DATE OF DISPOSAL: 10.07.2024.

PER:  SMT. SARITRI PATTANAIK, MEMBER (W)

            The fact of the case in brief is that the complainant has filed this Consumer complaint Under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the Opposite Parties  (in short O.Ps.) for redressal of his grievance before this Commission.

            2. The complainant booked the material i.e. “Kubo Mini Exercise Bike with Dual Action Meter “under consignment No.D30560616 on 02.02.2017 before the O.P.No.1. It is ascertained that the parcel was totally lost by DTDC courier. The concerned product manager told that the parcel has already been returned from Kolkata DTDC franchise to Bhubaneswar DTDC franchise. So the complainant became very much frustrated due to harassment by DTDC service. The complainant was mentally imbalanced since 1 year and 10 months. Padhy Enterprises, Berhampur does not have any care for the parcel. Padhy Enterprises and DTDC Bhawan Kolkata have created mental disturbance by this type of fake promises. The complainant attended Padhy Enterprises several times and always Sri Pramod Kumar Padhy has told to wait and the problem will be solved. All the times the complainant have attended the Padhy Enterprises through a motor cycle and lost money for fuel and losted his valuable times by attending Padhy Enterprises. The complainant given application dated 09.03.2017, 18.03.2017 and dated 22.06.2017 to Sri Padhy owner of Padhy Enterprises Berhampur, requesting him to take suitable effort for delivery of his parcel positively so as to avoid legal complicacy. The complainant have issued letters several times such as on date d 09.03.2017, 18.03.2017, 22.06.2017, 28.06.2017, 16.10.2017, 29.12.2017, 10.01.2018, 24.02.2018, 30.04.2018 and 19.07.2018. The complainant made contact with Sri Pramod Kumar Padhy, owner of the Padhy Enterprises on 19.07.2018 but no result and at last he replied to take shelter of law. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to return the costs of parcel of Rs.1250/-, compensation of Rs.66,000/- and litigation costs of Rs.1000/- in the best interest of justice.

            3. The Commission admitted the case and issued notice to the Opposite Parties.

            4. The O.P.No.1 filed written version through his advocate. It is stated that the O.P.No.1 is authorized agent of O.P.No.2,3 and 4. It is true that the complainant booked the material i.e. “Kubo mini Exercise Bike with Dual Action meter” under consignment No. D30560616on 02.02.2017 before the O.P.No.1. It is the duty of the O.P.No.1 to send the said material to the Head Office of the Berhampur where the Head Office of the O.P.No.1 is located at Akula Street, Berhampur. No deficiency has been caused against the O.P.No.1. Deficiency means any fault, imperfection, short coming or inadequacy in the quality, nature and manner performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. The complainant has already stated in the complaint that the concerned product Manager told that the parcel has already been returned from Kolkata DTDC franchise to Bhubaneswar DTDC franchise it was brought to knowledge of the complainants that the said material is at Bhubaneswar. The parcel of complainant has been already saved. It is not fact that the O.P.No.1 replied to the complainant to take shelter under the court of law. It is true that the said material has been performed good service by the O.P.No.1. The burden is affixed upon the O.P.No.2,3,4 to release the said material of the complainant with good manner. No harassment has been caused by the O.P.No.1. The complaint is bad for non-joinder of necessary party i.e. local head office of DTDC courier of the Berhampur town. The complainant of the complaint does not cover under Section 2(1) of the said Act as the material is at Bhubaneswar. He has created unnecessary dispute. Although the O.P.No.1 sent the application on 28.06.2019 to the Branch Manager, DTDC courier service, Akula Street, Berhampur and the Regional Manager, DTDC Courier service, Bhubaneswar to send the parcel claimed by Mukta Bigop Parida, the complainant. Hence it is presumed that no deficiency in service has been caused by the O.P.No.1 and prayed to dismiss the case.

            5. The O.P.No.2 & 4 filed written version through his advocate. It is stated that the instant petition as framed and filed is not maintainable under the law and as such the same is liable to be dismissed. In para-2 of the petition has to be proved by the complainant and the O.P.No. 2 & 4 submit that, at the statements made by the complainant in this Para is totally false and fabricated. He has no where mentioned in the sipper copy dated 02.02.2017 that he sent a “KOBO MINI EXERCISE BIKE WITH DUAL ACTION METER”. So since he is saying that he has sent this consignment after lapse of one year and ten months is totally false.  In Para-3 of the petition has to be proved by the complainant and the O.P.No.2 &4 submitted that the complainant has neither made with the O.P.No.2 & 4 nor he has sent any letter or notice to them at any point of time. So the allegation against the O.P.No.2 & 4 regarding mental harassment, loss of time and money is totally baseless. The crux of question here is that, the complainant had booked a consignment to the O.P.No.1 on 02.02.2017 and he has never declared the type of consignment nor he has declared the value of the said consignment. Had he been declared the type and value of the consignment and insured the said consignment as there is a provision for the same, the O.P.No.2 & 4 will be liable. It is a year old case, the O.P.No.2& 4 are unable to produce any tracking report of the said consignment. As the last Para of the petition and as his total claim amount comes to Rs.98,265/- is concerned, the present O.P. No.2 & 4 are no way liable to pay the same and the O.Ps humbly pray since the complainant has put his signature in the sipper copy dated 02.02.2017, has admitted the rule and regulation of the contract, that the limited liability of DTDC Expert Ltd. Is Rs.100/- in case of any loss of damages of the said consignment. Hence the O.P.No.2 & 4 prayed to dismiss the case.

6.         On the date of hearing, the Commission heard from both the parties. The Commission perused the complaint, written version of Opposite Parties, evidence on affidavit and written argument of both the parties together with verify the documents available in case record.

            It is apparent from the case record that, the Complainant has sent consignment through the opposite party no.1 to the consignor as per consignment no.:D30560616 Dated:02.02.2017. The complainant started enquiry regarding delivery and return back of the consignment after lapse of One year and 9 months. The opposite party no.1 admitted in his evidence that, he has sent the consignment and to know the status of the consignment, he issued a letter to the 28.06.2019 to BM, DTDC, Berhampur and RM, DTDC, Bhubaneswar. The Opposite party no. 2 & 4 adduced in their written version and evidence on affidavit that, the complainant has never approached them nor issued any letter to them regarding the consignment. The complainant has admitted said fact in his rejoinder but alleged that it was the implied duty of the op no. 2 & 4 to look after the matter as booking was carried out in online. The OP Nos. 2 & 4 specifically adduced in their evidence that, the complainant has not made any declaration in the shipper copy dtd:02.02.2017 about nature of the product, type of consignment, value of consignment specifically. In overall consideration of the factual aspects in the instant case, all the opposite parties have performed their duties accordingly. It is a peculiar thing that, the consignment neither delivered to the consignor nor returned back to the sender of the consignment. In this circumstances, the law is well established in Patel Roadways Limited vs Birla Yamaha Limited – Civil Appeal No.9071 of 1996 reported in AIR 2000 SUPREME COURT 1461 and M/S. Transport Corporation Of India Ltd vs M/S. Veljan Hydrair Ltd. – Civil Appeal No.3096 of 2005 reported in AIR 2007 SC (SUPP) 543 “loss of goods or injury to goods or non-delivery of goods, entrusted to a common carrier for carriage, would amount to a deficiency of service and, therefore, a complaint under the Consumer Protection Act, 1986 would be maintainable.”

            Furthermore, what prevents the complainant not to follow up of the consignment immediately after booking of consignment. Hence, there was negligence of the complainant in performing his duty too.

One could imagine the plight of a person, who had booked the consignment to be delivered on a particular date, but the same was not delivered to the consignee. On account of this reason, a lot of mental agony and physical harassment was suffered by the complainant. In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and Another, reported in IV (2010) CPJ 199 (N.C.), the principle of law laid down by the National Consumer Disputes Redressal Commission, New Delhi, was to the effect that the compensation should be commensurate with loss and injury, suffered by the complainant. The principle of law, laid down, in Surendra Kumar Tyagi`s case (supra), is fully applicable to the facts of the instant case.

In view of the circumstances, the Commission is allowed the Complaint considered it having contributory negligence of both the parties. Accordingly, the Opposite parties, who are jointly and severally liable to pay the compensation of Rs.25,000/- to the complainant within 45 days from the date of receipt of the order.In the event of non-compliance of the above order, the complainant is at liberty to realize the entire dues which shall carry interest @ 6% per annum from the opposite parties in accordance to the Consumer Protection Act, 2019.

This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

Pronounced on 10.07.2024.