Karnataka

Belgaum

CC/430/2014

The Propertoir, Om Systems. - Complainant(s)

Versus

The Manager Sea Bird Express Cargo. - Opp.Party(s)

S.S.Sanikop

27 Jan 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President).

ORDER

The complainant has filed complaint U/s. 12 of C.P. Act. Alleging deficiency of service non delivery of parcel.

2) O.P. appeared and filed his version denied certain facts in the complaint.

          3) Both parties have filed their affidavits and some documents are produced by both the parties.

          4) We have heard the arguments of the counsel for complainant and O.P and have perused the records.

5)  Whether the complainants has proved any deficiency in service on the part of the O.P. and that the complainants is entitled to the reliefs sought?

6) Our finding on the point is partly in Affirmative, for the following reasons.

: REASONS :

7)      The complainant has filed the complaint alleging deficiency of service on the part of the O.P. and submitted that the complainant is doing a business of computer Sale and Services under proprietorship name and styled as “Om Systems” and the opponent is a courier agency engage in service of transport and delivery of goods. The complainant further alleges that he had laptop with a description Dell Inspiron N-5010 serial No.G6566BS worth Rs.30,000/- and said Laptop had a problem of automatic turning of after starting and the complainant thought of sending Laptop for repair on 13/12/2012 to one Sri. Shrikar Computer, Bangalore. The complainant further alleged that as per the assurance of the opponent for safe and secure delivery of the Laptop to the destiny and accordingly booked parcel with the opponent containing the laptop under courier service bearing No.723179 dated 13/12/2012 and opponent collected Rs.50/- for the service charge and also O.P. assured to deliver the Cargo within two days to Shrikar Computer, Bangalore.

8) The complainant further alleges that after two days the complainant enquired about delivery with the Shrikar Computers, Bangalore, but the said Shrikar computer Bangalore said laptop parcel has not been received and the complainant enquired with the opponent in regards to dispatch of parcel but did not get positive response and lastly the complainant enquired with the staff of the opponent and the opponent stated that the parcel is dispatched is Bangalore office but the same is not collected by the Shrikar Computers. The complainant further alleges that the opponent also stated that the parcel may be in the godown of the office at Bangalore. The opponent office at Bangalore search the same for 15 days and postpone stating that they will stress the same in few days and dragged on the matter. The complainant further alleges that he came to know that the parcel is missing from the office at Bangalore and on 19/12/2013 the complainant issued legal notice by RPAD and the opponent replied on 24/12/2013 contending that the addressee has not collected the parcel and same is lying in the head office of Bangalore. After enquiry the staff of the head office of opponent at Bangalore went on giving evasive answer repeating the same stating that the parcel is missing in godown and they are searching for the same. The complainant further alleges that the opponent neither delivered the parcel to Shrikar Computers nor return to the same to the complainant. Therefore the complainant requested the opponent pay the price of the article and compensate him. The complainant further alleges that the opponent has committed deficiency of service for non delivery of courier to the destiny and prayed for allowing the complaint against the opponent the price of the Laptop.

9) On the other hand, the opponent filed objection contending that the complaint is not maintainable under law and the opponent is not liable to pay the price of Rs.30,000/- and Rs.10,000/- as a compensation and prayed to dismiss the complaint. The opponent further contended that the forum has no jurisdiction to try the complaint and there is no deficiency of service. The opponent further contended that the complainant has send the parcel vide Cargo bearing No.723119 dated 13/12/2012 but the opponent is not aware the contends of the parcel and it is worth Rs.30,000/- and prayed to prove the same. The opponent further contends that the parcel has reached the head office at Bangalore on 14/12/2012 and the Shrikar Computers Bangalore did not turn up to collect the said parcel till date, and the opponent contacted the complainant on telephone many times and also intimated the Shrikar Computers. The opponent further contends that the complainant nor the Shrikar Computers came for collecting the parcel, having no option the opponent kept the parcel in the Sea Bird Tourist Centre No.26, 2^nd cross, Shri Ram Temple Building, Gandhi Nagar, Bangalore and submitted that there is no deficiency of service on the part of the opponent. The opponent further contends that it is the mistake of the complainant and his client as they have not collected the parcel and the complainant never enquired with the opponent on telephone and the opponent further contends that the complainant’s allegation that he went on enquiring the office of the opposite party for 15 days is denied and false. The opponent further submits that the parcel is still available with them and complainant is liberty to collect the same. The opponent further contends that they have never informed the complainant that parcel is missing but the opponent contends that the notice has been issued by the complainant on 19/12/2013 and same is been received by the O.P. and replied on 24/12/2013. The opponent pray to dismiss the complaint contending that there is no cause of action to file the complaint and the contents of the complaint are false and denied.

10) We have gone through the documents produced by the both the parties and also heard the argument and contents of complaint and objection and affidavit filed by both the parties. Before going into the discussion we like to go through the order sheet dated 8/9/2014 wherein we can notice that on the said date both the complainant and the opponent where before the forum and the opponent produced the undelivered courier parcel and the complainant disputed the said parcel as no seal and signature of the firm. Further we have notice that on the said date the parcel was returned to the custody of the complainant with their liberty to prove the case of the party and directed the advocate for complainant to produce the parcel when ever required by the Forum without opening the seal. Coming to the order sheet dated 23/3/2015 on the said date as directed by the Forum the complainant produced the parcel handed over by the respondent in the presence of his counsel. The box was cut opened and as perused and it revealed that the Laptop was make off Compaq product and not Dell product as contended by the complainant. And on the same date we handed over the article to respondent counsel on behalf of the respondent and on the same date the settlement did not arrive and we posted the matter for argument on merits.

11) Now coming to the discussion the document produced by the complainant as per the list at serial No.1, though the receipt is little non visible but the number mentioned by the complainant in his complaint that is No.723179, is visible and the number on the said receipt is also same as mentioned by the complainant in his complaint. The opponent in his objection at para No.4 mentioned the number has 723119 dated 13/12/2012. We can noticed that the number mentioned by the complainant in his complaint and as per the receipt produced with the list at time of filing the complaint is one and the same but the number mentioned by the opponent in his objection is different one from the number on the receipt produced by the complainant. The important point is to be noted is that the complainant has denied the parcel which was produced before the Forum and also denied the package that is the box on which there was a different number and when the parcel which was handed over to the complainant was opened before both the parties in the forum and it was found that the Laptop in the box was of Compaq make and not Dell make. The another point is that when the parcel was sent through the opponent by the complainant from Belgaum to Bangalore to be delivered at Shrikar Computers at Bangalore the same was not delivered at the delivery door that is Shrikar Computer’s. This fact can be made out from the objection filed by the opponent stating that the parcel is still with the opponent and also that the date of the objection filed by the opponent is on 8/9/2014 and the parcel which was sent by the complainant to the opponent as per the receipt is dated 13/12/2012. Here we can notice the gap of the sending parcel and the date of objection which is filed after appearing before the forum is nearly two years. This discussion of time gap is very crucial because the contents of the complainant that the parcel is not delivered on time and same is missing or misplaced by the opponent will be proved and upon that the contents of the opponent in the objection that the parcel is still with the opponent itself proves that the parcel is not delivered to the concerned party to whom it was addressed by the complainant. The next point is to be considered that the opponent produced the document on 12/1/2016 wherein also we can notice that the receipt produced by the complainant and its number is a similar that is LR No.723179. The opponent was called for to produce the said receipt because the receipt one produced by the complainant with the list at the time of filing of the complaint was invisible and not clear.

12) The point that the opponent submitted is that the parcel has been delivered to the concerned party, but to show that the parcel has been delivered as contended by the O.P. in the objection no document is coming forth before the forum. Hence this contention cannot be believed and accepted. When the parcel came to be opened before the Forum it was found that it was Compaq Laptop and not the Dell Company make. There is also disputes in regards to the Laptop which was not mentioned in the receipt that whether it was Dell Company make or Compaq. After perusal of the notice that the contents of the parcel was not mentioned and also it was not mentioned that the parcel is worth Rs.30,000/- but at this juncture, it is not to be decided that whether the same is of particular make but it is to be decided that whether the parcel sent was delivered on time or not. By the above discussion and document produced by both the parties we can make it out that the parcel sent by the complainant to be delivered to the door step of Shrikar Computer has not been delivered and the parcel so produced is of different make etc.,

13) The opponent filed an application to produced additional objection and also the complainant filed the objection to same and after hearing we have taken additional objection on file and the contents of additional objection are denial and prayed to dismiss the complaint is prayed by the opponent. In regards to maintainability of the complaint we are the opinion of that the complaint is maintainable and the cause of action arosed within the jurisdiction of this Forum this forum can very well entertain the complaint.

14) The complainant has relied on the ruling reported in 2012 STPL (CL) 585 NC. Wherein the lordship held that “…….the petitioner was unable to provide credible evidence that consignment parcel has been delivered to right address…...” At the relevant para No.9 of the judgement the lordship have directed to respondent to pay the amount and also awarded the cost and compensation with interest. Ruling relied by the complainant is not applicable to the case in hand.

15) Wherein also we can notice that for the delivery of the parcel by the opponent to be delivered to the proper placed as discussed supra have not produced any document to show that the same was delivered etc., Hence considering the discussion supra and after perusing the records we are of the opinion that the complainant has proved deficiency of service on the part of the opponent in non delivering the parcel/courier to destiny that is Shrikar Computers Bangalore. Accordingly following order;

: ORDER :

The complaint is partly allowed.

The opponent is hereby directed and liable to pay Rs.30,000/- the cost of the Laptop to the complainant.

So also, The opponent is hereby directed and liable to pay Rs.2,000/- towards compensation and Rs.2,000/- towards the cost of the proceedings to the complainant.

Above order shall be complied within 30 days from the date of the order. Failing which the amount of Rs.30,000/- shall carry interest at the rate of 8% P.A. after 30 days of compliance till its realization.

(Order dictated, corrected & then pronounced in the Open Forum on this 28^th day of January 2016).

          Member                    Member                    President.

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