Date of Filing: 21-03-2014 Date of Final Order: 31-01-2017
Smt. Runa Ganguly, President-In-charge.
The factual matrix of the present complaint is that being the proprietor of Mahamaya Enterprise, a house of Mobile Distribution/Sale & Service Centre, the Complainant sometimes use to send parcel to their head office situated at Delhi and as such on 10/01/2014 the Complainant sent a parcel at their Head Office, Delhi, weighing 3kg amounting Rs.25,000/- (approx)through the O.P. No.1 i.e. Sri Mukul Sen, Proprietor of Overnite Express Domestic & International Couriers, Cooch Behar bearing Consignment No.3137004006 dated 10/01/2014 for which the O.P. No.1 charged Rs.350/- and issue one invoice in favour of the Complainant. Surprisingly, it was informed by the said Head Office, Delhi that they have received only an envelope on 13/01/2014 in lieu of that parcel. After that the Complainant informed the O.P. No.1 but the O.P. No.1 did not give any satisfactorily reply but only advice to contact with their Head Office i.e. the O.P. No.2, Overnite Express Ltd., Delhi Regional Office, New Delhi and accordingly the Complainant did the same but all in vain. The Complainant did not get any fruitful result from the end of the opposite parties No.1,2&4 even after making several contacts with the O.Ps through e-mail or exchanging letters.
Due to such negligent act on the part of the O.Ps, as aforesaid, the Complainant has been suffering from loss or injury both financially and mentally and finding no other alternative filed the present case praying for issuing a direction upon the O.Ps to pay (i) Rs.25,000/- as the value of the parcel or return the said parcel, (ii) Rs.5,000/- towards compensation (iii) Rs.5,000/- for harassment, mental pain & agony and sufferings, besides other relief(s) as the Forum deem fit and proper, as per law & equity.
The O.P. No.1, Sri Mukul Sen, Proprietor of Overnite Express Domestic & International Couriers, Cooch Behar has contested the case by filing W/V denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The Complainant is also not a Consumer as per provision of C.P. Act 1986 The main contention of the O.P. No.1 is that in respect of the parcel containing valuable parts amounting to Rs.25,000/- (approx) is hereby strongly denied, no such parts were ever sent by the Complainant through this answering O.P. It is contended by this O.P. is that no any declaration was ever given by the consignor containing the alleged parcel to this O.P that there were mobile parts in the alleged parcel. The O.P. No.1 further stated that as per terms & conditions of Overnite Express, the liability for any loss or damage to the shipment is to the extent of Rs.100/-.
The O.P. No.1 further contended that the Complainant has not declared the parcel value at the time of consignment to this O.P nor the Complainant has made declaration that the alleged parcel containing mobile parts as alleged which are contraband and explosive as per terms & conditions of consignment and thereby this answering O.P has got no liability to the alleged parcel. The parcel, which was booked by the Complainant to the consignee was delivered in good condition and there was no tampering with the said parcel and there was no any mobile parts in the alleged parcel valued Rs.25,000/- (approx). Therefore, there was no cause of action as stated in the complaint of the Complainant and also not any willful act of omission and commission on the part of this O.P. No.1 for which in the aforesaid facts and circumstances the Complainant is not entitled to get any relief/relieves nor any compensation from this O.P. No.1.
Ultimately, the O.P. No.1 prayed for dismissal of the case with cost.
The O.P. No.2, Overnite Express Ltd., Delhi Regional Office, New Delhi and the O.P. No.4, The Area Manager, Overnite Express Ltd., Siliguri have contested the case by filing W/V denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.Ps is that the consignment booked through the O.P. No.1 which was a document weighing mere 100 gm. Not a parcel weighing 3 Kg. The Complainant had not submitted any document signed and received by the O.P. No.1 in proof the actual weight of the consignment with this complaint. The O.P. No.2 had delivered the consignment on 13/01/2014 i.e. after three days from the booking date. The O.P. No.2 & 4 wants to request the Complainant through the Ld. Forum to submit the detailed document in support of claim like type, size, weights and value declaration which was accepted and signed by the O.P. No.1 at the time of booking and forwarded along with the consignment to the O.P. No.2. Therefore, it is clear fact that there was no wrongful act of the part of this O.P. No.2 & 4.
In the above facts and circumstances the complaint petition of the Complainant will be liable to be dismissed with sufficient cost.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by delivering only an envelope in lieu of booked parcel to the Consignee?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the parties at length. Peruse the Evidence on affidavit and W/Ar. of both parties. The O.P. No.3 is Expunged vide Order No.18, dated 19/03/2015 considering the prayer of the Complainant.
Point No.1.
The Complainant being the sole proprietor of Mahamaya Enterprise has filed the present case. He booked a parcel in the name of his Enterprise and send the same to Delhi through O.P. No.1 and made a payment of Rs.350/-. The Complainant is running his business for maintaining his livelihood. He hired the service from the O.P Courier Company against certain consideration. Thus, the relation between the Complainant and the O.Ps so established from the record, we have no hesitation to say that the Complainant is a Consumer.
Point No.2.
The complaint value of the present case is far less than the prescribed limit and the office/ place of business of the O.P. No.1 is within this district and it is a branch of the O.P. No.2 & 4. Considering the above aspect in our view, this Forum has sufficient jurisdiction i.e. pecuniary as well as territorial jurisdiction to entertain the instant case.
Thus, both the points are decided in favour of the Complainant.
Point No.3 & 4.
The case of the Complainant is that the Complainant send a parcel through the Overnight Express Courier Service, the O.P. No.1 weighing 3 Kg. to New Delhi-110037. The consignment number of the said parcel was 3137004006. The Complainant sent the said parcel on 10/01/2014 containing valuable parts of Mobile amounting to Rs.25,000/- but the Consignor received only an Envelop on 13/01/2014 in lieu of the said parcel. The Complainant on several time made contact with the O.Ps but no fruitful result came out.
It is the case of the O.P. No.1 that the Complainant has no cause of action to bring this case before this Forum. The O.Ps strongly denied that any parcel containing valuable parts even sent by the Complainant. The parcel as booked by the Complainant had been delivered by the O.Ps in due time with good condition for which no deficiency in service is there and the present case is liable to be dismissed.
Besides, the O.P. No.2 & 4 took same pleas as like as the O.P. No.1. It is the further case of this answering O.Ps is that the consignment booked through the O.P. No.1 was a document weighing mere 100 gm. not a parcel weighing 3 Kg. The Complainant failed to produce any document signed and received by the O.P. No.1. The booked item had been delivered by the O.Ps within 4 days of booking and there is no dispute.
In their written reply and written argument, the O.Ps pleaded that the Complainant failed to produce any cogent evidence to justify the value of booked consignment as he claimed. Further contention of all the O.Ps that as per terms and conditions of the consignment, the Complainant has not declared the parcel value at the time of booking of the consignment.
The main dispute under consideration is that the Complainant booked a parcel weighing 3 Kg. containing valuable goods like mobile parts etc. as per statement of the Complainant and also by swearing an affidavit the Complainant stated that the Consignee received only one envelop in lieu of the booked parcel. It is not the dispute that the booked item had not been delivered in due time but the dispute is that the O.Ps delivered only one envelop in lieu of the booked parcel weighing 3 Kg.
Annexure “1” goes to show that M/S Mahamaya Enterprise booked a parcel on 10/01/2014 vide Consignment No.3137004006 weighing 3 Kg. through the O.P. No.1 for delivering the same to Micromax Informatics Ltd., Delhi. He also made payment of Rs.350/- as charge for delivery of the above consignment.
Annexure “2” to “4” reveal that the Complainant being a sole proprietor of M/S Mahamaya Enterprise contacted with the O.Ps through e-mail for getting information about his booked item also made a claim (Annexure “5”) to the claim department of the O.P. No.2.
On a meticulous scrutiny the documents made available in the record it is crystal clear that the Complainant in the name of his firm booked a parcel (A1) weighing 3 Kg. for delivering the same to the Micromax Company through the O.P. No.1. Rs.350/- also has been paid for availing the said service. Thus, the plea as taken by the O.Ps that the complainant booked an item weighing only 100 gm. is totally vague and wanted to mislead this forum by stating falsely in W/V also in Evidence on affidavit. No annexure marked ‘A’ has been filed by the O.P. No.2 & 4 in support of their contention.
The Complainant made several correspondences through e-mail to the O.Ps to know about his booked item those are not fancy at all. It also appears from Annexure-6 that only one envelop was delivered to the consignee on 13/01/2014 and the O.Ps admitted this fact in their versions as well as during the course of argument. Besides the ld. Agent for the O.P. No.1 argued that in view of the Annexure 1 their liability is only Rs.100/-. The Ld. Agent for the O.P. No.2 & 4 vehemently argued that the complainant have to prove that actually a parcel containing Mobile parts etc. were booked by him also the Complainant has not made any declaration in the consignment about the value of his booked item. This contention is not tenable in the eye of law as the consignment receipt was prepared by the O.P. No.1 not the Complainant. The O.P. No.1 received Rs.350/- from the Complainant and booked a parcel weighing 3kg. The O.P. No.1 had the duty to make an endorsement in the column “Invoice value of Consignment”. Further, the O.Ps failed to produce any scrap of papers in support of their contention. It is crystal clear from the document “Annexure-6” that only one envelop has been delivered against the consignment No.3137004006 that was booked by the Complainant. It is pertinent to mention that the O.Ps did not challenge the said documents.
In this context reliance has been placed upon a ruling reported in 2011(4) CPR 155 where in Chandigarh State Commission held that “Liability cannot be unilaterally curtailed”. In the light of the above ruling it is to say that in this case also there is a printed condition in “Annexure-1” that the O.Ps are liable to pay only Rs.100/- in case of loss concerned also there is an endorsement but it was not agreed or signed by the Complainant. In order to limit the liability, it was necessary that the agreement to that effect should have been signed by the Complainant and in its absence the unilateral term of limiting the compensation to Rs.100/- will not be applicable. The O.Ps are running its business by adopting the arms of unfair trade practice by forcing unilateral condition to its customer that is not tenable in the eye of law.
Considering the facts and circumstances of the case and in the light of the foregoing discussion and the materials to its entirety, it is well proved that that the O.P. No.2 did not deliver the parcel as booked by the Complainant through O.P. No.1 and only delivered one envelop. Thus, the deficiency in service of the O.Ps cannot be ruled out.
As the deficiency in service of the O.Ps is proved, the Complainant is entitled to get compensation for unnecessary harassment. It is fact that the Complainant also failed to satisfy this Forum to produce cogent evidence to show the actual value of his booked item for which we are unable to give him full relief as he claim. In our considered view the Complainant must be compensated with a token amount and that will met the fair justice.
Hence,
it is ORDERED that,
The present Case No. CC/19/2014 be and the same is allowed on contest with cast of Rs.5,000/- against all O.Ps but in part.
The O.Ps are directed to pay the complainant Rs.10,000/- as compensation for their deficiency in service. The O.Ps are further directed to pay Rs.5,000/- to the Consumer Legal Aid Account for adopting unfair trade practice.
The above amount shall be paid by the O.Ps jointly and/or severally within 45 days from the passing of this order, in default, the entire amount shall carry an Interest @8% p.a. till full realization.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
