BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. R. SATHI : MEMBER

SMT. LIJU B. NAIR : MEMBER

C.C. No. 269/2012 Filed on 13.08.2012

Dated : 15.10.2013

Complainant:

Santhosh Mathew, H. No. 42, T.C 4/588, Sreevilas Lane, Kowdiar, Thiruvananthapuram having permanent address at Elavummoottil House, Maloor P.O, Pathanapuram, Kollam-689695

(Party in person)

Opposite parties :

1. Professional Courier Service, Sasthamangalam, Thiruvananthapuram.

    

2. Area Manager, Professional Courier Service, Thycaud, Thiruvananthapuram.

(By adv. Roshan. S)

This C.C having been heard on 31.08.2013, the Forum on 15.10.2013 delivered the following:

ORDER

SMT. LIJU B. NAIR: MEMBER

Complainant approached this forum alleging non-delivery of a courier document sent to him from Mumbai. On 19^th July 2012, his company head office sent him one document through the opposite party with consignment No. VPL 114764457. Address of the complainant along with his contact number is clearly mentioned in the envelope. The said courier reached Thiruvananthapuram office of the opposite party after a few days and they did not deliver the courier to him. Even though his address and contact number is there on the envelope, nobody from the opposite party office contacted him. So on 26^th July 2012 he enquired the same with the opposite party and found that they have returned the courier to the sender on 24^th July 2012. When he enquired why they returned the courier, opposite parties were not able to give him a satisfactory reply. The content inside the consignment was his TDS certificate Form-16. The failure in filing tax returns in time attracts penalty. So he claims compensation.

Opposite party entered appearance and filed version. Their contentions are as follows: The complaint is bad for non-joinder of necessary party. The consignment was booked from Mumbai-Vile Parle office of the professional couriers. Since each franchisee of professional couriers is independent and have no functional integrality, they also ought to have made an opposite party in this complaint which is highly necessary and unavoidable for the proper adjudication of this case. A consignment was booked on 19.07.2012 addressed to the complainant which was received by the 1^st opposite party's office on 21.07.2012. When the said consignment was taken for delivery there was nobody in his residence. When tried to contact over telephone of the addressee it was not available for the reason 'out of coverage area'. Even though the 1^st opposite party repeatedly contacted the addressee he was not available in the phone for the reason 'out of coverage area'. It is the normal practice to keep the consignment for 3 days in such situations. Accordingly the consignment was kept at the office of the 1^st opposite party for 3 days to see whether anybody is turning up to collect the consignment. As nobody has turned up to receive the consignment nor contacted, the same was sent back safely to the office of origin who in turn deliver the returned consignment to the addressor. It is not correct to say that this opposite party did not contact the addressee in his contact number or approached his home. Similarly it is also false in saying that on contacting the 1^st opposite party, they tried to give false statement and not given any proper answer. While contacted this opposite party over phone by the addressee they promptly and patiently replied the actual facts and hearing this, complainant threatened the opposite party with dire consequences after which this complaint is filed. The content inside the consignment was his income tax TDS certificate Form 16 that failure to return filing attract penalty to the complainant etc. are absolutely false, baseless and hence denied. The opposite party had no knowledge about the contents of the same since the addressor had never declared the same. There is no intention at all from the side of the opposite party for not effecting delivery of the consignment purposely or otherwise since it won't benefit the opposite parties in any manner whatsoever. Similarly the averments in the complaint that no reply was given to the complainant to his communications to the opposite party are also false and hence denied. The opposite party has appraised the complainant about the true state of affairs and hence no reply was given to the complainant in writing. There is no wilful negligence or latches on the part of the opposite parties or its employees or servants in not delivering the consignment to its addressee. The non-delivery of consignment to the addressee was only due to the reasons beyond the control of the opposite parties. Further the opposite party at their own cost and expenses sent back the consignment to the addressor safely which also proves the promptness in service of the opposite party. If at all any loss or damage has been caused to the complainant, it has not arisen from the negligence or deficiency in service from the side of the opposite parties or any of his agents or servants. No loss or damage has been caused to the complainant due to any act of the opposite party. If the consignment contained such a valuable document the consignor ought to have declared the contents at the time of booking and take a transit insurance coverage. It is submitted that the courier consignment note, the document which is the basis of the contract between the parties, clearly shows the condition of carriage and the clause limiting the carriers' liability in sufficiently bold prints which are easily readable. These conditions were brought to the notice of the consignor by the opposite parties at the time of entrustment of the consignment by the consignor to the opposite parties and the consignor had accepted all these which make the parties binding by the terms in the contract and which shows that the consignor has accepted the terms and conditions printed on its back. As per the said terms and conditions, if at all any loss had occurred to the complainant due to the act of the opposite parties(not admitted) the opposite parties' liability has to be confined to Rs. 100/- only. There is no negligence or deficiency in service or unfair trade practice on the part of these opposite parties warranting payment of any compensation.

Points raised for trial:

1. Whether the complaint is bad for misjoinder of necessary parties?

2. Is there any deficiency in service on the part of opposite parties?

3. Whether the complainant is eligible for compensation and cost?

Complainant filed affidavit in lieu of chief examination. Courier consignment note is produced by the complainant and is marked as Ext. P1. Copy of an e-mail sent by the opposite party's office is marked as Ext. P2. Another e-mail dated 4^th August is marked as Ext. P3. Courier return document is marked as Ext. P4. No documents were produced by the opposite parties and the complainant was not cross examined. So what is stated in the affidavit stands uncontroverted.

Point (i):- Opposite party took a contention that the complaint is bad for non-joinder of necessary party. Since the consignment was booked from Mumbai-Vile Parle office of the professional couriers, they have to be there in the party array since all the franchisee is independent and have no functional integrality. Herein the opposite parties are professional courier franchisee in Trivandrum where the courier is to be delivered. Complaint is filed alleging non-delivery of consignment sent from Mumbai to Trivandrum. Franchisee at Mumbai had done their part well. Complainant had no case that the receiver of the courier consignment at Mumbai failed to transport the same to Trivandrum. He alleges deficiency and wilful negligence only on their Trivandrum counter parts. He is claiming relief from them only. So the franchisee at Mumbai is not an inevitable party for the proper adjudication of the present complaint. It is to be decided by the complainant that who all are to be arrayed in the party array for proper adjudication. Here we find that the present complaint can be adjudicated properly with the present opposite parties. Non-joinder contention is not sustainable.

Points (ii) & (iii):- Complainant approached this Forum alleging deficiency in service on the part of the opposite parties. A courier consignment addressed to the complainant was sent by the head office of the company, where complainant works. That was the TDS certificate of the complainant for filing tax returns. That was not delivered to him and it was sent back by the opposite parties to Mumbai. Opposite parties through their version admits all the above mentioned facts. Why they sent the courier back is the real issue which decides the question of deficiency in service. It is very clear in Ext. P1 that the name, address and telephone number of the complainant is clearly mentioned in the envelope of the consignment. Opposite party admits this also. Their version is that when they came to deliver the courier at home, as per the address on the envelope, there was nobody to receive it. So they tried to contact him through mobile. But every time they tried, they got the answer 'out of coverage area or not reachable'. So they waited for 3 days for the complainant to come and receive the same from their office. But he never turned up. So they sent back the courier without any damage to their Mumbai franchisee, from where it was booked. To prove this statement, not even a scrap of paper is produced before us by the opposite party. If they found that there was nobody in his residence, it was their duty to give him an intimation. Without such an intimation, how the opposite party expected the complainant to come and collect the courier? No evidence is before us to show that such an intimation was given to the complainant and he failed to turn up. Again it was not endorsed anywhere. Then regarding telephonic enquiry, what prevented the opposite parties from producing the call list of the phone, from where they called the complainant to show that they tried to contact him. So there is no evidence before us to show that opposite parties fulfilled their duty promptly. To prove their contentions, evidence is also necessary, which the opposite parties failed to adduce. So we came to the conclusion that there is deficiency in service on the part of the opposite party, for which the complainant is to be compensated. Complainant failed to produce any evidence to show that he had sustained huge loss due to the negligent act of the opposite parties. So justice will be met, if we order a moderate compensation. Opposite parties in their version contends that as per terms and conditions of the consignment agreement, their liability, if any, is limited to Rs. 100/- only. But on perusal of the consignment note, it is seen that the consignor has not signed in it. An agreement will become a valid contract, only if it is signed by both parties. Without the signature of the consignor, consignment note is not a valid one. So the liability is not fixed as per the terms and conditions printed on it. Going through the facts and circumstances of the case, we fix the liability of the opposite parties as Rs. 2,000/-. Rs. 1,000/- is ordered as costs.

In the result, complaint is allowed. Opposite parties are directed to pay the complainant Rs. 2,000/- with Rs. 1,000/- as cost within one month of receipt of this order. After this period, it will carry interest at the rate of 12% till realization.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of October 2013.

Sd/-

LIJU B. NAIR : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

R. SATHI : MEMBER

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C.C. No. 269/2012

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of courier consignment note dated 19.07.2012

P2 - Copy of e-mail sent by the opposite party dated 27.07.2012

P3 - Copy of e-mail dated 04.08.2012.

P4 - Courier Return document

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

Sd/-

PRESIDENT

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