BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C. No. 324/2008 Filed on 31/12/2008

Dated: 16..04..2010

Complainants:

1. Lt. Col.Thomas. MC, A-3, Sainik School, Kazhakkuttom, Thiruvananthapuram – 695 585.

    

Addl. Complainants:

2. George Jacob Thomas, S/o Lt. Col. Thomas M Chacko of ..do.. ..do...

3. Benita Mariam Thomas, D/o Lt.Col. Thomas M Chacko of ..do.. ..do.

4. M. Jose, D-3, Sainik School, Kazhakkuttom, Thiruvananthapuram.

Opposite party:

The Professional Couriers, NH Road, Kazhakkuttom, Thiruvananthapuram.

(By Adv. S. Rahim)

This O.P having been heard on 15..02..2010, the Forum on 16..04..2010 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainants on 22^nd July 2008 sent 2 parcels to their friends Subin Jobin Varghese, Pune, Maharashtra and Kevin Benetta Varghese, Agra, Utter Pradesh, that the consignment note numbers were 4330447 and 4330448, and that the above said parcels contained three DVDs of movies of Harry Porter and the same was informed to opposite party's booking clerk. The parcel to Pune was received by the consignee on 27^th July, while the parcel to U.P did not reach the consignee at U.P. 1^st complainant contacted opposite party and asked them to trace out the missing parcel addressed to Kevin Benetta Varghese at U.P. Again during the first week of September, 1^st complainant requested the opposite party through a letter to trace out the parcel and ensure delivery at the earliest. Failing the above, 1^st complainant requested them to refund the cost of missing DVDs (Rs.2,000/-) and the courier charges (Rs. 100/-) back to him. Opposite party did not respond positively. Hence this complaint to direct opposite party to pay the cost of missing DVDs and courier charges to the complainants.

2. Opposite party filed version contending that 1^st complainant is totally a stranger, that 1^st complainant did not send anything, to anywhere through the opposite party, that 1^st complainant has no locus standi to file such a complaint against the opposite party, that the receipt mentioned by the 1^st complainant in his complaint was issued in the name of Benita George Thomas. No representatives of the complainant came to the opposite party's office for booking any parcel for service. No documents or authorisation letter produced by the 1^st complainant. On 22/07/2008 a lady came to opposite party's parcel service with two uncovered parcel covers which contained some toys. She requested the opposite party to send them to Maharashtra and Utter Pradesh in the addresses mentioned in the complaint. Each parcel cover weighed 1.700 gms. and 2 kg. No complaint filed within the stipulated time. Nobody approached opposite party so far as alleged in the complaint. Three DVDs of movies of Harry Porter will weigh 30 gms. only. Complaint is false and experimental one. Hence opposite party prayed for dismissal of the complaint.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of opposite party?

2. Whether complainant is entitled to compensation and cost?

In support of the complaint, 1^st complainant has filed affidavit and Exts. P1 to P5 were marked. In rebuttal, opposite party did not file affidavit or documents.

4. Points (i) & (ii) : Initially the complaint was filed by the 1^st complainant, thereafter George Jacob Thomas, Benita Mariam Thomas and Sri.M. Jose were impleaded as additional complainants 2 to 4. Ext. P1 is the copy of the consignment note. As per Ext. P1 the consignment note No.is 4330447, date of consignment is 22/07/2008, the weight of the said parcel is 1.700 gms, service charge comes to Rs. 100/-, the name of the consignor is Benita George Thomas, Kzm. A perusal of Ext. P1 would reveal that the consignor has not declared the value of the contents of the consignment, consignee is Subin Jobin Varghese, Yerwada, Pune, Maharashtra. It is the case of the 1^st complainant that the alleged consignment contained DVDs. Ext. P2 is the copy of the consignment note. As per Ext. P2 the consignor is Benita George Thomas, Kzm, consignee is Kevin Benetta Varghese, Agra Cantt, Utter Prdesh, date of consignment is 22/07/2008, the weight of the consignment is 2kg, service charges comes to Rs. 100/-. In Ext. P2 also, consignor has not declared the value of the contents of the consignment. Ext. P3 is the picture of DVDs and box couriered to Kevin & Benetta Varghese at Agra, Utter Pradesh and DVDs sent to Subin and Jobin Varghese to Pune, Maharashtra. Ext. P4 is the copy of the complaint regarding the non receipt and mishandling of parcel lodged by 1^st complainant to opposite party. Ext. P5 is the statement of account No. XXXX-XXXXX3-41008 dated 5/12/2008. As per Ext. P5 it is seen mentioned on 27/4/2008 Harry Porter DVDs transaction for 41.87 dollars. It is the very case of the 1^st complainant that his representatives had booked 2 parcels with opposite party, he has deposed in his affidavit that Benita and George Jacob Thomas are his children, who are students in Sainik School and reside with him. In his cross examination he has deposed that the addl. 4^th complainant is the driver of the Sainik School, and it was he who took the parcel to the opposite party's office. The 1^st complainant has furnished authorisation letter of addl. complainants 2 to 4. It is admitted by opposite party in their version that the above said consignment was sent by Benita Mariam Thomas. The 1^st complainant admits that Benita and George Jacob Thomas are his children. Opposite party has no case that Benita and George Jacob Thomas are not the children of the 1^st complainant. From the deposition and affidavit furnished by the 1^st complainant it is evident that the addl. 4^th complainant, who took the consignment to the opposite party to book the same on behalf of additional complainants 2 & 3, who are the children of the 1^st complainant. It is the specific case of the 1^st complainant that the parcel to Pune was received by the addressee on 27^th July while the parcels to U.P did not reach the consignee at U.P. Opposite party has no case that the said parcels vide Ext. P2 has delivered to the consignee at U.P. Opposite party has not furnished any material to show that the parcels mentioned in Ext. P2 has delivered to the consignee. The burden is upon the opposite party to prove that the said consignment was delivered to consignee at U.P. In the absence of any evidence on the part of opposite party, we have no hesitation to accept the affidavit filed by the complainant stating that opposite party failed to deliver the consignment vide Ext. P2 to the consignee at U.P. Non delivery of consignment would amount to deficiency in service on the part of the opposite party. Deficiency in service proved. It is to be noted that the consignor has not declared the value of the contents of the consignment. 1^st complainant claims that the consignment consists of DVDs movies of Harry Porter and the same was informed to the booking clerk also. As per Ext. P5 a transaction of Harry Porter DVDs for 41.87 dollar is mentioned Ext.P5 was marked subject to objection. As per Ext. P2 weight of the consignment was 2 kg. The very case of the opposite party is that one DVD disk would weigh only nearly 10gm and 3 DVDs of movies of Harry Porter would together weigh 30 gms only. In view of Ext. P3 picture of DVDs and box couriered to Kevin & Benetta Varghese at Agra, Utter Pradesh, we do not accept the contention of the opposite party that 3 DVDs of movies of Harry Porter will be weighed 30 gms only. Whatever be the contents the weight of the consignment as per Ext. P2 is 2kg. As regards the quantum of compensation, it is argued by 1^st complainant that no such agreement had taken place between the complainant and the opposite party as per Ext.P2 to show liability of the opposite party due to non delivery of the consignment will be restricted to Rs.100/-. It is pertinent to note that the consignor has not signed in Ext.P2 consignment note. As the consignor has not signed in the consignment note there is no meeting of minds between the parties to create a contract. The onus of proving that compensation is restricted to Rs.100/- would lay on the opposite party. Opposite party never adduced evidence either orally or documentary. There is no cogent and clinching evidence to prove that there is any contract or agreement between the consignor and the opposite party which restricts the compensation to be paid in case of non delivery of the consignment only to be Rs.100/-. It is the settled position that meeting of mind is essential and in the absence of meeting of mind any term relating to limited liability would not be the part of the contract and ordinary liability would flow in case of deficiency in service. It is clear from Ext. P2 that 1^st complainant's representatives had sent consignment weighed 2 kg through the courier but the value of the contents was not declared in Ext. P2. The value mentioned in Ext. P5 remains controverted. Taking into consideration of the totality of circumstance of the case, we are of the considered opinion that justice will be well met if complaint is allowed a compensation of Rs. 1,000/- along with a cost of Rs.500/-.

In the result, complaint is partly allowed. Opposite party shall pay Rs.1,000/- as compensation to 1^st complainant along with a sum of Rs. 500/- as cost. The said amount will carry interest @ 12% per annum, if not paid within 2 months from the date receipt of this order.

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 16^th day of April, 2010.

G. SIVAPRASAD PRESIDENT.

BEENA KUMARI. A : MEMBER

S.K. SREELA : MEMBER

ad.

C.C.No. 324/2008

APPENDIX

I. Complainants' witness:

PW1 : Lt. Col. Thomas. M.C

II. Complainants' documents:

P1 : Consignment Note No. 4330447 dated 22/7/08.

P2 : Copy of the consignment Note

P3 : Picture of DVDs and Box couriered

P4 : Copy of the complaint regarding the non-receipt and mishandling of parcel.

P5 : Copy of statement of account No. 41008 dated 5/12/08

III. Opposite party's witness : NIL

IV. Opposite party's documents: NIL

PRESIDENT