BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MYSORE-570023

CONSUMER COMPLAINT NO.264/2019

DATED ON THIS THE 13^th JULY 2022

      Present:   1) Sri. B.Narayanappa

M.A., LL.B., - PRESIDENT   

                     2) Smt.Lalitha.M.K.,

M.A., B.A.L., LL.B., - MEMBER  

                        3) Sri Maruthi Vaddar,

                                                B.A., LLB (Special)  - MEMBER

Sri MARUTHI VADDAR,

MEMBER

1. The complainant Sri N.S.Shankaregowda, resident of Mysuru has preferred the present complaint against the opposite party Nos.1 to 3 for deficiency in service and to direct the opposite parties to pay a sum of Rs.1,29,265/- with interest at 24% p.a. from the date of handing over the articles i.e. on 02.02.2017 till the date of final settlement in the interest of justice and equity.
2. The brief facts of the complaint in a nutshell as hereunder:-

It is alleged in the complaint that the complainant is working as Lieutenant in Indian Navy at Vizag (Vishapatnam).He has purchased Sony LED Television and Sony Video Music System in Malala, Malaysia which are worth more than Rs.50,000/-.He got released the said articles after completing the customs formalities.After verifying the said articles, he has entrusted the said articles to his father Sri N.S.Shankaregowda to take the said articles to Mysuru.It is further alleged in the complaint that the complainant entrusted a Sony brand LED Television bearing model No.KD-55X7000D 50667136 and Sony Video Music System to the opposite party No.1 in a good condition, who is a Packers and Movers, to transport the said articles from Vizag to Mysuru. After verifying the said articles, the DHL Packers and Movers has received the said articles.The opposite party No.1 has collected a sum of Rs.10,000/- from the complainant towards Packing and shipment charges.He issued a consignee copy dated 02.02.2017 to the complainant for having received the goods and after packing, he has entrusted the said articles to opposite party No.2 to send the articles to Mysuru.The opposite party No.1 has issued consignee copy bearing No.50356695421 and collected charges of Rs.3,500/- from the complainant.It is further alleged that on 20.02.2017, the son of the complainant got G-mail from opposite party No.1 that it is a regret letter that the shipment had been delivered on 08.02.2017 is received in damaged condition.Post investigation of this case on 13.02.2017, they were understand that the contains a LED Television is damaged due to insufficient packaging and the packing material what was used by shipper was not a travel worthy and told the complainant’s son to contact Mr.Sonu (opposite party No.1) who is the person for taking care packaging from DHL.It is further alleged that the complainant got utter shock and having no option and handed over the said damaged LED Television to Sony Authorized Service Centre at L-123, HUDCO, Panchamantra Road, Near JSS Law College, Jayanagar First Stage, Kuvempunagar, Mysuru to get repair. They have assessed the damage and found that the LED Television panel has been completely damaged and they have estimated value of Rs.54,765/- dated 18.02.2017 and collected a sum of Rs.30,000/- from the complainant as deposit to repair the LED TV vide deposit receipt dated 20.02.2017.Later, the complainant got repaired the LED TV after paying the balance amount to the service centre and service centre had issued a receipt to that effect. It is further alleged that the opposite parties should have taken all type of precaution, care while packing, transporting and delivering the delicate articles.But, the opposite parties have utterly failed to take care even after collecting sufficient amount from the complainant.Hence, all of them jointly and severally responsible for causing damage to the articles and they have committed deficiency in service.Hence, this complaint.

3. After registration of the complaint, the notices were ordered to be issued to the opposite parties and in response to the notices, the opposite party Nos.2 and 3 have appeared and filed their version.
4. In their version, the opposite party Nos.2 and 3 have stated that they have denied some of the allegations of the complaint and further stated that the opposite party No.1 had entrusted the articles on behalf of the complainant to these opposite parties to transit the said articles from Blue Dart Express Ltd., Vishakapatnam Branch to send the same to the Mysuru Branch under the consignee copy bearing No.50356695421 and collected charges of Rs.3,500/- on 06.02.2017.  But, it is not within the knowledge of these opposite parties that the opposite party No.1 had collected a sum of Rs.10,000/- from the complainant towards packing and shipping charges.
5. It is further alleged that the said article which was taken for delivery had been delivered to the complainant’s address as it is when it was entrusted by the complainant at Vishakpatnam branch and the alleged damages is not due to the negligent act of these opposite parties.  If any damage is caused to the article at the time of transit is due to insufficient packaging by the complainant to the said article.  Further, there was no coverage to safe guard the external packaging of the shipment which ought to have been due care while packing and shipping in normal course of transit.  The complainant has failed to take precaution and care and has been negligent himself while dispatching the shipment, there is no deficiency or negligence in providing services to the complainant by these opposite parties. It is negligent on the part of the complainant that he failed to ensure proper packaging which any prudent shipper would have sought especially when an indemnity was provided by the complainant.  After receiving the complaint from the complainant with regard to the damages to the articles, they conducted an investigation wherein these opposite parties found that the shipment was delivered intact condition.  The shipment was forwarded by the shipper i.e. complainant in the same condition he had received from the customs without applying any due care and diligence.  These information and the facts has been informed to the complainant yet, he has malafidely chosen to consumer complaint against opposite party Nos.2 and 3 instead of going against the opposite party No.1 alone.  As such, the complaint is bad for misjoinder of parties as admittedly the packing of the articles was entrusted to the opposite party No.1 by paying a sum of Rs.10,000/-.  The deficiency is on the part of the opposite party No.1 in not taking care and due diligence in providing a good packing with wooden coverage to safeguard the external impact to the article.  The complainant has failed to insure the article to indemnify the damages during the transit or loss.
6. It is further alleged that opposite party Nos.2 and 3 without admitting the damage caused to the article in the transit from Vishak branch to Mysuru, these opposite parties submit as follows:-
   1. Notwithstanding clause 8 of the terms and conditions provided on the backside of the bill provided as under:-
      1. Limitation of liability:- Without prejudice to second 9 and 10, the liability of B.D.E., for any loss or damages to the shipment (which term shall include all documents or parcels consigned through BDE) shall be the lowest of (a) Rs.5,000/- or (b) the amount of loss or damages to the document or parcel actually sustained for shipments which are not insured as mentioned below and the actual value of the document or parcel so determined will be without regard to the commercial utility or special value to the shipper.
      2. The actual value of the document or parcel shall be ascertained by reference to the cost of preparation or replacement / reconstruction value at the time and place of shipment but under no circumstances shall exceed Rs.5,000/-.
      3. The actual value of a parcel (which term shall include any item of commercial value which is transported hereunder) shall be ascertained by reference to its cost by repair or replacement/ resale or fair market value not exceeding the original cost of the article actually paid by the shipper subject to and within overall limit of Rs.5,000/-.
7. The opposite party Nos.2 and 3 have further stated that despite having recommended to take insurance and despite having expressly limited the liability to Rs.5,000/- there under, the complainant ought not to be allowed to pursue the captioned complaint against the opposite party Nos.2 and 3 and further stated that the complainant has already filed a complaint in C.C.No.121/2017 on the file of this Forum as against the opposite parties and the opposite parties have filed the version contending that there is no deficiency in service on the part of opposite parties.  But, damage caused due to the negligence of the complainant himself in not properly packing the article and the said petition was contested by both the parties and the complainant was not present on so many hearings, as such, the Forum by giving reasonable time was pleased to dismiss the complaint for non-prosecution and after disposal, the complainant cannot file the present complaint on the same cause of action and cannot seek the exemption under Section 14 of Limitation Act and hence, prayed to dismiss the complaint with exemplary costs in the interest of justice and equity.     
8. The complainant has filed his affidavit by way of examination in chief and the same was taken as P.W.1 and got marked documents as Ex.P.1 to Ex.P.12.  The opposite party Nos.2 and 3 have not filed any affidavit by way of examination in chief and not produced documents on their side.
9. Heard the arguments of counsels for both the parties and perused the documents placed on the record.
10. The points that would arise for our consideration are as here under:-  

1. Whether the complainant proves the alleged deficiency in service on the part of the opposite parties and thereby he is entitled to reliefs as sought for?
2.  What order?

11.       Our findings on the aforesaid points are as follows:

      Point No.1 :- In the negative;

      Point No.2 :- As per final order for the following

:: R E A S O N S ::

12.       Point No.1:- It is not in dispute that the complainant has entrusted a Sony brand LED TV bearing model No.KD-55X7000D 50667136 and Sony video music system to the opposite party No.1 in a good condition who is a Packers and Movers to transport the same from Vizag to Mysuru and after verifying the said article, DHL Packers and Movers has received the articles.  The opposite party No.1 has collected a sum of Rs.10,000/- from the complainant towards packing and shipment charges.  It is also not in dispute that after packing, he has entrusted the said article to opposite parties No.2 and 3, opposite party No.2 has also issued a consignee copy bearing No.50356695421and collected charges of Rs.3,500/- and also issued manifest dated 06.02.2017 and on 20.02.2017 the son of the complainant got G-mail from the opposite party Nos.2 and 3 that it is a regret letter that the shipment had been delivered on 08.02.2017 is received in damaged condition.  To prove this particular fact, the complainant has been examined himself as P.W.1 and got marked the documents as Ex.P.1 to Ex.P.12 and closed his side.  But, in spite of giving sufficient opportunity, the opposite parties have not filed any affidavit. Both parties counsels have vehemently canvassed their arguments and the counsel for complainant has strenuously argued the matter and then the opposite party has relying upon the two decisions of Hon’ble Supreme Court of India and Bombay High Court.  After carefully perusing the Ex.P.1 to Ex.P.12, it is noticed that the complainant’s son has transported the article through opposite party No.1.  The same was admitted by the opposite party Nos.2 and 3.  But, it is the case of the complainant that the said article was damaged during the course of transit and even though he paid the charges of Rs.10,000/- to the opposite party No.1 for packing and the same was delivered to the opposite party No.2 for the transport of the said article. After verifying the said article, the opposite party No.1 has collected the amount and it was delivered and entrusted to the opposite party No.2 and opposite party No.2 has collected Rs.3,500/- charges from the complainant and has issued manifest dated 06.02.2017.  But, on 20.02.2017 the son of the complainant got G-mail that the article was delivered in damaged condition due to insufficient packaging and packing material was used by the shipper was not a travel worthy and told to contact Mr.Sonu, who is the person for packing from DHL.  But, it is the contention of the opposite parties that if any damage occurs at the time of transit, is due to insufficient packaging by the complainant and there was also no wooden coverage to safeguard the external packing of the shipment which ought to have been taken due care while packing and shipping in normal course of transit.  Due deficiency in service on the part of opposite party No.1 in not taking care and due diligence in providing the good packing with wooden coverage to safeguard the external impact on the article, the alleged damage has been caused.  The complainant has failed to insure the article to indemnify the damages during the transit or loss.
13. After careful consideration of the rival contentions putforth by both parties, it is learnt that duty is cast upon the complainant as well as the opposite party No.1 who has packed the said material and the same was delivered to opposite party No.2 after packing and the said material was damaged during the course of transit.  Opposite party Nos.1 to 3 are responsible for the damage of the article.  It is pertinent to note that prior to filing of the present complaint, the complainant had filed complaint in CC No.121/2017 when the said complaint was posted for affidavit of the complainant, the complainant remained absent and did not prosecute the matter and hence, the same was dismissed for non-prosecution and after the dismissal of the complaint, the complainant reappeared and filed the application to restore the complaint dismissed and after several hearing, the complainant again filed a memo not pressing the complaint and sought permission to file fresh complaint on the basis of previous cause of action and thereafter the complainant filed the present complaint and got deleted opposite party No.1 by filing a memo.  When the complaint has been filed against the opposite party Nos.1 to 3 arraying them as parties to the present complaint, all the opposite parties are responsible for the proceedings.  But, the complainant failed to take steps against the opposite party No.1. But, the liability is cast upon the opposite party No.1 who is a main person and will be held responsible for the shipment.  Without opposite party No.1, the complaint cannot be proceeded against opposite party Nos.2 and 3, if the complaint is proceeded against opposite party Nos.1 to 3, the matter would have been different.  If the complainant had been approached directly to opposite party No.2 for packing and shipment then opposite party Nos.2 and 3 will be held responsible. Without opposite party No.1, the complaint of the complainant is not maintainable and hence, the same is liable to be dismissed. Hence, we answer the point No.1 in the negative
14. Point No.2:- For the aforesaid reasons, we proceed to pass the following

:: ORDER ::

1. The complaint filed by complainant is hereby dismissed.
2. No order as to costs.
3. Furnish the copy of order to the complainant at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Commission on this the 13^th July, 2022)