This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Swapan Samanta.
The case of the complainant’s in short is that he manufactured imitation jewellary. The ‘M/s. Prince Jewellary’ is an authorized stockiest of the complainant having its office at 37/41 Ansar Manjil, Banian Road, Mumbai-400 003.
That on 10.2.2016 the complainant sent imitation jewellaries to the address of said M/s. Prince Jewellary through opposite party courier service having invoice No.TJ/610/2015-2016 worth Rs.3,93,440/- and the opposite party issued the booking chalan being No.1110440 and 1110441 dated 10.2.2016.
Thereafter the complainant contact with the proprietor of M/s. Prince Jewellary for payment but proprietor of M/s. Prince Jewellary informed that consignment has not delivered. The complainant immediately contact with the opposite party i.e. courier service to know the actual fact. The opposite party on query stated to the complainant that something wrong has been happened and they are trying to locate the consignment. Again on 5.8.2016 the opposite party contact with the complainant and informed him that consignments probably has been delivered to the consignee but the delivery receipt has not been collected and assured to provide delivery receipt on 9.8.2016.
On 9.8.2016 the opposite party neither delivered the receipt nor gives any information about the consignment. Thereafter on 10.9.2016 the complainant sent an advocate’s letter to M/s.Prince Jewelers with a request to provide intimation whether the consignments dated 10.2.2016 has been delivered or not and if delivered then asked for payment of Rs.3,93,440/-. But in reply dated 16.8.2016 the M/s. Prince Jewellary informed that they have not received goods from Tasmit Jewellers, Hooghly, Singur which was sent through Friends Courier Service on 10.2.2016.
On 31.8.2016 the complainant met with the opposite party and shown the letter of M/s.Prince Jewellary. The opposite party stated that the item has not been traceable. Then complainant demanded Rs.3,93,440/- from the opposite party as the value of the consignment and also demand to pay further Rs.2,335/- & Rs.2,430/- only for courier charges. The opposite party assured that he will pay entire amount of Rs.3,98,205/- to the complainant within 20.9.2016. But opposite party failed to pay the abovementioned amount.
That the act of the opposite party is gross negligence on the part of his service and due to negligence of service the complainant had suffered loss of Rs.3,93,440/-. The complainant sent a legal notice registered with A/D to the opposite party on 22.9.2016 with a demand of total Rs.3,98,205/-. But opposite party denied to receive the said legal notice.
Finding no other alternative the complainant filed this case before this forum with a prayer to direct the opposite party to pay Rs.3,93,440/- as the value of the consignment along with Rs.2,335/- & Rs.2,430/- as courier charges i.e. totaling Rs.3,98,205/-, to pay compensation of Rs.1,00,000/- as compensation for mental pain, agony and harassment and to pay Rs.25,000/- as litigation cost.
The opposite party contested this case by filing written version denying inter-alia all the material allegation as leveled against him. The opposite party submits that this opposite party is a courier service man having its office at Tarakeswar, Dist.-Hooghly. The complainant has directed to this opposite party to send the goods to M/s. Prince Jewellary 37/41, Ansar Manjil, Banian Road, Mumbai-400 003 as authorized stockiest of the complainant. But he has not made party in this case; he is the competent person to say the truth. The opposite party has sent the goods to this party to immediate delivery.
This opposite party further stated that the complainant has not stated in his invoice that they are going to deliver goods more than Rs.4 Lacks. There is no document to prove the facts. So, the petition is illegal and denies such fact. Hence, the case.
The complainant filed two receipts being Nos. 1110440 & 1110441 dated 10.2.2016 amounting to Rs.2,335/- & Rs.2,430/- respectively, invoice chalan dated 10th February, 2016, Advocate’s letter to the M/s. Prince Jewellary dated 22.9.2016, Advocate’s notice to the Proprietor of Friend Courier Service dated 22.9.2016, evidence on affidavit and brief notes of argument. The opposite party filed delivery run sheet, evidence on affidavit and brief notes of argument which are taken into consideration while passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Swapan Samanta is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Swapan Samanta is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the Opposite Party, as the complainant hired the service from the opposite party and paid service charge. So, the complainant is a consumer of the opposite party.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.5,23,205/- for loss sustained by the complainant and as compensation for mental agony and other expenses which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that the complainant sent some consignment for delivery to M/s. Prince Jewellary, 37/41 Ansar Manzil, Baniyan Road, Mumbai-400 003 through Friends Courier Service having its office Natun Bazar, near Central Co-operative Bank, P.S.-Singur, Dist.-Hooghly. The complainant sent invoice to the consignee for payment of Rs.3,93,440/-. The consignee i.e. M/s. Prince Jewellary informed the complainant over telephone that the consignment has not yet been delivered. Thereafter the complainant contacted with the opposite party, Courier Service. The opposite party intimated the complainant that the consignment had been delivered to the consignee but the delivery receipt had not yet been proceed and assured that he provides the delivery receipt on 9.8.2016. Depending upon the words of the opposite party the complainant sent a legal notice to the consignee on 10.8.2016 requesting for making payment. In response to the legal notice, the consignee i.e. M/s. Prince Jewellary through its letter dated 24.8.2016 intimated the complainant that consignment dated 10.2.2016 sent through Friend Courier Service has not yet delivered. Thereafter, the complainant make contact with the opposite party on 31.8.2016 and on query the opposite party replied that the consignment dated 10.2.2016 has been dislocated and not trace able. Then complainant demanded Rs.3,93,440/- from the opposite party as the value of the consignment and also demanded to pay further Rs.2,335/- & Rs.2,430/- only for courier charges. The opposite party assured that he will pay entire amount of Rs.3,98,205/- to the complainant within 20.9.2016. But opposite party failed to pay the abovementioned amount. The complainant sent a legal notice registered with A/D to the opposite party on 22.9.2016 with a demand of total Rs.3,98,205/-. But opposite party denied to receive the said legal notice. Therefore, the complainant prayed before this Forum as incorporated in the prayer portion of the complaint petition.
The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him. The opposite party argued that complainant is a business man and he cannot claim any benefit from the Forum as there was no personal loss. This opposite party further assailed that the article has been sent to M/s. Prince Jewellary for on went transmission to Bombay by way of invoice. The opposite party has not submitted any best of documents for supply of articles. So, he cannot claim any compensation from this opposite party. The complainant has not delivered any articles valued at Rs.4,00,000/-. Transmission to Bombay through opposite party is not responsible for this loss of articles. The opposite party further argued that the complainant has not made party to the consignee i.e. M/s. Prince Jewellary. So, the case is suffered from mis-joinder of necessary parties.
On perusal the instant petition and original case record of the complainant it transpires that complainant booked some items for delivery the same to M/s. Prince Jewllary at Mumbai by paying service charge through Friends Courier Service having its office at Natun Bazar, near Central Co-operative Bank, P.S.-Singur, Dist.-Hooghly. In this regard the complainant filed two receipts being No.1110440 & 1110441 which is issued by the opposite party i.e. Friends Courier Service. On perusal the receipts it appears from receipt No.1110440 that complainant booked four pieces of items on 10.2.2016 for delivery to M/s. Prince Jewellary and for which complainant paid service charge of Rs.2,335/- and form the another receipt being No.1110441 it is seen that complainant also booked three items for delivery to M/s. Prince Jewellay on 10.2.2016 and paid service charge of Rs.2,430/-. So, it is crystal clear that complainant booked seven items for delivery to M/s. Prince Jewellary by paying Rs.4,765/- in total and this fact admitted by the opposite party.
In paragraph-3 of the complaint petition the complainant has stated that on 10.2.2016 he booked some articles which bears jewellary worth Rs.3,93,440/- before the opposite party, Friends Courier Service. The opposite party issued the booking challans. In this respect the complainant submitted invoice being No.TJ/610/2015-2016 dated 10.2.2016. On perusal the invoice it appears that the name of the buyer is Prince Jewellers and description of goods is 13 (thirteen) and value of the goods is Rs.3,93,440/-. In this invoice bears seal, signature, date and shop name of the complainant. But not bears the buyer’s order number and date from which we come to a decision that as per order of the Prince Jewellers the complainant sent the abovementioned jewellary to the M/s. Prince Jewellars. The complainant stated that on 10.2.2016 he booked items for delivery to Prince Jewellary but in the duplicate seller’s copy (Invoice) the date bears ‘10th February, 2016’, which is after eight days from the booking of the items (jewellary). Actually, the date of the invoice should be 10.2.2016 or any date before 10.2.2016. So, it is not clear to us that on which date the invoice is prepared for delivery the items/articles. Therefore, it is observed by this Forum that complainant booked items for delivery through Friends Courier Service to Prince Jewellary but complainant has not produced any reliable documents or evidence wherefrom the complainant support his claim that he delivery jewellary items worth Rs.3,93,440/-.
In paragraph-7 of the complaint petition the complainant stated that he sent a letter through his lawyer to the M/s. Prince Jewellary requesting him to provide intimation whether the consignment dated 10.2.2016 was received or not and in paragraph-8 the complainant also averred that after receiving lawyer’s letter the Prince Jewellary informed to the complainant by sending a letter stating that he has not received any goods from the complainant i.e. Tasmith Jewellers, Hooghly, Singur, Hooghly. In connection with the above statement the complainant filed the letter of Prince Jewellary before us. In the said letter it is written that ‘I, on behalf of Prince jewellers have not received goods from Tasmit Jewellers, Hooghly, Singur, which was sent through Friends Courier Service dated 10.2.2016. This letter is wrote in the pad of Prince jewelers and this letter bears short signature and date but this letter does not bear stamp, seal and address of the complainant or the address of the complainant’s lawyer. So, it is not clear to us wherefrom the complainant received this letter. So, we hold that this letter is written after thought.
The opposite party produced Delivery Run Sheet dated 13.2.2016 of Friends Courier & Cargo Service in which he assailed that serial no.3&4 the Consignee is Prince and delivered item is 9 and the signature of receiver is illegible. But the opposite party nowhere in the evidence on affidavit as well as written notes of argument averred regarding such delivery and the delivery item is not correctly mentioned so we cannot rely the document.
On the contrary the opposite party submitted a delivery run sheet dated 13.2.2016. It is shown from the said sheet that serial No.3 & 4 bears the consignment number i.e. 111440 & 1110441 and in this delivery run sheet bears the name of the consignee and complainant’s signature. In the argument stage the opposite party argued that complainant has not made party to the M/s. Prince Jewellary. So, the case is suffered from non-joinder of parties. We are of the same view that this case is suffered from non-joinder of parties. If the M/s. Prince Jewellary made party in this case then clear picture make came out. But in absence of necessary parties this forum is in the dark what is happened actually. For proper adjudication of this case the presence of the M/s. Prince Jewellary is very much necessary. But in the instant complaint the complainant has not made party to the M/s. Prince Jewellary. Nowhere in the petition of complaint or written version both parties have stated any single word to trace out the articles what steps have they taken. Both of them have not lodged FIR before the police station. So, it is very curious to us why opposite party has not lodged any FIR. The opposite party acts negligence to render the service to the complainant and for which he has to pay an adequate compensation and he has to pay service charge for non-delivery of the articles.
While deciding the complaint filed by the complainant, the important question to be considered is the liability of the courier under law for loss of a consignment entrusted to its custody and transportation. When a parcel is sent under consignment note the courier is under legal obligation to deliver the said consignment to the addressee and if they fail to do so they are guilty of non-delivery and in such a case of deficiency in service the complaint under the Consumer Protection Act can be filed either at the place where the consignment was booked or at the place of delivery of the consignment. while deciding the Couriers liability in case of loss of consignment, we relied on various judgments’ by the Hon’ble National Commission: (a) Hon’ble National Commission in Skypak Couriers Pvt. Ltd V. C.E.R.S. I (1992) CPJ 316 (320-21) (NC): 1992 (II) CPR 137 also refer to Bluedart Courier Service V. Modern Wool Ltd, III (1993) CPJ 308 (NC); M.G.Ravinarayan V. Professional Couriers,III (1993) CPJ 364 (NC); Airpak Couriers ( India ) Pvt. Ltd. V. S. Suresh I (1994) CPJ 52 (NC) and Sawhney Brothers v. American President Lines Ltd. I (1994) CPJ 64 (NC) has held: It is obligatory on the part of the consignor to have disclosed the contents of the packet so that it could have been got insured, if necessary, and where the consignor had sent the documents like passport, visa, air travel ticket etc. through the courier without disclosing the contents of the packet, the couriers liability is held to be only for nominal amount, i.e. the couriers liability will be limited to the loss of a packet of unknown contents as such instead of the loss of valuable documents like passport, visa, air tickets etc. and whose loss prevented him from taking up a new and lucrative job in time as claimed by the consumer. (b) With reference to Bluedart Courier Service V. Modern Wool Ltd., III (1993) CPJ 308 ( 309-10): 1993 (III) CPR 185, where Hon’ble National commission has held that the appellant courier had no knowledge that the packet content Valuable REP licenses and that the respondent- consignor had not declared the contents of the packet and as such it is difficult to assess the loss and on the facts of the case, it would be just, reasonable and fair to fix the quantum of liability for the loss of the packet due to negligence at Rs. 1,000/- only in such circumstances.
In the wake of the above discussion we reach a conclusion that since the contents of the consignment were not declared, at the time of booking with the opposite party therefore the opposite party had no knowledge that the consignment contained valuable ornaments but at the same time it is noted that there has certainly been a deficiency in service on the part of the opposite party as the said consignment was lost. The Forum believes that it is not deciding a breach of contract (as no contract was signed between the Complainant and the opposite party, regarding the delivery of consignment) but is deciding a compensation of negligence, if any. In our view the standard of care or adequacy of care to be exercised by a courier will, therefore, vary with declared value of the articles to be carried out by the Courier. We conclude that in this case the opposite parties liability will be limited to the loss of a consignment of unknown contents instead of the loss of valuable items as claimed by the complainant. Thus complaint succeeds on contest against the opposite parties.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of non-delivery of articles. So, the complaint is entitled to get compensation from the opposite party.
ORDER
Hence, ordered that the complaint case being No.50/2017 be and the same is allowed in part on contest against the opposite party, with a litigation cost of Rs.6,000/- to be paid by the opposite party.
The Opposite Party is directed to refund Rs. 4,765/- (Rs.2,335/- + Rs.2,430/-) as service charge which paid by the complainant to the opposite party for delivery of the articles to the complainant.
The opposite party is further directed to pay compensation amounting to Rs.40,000/- to the complainant for mental pain and agony and harassment. The above directions will be complied within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
