District Consumer Disputes Redressal Forum Barnala, Punjab.
Consumer complaint no. 236/14.
Date of Institution: 3.11.2014.
Date of Decision: 04.06.2015
Mahavir Telecom Karbon and K. Touch Mobile Service Centre Ram Bagh Road, Barnala through Varinder Kumar son of Krishan Kumar, resident of Barnala, Tehsil and District Barnala.
…Complainant
Versus
1. Sanjay son of Mahesh Kumar, Proprietor Akash Ganga Courier Service Jinda Kunji Morcha, Barnala,Tehsil and District Barnala.
2. Ashok Goyal M.D. Akash Ganga Courier, Head office Karol Bagh, New Delhi.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present : Sh. A.S. Sandhu, Advocate for complainant.
Sh. Lokeshwar Sewak Advocate for opposite parties.
Quorum:
1. Sh. J.S.Khushdil : President
2. Sh. Karnail Singh : Member
3.Ms. Vandna Sidhu : Member
ORDER
By Ms. Vandana Sidhu Member
This complaint No. 236/14 has been filed by the complainant alongwith affidavit. Brief facts of the case as per complainant are that Sh. Varinder Kumar son of Krishan Kumar is a sole owner of his mobile service centre named Mahavir Telecom Karbon and K touch Mobile Service Centre at Ram Bagh Road, Barnala. He sent the goods i.e. Karbon mobile sets which were eleven in numbers and 3 K touch mobile after making a consideration of Rs. 419/- to the opposite party no. 1 on 6.9.2014, against a receipt no. CN 73792920 through a courier and this service provided by Akash Ganga courier service and its head office, who have been arrayed as opposite parties 1 and 2, respectively in the complaint. At the time of sending goods by courier OP no. 1 assessed its weight i.e. 2 kg 170 gram. It is transpired that all the mobile sets and K touch mobile all worth Rs. 55670/- were found missing. The complaint therefore prayed for relief in this forum that no. (1) opposite parties may kindly be directed to deliver the mobile phones after tracing it or pay the value of missing goods i.e. Rs. 55670/- and pay Rs. One lakh compensation for the loss of complainant. Hence this complaint.
2. On the other hand the opposite party has raised various objection first of all, it was submitted that the above said complaint is false and frivolous one and is liable to dismiss under section 26. And complainant has not come with clean hands and has no locus standi to file the present complaint and instant complaint is baseless and flagrant abuse of process of law and just to harass and blackmailing the opposite parties. Further, the complainant has not approached this Forum with clean hands and concealed the material facts from this Forum. Further, complainant never told the opposite party No. 1 that there are mobile phones in the parcel rather complainant told that there are defective accessories of mobile phones in the parcel and price of these goods is not more than Rs. 1,000/-, so these goods sent by ordinary courier. Moreover there is no deficiency on the part of the op. no. 1 and 2 for sending courier to New Delhi.
3. The complainant in support of his complaint has tendered into evidence Ex. C1 his own affidavit, Ex. C2 Affidavit of Vicky Bhatla SSI of Karbon mobile, copy of receipt Ex.C3, Ex.C4 to Ex. C6 are copies of delivery of challan, copy of AC statement Ex.C7. On other hand opposite parties in order to rebut evidence of CC have tendered into evidence Ex. O.P1 affidavit of Sanjay, Ex.OP2 copy of pamphlet, Ex.O.P3 Terms and conditions, Ex.O.P4 affidavit of Parshant Tiwari, Manager Akash Ganga Courier Service Limited.
4. Here are some other issues which framed after hearing arguments and perusing the documents on the file
1. Whether there is any deficiency in service or negligence on the part of opposite parties?
2. Whether complainant knows about all the terms and conditions of courier service?
3. Whether complainant did not disclose that there are mobile phones in the parcel?
4. Whether the present complaint is hopelessly barred by law?
5. Whether the present complaint is filed only to harass the opposite parties?
5. By the submission of opposite parties, they invited our attention towards section 2(1) (d) (i) of these Consumer Protection Act, 1986 Section 2(1)(g)of the Act. However, we are of the view that the case of the complainant is covered with the explanation appended to Clause (d) of Consumer Protection Act which clearly shows that the commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of his self employment. There is not an iota of evidence which may go to show that the complainant is doing the business for commercial purpose as such. He is a proprietor of his service shop. More over opposite party did not raise any objection regarding that complainant is a consumer or not or the present complaint is bad under section 2(i)(d). No such averment in the written statement filed by the opposite parties, it is not their case. And opposite parties also could not rebut the maintainability of the instant complaint. In fact he is a owner of his shop i.e. service centre. His service centre is neither a partnership firm nor a company private or public. Moreover complainant placed quantum of damaged or misplaced goods. In regard of this fact we keen to a citation reported in Consumer Protection Judgments Vol.1 Page no. 597 (N.C.) in GATI Limited versus R. Ramesh. (Para 6) which narrates about Section 2 (1) (d) (i) as under.-
(i) Consumer Protection Act, 1986 Sections 2(1)(d)(i), 21 (b) Consumer Transport Services Commercial purpose Complainant is a proprietor of company. His firm is neither partnership firm nor a company private or public Complaint consumer. (Para 6)
6. We have minutely perused the complaint, version filed by the opposite parties and evidence tendered by the parties and heard the arguments of the learned counsels for the parties at length. In fact the complaint falls under definition of Section 2 (1) (g) Consumer Protection Act 1986. This type of consumers falls under second category of consumers laid down under the act is that of hirer or user of service means any person, who (a) hires or avails of any service for consideration which has been paid or promised or partly paid and partly paid and partly promised or under any system of deferred payment .
(b) Includes any beneficiary of such services other than the person who hires or avails less of them. When such services are availed of with the approval of hirer, but
(C) Does not include a person who avails of such services for any commercial purpose.
Commercial purpose does not include a person of services availed by him exclusively for the purpose of earning his livelihood by means of self employment .
In this case complainant has hired the services of opposite parties for transporting his consignment from Barnala to New Delhi. But the courier did not deliver the consignment to the place at New Delhi. Moreover the services of the opposite parties had been hired for a consideration of Rs. 419/-. We observed any service that has been hired for payment shall be considered as services under Consumer Protection Act, so there was deficiency in rendering the services by opposite parties, so para no. 2 and 3 of preliminary objection is meaningless. More over always those goods which are sent by courier are always kept in a box or packed in a proper manner, which are in a shape of parcel. It is a concocted story by the opposite parties that the complainant never told to the opposite party no. 1 that there are mobile phones in the parcel which are eleven in numbers and 3 k touch mobile and it is also wrongly mentioned by the opposite party no.1 that during the time of sending courier that there are defective accessories of mobile phone and its price is about not more than Rs. 1000/- and that is why sent to it through ordinary courier. And in version under title merits para no. 3 (B) is also baseless. Virtually complainant came in the forum with clean hands. Para no. 3 (D) is also wrong, opposite party no, 1 is also bound to send the above courier with its responsibility, so opposite party no.1 cannot absolve from its liability. He should be personally investigate to misplace or lost parcel, but did not bother to send to it on its destination, or made efforts for search of misplace of the above said courier because we observed as para no. 4 of preliminary objections where opposite parties no. 1 and 2 wrote down that the above said consignment is an ordinary one. Though it had an ordinary one yet the opposite parties no. 1 to 2 are responsible to deliver it as soon as possible to its destination. It is pertinent to mention here that, incumbent upon the opposite parties, to deliver the courier at its destination. But opposite parties no. 1 and 2 ignored to investigate and inform the damage of the parcel, so here is a gross deficiency in service on the part of opposite parties to ignoring the missed courier by opposite parties no. 1 and 2, inspite of they having knowledge about misplace goods as per Ex. C7 of dated 12.7.2014. As per para no 3 (D) on merit of reply it is wrongly mentioned by the opposite parties that complainant did not make party to Ambala Station, which is concerned with above courier and it is a hub of couriers and any parcel send by courier from Punjab and Haryana side that one is distributed by this Ambala center. As we perused that complainant is an innocent man and does not know the procedure of transaction of opposite parties. So making party to Ambala Station is also wastage of time of forum and complainant. Moreover affidavit of Ex. C1 of Varinder kumar elaborated insured value of mobile phones i.e. Rs. 55670/- which is also mentioned in Ex. C4 i.e. delivery challan for SFR and it also specifically clears name of courier service i.e. Akash Ganga that’s why we are not agree with the para no. 2 of Ex. OP1. Virtually opposite party no.1 failed to give any proof that the above said courier sent to its collection hub at Ambala and burden of proof lies upon opposite party no. 1. Further, in support of Ex. C1, Ex. C2 and Ex. C7 also give indication about not reaching the courier on its destination. Moreover Ex. O.P 3 is not readable with magnified glass also. So when this forum is not able to read it with magnified glass also. So when this Forum is not able to read it with magnified glass how can an innocent consumer understand the terms and conditions so, it is averred that the opposite parties have defaulted to send the courier on its destination and there has been gross deficiency in service.
7. We are supported by the judgment of Hon’ble Madhaya Pardesh State Consumer Disputes Redressal Commission, Bhopal 2003(2) CLT Page No. 441 in case titled Om Parkesh vs. New india Assurance co. Ltd. And another where it has been held that, Carrier non delivery of consignment Complainant by his affidavit and the documents, invoice bill etc proving the value of the goods Carrier not producing any material that the consignment booked was not of value of Rs. 1,81,996/- District Forum rightly ordered to pay the said amount. However award of interest @ 12% P.A is excessive Same reduced to 6% p.a.
8. So, the issues which are framed in this complaint i.e. No. 1 is in favour of the complainant and issues No. 2 to 5 are against opposite parties and these all are in favour of complaint. The present complaint is therefore, perfectly maintainable and allowed, opposite parties are directed to pay jointly and severally cost of mobile phones which is for transit insurance purpose only, the value is Rs. 55670/- alongwith interest @ 9% per annum from the date of filing the present complaint till realization, with Rs. 3000/- for compensation of loss, mental agony and costs of transaction of parcel and litigation expenses. After considering the facts of the case, it is a clear deficiency in service and gross negligence of opposite parties.
The orders of ours shall be complied within 30 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
PRONOUNCED IN OPEN FORUM
Dated: 4th Day of June 2015
Member President Member
(Vandna Sidhu) (J.S. Khushdil) (Karnail Singh)
