BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 460 of 2015
Date of institution: 11.09.2015
Date of Decision: 03.03.2016
Neeraj Jain son of Ajmer Chand Jain, resident of House No.127, Tribune Colony, Baltana, District Mohali, Punjab.
……..Complainant
Versus
1. On Dot Couriers & Cargo Ltd., # 8/42, Kirti Nagar Industrial Area, New Delhi -110015.
2. On Dot Courier & Cargo Ltd., SCO No.52, Ranjan Plaza, Opposite Paras Down Town, Zirakpur, Chandigarh Road, Zirakpur, District Mohali, Punjab.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Naresh Kumar Bansal, counsel for complainant.
Shri Anish Gautam, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
- pay him Rs.19,700/- being cost of unstitched cloth.
- pay him Rs.25,000/- as compensation on account of physical and mental harassment.
(c) pay him Rs.5,000/- as costs of litigation.
As per the complainant, he purchased some assorted fabric for his personal use from Arihant Garments, Ambala Cantt vide bill No.290 dated 14.07.2015 for Rs.19,700/-. The complainant booked the parcel with Zirakpur office of the OPs on 17.07.2015 for Delhi by paying Rs.200/-. The parcel was to reach Delhi within 3 days but the parcel did not reach the destination even after lapse of one month period. The complainant vide representation dated 03.08.2015 sought compensation from the OP. Due to non receipt of any reply from the OPs, the complainant sent legal notice dated 21.08.2015 to the OPs again seeking compensation from the OPs. Till date nothing has been done by the OPs. Thus, with these allegations the complainant has filed the present complaint
2. The OPs in the preliminary objections of their written statement have pleaded that the complaint is liable to be dismissed as the complainant has failed to serve a statutory legal notice under Section 10 of the Carriers Act. The complainant does not fall within the definition of consumer as defined under the Consumer Protection Act as the complainant had hired the services of the OPs for commercial purpose. There is no privity of contract exist between the parties. As per terms and conditions mentioned on the consignment note, the OPs have specifically limited their liability to a maximum of Rs.100/- per consignment for any loss within India and to a maximum us US $ 100 for international consignments. The complainant has not made any endorsement or instructions pertaining to value or contents of the consignment at the time of booking. On merits, it is pleaded that the invoice dated 14.07.2015 has not been signed by anyone hence the same cannot be relied upon by the complainant. The complainant had not bought any insurance cover at the time of booking despite specific query of the booking clerk of the OPs. As per the consignment track record the consignment booked from Zirakpur reached the destination, thus there is no chance of non delivery of the said consignment. The complainant never provided copy of bill of the purchased goods, copy of declaration form which is required to be filled by the complainant at the time of sending any consignment. The OPs have denied receipt of any legal notice from the complainant. Thus, denying any deficiency in service or unfair trade practice on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-6.
4. Evidence of the OPs consists of affidavit of Sanjeev Puri, their Administrative Officer Ex.OP-1/1 and copy of resolution Ex.OP-1/2.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. The factum of availing of services of the OPs by the complainant for delivery of parcel through courier on 14.07.2015 and payment of Rs.200/- for availing these services is not a matter of dispute between the parties. The disputed question raised in the complaint is that the courier which was booked from Zirakpur on 14.07.2015 has not reached its destination at New Delhi as per the address mentioned on the parcel. As per the complainant, once the article did not reach its destination, he enquired from the OPs and OPs orally admitted that the parcel has been misplaced and, therefore, he will be compensated accordingly and till date no compensation has been granted. Thus the complainant has filed the present complaint. The OPs on the other hand denied non delivery of article to the consignee/recipient at Delhi and further have limited their liability to the extent of Rs.100/- per consignment for any loss within India and maximum US $ 100 for international consignments as per the receipt Ex.C-2.
7. As per the complainant the parcel contained assorted fabric which he has purchased for Rs.19,700/- vide Ex.C-1 from Ambala on 14.07.2015. Therefore, the complainant is entitled to the actual loss as well as other compensation.
8. On appreciation of evidence, it has emerged that the OPs have failed to show the delivery of the article at the destination i.e. at Delhi. There is no receipt or acknowledgement placed on record to show the delivery of article at Delhi. Thus, it is ample clear that the booked article has not reached the destination and act of the OPs, therefore, can squarely be considered an act of unfair trade practice and deficiency in service.
9. Further the OPs have denied the receipt of legal notice dated 03.08.2015 issued by the complainant but in Para No.7 of the reply have raised specific plea that all the documents which have been sought by the OPs have not been supplied by the complainant till date. The OPs have failed to show on record that the list of documents/details of documents sought by them from the complainant. The contention of seeking documents per se shows that once the complainant’s articles have not been delivered to the recipient he has informed the OPs and the OPs were aware of the fact that the consignment has not reached at the destination. In the facts and circumstances of the case, therefore, we feel that the OPs should be made to pay the amount of the value of consignment i.e. Rs.19,700/- as per the invoice Ex.C-1.
10. The OPs have relied upon the terms and conditions on the consignment note showing their specific limited liability to the extent of Rs.100/- per consignment for any loss within India and maximum US $ 100 for international consignments. The perusal of Ex.C-2 shows that the printed terms and conditions are not acknowledged and signed by the complainant. Therefore, such terms are not binding on the consignor i.e. the complainant. The counsel for the OPs has relied upon the decision of Hon’ble Punjab State Consumer Disputes Redressal Commission titled as M/s. On Dot Courier & Cargo Ltd. & another Vs. Rakesh Laroia, First Appeal No.629 of 2010 decided on 01.10.2014 in support of his contention of limited liability as per terms and conditions mentioned in Ex.C-2. The facts of said case are not applicable to the present complaint as in that case the consignment note was duly signed by the complainant and, therefore, it was binding upon him whereas in the present complaint the terms and conditions mentioned in the consignment note are not signed by the complainant, therefore, are not binding on the complainant. Hence, the complainant is entitled to actual loss suffered and in we rely upon the decision of the Hon’ble Supreme Court of India rendered in Bharti Knitting Co. Vs. DHL Worldwide Express Courier Divn. Of Airfreight Ltd. II (1996) CPJ 25 (SC) wherein it is held that when a person signs a document, which contained certain contractual terms, the parties are normally bound by such contract. It is for the party to establish exception thereto. In the present case since the complainant has not signed and acknowledged the printed terms and conditions on the consignment note Ex.C-2, therefore, those terms are not binding upon him and he has demonstrated from the documents non binding nature of the printed terms on Ex.C-2. We are in full agreement with the complainant. In respect of award of the actual loss suffered by the complainant, we rely upon the decision of Hon’ble National Commission in DTDC Courier & Cargo & Others Vs. M/s. Caterpillar India Pvt. Ltd. & Others, 2014 (3) CLT 82 wherein the actual loss suffered on account of loss of cheque amounting to Rs.1,82,645/- as per invoice was lost by the courier company during transit and besides the complainant was awarded compensation contrary to the limited liability as per consignment note. Hence the complainant has proved his complaint of non delivery of consignment, the consignment containing fabric worth Rs.19,700/- to the consignee at Delhi by the OPs and also proved his case of mental agony and harassment and financial loss suffered thereto. Thus, the complaint deserves to be allowed against both the OPs and the complainant deserves adequately compensated for mental agony, harassment and financial loss.
11. In view of above discussions, the complaint is allowed. Both the Ops are jointly and severally liable to:
(a) refund to complainant Rs.19,700/- (Rs. Nineteen thousand seven hundred only) with interest thereon @ 9% per annum from 17.07.2015 till actual payment.
(b) pay to the complainant a lump sum compensation of Rs.10,000/- (Rs. Ten thousand only) for mental agony, harassment, financial loss and costs of litigation.
Compliance of the above directions be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
March 03, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
