Date of filing : 27-05-0211
Date of Disposal: 26-06-2012
IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Sri T.Sundara Ramaiah, B.Com., B.L., President (FAC)
Sri S.Niranjan Babu, B.A., B.L.,Male Member
Kum. M.Sreelatha, B.A., B.L., Lady Member
Tuesday, the 26th day of June, 2012
C.C.NO. 109 /2011
Between:
Y.Md.Shasahvali
S/o Y.Md.Zikriah
D.No.9-295, Sofia Street,
Guntakal
Anantapur. …. Complainant
Vs.
- The General Manager,
Head Office, DTDC Courier &
Cargo Ltd., Plot No.14, Vijaynagar
Western Express, Highway Nagar,
Viruani Estate, Georgian (E)
Mumbai – 400 063.
- The Regional Manager
Regional Office, DTCD Courier &
Cargo Ltd., DTDC House, No.3
Victoria Road
Bangalore – 560 047.
- The Branch Manager,
DTDC Courier & Cargo Ltd.,
Mandi Bazar, Guntakal
Anantapur District. ….. Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri S.Md.Hafeezulla, Advocate for the complainant and opposite party No.1 is called absent and Sri K.L.N.Prasad, Advocate for the opposite parties 2 & 3 and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Kum. M.Sreelatha,Lady Member: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 to 3 directing them to pay Rs.94,000/- towards mental agony and to pay a sum of Rs.5,000/- towards costs of litigation and grant such other relief or reliefs.
2. The brief facts of the complaint are that: - The complainant is resident of Guntakal, Anantapur District. The complainant is running Ice Cream Shop at Guntakal and he is Muslim by religion and professing all the rites and customs of Islam. The complainant believes in the divine origin of their Holy Book which according to Islam was revealed to the Prophet by God. The complainant is follower of Koran. The complainant is true follower of Islam planned to go for Haj with his wife through Haj Committee of India, which is constituted under the Act of Parliament No.35/2002. The complainant sent his application alongwith his wife through opposite party No.3 on 28-04-2011 addressing Executive Officer, Haj Committee, Hyderabad. It is submitted that the last date for accepting of applications is 30-04-2011 The complainant has paid Rs.400/- towards application fee for himself and his wife. It is submitted that though the cover of the complainant reached to Hyderabad on 29-04-2012 Hyderabad people have not taken steps to deliver the application to the consignee in time. It is submitted that when the complainant down loaded the consignment tracker to the shock and surmise of the complainant the status in the consignment tracker showing that not delivered and party not available. The consignee is at Nampally for years in multiple of ten and it is very notable one and it is known to everyone. It clearly shows that the opposite parties negligence, unfair trade practice and dereliction of duties for which the complainant suffered financial loss, mental torture and mar the complainant’s sentiments towards his religion and agony. The complainant number of times approached the opposite party No.3 to know whereabouts of his consignment but the opposite party No.3 has not given proper answer and after multiple requests he gave internet address and the complainant downloaded the track consignments through Internet. Due to negligence and deficiency of service the complainant lost an opportunity to go for Haj Pilgrimage, which is obligatory duty to every Muslim. Further the complainant submits that he has to wait for some years to go for Haj Pilgrimage. It is submitted that as the opposite party failed to deliver the consignment in time, the complainant compelled to drop his pilgrimage which is obligatory to every Muslim. The above lamentable and inexcusable acts made by the opposite party the complainant put his financial loss and caused mental agony. At every step of consignment track of opposite parties, clearly poining out the negligence and deficiency of opposite parties. Thus there is deficiency in service from the opposite parties in rendering their services to the complainant. Hence, the complainant prays to pass order in favour of the complainant and against the opposite parties to pay Rs.94,000/- towards mental agony and Rs.5,000/- towards costs of the litigation and grant such other relief or reliefs.
3. The opposite party No.3 filed counter contending that the complainant is Muslim by religion is no doubt true, but further allegation that he is professing all the rites and customs of Islam is not admitted and the complainant is follower of Koran is not known to this opposite party. The allegation that there is obligatory duty to every Muslim to go for Haj as per Kuran is not admitted. The allegation that the complainant is true follower of Islam is not known to this opposite party. The allegation that the complainant sent his application alongwith his wife application through this opposite party on 28-04-2011 is not known to this opposite party but a cover was sent to the Executive Officer, Haj Committee, Hyderabad on 28-04-2011 through this oppsotie party with specific terms and conditions that in case of loss of cover in transit, this opposite party is liable for a sum of Rs.100/- only knowing all the conditions the complainant sent cover to addressee at Hyderabad. This opposite party submitted that the said cover has been delivered to the addressee on 23-05-2011 and endorsed in the delivery run sheet No.33333749. The said delivery of cover is well within the time and on that ground the claim of the complainant is not maintainable. The mere entry in the status report in the internet of this opposite party that the cover is not delivered can not be relied since it is not updated and the allegations contra are not correct. The allegation that the cover was not been delivered and steps are not taken to deliver the application is not correct and the complainant is put to strict proof of the same. The alleged record pertaining to status obtained by the complainant by downloading the consignment tracker has shocked and surprised the complainant is not correct. The allegation that there is negligence on the part of the opposite parties and also unfair trade practice and dereliction of duties for which the complainant suffered financial loss , mental torture, mar the complainant’s sentiments towards his religion and agony is false and denied. The allegation that the complainant approached this opposite party several times but there was no reply from the opposite party is not correct. The allegation that there is negligence and deficiency of service on the part of the opposite party is not admitted and due to negligent and deficiency of service, the complainant lost an opportunity to go for Haj Pilgrimage is not correct. The allegation that the complainant has to wait for one or some years to go for Haj Piligrimage is not correct. The allegation that due to total fault and negligence of service of the opposite party, the complainant sustained loss is not correct and he has to wait for some years is not correct. The allegation that the opposite party failed to deliver the consignment in time is not correct. The minor mistake of the opposite party in not updating the consignment track in internet records can not be absolute act of deficiency and negligence of this opposite party. There is no direct correlation between the result of the complainant with that of the consignment of cover and the complainant is put to strict proof of the same. The allegation that there is deficiency of service on the part of this opposite party is not correct. Cause of action mentioned in the complaint is not correct and the complainant is not entitled for any claim and there is no mental agony and the complaint is liable to be dismissed. The allotment of application to go to Haj is to the knowledge of this opposite party is on lottery system but not each and every applicant will get allotment as claimed by the complainant and therefore the complaint is liable to be dismissed with costs of this opposite party.
4. The opposite party No.2 filed a memo adopting the counter filed on behalf of the opposite party No.3. The 1st opposite party called absent.
5. Basing on the above pleadings, the points that arise for consideration are:
1. Whether there is deficiency of service on the part of the opposite parties 1 to 3?
2. Whether the complainant is entitled for the claim?
3. To what relief?
6. To prove the case of the complainant, the complainant has filed the evidence on affidavit and marked Exs.A1 to A4 documents. On behalf of the opposite parties 2 & 3 the 3rd opposite party has filed evidence on affidavit and marked Ex.B1 document.
7. Heard both sides.
8. POINT NO.1:- The counsel for the complainant argued that the complainant is a Muslim by religion and he is professing all the rites and customs of Islam. The complainant is planned to go for Haj alongwith his wife through Haj Committee of India, which is constituted under the Act of Parliament No.35/02. The complainant sent his application through opposite party No.3 courier on 28-04-2011 addressing to Haj Committee, Hyderabad (Ex.A1) as the last date is 30-04-2011. The complainant paid Rs.400/- towards application fee (Ex.A2). Though the cover reached at Hyderabad on 29-04-2011 the Hyderabad courier people not delivered the same to the addressee. Then the complainant downloaded consignment tracker Ex.A3 it shows that ‘not delivered and party not available. ‘ The counsel argued that the office is located in prime area of Hyderabad i.e. Nampally and address is well known to all. There is clear negligence, unfair trace practice for which the complainant suffered financial loss and mental agony. The opposite party No.3 faield to provide the information relating to position of cover. Further the complainant has to wait for some more years to go for Haj for that he may not be in a position to undertake Pilgrimage because of health and financial constrains.
9. The counsel for the complainant also argued that as per Ex.B1 the consignment was delivered on 23-05-2011. There is enormous delay on the part of the opposite parties. Though the closing date is 30-04-2011 as per Ex.A4, thus there is deficiency of service on the part of the opposite parties. Hence, the complainant entitled a sum of Rs.94,000/- towards mental agony and Rs.5,000/- towards costs.
10. The counsel for the opposite parties 2 & 3 argued that the religion of complainant may be correct and the opposite party is not known whether the complainant professing all the rites and customs of Muslim religion. The opposite parties are not known whether the complainant sent his and his wife’s applications in the alleged cover. The opposite parties admitted tht cover was sent to Haj Committee, Hyderabad on 28-04-2011 with specific terms and conditions that in case of loss of cover the company is liable for a sum of Rs.100/- and not for any other amount. Knowing the conditions the complainant sent his cover. The cover was delivered to the addressee on 23-05-2011 is well within time and on that ground the compensation claimed by the complainant is not entitled. The counsel argued that mere wrong entry in the Internet of the opposite party company that ‘ cover is not delivered can not be relied and the same can not be base of claim and it is only a mistake of data entry operator .’
11. The counsel for the opposite parties 2 & 3 also argued that the complainant failed to produce relevant records to show the last date of submission of applications to Haj and to go Haj is on lottery system selection of the application but not each and every applicant will get allotment to go Haj as claimed by the complainant. The complainant never approached the opposite parties and there is no response from the opposite party as alleged. There is no deficiency of service nor negligence on the part of the opposite parties for which the complainant suffered financial loss and mental agony. Due to negligence act of the opposite parties, the complainant lost his opportunity to go Haj is not correct. The complaint is liable to be dismissed as there is no deficiency of service on the part of the opposite parties.
12. It is admitted fact that the complainant is Muslim and he sent cover to Haj Committee through the opposite party No.3 on 28-04-2011 under Ex.A1. The consignment not reached till 23-05-2011as per Ex.A3. As per evidence of PW1 that the last date of receiving application is 30-04-2011 as per Ex.A4. The complainant also filed pay slip of State Bank of India, Guntakal for Rs.400/- towards application fee. The opposite parties filed delivery run sheet which discloses that the consignment delivered to the addressee i.e. Haj Committee on 23-05-2011.
13. The opposite parties 2 & 3 filed document i.e. Ex.B1 which discloses that the last date for receiving applications by 06-05-2011. The opposite party No.3 in his affidavit mentioned that in case of loss of cover in transit the company is liable for a sum of rs.100/-. The opposite parties also mentioned in affidavit that mere wrong entry by the Data Entry Operator of the opposite parties that the cover not delivered can not be relief and the complainant not entitled any claim.
14. The opposite parties 2 & 3 alleged that the complainant has not filed any records to show that the last date of accepting the application is 30-04-2011 and it is 06-05-2011 as per Ex.B1.The complainant filed Ex.A4 document which discloses that last date as 30-04-2011 . Even as per the document filed by the opposite parties Ex.B1 the last date is 06-05-2011. But the consignment cover delivered to the addressee on 23-05-2011 as per the Delivery Sheet filed by the opposite parties alongwith their counter. It clearly shows that there is deficiency of service on the part of the opposite parties 2 & 3 as they are responsible for the acts at their employees. The complainant sent his cover with a hope that it may reach to the addressee on or before 30-04-2011 and he may get chance to go Haj alongwith his wife at his young age. Because of the irresponsible act of the opposite parties, he lost the chance to go Haj. The counsel for the opposite parties argued that the system to go Haj there is system at quota , Qu-raiah(draw of lots), the complainant may not get a chance in that lots system. If it is the system if the applications are delivered by the opposite parties within time the complainant can test their luck. The opposite parties mere saying that the complainant is aged about 35 years and he has got ample opportunity to go Haj coming years. It is not the answer for their negligence and we can not decide the fate of one person what will happened on the next day. Hence, there is clear deficiency of service on the part of the opposite parties. Accordingly, this point answered in favour of the complainant and against the opposite parties.
15. Point No.2 :- About the claim the counsel of the complainant argued that the complainant entitled a sum of Rs.94,000/- and a sum of Rs.5,000/- towards mental agony and costs. The counsel argued that when the complainant send the consignment cover through the opposite party No.3, they promised it will reach within 24 hours to addressee, but surprised to the complainant it was not reached till 02-05-2011 as per Ex.A3 (consignment tracker) and not delivered and the opposite party No.3 not even given any correct information to the complainant. The counsel also argued that the consignee is at Nampally for years and it is well known place to Hyderabad people and the opposite parties concluded that party not available , it clearly shows that it is an unfair trade practice . The counsel also argued that it is the duty of the opposite parties to deliver the consignment within time and in this case they have not delivered and they can not escape the claim by saying that the opposite parties are liable to pay a sum of Rs.100/- as per terms and conditions. Hence the complainant is entitled the claim as prayed.
16. The counsel for opposite parties argued that the complainant sent his application and his wife’s through the opposite party No.3 is not known , but cover was sent to Haj, Hyderabad on 28-04-2011. Though the opposite party No.3 with specific terms and conditions that in case of loss of cover in transit the company is liable to pay a sum of Rs.100/- and not for any other amount and knowing the conditions the complainant sent cover to the addressee and when the consignment not delivered to the addressee the complainant lost his opportunity to go Haj as the last date is 30-04-2011 is not correct. The consignment delivered to the addressee on 23-05-2011. The complainant may not get a chance to go Haj as the system to go Haj is in lottery system. Mere sending of application is not amounts to that he will get chance to go Haj. There is no negligence nor unfair trade practice on the part of the opposite parties. Hence, the complainant is not entitled any claim except Rs.100/- as per terms and conditions hence, the complainant is liable to dismiss.
17. There is no dispute with regard to sending of the consignment cover to Haj Committee, Hyderabad on 28-04-2011 by the complainant through the opposite party No.3 . Whether the complainant sent his application in that cover. As per Ex.A2 the complainant paid a sum of Rs.400/- on 28-04-2011 through State Bank of India, Guntakal Branch. In that copy it discloses that the amount paid towards application fee as it was printed one alongwith account No. of Haj Committee. The complainant stated in his chief affidavit that the opposite party No.3 is not properly responded when he contacted the opposite party No3. about the non-delivery of consignment.
18. The opposite party No.3 filed evidence on affidavit and stated that company is liable only Rs.100/- as per terms and conditions if the consignment is lost in transit and the complainant is not entitled any amount except that amount. About the terms and conditions, I am relying a judgment reported in 2011(2) C.P.R. page 316 – H.P.State Electricity Board Vs. On Dot Courier and Cargo Ltd., In that case also the complainant booked goods through courier and not reached to destination and it was lost in transit. The District Forum, Mumbai directed courier’s to pay Rs.100/- and Rs.5,000/- + Rs.1,000/- towards compensation but in appeal State Consumer Forum awarded a sum of Rs.1,25,400/- with interest @9% towards consignment costs also. While allowing the appeal the Hon’ble State Commission explained about terms and conditions of courier in para No.6 “ In order to bind down a party who entrusted the goods being sent through respondent with terms and conditions contained in a receipt copy of Annexure-A1, signature of someone on behalf of a party ought to have been there on the reverse of it in token of having accepted those. There is no signatures of any authorized signatory on behalf of the appellant to that effect. “ The case in hand also the opposite party No.3 has not obtained any signature of the complainant in Ex.A1 to claim that the complainant agreed for terms and conditions as printed in the slip.
19. I am also relying a decision reported in 2011(i) C.P.R. page 176 – Sky Pak Coruiers Ltd., Vs. Wartsila Diesel India Ltd.,. In this case the complainant booked a consignment with appellant – appellant forwarded the same to Chennai through Branch Office at Calcutta – consignment lost in transit – complainant alleging deficiency in service – Held it was the fact that the consignment booked original the complainant/respondent had not reached to its destination- clear cut deficiency in service of the appellant to sum below rightly passed order appeal having no merit dismissed. While dismissing the appeal the Hon’ble State Commission stated on a case between DHL Worldwide Express Vs. Agg Exports and another printed terms on the receipts whether binding? Deficiency in service, Consumer Protection, 1986 section 2(1) (g) section 2(1)(g) whether the liability of appellants restricted to US $100 as printed on the back of receipt? Held No. Appellants not to be absolved from their liability after the deficiency in service proved and the losses suffered by the consumer for the harassment and inconvenience.
20. The case in hand is similar to that of the above referred two cases i.e. the complainant booked consignment through the opposite party No.3 and it was not reached to the addressee as per Ex.A3 track consignment. As per Ex.B1 the opposite party argued that the consignment delivered to the addressee on 23-05-2001. But in that Ex.B1 except addressee name none were shown whether that delivery report is that of the consignment of the complaint. I am not relying on the delivery sheet filed by the opposite party No.3. The opposite party stated in his chief affidavit that the complainant sent the consignment only after accepting the terms and conditions then he has not entitled any claim except Rs.100/- as agreed. As in Ex.A1 there is no signature of the complainant nor any representative on his behalf.
21. In view of the above said authorities there is a clear case of deficiency of service on the part of the opposite parties and the opposite parties are liable to pay compensation of Rs.10,000/- and a sum of Rs.5,000/- towards mental agony and costs.
22. POINT NO.3 - In the result the complaint is partly allowed and directing the opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.10,000/- towards compensation and a sum of Rs.4,000/- towards mental agony and Rs.1,000/- towards costs payable by the opposite parties 1 & 2 within one month from the date of this order. The claim against the opposite party No.3 is dismissed.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 26th day of June, 2012.
MALE MEMBER LADY MEMBER PRESIDENT ,
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM,
ANANTAPUR ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOISITE PARTIES
-NIL- - NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
1. Ex.A1 – Photo copy of DTDC Courier Receipt No.H84497279 dt.28-04-2011 issued by the
Opposite party No.3.
2. Ex.A2 - Photo copy of Pay-in-Slip dt.28-04-2011 for Rs.400/- paid by the complainant
in State Bank of India, Guntakal to go to Haj.
3. Ex.A3 - Photo copy of Consignment Tracker dt.29-04-2011 relating to DTDC Courier
Service.
4. Ex.A4 - Photo copy of application form Haj issued by the Haj Committee of India.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
1. Ex.B1 - Photo copy of Delivery Sheet relating to DTDC Courier Service with
regard to delivery of cover to the addressee.
MALE MEMBER LADY MEMBER PRESIDENT
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM,
ANANTAPUR ANANTAPUR ANANTAPUR
Typed by JPNN
