By Smt. PREETHI SIVARAMAN.C, MEMBER
1.Case of the complainant:-
Complainant and his brother are running a mobile shop at Chennai for their livelihood. For using at their Chennai shop, complainant bought a Photostat machine worth Rs. 70,000/- from Kozhikode and sent the machine through the opposite party No.1 on 18/07/2018. When they were sending, the machine was in a working and complainant packed the machine with thermocol as per the direction of opposite party No.1. When complainant sent the machine on 18/07/2018 opposite party No.1 assured that they will deliver the machine on the address given by the complainant within 4 days. As per their assurance they delivered the machine on 21/07/2018. By believing the words of opposite party No.1, complainant accepted the consignment delivered by opposite parties.
2. When complainant opened the consignment, he found that the Photostat machine was in a broken condition and it was not at all useful. When complainant informed about this to opposite party’s Chennai office, but nobody came to complainant’s shop to repair the above Photostat machine. The above machine isnow useless and kept in the office of complainant. Due to the deficiency of service and unfair trade practice from the side of opposite parties, complainant had lost the Photostat machine worth Rs. 70,000/- without any use. Hence this complaint.
3. Prayer of the complainant is that , he is entitled to get Rs. 70,000/- the cost of the Photostat machine or to repair the Photostat machine by opposite parties , Rs. 1,00,000/-as compensation for the economic loss suffered by complainant, Rs. 3,00,000/- as compensation for the mental agony and hardship suffered by the complaint due to the act of opposite parties and Rs. 25,000/- as cost of the proceedings.
4. On admission of the complaint notice was issued to the opposite parties and
notice served on them and they appeared before the Commission through their counsel and filed version.
5. In their version they denied all the allegations made in the complaint except those which are specifically admitted. They again stated that even as per the averments in the complaint, itis the admitted case of the complainant that the services of the opposite parties were availed by him for commercial and business purposes. Hence complainant is not a consumer. They again stated that complainant and his brother are running a business establishment by the name ‘’Vitamine Cafe” at Chennai. Second opposite party is the company engaged in courier and logisticbusiness and first opposite party is one of its franchisee in Areacode. It is true that complainant had booked a consignment through the first opposite party on 18/07/2018. But consignor did not either disclose the contents of the consignment or its value at the time of booking. The complainant had brought the consignment in a packed condition for consigning the same. The consignment was weighing about 42 kgs and the chargeable rate of Rs. 1680/- was collected as freight charges for carriage by the first opposite party. The first opposite party specifically enquired if the consignment contained any valuables and if so, he will have to declare the contents, its value and pay additional surcharge at the rate of 2% of the declared value for the carriage of the same at the risk of the carrier, to enable him to raise any claim for loss or damage.
6. They again contented that complainant informed the first opposite party that the contents are only stationery which does not have any commercial value and that he does not intend to declare its value and pay additional charges. It is specifically denied that the complainant had disclosed to the first opposite party at the time of booking that the consignment contained any Photostat machine or that the consignment was packed with thermocol, as per the instructions of first opposite party. Though the expected date of delivery by surface was 23/07/2018 and the consignment was delivered as early as on 21/07/2018 in good condition at the destination to the consignee, which was accepted by the consignee without any objection or complaints. Therefore the present allegations that the consignment contained a Photostat machine worth Rs. 70,000/- bought from Kozhikode, which was working at the time of consigning, are denied by the opposite parties.
7. They again contented that, the consignment which was received in a packed condition at the time of booking and was delivered in the same condition without any damage whatsoever either to the package or its contents to the consignee. They again denied the statement by complainant that the consignee had opened the consignment in the presence of the delivery boy of the opposite party in Chennai. The consignee was never in contact with the delivery office of the opposite parties in Chennai. No complaints regarding damaged delivery was ever made to the delivery boy or delivery office of the opposite parties at the place of destination. They denied the allegation raised by complainant that opposite party’s office in Chennai had assured to repair the so called Photostat machine. They again stated that without admitting that the consignment contained any Photostat machine, as alleged, it is evident from the nature of the allegation itself that the contents of the consignment if at all any, was allegedly damaged at the hands of the consignee after taking delivery of the same from the opposite parties and the attempt of the complainant is to pass on the blame to the opposite parties to make an illegal and undue monitory benefits by filing the false complaint. They again stated that they have not caused any damage to goods, business loss or mental agony as alleged in the complaint. There is no deficiency of service or any unfair trade practice on the part of the opposite parties and no financial loss or mental agony as alleged have been caused to the complainant due to any act of the opposite parties.
8. They again submitted that they collected the consignment for carriage subject to terms and conditions that are specifically mentioned in the consignment note leaf. In the event of damage or loss to goods, the liability of the opposite parties under the contract between the parties is limited to Rs. 100/-. Unless the centre declares a higher value as ‘’declared value for carriage’’ and also pays the applicable risk surcharge thereof as ‘’Carrier’s risk ‘’ at the time of tendering the shipment. The minimum surcharge for “carrier’s risk is Rs. 50/- or 2 % whichever is higher of the ‘declared value for carriage’ which has not been paid in the instant case to entitle the sender to claim for the declared value. The Sender will have to produce documents to prove the contents and its declared value at the time of booking. The complainant herein has no case that he had consigned any non documents as now alleged in the complaint in the subject consignment. Nor does he have a case that he had declared the contents in the consignment at the time of booking. Even now the complainant has simply claimed and estimates the value of the alleged items at Rs. 70,000/-, without any evidence. Moreover complainant has not produced any documents to prove the contents in the consignment and he has no case in the complaint that he had paid additional risks surcharges apart from the freight charges at the time of entrusting the same with the opposite parties for carriage. The consignor is not entitled to any consequential or indirect losses or damages because of loss or damage to shipment. Therefore the false allegations and exaggerated amount claimed are without merit and illegal. There is no deficiency in service and unfair trade practice on the part of opposite parties herein.
9. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 toA4. Ext.A1 is the original receipt given by opposite party No.1 to complainant at the time of entrusting the consignment to the opposite party dated 18/07/2018 Ext.A2 series are the photographs of the consignment (4 Nos.) Ext.A3 is the copy of proforma invoice for the purchase of new Photostat machine dated 28/04/2022, Ext.A4 is the computer printout of the shipment summary of the consignment. Thereafter opposite parties also filed affidavit and the documents they produced were marked as Ext. B1 to B3. Ext.B1 is the original standard consignment note leaf bearing consignment note No. D29882802 containing the terms and conditions of carriage with POD copy, Senders copy, Accounts copy and recipient copy, Ext.B2 is the office copy of delivery run sheet of consignment note No.D44063469, Ext. B3 is the computer printout of shipment summary cum shipment tracking history of consignment bearing No.D44063469.
10. Heard complainant and opposite parties. Perused affidavit and documents. The following points arise for consideration:-
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- Whether complainant is entitled to getcompensation as claimed.
- Reliefs and cost.
11.PointNo.1 &2
Case of the complainant is that, he had sent a Photostat machine worth Rs. 70,000/- from Areacode to his shop at Chennai through opposite party No.1 on 18/07/2018.When sending the machine, it was ina working condition and opposite party No.1 had delivered the machine at complainant’s place on 21/07/2018.When complainant opened the consignment, he found that the Photostat machine had broken in to pieces and it was not at all in a useful position.
- But opposite parties stated that complainant is not a consumer because in the averments in the complaint itself which shows that he is running a business establishment. Complainant did not either disclose the contents of the consignment or its value at the time of booking. Complainant had brought the consignment in a packed condition which was weighing 42 Kgs and charged Rs. 1680/-. At the time of delivery no complaint regarding damaged delivery was made by complainant.
13. As per Ext. A2 series, photographs produced by complainant shows that the consignment send by him through opposite parties’s courier service had damaged when sending the item from Areacode to Chennai. Opposite parties also admitted that they had sent a consignment weighing 42 Kgs which was entrusted by complainant at opposite party No.1’s courier service . But opposite party No.1 stated that they have no idea about the item packed inside the packet and complainant did not reveal the item inside the packet before them. That statement is true, but opposite parties admitted that they had delivered the consignment at complainant’s place as early as on 21/07/2018 in a good condition which was accepted by the consignee without any objection or complaints. One of the objections raised by opposite parties are that complainant is not a consumer and he and his brother are running a business establishment namely ‘Vitamin Café at Chennai. But opposite parties not produced any documents to prove the contention raised by them. No documents to prove that there is any business establishment namely ‘vitamin café or not at Chennai for complainant. Complainant says that he and his brother running a mobile shop at Chennai for their livelihood. Complainant booked only one Photostat machine for using atatheir mobile shop at Chennai. Hence we are on the opinion that complainant only send one Photostat machine which is for his livelihood. It is not for commercial and business purpose. It is the duty of opposite parties to prove the contentions raised by them that complainant is conducting a business firm at Chennai and he is using this machine for conducting his business at Chennai . Both are not proved by the opposite parties.
- As per Ext. A1 it is true that complainant had sent an item weighing 42 kgs and he had paid Rs. 1680/- for sending the item from Areacode to Chennai. On that document given by opposite parties to complainant did not contain any details about the consignment. It is the duty of opposite parties to fill up the details about the consignment inside the packet. It is the duty of opposite party No.1 to check the consignment having weight of 42 Kg. They will surely enquire about the consignment and they will not it in Ext.A1. The details No.1 to 13 will surely filled up by opposite parties. This Ext.A1 is provided by opposite party No.1 to complainant and they written the name of sender and name of recipient and everything inside Ext. A1. In point No.8 opposite parties did not enter the consignment is commercial or non-commercial.
15. Another contention of opposite parties are that they had received the consignment in a packed condition and they have delivered in the same condition without any damage whatsoever either to the package or its contents to the consignee. They denied the statement made by complainant that he had opened the consignment in the presence of delivery boy of the opposite party in Chennai. If we are taking that contention, how can opposite party gave assurance that they had delivered the item in a perfect condition?. Complainant received the item in a packed condition and after receiving the item he had opened it and found that it was damaged. The careless handling of the consignment was caused damage to the consignment. One of the photographs in Ext. A2,it is clearly written in capital letters outside the consignment that the item should “handle with care“. From the photographs it is clear that opposite party did not handle the consignment with care and caution. They may simply throw the item in a careless manner and itbroken into so many pieces. As per Ext. A4, complainant also admitted that he had received consignment on 21/07/2018. There is no controversy on that point. The only thing is the consignment was in a damaged position when complainant opened it.
16. Another contention of opposite parties are that, first opposite party specifically enquired if the consignment contained any valuables and if so he will have to declare the contents, its value and pay additional surcharge at the rate of 2 % of the declared value for the carriage of the same at the risk of the carrier, to enable him to raise any claim for loss or damage. When informed by the first opposite party, the complainant stated that the contents are only stationery which does not have any commercial value and that he does not intend to declare its value and pay additional charges. We are on the opinion that when the consignment was received by opposite party No.1 they know that the weight of the consignment was 42 Kg . Then they definitely asked the complainant that what is the article inside the package and so they know the article inside the package was Photostat machine.
- Another contention of opposite parties are that they delivered the consignment on 21/07/2018 in a good condition at the destination to the consignee which was accepted by the consignee without any objection or complaints. They again stated that the consignment was accepted by consignee only because it was without any damage (either to its packing or its content) and in good condition. But the contention raised by opposite parties are ridiculous because they themselves denied the statement of complainant that the consignee had opened consignment in presence of the delivery boy of the opposite party in Chennai. Opposite party again stated that the consignee was never in contact with the delivery office of the opposite parties in Chennai. So we are on the opinion that the complainant did not open theconsignment in the presence of delivery boy, he just received the consignment and signed as he accepted the consignment. Then only he opened the consignment and found that it was in a damaged condition. Such huge sized items like Photostat machine are usually opened only after the delivery of the same. So the contention raised by opposite parties are ridiculous. Complainant received the consignment in its name and he does not know the status of the consignment and the property inside the package.
- One of the contentions raised by opposite parties are true because complainant had simply claimed and estimate the value of the alleged item asRs. 70,000/- without any evidence. Another contention of opposite parties are that complainant has not produce any documents to prove the contents in the consignment. That contention is true. Complainant did not produce the documents regarding the value of the Photostat machine and the purchase bill. He simply says that he had bought a Photostat machine from a shop at Calicut. The complainant has not even mentioned the name of the shop from where he had purchased the Photostat machine. So we are unable to calculate the cost of the Photostat machine mentioned in the complaint and the shop from where he had bought the Photostat machine. The date of purchase of the machine and the cost of the machine are not mentioned in the complaint and did not produce any documents to prove the same . The warranty terms of the above machine and whether it was a used one or not is also not mentioned in the complaint. He simply produced Ext. A3, the purchase bill of another Photostat machine worth Rs. 77,500/- bought on 22/04/2022 by one Hashim Hussain. But Commission is unable to come to a conclusion that what is the connection between Ext. A3 and the complainant. Complainant did not mentioned in the complaint about the specification, name of the company, features, functions etc of the Photostat machine mentioned in the complaint. From Ext. A2 documents the photographs produced before the Commission it is clear that complainantsent one Photostat machine and some damage caused to the upper portion of the Photostat machine. Complainant did not take any steps to appoint an Advocate commissioner or an Expert to check the frequency of damage caused to the Photostat machine mentioned in the complaint. Hence we are not able to come to a conclusion that the Photostat machine mentioned in Ext.A3 was the Photostat machine which was bought by complainant and sent to Chennai through oppositeparty No.1. Moreover the year and date of purchase is not mentioned in the complaint by complainant. There is a big difference in the prices of the Photostat machines in 2018 and 2022.
- Opposite parties never denied Ext. A2. Hence there is some deficiency of service from the side of opposite parties when sending the consignment through their courier service. Moreover the Photostat machine is now working or not that also not aware to the Commission. Opposite parties did not take utmost care and caution while handling this consignment of complainant. They must be very careful when handling this kind of electronic items. So there is clear deficiency of service and negligence from their side. Hence they are liable to compensate the complainant for their deficiency of service. But complainant did not produce the bill and other details of the consignment which they had sent through the opposite parties. So complainant had no right to get the Photostat machine or the cost of the Photostat machine. Hence we allow this complaint as follows:-
- Point No.3
- The opposite parties are directed to pay compensation of Rs.50,000/- (Rupees Fifty thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties also directed to pay Rs. 5,000/-(Rupees Five thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 13thday of October, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Original receipt given by opposite party No.1 to complainant at the time
of entrusting the consignment to the opposite party dated 18/07/2018.
Ext.A2 : Series are the photographs of the consignment (4 Nos.)
Ext.A3 : Copy of proforma invoice for the purchase of new Photostat machine dated
28/04/2022.
Ext.A4 : Computer printout of the shipment summary of the consignment.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B 3
Ext.B1 : Original standard consignment note leaf bearing consignment note No.
D29882802 containing the terms and conditions of carriage with POD copy,
Senders copy, Accounts copy and recipient copy.
Ext.B2 : Office copy of delivery run sheet of consignment note No.D44063469.
Ext.B3 : Computer printout of shipment summary cum shipment tracking history of
consignment bearing No.D44063469.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
