M/s R.P. Enterprises, Cabin No.2, SCO No.53-54, Sector 17-D, Chandigarh through its Proprietor and business partner Ms.Naina Rajput.

……Appellant(s)

V e r s u s

Mr.Amit Kumar through his father-in-law Mr.S.S.Chhoker (Special Power of Attorney holder) R/o H.No.1407, first floor, Sector 34-C, Chandigarh.           

 ....Respondent(s)

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Jatin Kumar, Adv. for the applicant/appellant.

                   Sh. N.S. Jagdeva, Adv. for the non-applicant/respondent.

PER  JAGROOP  SINGH   MAHAL, MEMBER

          This is OP’s appeal against the order dated 28.1.2010 passed by the learned District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) whereby the complaint was allowed and the OPs were directed to pay to the complainant a sum of Rs.1,66,419/- towards the costs of the articles lost/damaged during the transit of the parcel entrusted to them.  OP was also directed to pay to the complainant/respondent a sum of Rs.10,000/- as compensation for mental agony and harassment besides Rs.7,000/- as costs of litigation. The order was to be complied with by OPs within one month from the date of receipt of its certified copy, failing which the OP was liable to pay Rs.1,76,419/- to the complainant along with penal interest @ 18 % p.a. from the date of filing of the complaint till its realization besides costs of litigation of Rs.7000/-.

2.                           In nutshell, the complainant on 29.4.2010 hired services of the OP/appellant for transportation of a parcel weighing 250 kgs from Chandigarh to Hongkong by paying Rs.43,000/- as transportation charges. The parcel contained the household articles, clothes artificial jewellery, books and grocery items. The value of the said household articles contained in the parcel was about Rs.3.00 lacs.  The said parcel was to be delivered at the door step of the complainant at Hongkong within 20 days from the date of its booking, but the parcel did not reach the complainant in time. It was alleged that when despite many visits the OP did not deliver the parcel, a complaint was lodged with the police. The complainant also served a legal notice dated 21.06.2010 upon the OP but to no effect. Ultimately the said parcel was delivered to the complainant very late at China Border which is 200 k.m. away from his house. The said parcel was received in damaged condition and some of the items like grocery items, clothes, books, shoes etc. were missing due to which, the complainant suffered mental agony and harassment besides financial loss. The complainant had to purchase all the grocery articles from Hong Kong at higher price and in the mean time had to take his meals from hotel.  The complainant requested the OP/appellant many times to compensate him for the loss suffered by him but to no avail. Hence this complaint alleging deficiency on the part of the OP.

3.                 The OP was served for 20.10.2010, on which date and on the next date Sh.Vikram, official of OP/appellant appeared before the District Forum but, thereafter, on 8.12.2010 none put appearance on behalf of OP. Hence the OP was proceeded against ex parte.

4.                           The complainant adduced evidence in support of his contention. 

5.                           After hearing the ld. Counsel for the complainant and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order

6.                           Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

7.                           The complaint was decided by the learned District Forum on 28.1.2011 and the copy of the order dispatched to the OP was delivered on 10.2.2011. The present appeal was however, filed by the OP on 23.5.2011 after a delay of 74 days. The appellant has filed an application under Section 5 of the Limitation Act to condone the delay, which according to it is of 72 days.

8.                 It was mentioned in the application that on receipt of summons from the District Forum the appellant/OP put appearance but thereafter she was required to rush to Jammu and when she came back, it was found that the case has been decided ex parte.  She again received the news of ill health of her aunty at Jammu and she had to rush to Jammu to take care of her from where she was referred to PGI, Chandigarh, where she died on 1.5.2011.  Her contention is that the appellant was unable to give attention to the case and therefore, the delay in filing the present appeal should be condoned. The application was opposed by the complainant/respondent alleging that it is all a concocted story put forward by the OP, which cannot be believed. It was alleged that the order was pronounced after about 2 months of her putting in appearance through Vikram (Office Assistant of OP) and therefore, she cannot be said to have been absent from the work for that long.  It was alleged that if she was putting appearance through Vikram (Office Assistant of OP), she could have come present on the next date also through the same person but she did not do so. It was said to be sheer negligence and disrespect on the part of the OP. The story about the ill health or death of the aunty was also denied being untenable and unbelievable.

9.                 We have heard arguments of the learned Counsel for the parties on the point whether the grounds mentioned to condone the delay in filing the appeal should be accepted or not. We are of the opinion that there is no merit in this application and the delay should not be condoned.

10.             The OP/appellant was arrayed as a party and was served through its proprietor and business partner Ms. Naina Rajput and through Vikram who put in appearance before the learned District Forum on two dates but thereafter absented.  He could come present on the subsequent dates also or could engage a counsel and file the reply and contest the complaint but he chose to absent and to be proceeded against ex parte.  The illness of Aunty of Naina Rajput was therefore, no impediment in the appearance of Vikram before the learned District Forum.

11.             The contention of Ms. Naina Rajput is that she received the news of ill health of her Aunty at Jammu and she rushed to Jammu to take care of her. In her application or the affidavit she did not mention the name of her Aunty. She did not mention as to what was her actual relationship with the said Aunty. She did not produce any evidence to suggest how the said Aunty was related to her. She did not allege nor produced any evidence to suggest if the said Aunty had no son or daughter, or other near relative to take care of her.  It appears the illness of her Aunty at Jammu was just a concocted story because no document of illness was produced with the application. The respondent/complainant filed reply and stated that it is a concocted story. The Medical Certificate of Cause of Death issued by the PGI was produced by the OP/appellant, which further falsify her claim. In the said Certificate, the permanent address of the deceased is mentioned as Logat, Kathua and not Jammu. There is no evidence if Anita (deceased) ever resided at Jammu The appellant nowhere mentioned if she had to go to Logat Kathua to lookafter Anita (deceased). There is no evidence from any of her near relatives, if Ms. Naina Rajput, ever attended upon Anita (deceased) aforesaid. We are therefore, of the opinion that it is a false story concocted by Ms. Naina Rajput to allege that she had gone to Jammu to lookafter her Aunty. There is no dearth of patients coming to PGI from Jammu & Kashmir for treatment and it appears one such patient has been utilized by the OP/appellant without any relationship with her.  

12.             As discussed above, the free copy of the judgment was delivered to appellant on 10.2.2011. The appellant did not lead any evidence to suggest, nor was it mentioned in the application or affidavit as to on which date she went to Jammu. It is not her case if she remained at Jammu during the entire period of illness of her Aunty. We cannot believe that she remained at Jammu for more than 2 month and had closed her business at Chandigarh. She, even while being at Jammu could instruct the lawyer to file the appeal. Even her partner Vikram (Office Assistant of OP) who appeared before the learned District Forum could file the appeal if so directed. It is therefore, clear that there is no justification for the delay in filing the appeal. It was a conscious decision of the OP not to file the appeal but subsequently, they appear to have decided to file the same may be to block the execution of the order.

13.             In view of the above discussion, we are of the opinion that no grounds are made out to condone the delay. The application for condonation of delay is accordingly dismissed, and consequently the appeal is dismissed.

14.             Even on merits, the appellant has no case. The appellant was duly served before the learned District Forum and its partner Mr. Vikram (Office Assistant of OP) appeared on two dates but thereafter did not think it proper to contest the complaint.  No evidence was led by the OP/appellant to contradict or disprove the contentions of the complainant, which shows that the OP/appellant had no defence to make against the facts alleged in the complaint.  

15.             In the memorandum of appeal the appellant referred to certain documents Annexure A-3 and A-4 but these cannot be read in evidence firstly because the same are beyond pleadings and secondly these have not been proved by any evidence.  The complainant/respondent has alleged that these are fabricated documents.

16.             A-3 is purported to be invoice cum packing list allegedly bearing the signature of Amit Kumar, complainant, who has denied if it was signed by him. There is a power of attorney Annexure-A submitted by the complainant authorizing his father-in-law Sh. S.S. Chhokar to pursue the present complaint. When we peruse Annexure A-3, and compare it with Annexure-A, we find that A-3 does not bear signature of the complainant. The manner, in which A t K and r have been mentioned, makes it clear that, it is a forgery committed by OP/appellant. Under the signature two small lines are also drawn in Annexure A-3 but when we see Annexure A we do not find any lines drawn under the signature. It appears these were copied from the passport where the similar lines are drawn under the signature but the complainant does not appear to have continued the said practice subsequently.  Annexure A-3 therefore, cannot be admitted in evidence to decide the controversy between the parties. Further more there is no request made by the OP/appellant for adducing additional evidence nor the documents are per se admissible and due to this reason also the documents submitted by the appellant alongwith the memorandum of appeal cannot be read in evidence.

17.             There is no dispute about it that the respondent/complainant had booked household goods with the OP as mentioned in the list Annexure C-2. This list bears the signature of Naina Rajput and the seal of OP. The complainant has also produced the list showing that the goods booked with the appellant were worth Rs.3,00005.40 (three lacs five and paisa forty only). The complainant has also placed on record Annexure C-4 to 11, regarding purchase of the items, which were put in the parcel. The complainant had paid Rs. 43,000/- to the appellant vide Annexure C-3 as transportation charges. The contention of the appellant that the goods were only worth Rs.36,000/- ( as per Annexure A-3) cannot be accepted because a person would not pay transportation charges of Rs.43,000/- for transporting the goods which are only worth Rs.36,000/-.

18.             In view of the above discussion, we are of the view that even on merits the impugned order is perfectly legal and valid and the contention of the appellant is devoid of merit and has been based on concocted documents. Therefore, viewed from any angle the appeal cannot succeed and the same is accordingly dismissed with costs. The OP is directed to pay Rs.10,000/- as costs of litigation to the complainant in appeal.

                    Copies of this order be sent to the parties free of charge.