OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C. 51/12
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
3) Md.Jamatul.Islam - Member
Sri Dinesh Chandra Bajaj - Complainant
S/O- Late Ram Gopal Bajaj,
R/O M.G.Road,Fancy Bazar.
P.S.Fancy Bazar(out post)
Guwahati-781001, Dist: Kamrup,Assam
-vs-
1) The Manager - Opp.parties
First Flight Couriers Ltd.
Piali Phukan Road,Rehabari,
Guwahati-781008
Dist: Kamrup, Assam.
2) The Manager
First Flight Couriers Ltd.
505,Cotton Exchange Bodg.
Kalbadevi Road,
Mumbai-400002.
Appearance : -
Ld.advocate Mr.Debendra Saraf and Mr.Shiv Shankar Gupta for the complainant and Ld.advocate Mr.M.S.Ashapurna Lahkar for the opp.party.
Date of argument- 28.3.18
Date of judgment- 10.4.18
Judgment
This is a case u/s 12 of Consumer Protection Act,1986
1) The complaint filed by Sri Dinesh Ch.Bajaj against the Manager First Flight Courier Ltd, Guwahati branch and the Manager, First Flight Courier Ltd, Mumbai was admitted on 31.8.2012 and notices were served upon the opp.parties and they also filed joint written statement. The complainant filed his evidence on affidavit on 12.9.14 and he was cross examined by the opp.party side Ld.counsel and thereafter the opp.party side filed evidence of Sri Binoy Kr.Saha on affidavit and he was also cross examined by Ld.counsel of the complainant . Finally both sides filed written argument and, on 28.3.18 we have heard oral argument of both side’s Ld.advocates and today we deliver the judgment, which is as below-
2) The case of the complainant in brief is that the complainant on 20.10,11 booked a parcel containing chocolates, ladies garments and bags etc. weighing about 5.6 k.g. and value of Rs.20,550/- in the Guwahati branch of First Flight Courier Ltd. to be delivered to his daughter at Goa vide consignment note bearing No. 17187 dtd. 20.10.11 after getting verbal assurance from the opp.party that the parcel would reach its destination safely before Dipawali. But the said parcel has not reached its destination and then he sent e.mail to the opp.party on 29.10.11, 30.10.11, 1.11.11 on their website making query about the parcel, but no reply has been given to him, but on 3.11.11. he received a final letter from opp.party where they stated that the parcel was misrouted and investigation was going on and he was asked to mentioned about the contents about the parcel and its value; and he then vide two letters dtd. 4.11.11 stated the value of the goods including all the invoice of the goods and sent the same to the opp.parties and then he received a letter dtd. 13.03.2012 from the opp.party ,whereby they informed him that they were unable to locate the consignment, and accordingly they have declared it as lost; and that since the value of consignment was not mentioned at the time of booking , they are returning booking money Rs,1,042/- which they had received from him , out of Rs.1042/- ,Rs.942/- is towards booking charge and Rs.100/- is as compensation. In the consignment note although the value was not mentioned, but the kind of material is mentioned which is within the parcel containing clothes as weighing 5.6 k.g. and hence compensation of Rs 100/- is quite unjust and that amount is cheating him. He also sent a legal notice to the opp.party on 26.3.13 which was received by the opp.party. At the time of booking he was not asked for mentioning the value of the materials and after satisfying with that way, the opp.party had accepted the parcel and also received exorbitant charge amounting to Rs.942/- from him. By not giving proper compensation for losing all the said consignment, the opp.party committed deficiency of service towards him and therefore , he seeks direction for directing the opp.parties to pay him Rs.20,550/- as cost of the materials and Rs.10,000/- as compensation for putting him mental agony as well as Rs. 10,000/- as cost of the proceeding etc. totaling Rs.40,550/-.
3) The pleading of the opp.party is that the complaint is not maintainable in fact and circumstances as they are common carrier within the meaning of Carriers’ Act, and they have discharged the burden as per provision of the said Act and that is why the complainant is not entitled to any further relief from them. The consignment misrouted and ultimately it lost and hence they decided to return the freight charge paid by the complainant and accordingly they have refunded freight charge together with Rs.100/-as compensation totalling Rs.1042/- to the complainant, which he has received in full satisfaction of his claim. So there remains nothing to be settled again. The complainant did not disclose the fault of the complainant at the time of booking and the consignment was booked by them on “Owners basis” and the said booking are inflated by terms and condition written overleaf of the consignment note itself; and according to the said terms and conditions they primarily settled the claim and so there is no deficiency of service on their part. The loss of consignment had occurred due to circumstances beyond their control of the opp.parties for which they cannot be held liable. They were not aware of contents and value of the consignment and therefore, they cannot be held liable to pay exorbitant claim. They had not a caused any mental agony and harassment to the complainant . They have settled the complaint as soon as it was lodged. The complainant has filed his complaint for wrongfull gain. The complaint is liable to be dismissed.
4) We have perused the pleading as well as evidences of the parties ; we have also perused arguments of Ld counsels of the parties and it appears to us that (i) it is both sides’ admitted fact that the complainant Shri Dinesh Ch.Bajaj had ,on 20/10/2011, booked one consignment in the Rehabari branch of First Flight Courier Ltd vide consignment note No-1717187 dtd.21/10/2011 to be delivered to his daughter at Goa, and he had paid an amount of Rs.942/- as freight charge and the consignment was packed and wrapped by the complainant himself and it weighed 5.6 KG and at the time of booking the complainant stated to the booking staff of the opp. party that the parcel contains clothes but he at the time of booking did not disclose the value of the clothes/consignment.
( ii ) It is also both sides’ admitted fact that the said consignment had not reached the consignee but was lost in the route to Goa and on the request of the complainant, the opp. parties tried to find out said consignment but failed to trace it.
(iii) It is also both sides’ admitted fact that while the opp. party failed to deliver the consignment to the consignee due to missing of consignment en- route , they returned the consignment charge which the complainant had paid at the time of booking i.e Rs.942/- and a compensation of Rs.100/- in total Rs.1042/- to the complainant.
5) The complainant side submits that compensation to the tune of Rs.100/- is quite unjust which amounts to cheating him by the opp. party; while plea of the opp. party is that as the complainant had not disclose the value of the consignment , as per terms and conditions written over leaf of the consignment note they promptly settled the claim and returned the consignment charge taken and also paid Rs.100/- as compensation as per said terms and condition and thet they are common carrier within the meaning of “Carriers Act” and they have discharged their burden under the provisions of the said Act and as such the complainant is not entitled to any further relief and the complaint is liable to be dismissed.
It is already found that at the time of booking of the consignment value of consignment was not disclosed by the complainant. But now complainant states that the consignment contained chocolates, ladies garments , bags etc. of value of Rs.20,550/- . The complainant in evidence states that when the consignment was lost en-route they informed the opp. party the value of the consignment vide his two letters dtd.04/11/2011 enclosing the invoices of the goods and he said that Annex.-4 and 5 are said letters and Exhibit-6 is the computer generated original purchase memo in which the descriptions are not clearly visible as the ink used by the shops evaporated due to passage of time. The opp. party side’s ld counsel submits that the Exhibit-6 is the blank papers ,from which the value of the consignment can not be determined. We have perused Exhibit -6 and it is found that Exhibit-6 are blank papers, which cannot be presumed to be cashmemos or vouchers of purchasing any garments or goods. Thus it is not established that the value of consignment which is Rs.20,550/- according to the complainant stands not proved.
It is admitted fact that the consignment weighed 5.6 Kg , so it may be presumed that the parcel contains some ladies garments , but we have no evidence to presume that value of those items is Rs.20,550 . In such situation, we must do some guess works and we guess that the parcel contained ladies garments of value of Rs.10,000/- only. We can not belief that it also contained chocolates as well as bags because in the consignment note it is written that it contained clothes only. We have perused the provisions of Carriers Act and found that the said Act does not limit the compensation to Rs.100/- only in the case of missing of consignment of any value. Therefore we hold that the opp. party side is liable to pay Rs.10,000/- as value of the consignment to the complainant with interest from the date of booking of consignment i.e.20/10/2011. Secondly, the consignment was a “Diwali Gift” sent by a father (consignor) to his daughter(consignee) living in a distant place (Goa) which carried love and affection of the complainant to his beloved daughter, but due to negligence of the opp. parties, the said love and affection has not reached the daughter of the complainant, and in result, it caused mental agony to the complainant and his daughter equally.
Thirdly, for such negligence , the complainant, being compelled, had to made several correspondences with the opp. parties for finding out the lost consignment and to get relief when the consignment was declared lost by the opp. party. So in our opinion, the opp. party side is to pay atleast Rs.10,000/- for causing harassment to the complainant and putting him and his daughter in mental agony. Moreover, for no fault of complainant, he has to prosecute the opp. parties before this forum incurring expenditure of a handsome amount in payment of fees to her counsel and payment of fees, cost of journey to this forum and in making correspondence to the opp. parties. So, in such premise, we hold that opp. parties are also liable to pay Rs.10,000/- as cost of the proceeding to the complainant.
6) Beacause of what has been discussed as above we hold that , the complaint has merit and the complainant has succeeded to establish his case against the opp. parties . Therefore , the complaint against both opp. parties is allowed on contest and they are directed to pay Rs.10,000/- as the value of the consignment with interest @6% per annum from the day of 20/10/2011 till full satisfaction of the award to the complainant and also to pay him Rs.10,000/- as compensation as well as Rs.10,000/- as cost of the proceeding , to- which, both opp. parties are jointly and severally liable . They are directed to satisfy the award within 45 days , in default, other two amounts shall also carry interest at the same rate.
Given under our hands and seals on this day of 10th April,2018.
(SmtArchanaDekaLahkar) (Md.Jamatul Islam) (Md.SahadatHussain)
Member Member President
