Chandigarh

DF-II

CC/224/2016

Chetal Mittal - Complainant(s)

Versus

The Manager, DTDC Courier Service - Opp.Party(s)

Puran Chand Adv. & Mukesh Arora Adv.

31 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	224/2016
Date of Institution	:	31.03.2016
Date of Decision	:	31/05/2016

 

                       

                            

Sh.Chetal Mittal, The Director, Weal Healthcare Private Limited, 684, Urban Estate, Phase-II, Jallandhar 144001

 

……Complainant

 

V e r s u s

 

1. The Manager, DTDC Courier Service, DTDC, Regional Office, SCO 267, Sector 35-D, Chandigarh 160036.

 

2. The Manager, DTDC Courier Service, DTDC Corporate Office, DTDC House 3, Victoria Road, Bengaluru, Karnatka.

                                 ....Opposite Parties

 

BEFORE:   SHRI RAJAN DEWAN, PRESIDENT

SHRI JASWINDER SINGH SIDHU, MEMBER

SMT.PRITI MALHOTRA, MEMBER

 

Argued by:

Sh.Mukesh Arora, Counsel for the   complainant

         Sh.Bhupinder Singh, Counsel for the OPs.

 

PER PRITI MALHOTRA, MEMBER

 

          As per the case of the complainant, the complainant sent a courier (parcel) through Opposite Party No.1, containing ECG Equipment on 17.6.2015, to be delivered to Dr.Arun Ramrao More at Barshi District Sholapur and paid Rs.735/- as delivery charges, which were three times then normal charges of Rs.235/-. However, the said parcel, which was to be delivered within 48 hours, could not deliver till 22.6.2015.  It is averred that when the matter was taken up with Opposite Party No.1, it was told that the parcel was not traceable.  Ultimately, a notice was sent to Opposite Party No.1 for deficiency in service, but to no avail.  Hence, this complaint has been filed.

 

2]       OPs have filed reply and admitted the booking of the parcel, payment of amount by the complainant as well as non-delivery of the parcel and its being untraceable. It is submitted that the complaint is not maintainable before this Forum as it is mentioned on the consignment note under Clause 25 of the Terms & Conditions that in case of any dispute, the matter will be referred to arbitration. It is also submitted that the complainant is not a consumer as defined under the Consumer Protection Act, 1986 for the reason that he deals in medical appliances as it had sent ECG equipment, which is used for commercial purposes.  It is further submitted that the liability of the OPs is limited only to the limit of Rs.100/- as per the terms & conditions mentioned on the consignment note and that since the complainant himself failed to get the insurance cover for the parcel, so the OPs are not liable to pay the amount of the product consigned in the parcel through the OPs. Pleading no deficiency in service and denying rest of the allegation, it is prayed that the complaint be dismissed.

 

3]       Replication has been filed by the complainant thereby reiterating the assertions as made in the complaint and controverting that of the reply.

 

4]       Parties led evidence in support of their contentions.

 

6]       There is no denial of the factum that the complainant sent a parcel containing ECG equipment through OPs with Consignment NO.V23638923 on 17.6.2015 for which the complainant paid Rs.735/- for the delivery of the said parcel.  The complainant claimed that the charges paid by him are three times then the normal charges i.e. Rs.235/- which are charged for non-premium service, this fact goes unrebutted. It is the main grouse of the complainant that the above said parcel, which was assured to be delivered within 48 hours, remained undelivered till 22.6.2015 i.e. even after 5 days of its booking, remained undelivered till the filing of the complaint & even, the whereabouts of the said parcel are not disclosed by the OPs to the complainant. Claiming deficiency in service on the part of the OPs, the complainant has filed the present complaint.

 

7]       It is submitted on behalf of the Opposite Parties that the complaint is not maintainable before this Forum as it is clearly mentioned on the consignment note under Clause 25 of the Terms & Conditions that in case of any dispute, the matter will be referred to arbitration. Further a plea is raised that the complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 1986 for the reason that he deals in medical appliances as it had sent ECG equipment, which is used for commercial purposes.  While admitting the factum that the parcel which was booked by the complainant, is not traceable, the OPs claimed that their liability is limited only to the limit of Rs.100/- as per the terms & conditions mentioned on the consignment note and further claimed that since the complainant himself failed to get the insurance cover for the parcel, so the OPs are not liable to pay the amount of the product consigned in the parcel through the OPs. 

 

8]       We have thoroughly considered the submissions of the parties and have also perused the record before us and are required to decide whether the OPs are liable for the loss and if  so, to what extent and also to see that whether due services had been provided to the complainant?

         The objection regarding referring the matter to Arbitrator is not sustainable in view of the law settled by the Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh in a bunch of Complaint Cases – Abha Arora Vs. Puma Realtors Pvt. Ltd. & Anr., CC No.170 of 2015, decided on 01.04.2016, holding that the alternative remedy provided under Section 3 of the Act, can be availed of by her, as she falls within the definition of consumer.

         Further, the objection, that the complainant does not fall under the definition of ‘consumer’, is also not maintainable in the absence of any prove in regards to the commercial transaction as alleged by the OPs.  

 

9]       There is no specific denial to the fact that the complainant paid triple the amount of delivery charges to the OPs in order to ensure the delivery of the consignment booked by him. It is also not disputed that the said parcel remained undelivered & untraceable till date.  Although it is admitted by the OPs that in such type of cases where the parcel is not insured by the consigner their liability is restricted to Rs.100/- only.  But factually they have not paid a single penny to the complainant till the filing of the complaint and not even bothered to redress the grievance of the complainant by making any effort to locate the missing parcel; which in our opinion is not only an act of deficiency in service on the part of the OPs, but also a case of unfair trade practice; which certainly has caused mental tension, physical harassment and financial loss to the complainant for which he needs to be compensated in monetary terms. 

 

10]      Considering the circumstances of the complaint and above discussion, the grave deficiency in service on the part of the OPs and their indulgence in unfair trade practice is proved and thus, the OPs are held liable to pay for the deficiency in service and for their indulgence into unfair trade practice, which caused mental & physical harassment to the complainant, which we quantified to the tune of Rs.30,000/-. OPs are also liable to pay Rs.5000/- towards litigation expenses. The complaint stands allowed in above terms.

 

          This order shall be complied with by the Opposite Parties jointly & severally, within 45 days from the date of receipt of its certified copy, failing which, they shall also be liable to pay interest @18% per annum on the awarded amount of Rs.30,000/- from the date of filing this complaint till it is paid, apart from paying the litigation expenses.  

Announced

31/05/2016                                      Sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

 

 

DISTRICT CONSUMER FORUM-II

[Consumer Complaint No.224 of 2016]

 

ORDER

 

Present: None.

 

                  

 

          As per detailed order of even date, recorded separately, this complaint has been allowed.  

          After compliance, file be consigned to the record room.

 

Announced	[J. S. SIDHU]	[RAJAN DEWAN]	(PRITI MALHOTRA)
31/05/2016	MEMBER	PRESIDENT	MEMBER