BY - SRI ASISH DEB, PRESIDENT
Brief facts of the complainant’s case is that complainant is a permanent inhabitant of above mentioned address and Opposite Party No.-01 inhabitant and established his/her Branch/Franchisee/Courier center within the Jurisdiction of this Forum. Petitioner is a businessman and he is involved in his business of automobile namely Hi-Tech Auto Enterprise, said business is the only source of income of his family and as well as livelihood of the petitioner. O.P. No.-01 is the local branch/franchisee of O.P. No.-02 & 3. Opposite Party No.-01 running his/her branch/franchisee at Padumbasan, under P.S.- Tamluk, Dist.- Purba Medinipur . O.P. No.-02 & 03 are the authority of service provider DTDC Courier Company, provide courier service to the petitioner. O.P. No.-1 is local branch of service provider of DTDC Courier Company. petitioner is a dealer of Mahindra Two Wheelers Ltd. He is running his business at Padumbasan, Tamluk in the district- Purba Medinipur. “Anjali Automobile” of Contai is a Sub-dealer of Automobile. For sending some important papers as urgent basis to Anjali Automobile at Contai, complainant met with the O.P. No.-1 on 06.02.2019 and booked registration certificate of vehicle, papers etc. which was issued from RTO Tamluk & Others valuable documents of the business through courier of O.P. Members. O.P. No.-1, received the envelop of said papers and proper fees from petition and booked the same and on 06.02.2019 O.P. No.-01 issued a receipt against booking of said consignment bearing No.- K16734368. At the time of receiving of said consignment from complainant O.P. No.-1 disclosed that he must deliver the said consignment within one day but in vain, said consignment did not reach to the recipient address or return back to complainant till today. Petitioner regularly meet with the O.P. NO.-1 but he did not disclose any whereabouts regarding said consignment. He neither supply any delivery report nor the report regarding track & trace of the consignment. Due to non delivery of said consignment of petitioner to proper direction petitioner suffered a lot of mental pain and agony also suffered huge loss & damages financially by pay additional charges to the authority. On 13.02.2019 petitioner again met O.P. No.-1 and submitted a complaint regarding non-delivery of consignment but it is a great regret that the O.P. No.-1 did not accept his written complaint also he intentionally, willfully, deliberately denied to receive any complaint from petitioner. Several times petitioner met with the O.P. No.01 but he neither take any proper steps nor returned said papers, O.P. members knowing fully well, deliberately and willfully harassed the complainant who suffered loss & damages of his business and living with a mental pain & agony. Complainant was compelled to lodge a complaint before the Asst. Director CAFBP Tamluk on 15.02.2019. Asst. director CAFBP Tamluk registered said complaint for mediation bearing Complaint inbox No.-39/PBM/19 dated 24.04.2019. On dated 15.02.2019 petitioner filed said petition to the Assistant Director Consumer Affairs and Fair Business Practices, Purba Medinipur at Tamluk for peaceful mediation about the said matter. Assistant Director Consumer Affairs and Fair Business Practices, Purba Medinipur at Tamluk, sent a notice to O.P. No.-01, for mediation which was held on 18.06.2019. OP No.-01 attended said mediation and intentionally bypassed his liability, he said that “the consignment had been sent to DTDC Mecheda on the same date of its booking i.e. 06.02.2019 so he has no any further liability of this consignment. Only the DTDC is responsible for this case.” That as a service provider all the O.P. member have same liability and responsibility as per law, no O.P. can deny it. Assistant Director Consumer Affairs and Fair Business Practices, Purba Medinipur at Tamluk, suggested to communicate to CDRF for relief. Complainant several times met with O.P-1 and requested him for solving the matter but no needful action was taken by O.P. Members. The cause of action arose of this case on 13.02.2019 and 18.06.2019. In the aforesaid circumstances complainant prays for return of said consignment with all papers, Compensation of Rs. 50,000/- for loss of business, harassment, mental pain and agony etc. for litigation cost of Rs. 5000/- and for other reliefs the complainant is entitled to get as per law and equity.
Summons were issued upon the Opposite Parties. Ops 2 & 3 have filed written version but after that they did not contest, so the case proceeded exparte against them. Despite service of summon the OP-1 did not appear to contest the case hence, the case is heard ex-parte against the OP-1 also.
Points for determination are:
1. Is the case maintainable in its present form and in law? 2. Is the Complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for the sake of brevity and convenience.
We have carefully perused the affidavit of the complainant and evidence produced by the Complainant .This complainant is a sole proprietor of his business .He runs his business for self employment and to earn a livelihood, his such version has remained uncontroverted. A sole proprietorship has no separation between the business entity and its owner. A sole proprietor does not work for any boss so he is self employed. Sole proprietorship is with a purpose for self employment. Consignment of documents or letter can not be termed for goods for commercial purpose. The complainant is a consumer. In the facts and circumstances of the, the case is maintainable in its present form and in law,
Having regards had to the facts and circumstances of the case and unchallenged evidence of the complainant, it is evident that O.P. No.-1,who is the agent of ops 2 & 3 , received the consigned envelop of said papers and proper fees including risk surcharge of Rs.45/- in total (col.-10 of the receipt ) from complainant and booked the same and on 06.02.2019 O.P. No.-01 issued a receipt against booking of said consignment bearing No.- K16734368. Complainant regularly met with the O.P. NO.-1 but he did not disclose any whereabouts regarding said consignment. He neither supplied any delivery report nor the report regarding track & trace of the consignment. Upon taking risk surcharge the ops can not absolve themselves or wash out hands for the missing consignment. Due to non delivery of said consignment of complainant to proper direction complainant suffered loss. All ops are answerable to the complainant. The ops have set instances of deficiency of service and negligence. The ops can not deny the liability of principal and agent relation and liability arises out of the said relation. Ops 2 & 3 are liable for the act of its franchisee op-1. The complainant is entitled to get back his consignment if not delivered or to get compensated if it is lost from the end of ops.
Thus both the points are decided in favour of the complainant.
Hence, it is
O R D E R E D
That CC/538 of 2019 be and the same is allowed ex-parte against the OPs.
The Opposite Parties, who are jointly and severally liable, are hereby directed to return the consignment bearing No.- K16734368 or alternatively to pay a sum of Rs.10,000/-as compensation for loss of the consignment and further Rs. 5000/- as towards litigation cost, within one month from the date of this order, failing which the complainant will be entitled to get simple interest @ 8% p.a. from the date after expiry of said one month till full realization of the awarded amount .
The complainant will be at liberty to put this order into execution if requires.
Let copy of the judgment be supplied to all the parties free of cost.
