Order-23.
Date-28/04/2015.
Complainant Mrs. Priyanka Garg by filing this complaint has submitted that complainant bought goods from different shops on different dates in the name of her sister namely Sonam Agarwal as would appear from the bills and on 12.12.2013 the complainant sent a parcel weighing 22.5 kg containing some valuable dress material worth of Rs. 1,23,425/- towards Mrs. Sonam Agarwal residing at 14A TVS Service Centre, 1st Floor M.A. Road, Rasbehari Gauhati, Pin-781008 through the op vide consignment note no. 370333084 dated 12.12.2013 and the complainant duly paid the delivery charge of Rs. 408/- to the op.
But the said parcel did not reach and or delivered to the consignee even after the expiry of the considerable period. Thereafter on 27.12.2013 the complainant lodged a complaint with the local P.S. Beliaghata stating all the facts of incidents and on the next following date i.e. 28.12.2013 the complainant also lodged a complaint against the op in the Joransanko P.S. as the op has its office within the jurisdiction of the said police station.
On 28.12.2013 complainant also wrote a letter to the op calling upon them to do the needful and enquired for non-delivery of the said goods to the consignee or returned the same to the consignor/complainant but the op has given cryptic reply to the complainant and on the contrary op called upon the complainant not to send such type of letter any further and the intention of the op is not sustainable in law as well as in fact and circumstances of the case.
Apparently deficiency of service and gross negligence on the part of the op is well proved and op has acted with deliberate negligence in performing the contractual obligation and failed to give delivery of the consignment to the consignee in due time i.e. on the occasion of marriage and as such the complainant has suffered mental agony and pain being insulted on the auspicious occasion of marriage due to non-delivery of the said goods at the destination as agreed by the op.
Op has also denied the claim of the complainant on vague plea and op further disputed the value of the consignment with some evil motive. Complainant submitted that the he is entitled to recover the consignment value and compensation of Rs. 1 lakh for the op in accordance with law and the cause of action arose on 12.12.2013 when the complainant entrusted the consignment to the op and the same is still continuing as the said consignment has not reached to its destination till date.
On the other hand op by filing written statement has submitted that the complaint is not maintainable in the eye of law and op has challenged the genuinity of the bills submitted in support of the articles and fact remains that as per contract it was uninsured materials and so it is the liability of complainant and fact remains that in case of interstate commercial transaction and sale way bill issued by the Central Sale Tax authority is required and that has not been provided to this op and at the time of booking of materials no value was declared in respect of the articles. So, the valuation of the materials as noted in the complaint is not acceptable to the op. But it is admitted that during onwards transit to Guahati to rail by Kanchanjongha Express six master bags have been misplaced and/or stolen from V.P. accordingly Co-loader of this op filed written complaint before the Officer-in-charge, Guahati GRPS and same has been recorded as GD Entry No. 491 dated 14.12.2013 and again on 17.12.2013 co-loader of this op filed written complaint to Officer-in-charge Guwahati GRPS stating the name of consignor and consignee of the los materials and that has been properly received by the authority and the Officer-in-charge, Guwahati GRPS still in search of the materials and tried to recover the same.
In fact op never pointed any type of negligence to the complainant and in the above lost of materials from V.P. same are informed to the proper police station and enquiry has been continuing as other parties lost their materials. Fact remains that the op failed to deliver the same due to said reason and there is no question giving any excess amount and claim of the complainant in support of the consignment value shall be determined as per law and complainant is not entitled to get any relief as claimed and prayed for dismissal of this case.
Decision with reasons
On proper consideration of the complainant’s written version and also hearing the argument of both the parties, it is found that it is undisputed fact that complainant booked the materials by parcel weighing about 22.5 kg containing some valuable materials through op and op received it as after taking service charge of Rs. 468/- and consignment receipt was issued on 12.12.2013 vide consignment note no. 370333084 and it is also admitted fact that consignment has not been handed over to the consignee at Guwahati and reason is shows that the said articles are stolen from the train and it was reported to GRPS. But fact remains that it is admitted that consignment value shall be determined as per law because complainant did not give any value of the consignee article and in this regard no doubt at the time of booking op did not note the value of the articles. But the particulars of the articles were supplied to them which have been submitted to the complainant in this case wherefrom it is found that the articles were purchased in the name of Sonam Agarwal and it was purchased on 07.12.2013 and value of the article is more than Rs. 1,23,000/- and odd.
So, considering that fact, it is clear that the said articles were dress articles and weight of the articles is no doubt 22.5 kg and the articles have not been handed over to the consignee by the op and admitted position is that op admitted that the articles were lost or stolen from Railway i.e. Kanchanjongha Express and the police case is pending.
Truth is that complainant again and again asked the op to deliver the same or to refund the entire amount of the articles. But op did not pay any heed. Fact remains that it was booked on 12.12.2013 and now it is April-2015. But question is how long period shall be used by the service provider company/op though it is the liability of the op to deliver the same in safe condition but that has not been done. Then invariably op shall have to pay the valuation of the stolen articles. But op has tried to convince that their liability is fixed as per the receipt to the extent of only Rs. 100/-. But in this regard we have gathered that the mention of the limited liability is in very small print at the back of consignment note which is not necessarily read by the consignor before he or she entered into the transaction of dispatch of the consignment so it cannot be the two part of negotiation between the two parties. Further whatever may be the binding nature of the said clause in an action based on breach of contract we are of the view that it cannot restrict the liability of the courier for the consequences flowing out of its negligence and deficiency in the performance of the service undertaken by him and it is the observation of the National Commission reported in I (1994) CPJ 140 (NC) =1786-96.
Moreover in this case there is no such material to show why at the time of granting invoice receipt of payment of service charge, op did not mention the value of the goods. But weight was noted 22.5 kg. Invariably the breach were not sent and not it is proved that the consignment contained different type of dresses and in support of that purchased receipt has filed wherefrom the valuation of the said articles were more than Rs. 1,00,000/- and admitted fact is that op failed to deliver the same. Then no doubt it is the negligent manner of service on the part of the op and due to negligence and deficiency in performing the service undertaken by the op, op is bound to pay compensation.
So considering the entire principle of law and the present fact and circumstances, we are of opinion that due to liability of the op is in applicable in the present case as carriage of the goods was handed over to the op on proper receipt and on the back side the condition as noted was not shown to the complainant and on the back side of the said receipt there is no signature of the complainant.
So, complainant was not informed about that condition etc. and at the same time op did not note down the value of the goods intentionally. So, the condition went therefore proved the liability of the op and in this regard as per provision of C.P. Act 1986 and in view of the present fact and circumstances, it is the duty of the courier to show that they are not negligent on their part and when it was stolen invariably op shall have to compensate without any hesitation and in this regard we have also relied upon the ruling reported in 2014 (3) CPR 655 (NC) also.
Another factor is that the invoice which was issued is found not properly filled up by the op with some intention and it is the common intention of the courier service in most of the cases. But for that reason poor consumer shall not be deprieved. Fact remains that the object was not insured. But op did not take any such care for insuring the packet and informed the complainant about paying such insurance fees etc. But it is the duty of the courier service companies to take all proper care and safety in respect of the articles and that is the principal of law as per Courier Act and it is the liability of the service provider to give all sorts of benefit to the consignor, so that in case of loss, consignor may get the benefit and as per Courier Act, it is the duty of the courier to take all sorts of fees for protecting the entire consignment goods but that has not been taken by the op. So, negligence and deficiency on the part of the op is proved beyond any manner of doubt.
Another factor is that terms and conditions is mentioning overleaf of 12.12.2013 is not signed by the consignor that the complainant and in view of the above fact to prove and convince of the overleaf is mentioned dated 12.12.2013 is not applicable here to the complainant. Moreover the total approach for protecting the consumer was not taken by the ops. But in so many cases we are not approaching properly in respect of such sort of incident and sometimes carried away by the terms and overleaf and about the liability of the courier company but that cannot be the position of the consumer economy that consumer economist like Simon, nobel like Jan Tirelon have already in their so many research work has pointed out that the service provider shall have to give such information before booking the article to the consumer or the customer and when knowing fully well about the consignment is being made by the complainant and there can be a chance of any loss etc. in that case at the time of booking it is mandatory duty on the part of the service provider company to give first all information and to insure that in case of loss the insurance company shall have to pay the same. So, it shall be insured and the valuation of consignment article is must. So, it shall be supplied. But in the present case, it was not supplied but op did not ask the complainant for insuring the same. Then as per fair contract theorization, it is the liability of the op in case of loss of article to pay compensation. Moreover on the printed clause portion (back of the receipt) there is no signature of complainant.
No doubt we are aware of the fact that consumer must be informed about the future aspect of the consignment goods after booking of the same by the consignor. But in very casual manner it was booked by the op but op did not inform the complainant certain facts that it shall be insured. When it was not insured, then consignment is insured article under op and when it was handed over to the op consignor, then the article is insured by the op treating as insured and in case of loss or damage, it is the liability of the op. No limited liability can be taken in to account in such a case and for which we are convinced to hold that it is ops’ liability for loss of the articles and no doubt it is the negligent act on the part of the op for not insuring the same at the time of booking of article and also not for noting the valuable articles though purchase receipt of article were handed over to the op what complainant has proved and from that document this complaint is valuable more than that. Then it is the liability of the op to compensate because negligence and deficiency of service is well proved beyond any manner of doubt.
In this context we would like to mention that practically object of the C.P. Act is not at all properly implemented by the Forum and being carried away many judgements are being passed. Sometimes it is the contractual no doubt. But there is no chance of contradiction in view of the fact, it is specifically mentioned that as per C.P. Act to protect the right of the consumer, as such the right to be protected against the marketing goods and service which are hazardous and the right to be informed carriage and quality depend on standard price otherwise so as to protect the consumer against unfair trade practice. If this theorization is taken into consideration, it is found that it was the duty of the op to inform the complainant to protect the interest of the complainant’s goods and also the service in case of theft or loss on transit. But no information was given and no protection was taken by the op in this regard because terms and conditions of the service provider must be of such a nature which shall protect the interest of the consumer.
But fact remains that unilateral clauses are printed in the invoices and all those printed regulations are not informed to the complainant. Op has failed to show and to prove that they informed the complainant to insure. But complainant had no such knowledge. There is no such explanation that they asked the complainant to give the valuation of articles but complainant refused. There is no such document about it and then it is the liability of the op when he received the articles valued at Rs. 1,00,000/- and its weight about 22.5 kg and for such loss invariably op is bound to pay the compensation.
Fact remains that in most of the case we are taking a bureaucratic view and technicality has taken a great place in the Forum to decide the consumer dispute but law is otherwise. First service provider shall have to show before taking the articles he discharged his liability and informed the complainant about the fate of any goods in case of loss or damage and op took all positive step at the time of booking the same but nothing has been done in this case. Any Forum shall not have to take bureaucratic view in this regard and shall have to decide on the basis of unilateral terms of invoice etc. Practically Fora are not interested to know the consumer/customers, consumer marketing, consumer trade, consumer society including the company trader and service provider’s liability to give information to the consumer before entering in to the fact. Negative attitude is not taken by the Forum in most of the cases for which service providers are getting benefit.
But truth is that Forum is here and there to protect the interest of the consumer and not for saving the traders, service provider or the company. Social and moral attitude of the Fora must be on the line of the C.P. Act. But actually that is decreasing day to day for which the Forum’s fail to control the traders, service provider, companies and business men for that there is several criticism from different corners and same are being published day to day by different another even though the outlook has not been changed. Now it is painful and fact remains that if it is not changed the whole concept and object of C.P. Act shall be frustrated. Whatever it may be we are convinced after considering the entire materials that no doubt the op is found negligent in rendering service and negligent in protecting the interest of the consumer at the time of booking of the said articles the Consignment. When admitted position is that the article was lost from the possession of the op on transit complainant is entitled to get relief as prayed for against the ops.
Thus the complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against the op.
Op is hereby directed to pay a sum of Rs. 1,00,000/- as compensation for the loss of consignment goods weighing about 22.5 kg valued at Rs. 1,33,000/- and odd and also for harassing the complainant for the last two years, op shall have to pay Rs. 25,000/- and accordingly op shall have to pay total amount of Rs. 1,35,000/- ( Rs. 1,00,000/- + Rs. 25,000/- as penal damages + Rs. 10,000/- litigation cost) to the complainant within one month from the date of this order and if op fails to comply the order within stipulated time for each months delay op shall have to pay penal interest at the rate Rs. 8,000/- per month till full satisfaction of the decree and if it is collected it shall be deposited to this Forum.
Even if op is reluctant to comply the order, in that case, penal proceeding u/s 27 of C.P. Act shall be started for which they shall have to further impose penalty and fine.
