Haryana

Panchkula

CC/273/2015

UDAY PARTAB SINGH. - Complainant(s)

Versus

ONDOT COURIERS & CARGO LIMITED. - Opp.Party(s)

COMPLAINANT IN PERSON.

05 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PANCHKULA.                                                                            

Consumer Complaint No	:	273 of 2015
Date of Institution	:	07/12/2015
Date of Decision	:	05/05/2016

                                                                                          

Uday Pratap Singh s/o Late Sh.Rambir Singh, R/o MDC 6, Distt. Panchkula, Haryana

                                                                                          ….Complainant

Versus

1.       Ondot Couriers & Cargo Ltd., 8/42, Kirti Nagar Industrial Area, New Delhi 110015.

2.       Ajay Bhardwaj Ondot Couriers Pvt. Ltd., Amartex Service Road, SCO 40, First Floor, Sector 11, Panchkula.

3.       Geeta Enterprise, SCO 865, NAC, Manimajra.

                                                                         ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.S.P.Attri, Member.

 

For the Parties:     Complainant in person. 

                             Mr.Anish Gautam, Adv., for the Ops.

 

ORDER

(Anita Kapoor, Member)

 

1. The complaint has been filed by the complainant Uday Pratap Singh against the Ops with the averments that on 09.09.2015, he send a courier with consignment No.636080624 from Panchkula to Shamli which contained a body steamer and a pair of clothes but the parcel has not been delivered. The complainant contacted and tried to know the reason of not delivering the parcel from OP No.3 and thereafter from Op No.2 and he was told to wait that courier would be delivered soon. After one month, the complainant started the negotiations and he was told that the courier was hold back by the Sale Tax Department and demanded Rs.2000 for the release but the complainant denied to pay the amount as the parcel did not contain any commercial item or any item did not hold bill. The complainant demanded the challan produced by the Sale Tax Department from the authorities of Op No.1 but to no avail. Thereafter, the complainant sent letters to the regional office and the area head office on 19.11.2015 but the letters were denied by both the offices. This act and conduct of the Ops amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed written statement by taking some preliminary objections submitted that the complainant has failed to serve a statutory legal notice u/s 10 of the Carriers Act and it is settled proposition of law that no legal proceedings could be initiated against the carrier without serving a legal notice u/s 10 of the Carrier Act. It is submitted that the consignment was withheld by the Sales Tax Department in transit as the complainant had sent the consignment at his own risk without declaring the value of goods and without handing over the bill of the purchased goods. Moreover, the complainant had sent the consignment without insurance cover and the consignment of the complainant had been taken from the Sales Tax Department by paying the penalty of Rs.2000/- by the Ops but the complainant refused to pay the said penalty to the Ops. It is submitted that there is no privity of contract between the complainant and the Ops. It is submitted that as per terms and conditions mentioned on the consignment note, the Ops have limited its liability to a maximum of Rs.100 per consignment for any loss to the consignment within India and to a maximum of US$ 100/ for international consignments. But the complainant had not suffered any loss. It is submitted that after receiving the consignment from the Sale Tax Department, the Ops intimated the complainant to take back his parcel and for paying the charges of Rs.2000/- which was imposed by the Sales Tax Department but he had never come forward to take his parcel back. It is submitted that at the time of consignment, the complainant had not submitted the bill of purchased goods, copy of declaration form which is required to be filled by the complainant at the time of sending any consignment which is mentioned on the receipt that:-

“No claims shall be entertain for cash, jewelry, contrabands, passports & instruments in bearer form including undeclared items/IATA restricted items/value booking of share certificate with blank transfer deed are strictly prohibited.”

It is denied that the complainant had sent any letters to the regional office and the Area Head Office as they have not received any letters. Thus, there is no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.  

3. The complainant has tendered into evidence by way of affidavit Annexure C A alongwith documents Annexure C 1 to C 4 and closed the evidence. On the other hand, counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 and closed the evidence.
4. We have heard the complainant in person and learned counsel for the opposite parties and have perused the record carefully and minutely.
5. It is beyond the pale of controversy that the complainant herein did hand over courier (vide consignment No.636080624) on 09.09.2015 at Panchkula and it was to be delivered at Shamli. The OPs have challenged the averments by alleging that the courier could not be delivered due to it having been withheld by the Sales Tax Department which released it only on payment of Rs.2000/-, as penalty, by the OPs. The further averment is that the complainant may have the packet from OPs by paying the amount of penalty.
6. We find force in the plea raised during the course of hearing that the OPs cannot force the complainant with any liability of the payment of penalty because they did not notify the withholding of the courier (by the Sales Tax Department) to the complainant. For want of that notification, the complainant could not convince the Sales Tax Department about why no penalty was leviable on the courier. Whether the complainant would have at all endeavoured it or not is a matter of hypothetical inference. Nonetheless, it was incumbent upon OPs to notify the withholding of the courier to the complainant, before being able to make an attempt to fasten liability for payment of penalty upon him. Moreover, the Ops failed to place on record any receipt to prove that they paid Rs.2,000/- for that consignment to the Sales Tax Department.
7. The plea made on behalf of the OPs to challenge the maintainability of the complaint for want of a notice under Section 10 of the Couriers Act, deserves to be out rightly negatived. Before recording reasons in support of the negation of that view, the provisions of Section 10 of the Couriers Act are extracted hereunder: -

“10. Notice of loss or injury to be given within six months.No suit shall be instituted against acommon carrier for the loss of, or injury to 4[goods including container, pallets or similar article of transport used to consolidate goods) entrusted] to him for carriage, unless notice in writing of the loss orinjury has been given to him before the institution of the suit and within six months of the time when the loss or injury first came to the knowledge of the plaintiff.”

8. A perusal of the extraction in the preceding para would indicate its inapplicability to the present case. The provision would apply only when a suit is to be instituted by the party against the courier company. The provision would not apply a complaint under the Consumer Protection Act wherein the legislated provisions only mandate the complainant to prove the deficiency of service on the part of an OP in order to be able to claim an amount of compensation. Further, the present is not a case pertaining to loss of a product or injury to a product. The present is a case wherein the contracted delivery of courier was not made by the OPs and the intervening circumstance of the courier having been withheld by the Sales Tax Department had never been notified by the OPs to the complainant. How can, thus, the OPs be heard to fasten any liability of payment of penalty upon the complainant defies logical comprehension. On that foundation, the OPs also cannot withhold the product by insisting that it would be delivered only when the amount of penalty of Rs.2000/- is paid by the complainant.
9. For the reasons recorded in the course of the preceding paras, wherein we have noticed the resistance offered on behalf of the OPs during the course of hearing, we allow this complaint and order that:

a)       The OPs shall deliver the product to the complainant in safe condition, without the latter paying the amount of penalty to the former;

b)      The OPs shall pay a sum of Rs.20,000/- to the complainant as compensation for the deficiency in service as also mental harassment caused to him.

c)       The OPs shall pay a sum of Rs.5,000/- to the complainant as the cost of litigation.   

10. The OPs shall comply with this order within a period of one month from the date its communication to them comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint. File be consigned to record room after due compliance.  

 

 

Announced           (S.P.Attri)            (Anita Kapoor)          (Dharam Pal)

05.05.2016           Member               Member                      President

Note: Each and every page of this order has been duly signed by me.

 

               

                                                          Anita Kapoor                                                                                             Member