The case of the complainant, in a nutshell, is that the complainant being represented as Chief Executive Officer of Durga Automotives (P) Ltd. approached to O.P.No.2 on 28/09/2015 to send a consignment of Mobile Phones ( 19 pieces )to Sarawagi Distributors through the courier service at New Sarada Niwas, 48 Lala Lajpat Rai Road, Ashrampara, Siliguri, District – Darjeeling vide Consignment No.4490 against a service charge of Rs.100/- (Rupees One Hundred only) but the aforesaid consignment has not been delivered to the receiver’s address. The complainant enquired, but the said articles have not reached its destination till date. The complainant visited the Office of O.P No.2 but he could not get any satisfactory reply to that effect and it amounts to deficiency in service on the part of the O.Ps.
The complainant has alleged that he sent an Advocate’s letter on 19/10/2015 by Registered Post with A/D through his Ld. Agent but the O.Ps neither replied nor showed any courtesy to talk with the complainant. On 17/10/2015 the O.P.No.2 sent a letter to the complainant requiring some time to deliver the consignment, but no effect. The conducts of O.Ps show negligence and deficiency in service on the part of them. It amounts to deficiency in service and unfair trade practice. As a result, the complainant suffers from deficiency, fault, and imperfection on the part of O.Ps. Due to the act of O.Ps, the complainant has suffered mental agony and harassment.
As such, the complainant has prayed for compensation amounting to Rs. 26, 589/- along with bank interest w.e.f 28/09/2015 till the date of payment of compensation and other charges i.e an award of Rs. 50, 000/- for unfair trade practice of O.Ps and an award of Rs. 50, 000/- towards mental pain and agony and also an award of Rs.10,000/- against O.Ps towards litigation cost as well as an award which the Forum may thinks, fit and proper.
The O.P No.1 and 2 after receiving notice appeared before this Forum and files W/V separately.
The O.P.No.1 denied the material allegations of the instant case alleging that there is no cause of action to file the instant case. The case is barred by law of limitation. The complainant on suppressing the fact filed the instant case against the O.Ps. The complainant was all along aware of the actual state of affairs. There is no negligence, unfair trade practice and deficiency in service.
According to O. P, the complainant has booked the consignment through O.P.No.2, not booked through O.P.No.1 and for that reason the O.P.No.1 has no liability regarding booking of consignment. This O.P has no relation with O.P.No.2. The complainant has filed this case only to earn and squeeze some money from O.P No.1. As such, this O.P has prayed for dismissal of the case of the complainant with sufficient cost.
The O.P.No.2 denied the case of the complainant by filing W/V that the case is not maintainable. He enquired about the consignment to the O.P.No.1 at Siliguri Office and they admitted that they have received the consignment. He admitted that he received a Lawyer’s Notice of this case. There is no deficiency in service on the part of the O.P.No.2. The consignment which was received by him on 28/09/2015 was acknowledged byO.P.No.1 at Siliguri Office. The deficiency in service, if any caused for non-delivery of consignment to is not upon this O.P rather upon the O.P.No.1.
As such, the case is liable to be dismissed against O.P.No.2.
It appears that the evidence on affidavit filed by the parties is the reiterated version of complaint and W/V. However, in the situation we are in view that the following points are necessarily come up for consideration to the just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(1) (d) (ii) of the C.P.Act, 1986?
- Whether the Forum has jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- To what other relief or reliefs, the complainant is entitled to?
DECISIONS WITH REASON
Point No.1 and 2-
On close scrutiny of the record, it appears that the complainant viz. Durga Automotives (P) Ltd is represented by Mr. Tara d Chand Agarwal who is the Chief Executive Officer of the said Company. The complainant had sent some Mobile Phones from Jaigaon towards Sarawgi Distributors, Siliguri on28/09/2015 on payment of service charge of Rs.100/- (Annexure-1) to O.P.No.2 whose Office is situated within the District of Alipurduar.
In the instant case, the complainant has claimed an amount totaling Rs. 1, 36,589/- which is less than the pecuniary limit of this Forum.
Therefore, having heard the Ld .Agents of both sides and on considering the facts and circumstances, we are in view that the complainant is a consumer u/s.2(1(d))ii) of C. P. Act. 1986 and the instant case has pecuniary as well as territorial jurisdiction of this Forum.
Thus, these point No.1 and 2 are decided in favour of the complainant.
POINT NO. 3 and 4-
Both the points are taken up together as the same are inter linked with each other.
At the very outset of the case, it appears to us that the complainant had approached the O.P.No.2 on 28/09/2015 and sent a consignment of Mobile Phones to Sarawgi Distributors, Siliguri through courier at New Sarada Niwas, 48 Lala Lajpat Rai Road, Ashrampara, Siliguri, District – Darjeeling being consignment No. 4490 against a service charge of Rs.100/-. The complainant has filed a receipt of courier consignment note as above and an invoice dated 10/08/2015 being Annexure-1 collectively. Those documents clearly show that it supports the case of complainant. The receipt of courier consignment beingNo.4490 was issued by Spiderman against a consideration of Rs.100/- to Sarawgi Distributors, Siliguri. The Invoice goes to show that the courier article contained 19 pieces of Mobile Phones particularly mentioned in the document which valued including all amounting to Rs.26,589/-.
The Lawyer’s letter of complainant addressed to Spiderman Courier, Jaigaon Branch goes to show that O.P No.2 was asked to deliver the consignment to the consignee within seven days, but admittedly no response was received from the side of O.Ps. The complainant had filed a letter of O.P.No.2 (Annexure-3) in which it appears that O.P.No.2 Prakash Singha Roy informed the complainant that he received the article for sending it to the Office at Siliguri but he could not able to deliver the same and sometime is required but admittedly up to this date the articles were not reached to the hands of the Company where the complainant sent the Mobiles viz. Sarawgi Distributors, Siliguri.
The O.Ps without giving any specific material documents only to save their skin alleging each other that no one is responsible for this incident. O.P No.1 only alleged that the complainant’s claim is vexatious and the same is liable to be dismissed. The consignment has been booked through O.P.No.2 and as such, O.P No.1 has no liability in this case. On the contrary, the O.P.No.2 claimed that his act cannot be classified as deficiency in service because the consignment which was received by him on28/09/2015 vide No. 4490 was acknowledged by O.P.No.1 at Siliguri. According to him, if any deficiency of service is caused due to non-delivery of consignment to the consignee is not upon this O.P rather upon the O.P.No.1.
On close scrutiny of the record, it appears that O.Ps have not file any document to substantiate their respective cases except the documents filed by O.P.No.2 viz. a Delivery Run Sheet, Courier Service Report and an Advocate’s letter of complainant (Annexure- 1,2 and 3) but fact remains the articles have not reached to the hands of Sarawgi Distributors up to this date as alleged by complainant. Those documents do not support in any way of this case in favour of O.Ps.
Therefore, having heard the Ld. Agents of the parties and on considering the facts and circumstances, along with materials on record we clearly found the deficiency in service in this case on the part of the O.Ps. We are constrained to hold that the complainant’s case is well founded and the case deserves an order of award in favour of the complainant.
Thus, the point No.3 and 4 are answered positive i.e. in favour of the complainant.
All the points are disposed of in favour of complainant.
Hence, it is,
ORDERED
that the C.C No.11 of 2016 be and the same is allowed on contest with cost of Rs.10,000/- against the O.Ps which is to be paid by O.Ps to the complainant.
The complainant is liable to get refund the money amounting to Rs.100/- which was given at the time of consignment of articles to O.P.No.2 that is to be paid by O.P No.2 to the complainant.
The complainant is entitled to get a sum of Rs.20, 000/- towards mental pain and agony which is to be paid by O.Ps.
The O.Ps are directed to refund the value of the articles amounting to Rs.26, 589/- within two months, in default, the same would be paid along with interest at the rate of 10% per annum w.e.f. filing of this case till its full and final payment.
If the O.Ps disobey the present Forum’s order in that case the O.Ps shall have to pay a penalty of Rs.100/- each for each days delay.
The aforesaid payment shall be paid by the O.Ps jointly and/or severally except service charge of Rs.100/- as mentioned above which specifically be paid by O.P.No.2 to the complainant.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me
