DATE OF DELIVERY
OF JUDGMENT : 13th June, 2016
: J U D G M E N T :
The brief fact of the case is that the complainant is an unemployed youth and he has been carrying on a business of medicine under the name and style of M/S Roy Medical Agency to earn his livelihood by way of self - employment. On 12/09/2014 the complainant has booked a consignment bearing No. D 19074353 in office of OP No. 2 for the purpose of sending some medicine in Madurai, Tamilnadu. The complainant paid Rs 600/- to OP No. 2 towards service charges and accordingly the OP No. 2 issued a receipt. Thereafter, the medicine material could not be delivered to the consignee and after expiry of long days i.e., on 06/02/2015 the same was returned to the complainant. The complainant found that the entire medicines were damaged. The OP No. 2 issued one damage certificate dated 03/03/2015 where they admitted that the value of damaged article was of Rs. 20,929/-. Thereafter, the complainant requested to pay the value of medicine, but in vain. There is a clear gross negligence / deficiency in service on the part of OPs. Hence, the complainant comes before the Forum for getting his claim/ relief.
The OPs file written version stating, inter alia, that the OP No. 1 is a corporate office having various franchises in the state of west Bengal and throughout India for providing better and speedy service to their customers in the field of courier. OP No. 2 is controlled and managed by OP No. 1. The complainant has booked one article on 12/09/2014 being consignment no D 19074353. At the time of booking, the complainant was requested to book the article in secure pack but he ignored it and at last the article was booked in ‘D’ series. The OPs also took the plea that the complainant is a private company and does not come within the purview of the definition of ‘consumer’ under the Consumer Protection Act, 1986. It is also stated that the commercial purpose is involved in the instant case. So the complainant is not entitled to get any relief as prayed for. Hence, the petition is liable to be rejected with cost.
Now the Forum is to consider the following points:-
- Whether the complainant is to be treated as consumer or not as per
Consumer Protection Act 1986.
- Whether there is any gross negligence or deficiency in service on the part of OPs or not,
- Whether the complainant is entitled to get any relief as prayed for.
DECISION WITH REASONS
Point No. 1:
It is admitted fact that the complainant has booked the consignment bearing No. D 19074353 in the office of OPs by paying of Rs. 600/- for the purpose of sending the article (packet of medicine) to the consignee in Madurai, Tamilnadu. Moreover, the complainant has taken plea of self employment and only livelihood. It is fact that in this respect Nadia Zilla Parishad issued one certificate wherein it is stated that the complainant earns his livelihood from his medicine business in the name and style of M/S Roy Medical Agency which is clearly revealed from Annexure – III. On the strength of the said document, we have come to the conclusion that the complainant runs his medicine business for maintaining his livelihood by way of self employment. So as per status between the both parties, the complainant is to be treated as ‘consumer’ and the OPs courier center is to be treated as ‘service providers’ as per Consumer Protection Act, 1986. The point No. 1 is thus decided.
Point Nos. 2 & 3
At first we have perused the complaint, written version, evidence on affidavit, written argument etc. along with all relevant documents.
It is admitted that on 12/09/2014 the complainant has booked a packet of medicine valued at Rs. 20,929/- bearing the consignment No. D 19074353 by payment of Rs. 600/- in the office of OPs / DTDC. The OPs / DTDC received the amount of Rs. 600/- for the purpose of sending of the said article in Tamilnadu and to that effect the OPs/ DTDC issued a receipt, i.e., Annexure – I, dated 12/09/2014.
In written version the OPs / DTDC stated that the complainant has given incomplete postal address and for that reason it is impossible for OPs to find out the address of the consignee. The OPs also advised the complainant to collect the said article, but none came to the office of OPs to receive the same within 5 months. From this statement it is clear that there is a clear delay of approx 5 months regarding the whole process of courier service which is clearly admitted by the OPs / DTDC. Regarding incomplete address no intimation has been sent to the complainant for making necessary correction of said address and in addition to that the said article was returned to the complainant after lapse of long period of time i.e., on 06/02/2015 (delay of approx 5 months) causes clear case of gross negligence and deficiency in service on part of OPs/ DTDC. For the said negligence on the part of OPs / DTDC the entire medicine articles were damaged. The damage of article is clearly admitted by the OPs as the OPs / DTDC issued one damage certificate dated 03/03/2015 (Annexure – 2). Moreover, the conditions which are written on the back side of the receipt are so small and fine print that it is very much difficult to read the said sentences and by taking this tactics both the OPs try to evade their responsibility for any negligence. But by taking this type of tactics they cannot escape from their liability. There is no such signature of complainant to establish that he understood all conditions and hence, these conditions were accepted by him in a routine way. So showing these conditions, they, i.e., OPs cannot keep the whole responsibility upon the shoulder of complainant. In written version the OPs stated that OP No.1 is a corporate office having various franchises in the state of West Bengal and through India for providing better and speedy service to their customers in the field of courier. OP No. 2 is controlled and managed by OP No.1. So both the OPs are bound to take the responsibility jointly. Actually the instant case is based upon the general principle of qui facit per alium facit per se which means that the act of an agent is the act of the principal. Here OP No. 1 is the Principal & OP No. 2 is an agent as it is clearly revealed from written version that the OP No. 2 completely controlled & managed by OP No. 1. So as per principle of vicarious liability both OPs are jointly & severally liable. At the time of hearing / argument the OPs argued that the complainant was requested to book the article in secure pack but he ignored and at last the article was booked in ‘D’ series. In this respect it is our view that there is no such column of ‘series’ in the said receipt or no series is written down in the said receipt / acknowledgement. So this plea taken by OPs is totally baseless. For the said delay in delivery of article and damage of medicine, both the OPs / DTDC are jointly and severally liable and both are bound to take the responsibility for their irresponsible activities. It is a clear case of gross negligence and deficiency in service on the part of OPs / DTDC for returning the goods to the petitioner after it returned undelivered and the complainant is entitled to get relief as against OPs / DTDC. The case is allowed.
Hence,
Ordered,
That the case CC/2015/105 be and the same is allowed on contest against the OPs / DTDC with cost of Rs. 1,000/-. The complainant is also entitled to get compensation from OPs of Rs. 2,000/- for mental and physical harassment.
That the OP Nos. 1 & 2 / DTDC are jointly and severally liable for their irresponsible act and both are directed to pay Rs. 20,929/- (value of medicines) plus Rs.1,000/- towards cost along with compensation of Rs.2000/- for mental and physical harassment of the complainant, i.e., total of Rs. 23,929/- within 30 days from the date of order i.e., 12.07.2016 in default, interest @ 10% p.a. shall be charged upon the awarded amount from 12.07.2016 till full realization.
Let the copy of this order be supplied to the parties free of cost.
