BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD, THIRUVANANTHAPURAM.<br /> PRESENT<br /> SRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENAKUMARI. A : MEMBER<br /> SMT. S.K.SREELA : MEMBER<br /> <br /> O.P.No. 225/2002 <br /> Dated : 16.06.2008<br /> Complainant:<br /> <br /> G. Harish Kumar, T.C 36/1756, Kodiyam, V.K.K.Nagar, Vallakkadavu P.O, Thiruvananthapuram.<br /> <br /> Opposite party:<br /> <br /> The Manager, Professional Couriers, T.C 29/1713, West Fort, Thiruvananthapuram – 08.<br /> (By adv. Koshy P. Thomas)<br /> <br /> This O.P having been taken as heard on 09.05.2008, the Forum on 16.06.2008 delivered the following:<br /> <br /> ORDER<br /> <br /> SRI.G. SIVAPRASAD: PRESIDENT<br /> <br /> The case of the complainant is that on 02.11.2001 the complainant entrusted the opposite party a consignment for delivery to his brother Anil Kumar at Bangalore. The consignment contains two shirts and two pants which are meant for Hotel Management. The cost of the said consignment is Rs. 3500/-. But contrary to the undertaking the consignment did not reach Mr. Anil Kumar at Bangalore and on enquiry no satisfactory explanation was given by the opposite party. The above said act of the opposite party is deficiency in service, as a result of which, the complainant had suffered financial loss of Rs. 3500/- and the cost of the articles sent. An advocate notice was sent to the opposite party on 10.04.2002 which was accepted by the opposite party, but no reply was given so far. Hence this complaint claiming Rs. 3500/- towards the cost of the articles, Rs. 5000/- towards compensation for mental agony and sufferings and cost of the proceedings.<br /> <br /> 2. Opposite party entered appearance and filed version contending that the complaint as such is not maintainable either in law or on facts. The complainant is not a consumer as defined under Consumer Protection Act. The opposite party is a franchisee of the Professional Courier having its head office at Mumbai and Regional Office at Kochi. The opposite party carries its function under the operation office of the Professional Couriers situated at Thiruvananthapuram. Hence complaint is bad for non-joinder of necessary parties. It is from the operation office of the Professional Couriers the consignment will be delivered to a similar operation office of the Professional Couriers at Bangalore and from the operation office at Bangalore, it will be handed over to the concerned franchisee at Bangalore within whose jurisdiction the consignee resides. It is also submitted that even if there is any loss, not admitted, the courier liability is limited to Rs. 100/- only for any cause, as per the courier consignment note, which was issued to the consignor. No service has been hired by the complainant from this opposite party. No declaration about the contents of the consignment has been made by the complainant while assigning the consignment in the consignment note. No value has also been disclosed by the complainant. The complainant as such is experimental in nature. Complainant is not entitled to any of the reliefs as sought for in the complaint. Hence opposite party prays for dismissal of the complaint with compensatory cost to the opposite parties.<br /> <br /> 3. The points that would arise for consideration are:-<br /> (i)Whether there has been deficiency in service on the part of opposite party?<br /> (ii)Reliefs and costs.<br /> <br /> 4. To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 and Exts. P1 to P3 were marked. On the part of opposite party, M. Padmakumar has filed an affidavit as DW1 and Ext. D1 was marked. <br /> <br /> 5. Points (i) & (ii):- The first point to be discussed is whether there has been deficiency in service on the part of opposite party. The case of the complainant is that on 02.11.2001 the complainant entrusted the opposite party a consignment (containing two shirts and two pants) for delivery to his brother Anil Kumar at Bangalore. The opposite party failed to deliver the said consignment to the consignee. Ext. P1 is the consignment note. As per Ext. P1, the consignment note number is 70891, date of consignment is 02/11, but year not mentioned, the weight of the said consignment is 2 kg, consignment charge is Rs. 52.50, consignor is Harish and consignee is Anil Kumar. A perusal of Ext. P1 would show that complainant has not declared the value of the contents of the consignment. It is the case of the complainant that the consignment contained two shirts and two pants(which meant for Hotel Management). Ext. P2 is the copy of advocate notice dated 10.04.2002 issued to the opposite party by the complainant informing him of the non-delivery of the said consignment. Ext. P3 is the acknowledgement card showing the receipt of Ext. P2 by the opposite party. No reply to Ext. P2 is seen sent to the complainant. Opposite party filed affidavit in which it is admitted that complainant had entrusted the consignment to opposite party and the same was sent to the operation office at Thycaud. Further opposite party deposed that opposite party did not know the contents of the consignment. If the value of the consignment was far in excess of the maximum limited liability indicated, the complainant ought to have been taken a transit insurance cover. It is pertinent to note that as per Ext. P1 complainant had not declared the contents or the value as required as per contract of carriage. Under such circumstances, it is contended by the opposite party that their liability is limited to Rs. 100/- for any cause as per their contract. Opposite party did not adduce any evidence nor did produce any material to show that the said consignment was served to the consignee at Bangalore. Hence we find the loss of the said consignment from opposite party. Deficiency in service is proved. Regarding the quantum of compensation, the learned counsel for the complainant submitted that no such agreement had taken place between the complainant and the opposite party that the liability of the opposite party due to non-delivery of the consignment will be restricted to Rs. 100/-. It is pertinent to note that complainant has not signed in Ext. P1 consignment note. As complainant has not signed in consignment note, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is restricted to Rs. 100/- would lay on the opposite party. There is no cogent evidence to prove that there is any contract/agreement between the complainant and opposite party which restricts the compensation to be paid in case of non-delivery of the consignment only to be Rs. 100/-. It is settled position that meeting of minds is essential and in the absence of meeting of minds any term relating to limited liability would not be part of the contract and ordinary liability would flow in cases of deficiency in service. It is evident from Ext. P1 that the complainant had sent consignment weighing 2 kg through the opposite party, but the value of the contents was not declared in Ext. P1. The contents and cost of item not mentioned in Ext. P1. Considering all aspects of the case and evidence on record in our opinion an amount of Rs. 2000/- as compensation would meet the ends of justice. <br /> In the result, complaint is allowed. Opposite party shall pay Rs. 2000/- as compensation to the complainant and Rs. 500/- as cost of the complaint. The said amounts shall carry interest at the rate of 9% per annum if not paid within two months of this order. <br /> <br /> A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.<br /> <br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 16th June 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> President.<br /> <br /> S.K.SREELA : MEMBER<br /> <br /> <br /> <br /> BEENAKUMARI. A : MEMBER<br /> <br /> <br /> <br /> O.P.No. 225/2002<br /> APPENDIX<br /> <br /> I COMPLAINANT'S WITNESS : <br /> NIL<br /> II COMPLAINANT'S DOCUMENTS :<br /> <br /> P1 - Courier Consignment Note No. 70891 dated 2/11.<br /> P2 - Copy of advocate notice dated 10.04.2002<br /> P3 - Acknowledgement card.<br /> <br /> III OPPOSITE PARTY'S WITNESS :<br /> <br /> NIL<br /> <br /> IV OPPOSITE PARTY'S DOCUMENTS :<br /> <br /> D1 - True copy of courier consignment note.<br /> <br /> <br /> <br /> <br /> PRESIDENT<br /> <br />