allegations and averments in the complaint, complainant has tendered into evidence affidavit Ex.C.1 of Sh. Naresh Kumar its Proprietor, photocopy of receipt dated 21.11.2006 (Ex.C.2), photocopy of claim reimbursement form (Ex.C.3), photocopy of letter dated 29.12.2006 (Ex.C.4), photocopies of receipts (Ex.C.5 to Ex.C.23) & photocopies of claim reimbursement forms (Ex.C.24 to 30).<br /> 6. On behalf of opposite parties No. 1 & 2 reliance is placed on affidavits (Ex.R.1 & Ex.R.2) of Sh. Ramesh Kumar working as franchise of opposite party No.2, photocopy of letter dated 29.10.2006 (Ex.R.3), photocopy of letter dated 3.11.2006 (Ex.C.4), photocopy of blank consignment note No. 251457681 (Accounts copy) (Ex.R.5) and photocopy of order dated 27.3.2006 (Ex.R.6).<br /> 7. We have heard the learned counsel for the complainant and opposite parties No. 1 & 2 and gone through the record. Apart from this, we have considered written arguments submitted by them.<br /> 8. Mr. Goyal learned counsel for the complainant vociferously argued that complainant had booked one consignment/envelope/packet with opposite party No.2 containing coupons worth RS. 56,041/- for sending them to opposite party No.3. A sum of Rs. 50/- was charged by opposite party No. 2 which is branch of opposite party No.1 at Bathinda and receipt, copy of which is Ex.C.2, was issued. Thereafter, complainant was inquiring from opposite party No.2 if the courier had been delivered to opposite party No.3. Opposite parties No. 1 & 2 delayed the matter on one pretext or the other. They failed to give receipt regarding the delivery of the courier to opposite party No.3. He further argued that complainant had sent reimbursement claim form alongwith coupons, value of which was Rs.56,041/-. Copy of the claim reimbursement form is Ex.C.3. Inquiry was also made from opposite party No. 3 if the courier had reached it or not and it was told that it has not yet been received from opposite parties No. 1 & 2. According to him, false defence has been taken by opposite parties No. 1 & 2 to the effect that consignment was not booked. <br /> 9. Mr. Sharma learned counsel for opposite parties No. 1 & 2 countered the arguments of the learned counsel for the complainant by submitting that complaint is nothing, but an abuse of the process of law. Similar type of complaint was earlier filed by the complainant against opposite parties No. 1 & 2 and that was dismissed by this Forum on 27.3.2006 with cost of Rs. 500/- as is evident from the copy of the order Ex.R.6. Complainant was having grudge against opposite party No.1. Complainant was regularly visiting the office of opposite party No.2 and was seeking an opportunity to cause wrongful loss to it. Finding an opportunity, its Proprietor had picked up two of the first copies of the consignment note No. 251457681 and filled in their columns of his own without consent and knowledge of opposite party No.2. He could not take away the third copy of this consignment note and as such, it remained in the office of opposite party No.2 and copy of t he same is Ex.R.5. Opposite party No.2 could not find first two copies of the consignment note in his office. Accordingly, he sent letter to opposite party No.1 on 29.10.2006 for getting first two leaves of this consignment note and copy of the letter is Ex.R.3. Rahul Garg of Legal Department sent letter to Mr. S.K. Jain, Finance Manager of opposite party No.1 intimating that letter was received from opposite party No.2 for issuing fresh consignment note. Accordingly, order was passed on 13.11.2006 on this letter for issuing fresh consignment. His submission is that, in these circumstances, question of booking consignment on 21.11.2006 through consignment note No. 251457681, did not arise. Next leg of his argument is that complainant has failed to give satisfactory reply of the questionnaire submitted by opposite parties No. 1 & 2 concerning copies of the courier receipts Ex.C.5, Ex.C.6, Ex.C.10, Ex.C.11 & Ex.C.19 to Ex.C.23. Apart from this, provisions of the Act are not applicable to this case as the alleged act of the complainant is a commercial transaction. <br /> 10. We have considered the respective arguments. First material question for determination in this case is as to whether the consignment/packet containing reimbursement claim form alongwith coupons of the value of Rs. 56,041/- was got booked by the complainant with opposite party No.2 against payment of Rs.50/-. Ex.C.2 is the courier receipt No.251457681 which according to the complainant was issued by opposite party No.2 after receiving Rs. 50/- and the envelope/packet containing reimbursement claim form alongwith coupons worth Rs.56,041/-. In this document, the declared value of the items is Rs.56,000/-. Complainant in his affidavit Ex.C.1 reiterates his version in the complaint. From this affidavit, it is evident that complainant was approaching opposite parties No. 1 & 2 to inquire as to whether the courier has been delivered to opposite party No.3 or not. He was put of on one pretext or the other. Receipt regarding the delivery of the courier to opposite party No.3 was not handed over to the complainant. Inquiry from opposite party No.3 was also made as to whether the courier had reached it or not and it was told that it was not yet received from opposite parties No. 1 & 2. Not to speak of this, even complainant sent letter to opposite party No.1 on 29.12.2006, copy of which is Ex.C.4, regarding non-delivery of the courier to opposite party No.3. Further request was made for sending it the run sheet of the courier and POD. Opposite parties No. 1 & 2 admit that complainant through its Proprietor was coming to him regularly. Further, this fact that complainant through its Proprietor was visiting opposite party No.2 after 21.11.2006 stands substantiated from the copies of the receipts of the couriers which have been placed and proved on record by the complainant. If the complainant had any grudge against opposite parties No. 1 & 2 on account of the fact that its earlier complaint No. 10 of 6.1.2006 was dismissed on 27.3.2006 through order, copy of which is Ex.R.6, it would not have sent the couriers through them after 27.3.2006. Complainant sent several couriers through opposite party No.2 after 27.3.2006 as is clear from copies of the receipts of the courier which are Ex.C.5 to Ex.C.23. Had complainant any grudge against opposite parties No. 1 & 2 on account of the dismissal of its earlier complaint, the question of its getting the consignments booked with opposite party No. 2 after 27.3.2006 would not have arisen. From this, inference is that even after the dismissal of the complaint on 27.3.2006 complainant had cordial relations with opposite party No.2. Accordingly, contention of the learned counsel for opposite parties No. 1 & 2 on this count is repelled.<br /> 11. Story of opposite parties No.1 & 2 is that complainant was regularly visiting the office of opposite party No. 2 and finding an opportunity, it through its Proprietor picked up two of the first copies of the consignment note and filled their columns of his own without consent and knowledge of opposite party No.2, but he could not take away the third copy of the consignment note which is with opposite party No.2. Complainant has produced courier receipts, copies of which are Ex.C.5 to Ex.C.23. Opposite parties No. 1 & 2 have not denied the issuance of these receipts. Even learned counsel for opposite parties No. 1 & 2, during the course of arguments, conceded that receipts, copies of which are Ex.C.5 to Ex.C.23, have been issued by opposite party No.2. In such a situation, it was for opposite parties No.1 & 2 to establish that courier receipt, copy of which is Ex.C.2, has not been issued by him or any of his officials. Opposite parties No. 1 & 2 could get the signature and handwriting on the receipt, copy of which is Ex.C.2, compared with the signatures and handwriting of opposite party No.2 or his concerned officials from the Handwriting Expert to clinch the matter. They did not muster courage to lead the evidence to this effect. From this circumstance, adverse inference is drawn to the effect that if such evidence had been led by them, it would have gone against them. Bald affidavit Ex.R.1 of Sh. Ramesh Kumar stands amply rebutted with the evidence of Naresh Kumar, Proprietor of the complainant and other evidence led by the complainant. Even to the naked eyes, the signatures of the issuing authority/person on the receipt, copy of which is Ex.C.2, appear to be corresponding with the signatures on the courier receipts, copies of which are Ex.C.2, Ex.C.5, Ex.C.8 to Ex.C.15 and Ex.C.18 to Ex.C.23.<br /> 12. Opposite parties No.1 & 2 filed reply of the complaint before this Forum on 13.4.2007. Plea that first two copies of the consignment note were taken away by the complainant and their columns were filled in without the consent and knowledge of opposite party No.2 is belied from Ex.R.3 which is the copy of the letter dated 29.10.2006 sent by Sh. Ramesh Kumar franchise of opposite party No.2 to opposite party No.1. Through this letter, an intimation was sent by him to opposite party No.1 that only one receipt of consignment note No. 251457681 was received from it (opposite party No. 1) and that remaining consignment notes of this number be sent. If only one consignment note was received as is clear from Ex.R.3, the question of committing theft of first two consignment notes of this number i.e. 251457681 by the complainant, does not appeal to reasons, particularly when evidence of opposite parties No.1 & 2 does not establish that remaining two consignment notes of No. 251457681 were actually sent to opposite party No.2 on the basis of the letter, copy of which is Ex.R.3. Moreover, letters, copies of which are Ex.R.3 and Ex.R.4 appear to us to be manipulated documents. They do not have reference numbers. Column of reference number concerning Ex.R.3 has been left blank. No reference number on Ex.R.4 has been given. Mode and manner in which they were sent are not known. Ramesh Kumar does not state in his affidavit that he had handed over the letter, copy of which is Ex.R.3, to Sh. S.K. Jain of opposite party No.1 personally or it was got delivered by him through any of his employees etc. Likewise is the position concerning letter dated 3.11.2006. There may be several reasons such as non placing of the carbon in between the three consignment notes bearing No. 251457681 inadvertently or otherwise on account of which the contents of receipt, copy of which is Ex.C.2, might not have come on the Account Copy, copy of which is Ex.R.3. Legality, validity and authenticity of the courier receipts, copies of which are Ex.C.5 to Ex.C.23, is not in dispute in this case. As discussed above, opposite parties have not denied the issuance of these receipts. Even if it is taken for arguments sake that complainant has not given satisfactory reply about their contents, it would fetch no significance nor would it advance the cause of opposite parties No.1 & 2. <br /> 13. From the facts, circumstances and the evidence discussed above, crux of the matter is that on 21.11.2006 complainant had got booked one packet/envelope with opposite party No.1 through opposite party No.2 containing reimbursement claim form alongwith coupons, the value of which was Rs. 56,041/-, although it has been declared as Rs. 56,000/- and receipt, copy of which is Ex.C.2, was issued by opposite party No.2 on receiving payment of Rs.50/-. Consignment has not been delivered by opposite parties No.1 & 2 to opposite party No.3. Failure on their part in this respect is deficiency in service. For this, we get support from the observations of the Hon'ble State Commission, Madras in the case of M/s. Indu Couriers (P) Ltd. Vs. M/s. Vairavan & Sons-1993(1)CPR-193.<br /> 14. One of the legal objections taken by opposite parties No. 1 & 2 is that provisions of the Act are not applicable as the matter in dispute concerns commercial transaction. In our view, this submission is not tenable as opposite parties No. 1 & 2 have failed to establish that complainant had hired the services of opposite parties No. 1 & 2 for commercial purpose. Commercial purpose would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. In this case, complainant had availed the services of opposite parties No. 1 & 2 for sending the reimbursement claim form alongwith coupons to opposite party No.3. It is only in case of loss of the consignment, they were to become liable for indemnification of loss. Services hired cannot be said to have been hired in an activity which was directly intended to generate profit.<br /> 15. Now question arises as to which relief should be accorded to the complainant. Arguments pressed into service by Mr. Sharma learned counsel for opposite parties No. 1 & 2 is that as per terms and conditions of the consignment note, opposite parties No. 1 & 2 have specifically limited the liability to a maximum of Rs. 100/- per consignment for any cause of domestic and to a maximum of US$ 100/- for international consignments. He further argued that even if it is taken for arguments sake that there is deficiency in service on the part of opposite parties No. 1 & 2, their liability is limited to a maximum of Rs.100/-. <br /> 16. To the contrary, Mr. Goyal learned for the complainant argued that complainant is entitled to claim Rs.56,041/- alongwith interest and Rs.20,000/- as compensation on account of mental tension and harassment.<br /> 17. We have given our thoughtful consideration to these rival contentions. Courier receipt, copy of which is Ex.C.2, reveals that it is unilateral. It has not been got signed from the Proprietor of the complainant or any other person authorised by him. Hence, terms and conditions on the receipt regarding limited liability cannot bind the complainant. For this, we are fortified by the observations of the various Hon'ble State Commissions in the cases of R.V.N.S Murthy and Another Vs. M/s. to Desk Courier and Another-1998(2)CPC-676, Professional Courier Service Desk Vs. Ayyakannu-2005(2)CPC-46 & Arulmigu Dhandayuthapaniswamy Thirukoil Vs. M. Mohalingam and others-2005 CTJ565. In the case of First Flight Couriers Ltd. Vs. Kerala State Electronics Development Corporation Ltd.-2006(2)CPC-404, it has been held by the Hon'ble National Commission that liability cannot be limited to a sum of Rs. 100/- only in terms and conditions of consignment in view of declaration of value of consignment. In the case of M/s. Akash Ganga Courier Service Vs. Ms. Tinu Singla-2001(2)CPC-37, complainant had claimed compensation against opposite party for rendering deficient services by not delivering the goods to the addressee sent through courier service. District Forum had directed opposite party to pay a sum of Rs.1,000/- as costs and compensation including price of goods (Sweater). Order of the District Forum was upheld by the Hon'ble State Commission, Haryana. Reference can also be made to the authorities The Manager, Professional Courier Vs. G. Rajagopal-2002(2)CPC-8, T.E. Mohammed Kunhi Vs. Professional Couriers-I(1998)CPJ-222, Smt. Inacia P. Carvalho Vs. Desk to Desk Courier and Cargo Ltd.-2002(1)CPC-136, Madhur Courier Services VS. Dr. R.S. Pande-1999(1)CPC-108 and M/s. First Flight Couriers (P) Limited Vs. Jay Khemka and Another-1998(2)CPC-39. Complainant was to be reimbursed by opposite party No.3 after the receipt of the courier for the coupons worth Rs. 56,041/- which were like the bearer cheques. Since, courier did not reach opposite party No.3, amount has not been paid. Complainant has been deprived of the use of the amount of coupons. Reasonable time within which opposite party No.3 could make payment of the amount of the coupons appears in this case as one month. In the present scenario and in view of the legal position referred to above, direction deserves to be given to the opposite parties No.1 & 2 to pay Rs. 56,000/- to the complainant i.e. value declared by it alongwith interest @ 9% P.A from 22.12.2006 onwards till payment. Complainant is craving for compensation of Rs.20,000/- for harassment and mental tension. There is no case to allow it in view of the relief which is going to be accorded as above. Out of interest and compensation, one can be allowed.<br /> 18. In the premises written above, complaint is allowed against opposite parties No. 1 & 2 with costs of Rs. 1,000/-. It stands dismissed against opposite party No. 3. Opposite parties No. 1 & 2 are directed to do as under :-<br /> ( i ) Pay Rs. 56,000/- to the complainant alongwith interest @ 9% P.A from 22.12.2006 till payment.<br /> ( ii ) Compliance within 30 days from the date of receipt of copy of this order.<br /> 19. Copy of this order be sent to the parties concerned free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 6.7.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />