Smt. C. Lathika Bhai (Member):<br /> <br /> The complainant Sri. P.N. Vijayakumar, Manager, Yamuna Textiles, Adoor has filed this complaint against the Professional Courier, Apasara Buildings, Adoor, the first opposite party and Managing Director, Professional Courier Service, Mumbai, the 2nd opposite party for a relief from this Forum.<br /> <br /> 2. The complainant’s case is as follows: The complainant is the Manager of Yamuna Textiles, Adoor. On 21.2.2002, the complainant had sent 4 sarees worth Rs.2,960/- to Ganjanana Trading Corporation, 93, Madhu Market, AM Lane C. Hickpet Cross, Bangalore through the opposite parties Courier Service. The complainant has given the usual service charges. The complainant enquired about the receipt of the consignment to the consignee then they informed that the consignment did not reach there. The complainant enquired and informed the matter to the first opposite party and a demand was made for the loss incurred together with cost of the sarees. The first opposite party neither given any reply nor taken any steps for delivery of the consignment. The complainant had sent a registered notice to the first opposite party on 25.9.2002 demanding the loss sustained to him due to the non-delivery of the consignment. After sending notice, the complainant approached the first opposite party several time directly and demanded for the payment of the loss together with price of sarees. But there was no response. The reputation of Yamuna Textile was affected due to the said act of the opposite party, then the complainant working as the Manager. Hence the complaint is for realising the price of the consignment, consignment charges and other expenses caused and compensation for mental agony and financial loss.<br /> <br /> 3. The opposite parties have filed a common version with the following contentions: The complaint is not maintainable either in law or on facts. There is no evidence to prove the case that the complainant had sent sarees through the opposite parties courier service. There is no declaration about that and opposite parties have no knowledge about the sarees. The opposite parties have not received any notice from the complainant and the complainant is not entitled to get any amount towards loss from the opposite parties. The delivery chalan is forged and the notice sent by the Gajanana Trading Corporation is not genuine. The complainant is not entitled to get any loss or damages and the opposite parties are not bound to pay any amount. Hence the opposite parties canvassed for the dismissal of the complaint with their cost.<br /> 4.The points for consideration in this O.P are the following:-<br /> 1.Whether this complaint is maintainable before the Forum?<br /> 2.Whether the complainant is entitled to get a relief as prayed for in the complaint?<br /> 3.Relief and Cost?<br /> <br /> 5. The evidence in this case consists of the oral evidence of the complainant who has been examined as PW1. In support of the case of the complainant, the complainant has filed proof affidavit and on the basis of proof affidavit, Exts.A1 to A9(c) were marked. For the opposite parties, the 1st opposite party has adduced oral evidence as DW1. Exts.B1, B1(a) to B1(c) were marked. After closure of the evidence, both sides heard.<br /> <br /> 6. Points 1 to 3:- The complainant was examined as PW1 on the basis of the proof affidavit filed by the complainant and Exts.A1 to A9(c) were marked. The receipt for sending the consignment issued by the opposite party is marked as Ext.A1. The declaration given by the complainant to the opposite party stating that the consigned goods are not taxable items. The office copy of the declaration is marked as Ext.A2. To show the price of 4 sarees sent through the opposite parties, the bill sent along with the parcel, delivery chalan for return goods were produced. The O.C of the post parcel RT No.234640 is marked as Ext.A3. The letter dated 30.12.2002 sent by Gajanana Trading Corporation to the complainant noting the non-delivery of consignment is marked as Ext.A4. Letter dated 7.1.2003 sent by the Gajanana Company for demanding the value of lost saree is marked as Ext.A5. Letter dated 29.1.03 from Gajanana Company for getting the price of saree is marked as Ext.A6. Letter dated 29.5.03 sent by Gajanana Company is marked as Ext.A7. On 1.1.2004, another letter from Gajanana Company stating the overdue of the price of consignment is marked as Ext.A8. The complainant prays for allowing the complaint.<br /> <br /> 7. The learned counsel for opposite party has cross-examined PW1. At the time of cross-examination, PW1 had stated that, Ext.A1 is the proof for sending sarees through opposite parties’ courier service. The proof of delivery will be received only after receiving the consignment by the addressee. The conditions overleaf of Ext.A1 has been marked through PW1 as Ext.B1 and 6th condition is marked as Ext.B1(a). The 9th condition is marked as Ext.B1(b) and condition No.10 is marked as Ext.B1(c). The 5th condition in Ext.A1 is marked as Ext.B1(d). By answering a question put by opposite parties counsel PW1 stated that the original delivery chalan has been sent along with the parcel to the addressee. Regarding the signature and seal in Ext.A4, PW1 stated that ordinarily the communications did not contain the name of the person who sends it. The copy of registered notice sent by the complainant to the opposite party is marked as Ext.A9. Postal receipt for the same is marked as Ext.A9(a). PW1 stated that Ext.A9 is the O.C of notice and it is written in the letter pad of Yamuna Textiles.<br /> <br /> 8. At the time of re-examination, PW1 stated that the original of Ext.A2 and Ext.A3 were sent along with the consignment. At that time K.G.S.T and C.S.T Act was applicable, and as such declaration and delivery chalan should be sent compulsorily. <br /> 9. The 1st opposite party has filed an affidavit in support of their version. Ext.B1(e) was marked in chief examination. DW1 was cross-examined by the learned counsel for the complainant. During the cross-examination, the counsel for the complainant put a question to DW1 as to whether the complainant put his signature by accepting the conditions overleaf of Ext.A1? The answer is “No” and added that it is the printed form of the Company. DW1 stated that the complainant did not give declaration about the item of the consignment. DW1 has admitted that the consignment of the complainant was sent through the opposite parties to Bangalore in the address of Gajanana Trading Corporation. The consignment was of 1½ kg weight and the consignment charge levied is Rs.50/-. Regarding the consignment charges DW1 stated that it is fixed on the basis of weight of the consignment and the distance of destination.<br /> <br /> 10. Coming to the documents marked from the side of the complainant. Ext.A1 is the consignment receipt. Ext.A2 is the O.C of declaration of the complainant sent along with the consignment. Ext.A3 is the O.C of delivery chalan for returned goods of bill dated 16.2.2002 post parcel RT No.234640/21/2/02 relating to the bill No.3512 dated 7.2.2002. Ext.A4 to A8 are the letters from Gajanana Company to the complainant for demanding the price of sarees. Ext.A9 is the copy of registered notice sent by the complainant to the 1st opposite party.<br /> <br /> 11. Coming to the documents marked from the side of opposite parties, Ext.B1 is the conditions overleaf of the Ext.A1 receipt. Ext.B1(a) is the condition No.6 of Ext.B1 stating their liability is limited to Rs.100/-. Ext.B1(b) is the 9th condition stating that any claim or legal action against the opposite party, the jurisdiction to try the suit is only at Bombay courts. Ext.B1(d) is the 5th condition of Ext.B1 and Ext.B1(e) is the condition No.4 of Ext.B1.<br /> <br /> 12. With regard to the complainant’s case, the complainant had sent four sarees to Bangalore through the opposite parties courier service. The 1st opposite party had received the consignment and issued receipt Ext.A1. The consignment did not reached the consignee and the complainant demanded the price of the consignment, the sarees, and compensation for loss. The opposite parties are admitted the receipt of consignment and issuance of Ext.A1. The opposite parties contention is that the complainant had agreed the conditions in Ext.B1, printed overleaf of Ext.A1. The liability of the opposite parties for lost consignment is limited to Rs.100/- and the complainant is entitled to get only Rs.100/-. Another contention is that the opposite parties have no knowledge about the contents of consignment or the value of the consigned articles.<br /> <br /> 13. On going through the evidence of this case, the complainant has produced Exts.A2 and A3 for proving the consigned goods. Ext.A2 is the copy of declaration sent along with the consignment signed by the complainant, addressing to Gajanana Trading Company stating that “contain handloom silk sarees only”. Ext.A3 is the delivery chalan for return of goods addressed to Gajanana Trading Company. In Ext.A3, the particulars shown as Mohini 3D sarees 4 pieces at the rate of Rs.740/-. The total value of sarees is Rs.2,960/-. At the time of re-examination, the complainant stated that it is compulsory that the Exts.A2 and A3 be send along with the consignment while sending through the courier service. The opposite parties have the responsibility to enquire about the contents in the consignment.<br /> <br /> 14. The opposite parties have the liability to deliver the articles, which were sent through them, safely to the consignee. After receiving the consignment charges, goods consigned was not delivered to the consignee, it is a negligence and deficiency in service from the part of the opposite parties.<br /> <br /> 15. The opposite party’s specific contention is that the complainant is bound by the terms and conditions found overleaf of Ext.A1. The complainant never put his signature to accepting the terms and conditions overleaf of Ext.A1. Hence the complainant is not bound by the terms and conditions. To substantiate this point, the learned counsel for the complainant referred a ruling reported in 1995 I CPJ 106 Kerala. The view taken in this case is that the complainant does not signed in the consignment form hence the complainant is not bound by the terms mentioned in the consignment receipt. The Hon’ble Kerala State Commission and Hon’ble National Commission also upheld the same view in different cases.<br /> <br /> 16. On the basis of the above discussions, we hold that the complainant is maintainable before this Forum and there is a clear deficiency of service from the part of the opposite parties and the complaint can be allowed.<br /> <br /> 17. In the result, this O.P is allowed, thereby the complainant is allowed to realise Rs.50/- (Rupees Fifty only), the consignment charges paid by him and Rs.2,960/- (Rupees Two thousand nine hundred and sixty only), the price of the sarees lost in consignment with interest at the rate of 12% per annum from the date of the O.P till this date and thereafter at 6% interest per annum till whole payment from the opposite parties. The opposite parties are also directed to pay Rs.1,500/- (Rupees One thousand five hundred only) as compensation for the mental agony, financial loss and other inconvenience caused to the complainant. As there is no prayer for cost, no cost allowed.<br /> <br /> 18. The amounts so awarded as per this order will have to be paid by the opposite parties jointly and severally within two months from the date of receipt of this order.<br /> <br /> Declared in the Open Forum on this the 12th day of May, 2008.<br /> Sd/-<br /> Lathika Bhai,<br /> (Member). <br /> Sri. Jacob Stephen (President) : Sd/-<br /> <br /> Sri. N. Premkumar (Member) : Sd/- <br /> <br /> Appendix<br /> <br /> Witness examined on the side of the complainant:<br /> PW1 : Vijayakumar.P.N.<br /> Exhibits marked on the side of the complainant:<br /> A1 : Receipt for Rs.50/- issued by the 1st opposite party to the complainant.<br /> A2 : Photocopy of declaration dated 16.2.2002.<br /> A3 : Photocopy of delivery chalan for return goods dated 16.2.2002.<br /> A4 : Letter dated 30.12.2002 sent by Sri. Gajanana Trading Corporation,<br /> Bangalore to the complainant.<br /> A5 : Letter dated 7.1.2003 sent by Sri. Gajanana Trading Corporation,<br /> Bangalore to the complainant.<br /> A6 : Letter dated 29.1.2003 sent by Sri. Gajanana Trading Corporation,<br /> Bangalore to the complainant.<br /> A7 : Letter dated 29.5.2003 sent by Sri. Gajanana Trading Corporation,<br /> Bangalore to the complainant.<br /> A8 : Letter dated 1.1.2004 sent by Sri. Gajanana Trading Corporation,<br /> Bangalore to the complainant.<br /> A9 : Copy of letter dated 23.9.2002 issued to the 1st opposite party by the<br /> complainant.<br /> A9(a) : Postal receipt.<br /> Witness examined on the side of the opposite parties:<br /> DW1 : Surendran<br /> Exhibits marked on the side of the opposite parties:<br /> B1 : Conditions of Carriage of Ext..A1 overleaf.<br /> B1(a), B1(b), B1(c), B1(d), B1(e) : Condition Nos.6,9,10,5 and 4 of Ext.A1 overleaf.<br /> <br /> By Order,<br />