01/07/2020.
O R D E R
By Dr.K.RadhakrishnanNair, President (I/C)
The case of the complainant is that she had entrusted with the 1st opposite party the following articles which are stitched cloths, such as 2 numbers of sarees with blouses, 3 sets of full churidars, floor length anarkali with duppatta single piece and 7 numbers of tops to send the same to a valued customer one Anu Nistala from America who only placed the order with a direction to forward it to her brother Ramprasad Sonti residing at Bangalore. As per the instructions prepared the above articles and sent vide consignment No.D 23348249 paying Rs.963/- towards courier charges on 15/6/15. The value of stitched cloths was Rs.23,630/-. At Bangalore the addressee Mr.Ramprasad Sonti received the parcel on 17/6/2015 and while opening the parcel it was noticed that 8 items were missing from the consignment. The items which are found missing are as follows: Full churidar one set, Tops seven numbers. On account of missing items the customer was not prepared to give the full amount of Rs.23,630/- instead, only rs.16,045/- to the complainant minus Rs.7,585/-. The customer also lodged a complaint with the opposite parties. Immediately on receiving the above information the complainant also lodged a complaint on 18th June 2015 with the 1st opposite party and she got an e.mail reply from the DTDC, Bangalore mentioning the case number as 00459441 against consignment No.D23348249 and thereafter 1st opposite party remained silent all along without responding to the complaint. Owing to the prolonged silence, the complainant sent a reminder on the subject matter. Despite, the opposite party was not prepared to break the silence. The short delivery on the part of opposite party is a serious lapse and also a breach of promise. It tantamounts to violation of provisions of Consumer Protection Act 1986. Complainant has thus lost Rs.7,585/- towards the cost of missing items. More than financial loss, by the careless and improper acts of the opposite parties the image of the complainant was tarnished beyond any repair. The complainant is a qualified fashion designer and she is the proprietor of ‘Rajitha Designer Boutique’ and she is conducting a shop at Mannuthy. The complainant received orders from various customers and supplies goods according to their passions and demand. She also states that she has created a website for easy access of customers. As a result of this, one customer from Hyderabad and another from Bangalore cancelled their orders. The complainant is put to severe loss and injury besides mental agony. Complainant is entitled to get compensation and the opposite party may be directed to pay Rs.7,585/- being the price of missed items and Rs.15,000/- towards compensation and costs Rs.1,500/-.
2. Admitted the case, issued notice to opposite parties. Appeared through counsel. Version was also filed by the opposite parties though with a delay. As per the version of the opposite parties, the complainant has no locus standi being a proprietor cum CEO of a business entity as admitted by herself, as a reputed establishment engaged in a commercial venture. Further she has no pleading to the effect that she has availed the service for earning her livelihood. For the forgoing reasons, it is prayed by the opposite party that the maintainability of the complaint itself be heard as a preliminary issue. Averments in para 1,2 and 3 of the complaint are incorrect, false and denied. It is not disputed that a consignment bearing the consignment No.D23348429 dated 15/6/2015 was booked through the 1st opposite party at Thrissur which is a franchisee of M/s. DTDC Express Ltd.
3. The consigner had neither declared the contents of the consignment nor its value to the 1st opposite party at the time of booking. No additional payments for carriage of alleged valuables were also paid to the opposite parties. It is therefore specifically denied that the consignment booked by the consignor contained the items as mentioned in para 2 of the complaint namely full 3 churidar sets and 7 numbers of tops, 2 numbers of blouses and 1 set of anarkali. It is also denied that the total costs of the dress materials is Rs.23,630/-. A sum of Rs.963/- was collected by the 1st opposite party towards freight charges. All the averments in 4th and 5th para are incorrect and denied. The consignee had accepted the consignment when it was offered for delivery in good condition after opening and checking the contents in the consignment and signed the proof of delivery without any complaints. The averments contrary to the above are mere allegations made to suit the purpose of the case. The claimed relief is without any rhyme or reason and the complainant is not entitled to any such relief. In the absence of declaration of the contents the liability if any is limited to Rs.100/- only as per the terms and conditions mentioned in the Consignment Note leaf. Moreover, the minimum surcharge for carrier’s risk is Rs.50/- or 2% of the declared value whichever is higher is required to be remitted at the time of tendering shipment. In the instant case no remittance is made under that head for higher compensation.
4. The above complaint is filed without any bonafides and the complainant has approached this Hon’ble Forum with unclean hands to gain undue monetary benefits from the opposite parties. The complaint being frivolous and vexatious and find no deficiency in service on the part of opposite parties, the same may be dismissed with exemplary costs to the opposite parties.
5. The case then posted for evidence. The points for consideration are the following:
1) Was there any deficiency in service on the part of opposite parties?
2) If so what reliefs and costs ?
6.Complainant appeared before the Forum and filed proof affidavit along with 8 documents. These documents are marked as Exts.P1 to P8. Ext.P1 is the Corporation Licence, Ext.P2 is the consignment note, Ext.P3 is letter dated 18/6/2015 from Anu Nistala, Ext.P4 is the complaint dated 18/6/2016, Ext.P5 is the letter dated nil to DTDC Thrissur office by the complainant, Ext.P6 is the reminder letter dated nil, Ext.P7 is the reply letter for more information by DTDC and Ext.P8 is status query for consignment No.D23348249. From the side of opposite parties no proof affidavit or documents are submitted.
7. Appreciation of evidence : On evaluating the evidence submitted by the complainant this forum is very much convinced that there is a short delivery of items as detailed in the complaint. Probative value of affidavit in the absence of any contra evidence by the opposite parties has to be considered and accepted. The repeated correspondence by the complainant seeking refund of a sum of Rs.7,585/- being the cost of missed items cannot be ruled out as trifles. It is true that a prior declaration of items and its value has not been done by the complainant. By virtue of printout on the consignment leaf note a syllogistic deduction is though possible, this Forum is conscious of the fact that it is not practicable to give a tacit approval of those terms in terms of privity of contract. The opposite party has also onus to prove that they have delivered in full without any short delivery. Since they have failed to discharge the onus a finding in favour of the complainant has become a desideratum. We, therefore, conclude that there is short delivery which tendamounts to deficiency in service.
8. Reliefs and costs : Opposite parties are directed to pay a total of Rs.10,000/- (Rupees Ten thousand only) ( Rs.7585 + Rs.2415 towards costs) to the complainant within 30 days from the receipt of a copy of this order.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 1st day of July 2020.
Sd/- Sd/-
Sreeja.S Dr.K.Radhakrishnan Nair
Member President I/C
Appendix
Complainant’s Exhibits
Ext.P1 Corporation Licence,
Ext.P2 consignment note,
Ext.P3 letter dated 18/6/2015 from Anu Nistala,
Ext.P4 complaint dated 18/6/2016,
Ext.P5 letter dated nil to DTDC Thrissur office by the complainant, Ext.P6 reminder letter dated nil,
Ext.P7 reply letter for more information by DTDC
Ext.P8 status query for consignment No.D23348249
Id/-
President I/C
