This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Om Jhawar.

The case of the complainant’s in short is that he gave an order for medicines to the opposite party No.1 Company on 31.12.2017 and paid Rs.3066.00/- through NEFT.  After receiving the order the opposite party No.1 remained silent for 5/6 days and made billing on 5.1.2018.  This is a serious negligence and inhumane attitude on the part of the opposite party No.1 by making delay in sending the medicines.  As the medicines are all life saving drugs so, little delay in sending the medicines can affect the health and life of the purchaser/victim/complainant/sick person. The opposite party No.1 dispatched the medicines on 6.1.2018 through the overnite courier and this opposite party took a deep breath as their duties are over in spite of that they were reluctant in their responsibilities. 

The opposite party No.2 has received the consignment on 6.1.2018 from the opposite party No,1 at Rudrapur Hub, Uttarakhand and the consignment article received by opposite party No.2’s ‘Kolkata Hub’ on 9.1.2018.  That the medicines are important for saving the life. The complainant was suffering from mental agony as the medicines has not been received.  The complainant called the opposite party No.1 over the telephone on 8.1.2018 and again on 10.1.2018 to Mr. Arun Srivastava, Manager for taking prompt action but both office and person were reluctant and remained mum.  Thereafter the complainant made a complaint through online regarding the non-receiving of medicines.  On 17.1.2018 the complainant sent email to the opposite party as the medicines has not received.

On 18.1.2018 after long 9 days of time from Kolkata- Hub the complainant received the medicine article at Rishra.  That the delay and latches on the part of the opposite party No.2 is not only negligence but also a malpractice towards the customer and business at large. That for the careless attitude of both the opposite parties the complainant suffered immense mental and physical agony as the article are life saving drugs. 

The complainant filed this case before this Forum for relief and prayed to direct the opposite party No.1 to refund the full amount of the medicine price of Rs.3066.001/-, to pay Rs.30,000/- for mental agony and physical harassment, to pay Rs.30,000/- for deficiency of service and negligence,  to pay Rs.20,000/- for negligence and unfair and unprofessional attitude and to pay Rs.20,000/- towards litigation cost to the complainant.

The opposite party No.1 contested the case by filing written version denying all the material allegation para wise as leveled against it.  This opposite party submitted that opposite party No.2 has availed the service of opposite party No.1 by booking only a sample unknown to opposite party No.1 without any declaration and without special instruction in writing hence the complainant claim of life saving drug does not established.  The opposite party No.2 has knowingly availed the services for a location which is ODA (Out of delivery area) location of opposite party No.1 which takes time for arranging delivery for sending material to its valued customer.  Though opposite party No.1 has arranged on its own to an ODA location for opposite party No.2 client satisfaction that to within 12 days time period counting from booking date.  Hence, the question of suffering immense mental pain and agony by the complainant due to opposite party No.1 does not sustained.

That the claim of deficiency in service is a frivolous claim and made with a malafide intention to ruin the image of their organization and all Opposite Party No.2 has booked material on 6.1.2018 and same was delivered to the consignee with sign intact condition on 18.01.2018.  Hence, the question of deficiency in service due to delay also does not sustained and its being denied. That as per the clause-6 of ‘Overnite-The  Contract of Carriage’ (Mention on the backside of each AWB), the shipper must write to overnite within 30 days about the damages, shortages, non-delivery of consignment for claim entertainment of which the complainant was not does anything to notify us.

That as per the clause-6 of ‘Overnite- The  Contract of Carriage’ (Mention on the backside of each AWB), the complainant must declare the value of documents or parcels but the same was not  done by the complainant at the time of booking.  The shipper not even declared the exact status of the material thus suppressed the exact fact of consignment.  The complainant has made NEFT payment to the opposite party No.2 for its sample hence the opposite party No.1 should not be booked for any cause of action neither for deficiency in service nor for mental pain and agony.  As the complainant has not paid any money to opposite party No.1 hence point raised in point No. 11( 1 to 5) shall not be applicable to the opposite party No.1.  This opposite party is always ready to help its clients in all aspects therefore the question and claim for mental pain and agony and unnecessary harassment does not arise.  Hence, this opposite party No.1 claimed before this Forum to dismiss the case with sufficient cost.

Complainant filed affidavit in chief which is nothing but replica of complaint petition so it is needless to discuss.

 The opposite party no.1 filed evidence on affidavit in which he assailed that the present dispute is not a consumer dispute and there is no cause of action and there is no specific allegation against the answering opposite party. The opposite party no.2 availed of the service from the opposite party No.1 by booking the unknown sample without any declaration and without any special instruction in writing so the claim of life saving drug does not arise. They further assailed on oath that the opposite party No.2 availed of service knowingly that the service is out of delivery area so much time required for sending material to its valued customer. The booked article delivered within 12 days so there is no question of suffering immense mental pain and agony sustained by the complainant. The complainant filed this complaint for personal gain and for the purpose to squeeze money from the opposite party No.1. It is also stated that as per clause 6 of the Overnite – The Contract of Carriage the shipper must write to overnite within 30 days about the damages, shortages, non delivery of consignment for claim entertainment of which the complainant or the opposite No.2 was not done anything to notify them. They further assailed that as per clause 14 of Overnite – The Contract of Carriage, the shipper or complainant must declare the value of documents or parcels but the same was not done by the shipper at the time of booking even failed to supply the exact status of material. The answering opposite party denied the allegations and averred that they have no deficiency of service in respect of delivery of article, so they are not liable to pay compensation.

 Both sides filed written notes of argument which are taken into consideration for passing final order. 

ISSUES / POINTS   FOR   CONSIDERATION

1). Whether the Complainant Om Jhawar is a ‘Consumer’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainant Om Jhawar is a ‘Consumer’ of the opposite party?

From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the beneficiary of the opposite party No.1, as the complainant being the customer of the opposite party No.2 paid the cost as well as delivery charge.  So, he is entitled to get service from the opposite party as consumer.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.1,03,066/- as refund of full amount of medicine price, compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

    After perusing the complaint petition, written version, evidence on affidavit, written notes of arguments and the documents in the case record and hearing the argument it appears that complainant deals in medicine business and for his purpose he ordered medicines from the opposite party No.2 by paying the cost through NEFT. The opposite party No.2 sent those medicines through opposite party No.1 as carrier. It is crystal clear that the opposite party No.1 received those articles on 6.01.2018 and delivered the same on 18.01.2018 to the complainant. The complainant being the beneficiary became consumer of the opposite party No.1 and paid money through the opposite party No.2 the medicine cost that includes the cost of carriage. Dispute cropped up when the complainant received the delivery of said article from the opposite party after 12 days. The complainant wrote a complaint on 17.1.2018 to the opposite party No.1 if the article is not delivered within 18.1.2018 then he will be bound to take legal action against the opposite party No.1 for dishonesty, negligence & delaying in delivery of his medicine, due to which the health of the complainant getting affected. The delivery sheet of the opposite party No.1 depicts that the complainant received the article on 18.01.2018. After getting the said article the complainant lodged no complaint for getting explanation as to why the opposite party no.1 delayed to supply the article. He filed the instant complaint before this Forum on 18.2.2018 praying direction upon the opposite party No.1 for deficiency of service & negligence and unfair trade practice of the opposite party. The complainant filed no regulation in respect of contact of carriage of the opposite party courier service. So it is difficult to ascertain the expected time required for the delivery of article from the sender to the addressee in the instant case. It is palpably clear that the complainant received the article after 12 days from the date of booking. So we cannot come into this conclusion that the opposite party No.1 failed to deliver the article in time. Upon a careful consideration this Forum is in the opinion that the complainant failed to prove his case by producing cogent evidence as such it is liable to be rejected. The complaint case is bereft of merit as such it is deserved to be rejected.              

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

 The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove the deficiency of service of the opposite party by adducing evidence. So there is no question to allow the compensation.

ORDER

        Hence, it is ordered that the complaint case being No. 21/2018 is dismissed on contest against the opposite party without cost.

        Let a plain copy of this order be supplied free of cost to the parties/their                            Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information & necessary action.