By Smt. C.S. Sulekha Beevi, President,

1. Complainant send a consignment to Sajan Mobiles, Kechery Thrissur District through opposite party. The consignment contained mobile memory cards worth Rs.6.585/-. The consignment is not delivered to the addressee till date. Hence this complaint to return the article or to pay the loss incurred by complainant.

2. Opposite party entered appearance through power of attorney holder M.K. Alavi and filed version in the form of affidavit. It is admitted that complainant entrusted a consignment for being send to Sajan Mobiles, Kechery. It is also admitted that it was not delivered to the addressee. It is submitted that complainant has not declared the articles send by the consignment and that complainant is bound by the terms and conditions of consignment. That no notice was issued to opposite party under Sec.10 of Carriers Act, and therefore the complaint is not maintainable. That the complainant is a businessman and the service was availed for commercial purpose which is excluded from the ambit of the definition of consumer. That there is no deficiency in service and complaint is to be dismissed.

3. Evidence consists of affidavit filed by complainant and Exts.A1 to A3 marked for him. Affidavit filed by opposite party and Ext.B1 marked for opposite party. Either side has not adduced any oral evidence.

4. The foremost contention raised by opposite party resisting the complaint is that complainant who is a businessman has availed the service for commercial purpose and therefore complainant is not a consumer. Complainant has sworn that he is conducting a mobile phone shop along with this friend at Manjeri. It is stated that he and Razack are themselves conducting the shop as self employment for earning their livelihood. That this shop is his sole means of livelihood. Opposite party controverted this submission relying upon Ext.B1 which is a visiting card of complainant with his shop name. It was submitted by opposite party that the Head Office is shown as Tirur and that the shop at Manjeri is only a subsidiary. Complainant explained that his shop is at Manjeri and that he had learned the business from the establishment at Tirur and only because of this he had printed on his visiting card as Head office, Tirur, and that the establishment at Tirur is now non-functional. Complainant produced Ext.A1 which is a tax receipt for payment of tax for his shop to Manjeri Muncipality. Ext.A1 stands issued in the name of complainant and this document along with the affidavit sufficiently proves the contention of complainant that he is running the mobile shop at Manjeri by self employment as means of earning livelihood. We therefore hold that complainant is consumer and complaint is maintainable.

5. The second allegation raised by opposite party disputing the maintainability of this complaint is that complainant has not issued a notice to opposite party before filing the complaint and has thus not complied with section 10(c) of Carriers Act. Even if we assume that Section 10(c) notice is necessary before filing a complaint in the present case opposite party has been sufficiently informed about the non-delivery of the consignment before filing of this complaint. Along with the complaint complainant has produced a letter of the Tirurangadi Consumer Protection Society. It is seen from this letter that initially complainant had preferred a complaint against opposite party before this society. It is also stated in this letter that when the society contacted opposite party regarding the non-delivery opposite party had requested time till 23-9-2008 for tracing the missing consignment. That thereafter there was no response and complainant has preferred this complaint. Thus it is clear that opposite party has been put to notice regarding the non-delivery prior to filing of this complaint. It is not a case where no notice was issued at all. It is also submitted that complainant made repeated enquiries directly to opposite party regarding the non-delivery of the parcel and claimed for compensation. The object and purpose of the Consumer Protection Act is to avoid hyper technical grounds which would make the aggrieved consumer into a more helpless consumer. For these reasons we hold that the complaint is maintainable.

6. Admittedly the consignment was not delivered to the consignee. This definitely amounts to deficiency in service. We find opposite party deficient in service. Ext.A3 is the courier receipt. Though conditions are printed limiting the liability to Rs.100/- it is not signed by the consignor. Thus these conditions have not been accepted by the complainant and is not applicable against the complainant in evaluating his claim. Ext.A2 is a bill which shows that the memory cards were purchased for Rs.6,485/-. This document along with consistent pleadings and affirmation prove that the articles inside the consignment were mobile parts worth Rs.6,485/-. We consider that complainant is definitely entitled to this amount. In our view complainant is to be allowed Rs.2,000/- towards mental agony and Rs.1,000/- towards costs.

7. In the result we allow this complaint and order opposite party to pay a sum of Rs.6,485/- (Rupees Six thousand four hundred and eighty five only) to the complainant as damages and Rs.2,000/- (Rupees Two thousand only) as compensation for mental agony and hardships along with costs of Rs.1,000/- (Rupees one thousand only) within one month from the date of receipt of copy of this order.

 

Dated this 6th day of February, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A3

Ext.A1 : Photo copy of the receipt for Rs.216/- from Manjeri Muncipality to

complainant.

Ext.A2 : Photo copy of the cash bill for Rs.6,485/- from complainant to

Sajan Mobiles, Thrissur.

Ext.A3 : Photo copy of the cover receipt from opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1

Ext.B1 : Trade card given to complainant.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER