BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI .A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 55/2004 Filed on 29/01/2004

Dated: 31..01..2011

Complainant:

Sreenivasan, Mankoottam Veedu, R.C. Street, Neyyattinkara, Thiruvananthapuram.

(By Adv. Vijaya Mohan. R)

Opposite parties:

1. The Manager, First Flight, First Flight Couriers Ltd., RHOXL/986 TD Road, Cochin.

2. First Flight Couriers Ltd., Reg. Office – 505, Cotton Exchange Building, Kalbadevi Road, Mumbai – 400 002.

3. The Manager, First Flight Couriers Ltd., Chenthitta, Choorakkattupalayam, Thiruvananthapuram.

    

(Opp. Parties 1 to 3 by Adv.G.S. Kalkura)

This O.P having been heard on 15..01..2011, the Forum on 31..01..2011 delivered the following:

ORDER

SHRI.G. SIVAPRASAD, PRESIDENT:

The facts leading to the filing of the complaint are that, complainant on 19/11/2003 had entrusted a consignment to 3^rd opposite party for delivery to R.S. Raj Kumar, who was working in Army Head Quarters at Delhi, that 3^rd opposite party assured that the said consignee would be delivered on the very next day, that 3^rd opposite party had collected Rs.59/- as charges from the complainant and acknowledged the same vide a bill dated 19/11/2003, that as consignee had not received the said consignment, complainant had sent Lawyer's notice to opposite parties, and that the 1^st opposite party is the Manager of the Regional Office at Cochin and 2^nd opposite party is the Head Office at Mumbai. Opposite parties have not responded to the notices issued by complainant. It is submitted by the complainant that the act of the opposite parties amount to unfair trade practice and deficiency in service. Hence this complaint to direct opposite parties to pay a compensation of Rs. 15,000/- for the loss sustained to the complainant along with compensation for mental agony and cost of the complaint.

2. opposite parties entered appearance and filed version contending inter alia that the complaint is not maintainable either in law or on facts, that opposite parties are not aware of the status of the complainant nor his occupation, that complainant had submitted a consignment which weighed less than 100gms to be delivered to the consignee one Rajkumar at Delhi, that the consignor was informed of the fact that the delivery of the consignment will be subject to the terms and conditions stipulated in the overleaf of the consignment copy, that at the time of entrustment of consignment by the complainant he had never declared the contents of the consignment, that opposite party on the same day on receipt of the consignment itself had despatched the said consignment to the Delhi Office by Air, that opposite parties Office at Delhi had received the consignment on 20/11/2003 along with other articles but the same could not be delivered, that on receipt of the Advocate notice sent by complainant, opposite party had personally called upon the complainant requesting him to reveal the contents of the consignment, to which complaint on one pretext or other was avoiding the same, that there has been no unfair trade practice on the part of the opposite parties, that the allegation that complainant has sustained a loss of Rs. 15,000/- on account of the non-delivery of documents are baseless and are denied. The claim for compensation are highly excessive, exaggeration and exorbitant. Hence opposite parties prayed for dismissal of the complaint with compensatory cost.

3. The points that arise for consideration are:

1. Whether there is deficiency in service on the part of the opposite parties?

    

2. Whether complainant is entitled to compensation. If so, at what amount?

    

3. Whether complainant is entitled to cost of the proceedings?

In support of the complaint, complainant has filed affidavit in lieu of chief examination and has marked Exts. P1 to P6. In rebuttal, opposite party has filed affidavit. Opposite party has not furnished any documents.

4. Points (i) to (iii): It has been the case of the complainant that on 19/11/2003 complainant had entrusted a consignment to 3^rd opposite party for delivery to Sri. Rajkumar R.S, who was working in Army Head Quarters at Delhi, that the 3^rd opposite party had assured that the said consignment would be delivered to the consignee on the very next day, and that opposite party had collected Rs. 59/- from the complainant as charges and acknowledged the same vide bill dated 19/11/2003. Ext. P1 is the bill issued by opposite party to the complainant. It has also been the case of the complainant that the said Raj Kumar. R.S has not so far received the said consignment and opposite parties failed to deliver the said parcel to the consignee. There is no dispute regarding the issuance of Ext. P1 bill. Ext. P2 is the passenger ticket issued by Air India for travel from Thiruvananthapuram to Mumbai. Ext. P3 is the Boarding Pass issued by Air India to the complainant on September 30, 2003. Ext. P4 is the copy of the Advocate notice addressed to opposite parties calling upon them to pay compensation or damages to the complainant within 7 days from the date of receipt of the notice. Ext. P5 consists the postal receipt and document showing Under Certificate of Posting. Ext. P6 is the acknowledgement card. It has been the case of the complainant that due to non-delivery of the said consignment he had incurred a loss of Rs. 15,000/-. He had also sustained mental agony. The stand of the opposite party is that complainant submitted a consignment weighing less than 100 gms., and he was also informed of the fact that the delivery of the consignment will be subject to the terms and conditions stipulated overleaf of the consignment copy. It has been contended by the opposite parties that opposite parties had despatched the consignment to the Delhi Office by Air on the date of registration itself, that opposite parties Office at Delhi had received the consignment on 20/11/2003 along with other articles. Admittedly, the said consignment could not be delivered to the consignee. It has further been contended by the opposite parties that on receipt of Ext. P4 Advocate notice, opposite parties had personally called upon the complainant requesting him to reveal the contents of the consignment. It has also been contended by opposite parties that complainant responded that he did not wish to pursue the complaint as the documents were not of much importance at value and therefore the opposite parties bonafidely believing that the complainant would not pursue the matter did not choose to issue the reply. On perusal of Ext. P1 it is seen that complainant has never revealed / declared the contents of the consignment, nor has he revealed the nature of articles sent by him in the complaint. It is seen averred in the proof affidavit by the complainant that he has submitted Exts. P2 & P3 in order to show his journey to Delhi to meet the consignee in connection with the non-delivery of the consignment by the opposite party. But there is no plea in the complaint to the effect that he went to Delhi to meet the consignee in connection with the non delivery of the said consignment. But in his cross examination complainant has deposed that he is an Artisan by profession and he went to Delhi via Mumbai by Flight to meet the consignee, who is the friend of him. In his cross examination he has deposed that the contents of the consignment included Central Excise License Certificate (attested copy of the Central Excise License Certificate) and original Order permiting him to exhibit his products in the stall and the said documents were very valuable. He has further deposed that the said Central Excise License Certificate permitted him to make Metal Ornaments and Sculptures. He has further deposed in his cross examination that he could not exhibit his handicrafts due to the non-delivery of the said consignment to the consignee. Admittedly, complainant has not revealed the contents of the consignment. It remains the fact that consignor has not signed the consignment note. It is pertinent to note that the terms and conditions are printed overleaf of Ext. P1 consignment note. It is the case of the complainant that the consignment contained valuable articles. A perusal of Ext. P1 would show that the complainant had not declared the value of the contents of the consignment. Non delivery of the consignment is admitted by both the parties. Non delivery of the consignment would definitely amount to deficiency in service on the part of the opposite parties. It is to be noted that as regards the quantum of compensation no such agreement had taken place between the complainant and opposite parties as such the liability of the opposite parties due to non delivery of the consignment will never be restricted to the terms and conditions stipulated in the overleaf of the Ext. P1. It is pertinent to note that complainant has not signed in Ext. P1 consignment note. As complainant has not signed in the consignment note, there is no meeting of minds between parties to create a contract. The onus of proving that compensation is subject to the terms and conditions would lay on the opposite party. There is no cogent evidence to prove that there is any contract / agreement between the complainant and opposite parties which restricts the compensation subject to the terms and conditions stipulated in the overleaf of the consignment note. It is the settled position that meeting of mind is essential and in the absence of meeting of mind any terms relating to limited liability would not be part of the contract and ordinary liability would flow in case of deficiency in service. It is clear from Ext. P1 that complainant had sent consignment through Courier Service, but the value of the contents was not declared in Ext. P1. The contents were declared only in cross examaination of the complainant by the opposite parties. Complainant has never revealed the contents in complaint or affidavit. Considering all aspects of the case and submissions of the complainant and opposite parties as well as the evidence on the record in our opinion an amount of Rs. 5,000/- as compensation would meet the ends of justice.

In the result, complaint is allowed. Opposite parties shall jointly and severally pay a sum of Rs. 5,000/- as compensation to the complainant along with Rs. 1,000/- as cost. The said amounts shall carry interest @ 9% per annum if not paid within 2 months from the date of receipt of this order.

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.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 31^st day of January, 2011.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI .A,

MEMBER.

S.K. SREELA,

MEMBER .

ad.

O.P.No: 55/2004

APPENDIX

I. Complainant's witness:

PW1 : S. Sreenivasan

II. Complainant's documents:

P1 : Consignment note dated 19/11/2003

P2 : Passenger ticket & Baggage check

P3 : Boarding pass issued by Air India to the complainant

P4 : Copy of letter dated 5/12/2003

P5 : Copy of certificate of posting and postal receipt

P6 : Acknowledgement card

III. Opposite parties' witness:

DW1 : Samson. J

4. Opposite parties' documents : NIL

PRESIDENT