DOF.7.11.2008

DOO.6.10.2010

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

                                      Dated this, the 6^th    day of  October 2010

C.C.No.310/2008

T.K.Moossa,

Puthalath House,

Kolavalloor Amsom,

Thoovakkunnu Desom,

P.O.Thoovakkunnu,

Thalassery.                                                       Complainant

(Rep. by Adv.P.V.Zainudheen)

     1.     Manager,

             DTDC Courier and Cargo Ltd.,

             Pilakandi Plaza,

             AVK Nair Road, Thalassery.

    2.  Managing Director

          DTDC Courier & Cargo Ltd.,

          DTDC House No.3,

          Victoria Road,

          Bangalore 47.                                       Opposite parties

          (Rep. by Adv.Binu Mathew)

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section 12 of consumer protection act for an order directing the opposite parties to pay an amount of Rs.1, 00,000/- as compensation together with the cost of the proceedings.

            The case of the complainant in brief is as follows: Complainant entrusted the 1^st opposite party a parcel to deliver to Vayalil Muhammed, UAE. He has paid Rs.1200/- as fees. But opposite party did not deliver the same to Mr.Muhammed. The above said parcel contains some valuable documents in connection with his employment in Gulf. It is understood that the above said parcel was missed from the opposite arty due to negligence. Complainant suffered a lot of mental agony and monitory loss. He estimates his loss as an amount of rs.1, 00,000/-. Complainant sent lawyer notice on 24.10.2008 to pay an amount of Rs.1, 00,000/- as compensation. Opposite party did not even send a reply. It is clear that the parcel lost in transit due to lack of his prompt service. Hence this complaint.

            Pursuant to the notice opposite parties 1 and 2 entered appearance. Both parties filed version much late paying cost. 1^st opposite party though filed version remained absent at the evidence stage and thus he was declared exparte.

The contents of the version filed by 1^st  opposite party in brief are as follows: The complaint is not maintainable. There is no such a post of Manager as stated by complainant in this institution. 1^st opposite party is only an agent of DTDC Courier and Cargo Ltd. There is agent and other staffs in this institution. Complainant did not entrust any parcel as he has stated in the complaint. Complainant’s statement that he has entrusted a parcel to send in the address of Vayalil Muhammed, Delight Grocery,           Near palm Beach Hotel, Khalid Bin, Walled Road, UAE and paid Rs.1200/- for remuneration is  lie stated only for the sake of complaint. Complainant has not stated anywhere in the complaint what are the documents he has entrusted in the parcel, which only shows his ill motive. The liability of the opposite party for any loss or damage to the shipment is Rs.100/- only. So also currency, jewellery, certificates, passport etc. should be sent through courier and opposite party will not do so.  There is no base for asking

 Rs.1, 00,000/-  as compensation. Hence to dismiss the complaint.

Opposite party filed version contending as follows: Complainant is not a consumer. The complainant has not hired any service for consideration from 2^nd opposite party. No consideration either in part or full was paid by the complainant or for that matter by the first opposite party to this opposite party. The liability of the opposite party under the contract for carriage with the consignor is limited to one hundred US Dollars (USD100#) in case of loss of consignments with regard to international consignment and to Rs.100/- with regard to local consignment. There is no allegation against 2^nd opposite party. The relationship between 1^st opposite party and 2^nd opposite party is on principal to principal basis and 2^nd opposite party is not liable for the wrongs done by 1st opposite party. 1^st opposite party is only a franchise of 2^nd opposite party. The complainant had not entrusted any consignment with this opposite party nor did they receive any amount from complainant. The averments are only against 1^st opposite party. The complainant has not given any details regarding the contents of the parcel which he alleges to have sent to the consignee in UAE through the 1^st opposite party. No international consignment parcel was received either form the complainant or from 1^st opposite party by 2^nd opposite party. So there is no question of loosing the parcel.  The complainant had not declared the contents in neither the consignment nor its value while allegedly entrusting the same with 1^st opposite party. Complainant did not even disclose the date of booking or consignment number. The consignment leaf for international bookings and for inbound local bookings is entirely different. As per records the consignment bearing No.009355940 as produced by the complainant is a local consignment that was booked on 14.10.2008 by the 1^st opposite party to be delivered at Malappuram. The said consignment is not booked by the complainant herein but by some other consignor. The said consignment was promptly delivered to the consignee. The above complaint is without any merits. The same is not maintainable against this opposite party. Hence to dismiss the complaint in the interest of justice.

            On the above pleadings the following issues have been taken for consideration.

1. Whether the complainant is a consumer and Forum has jurisdiction to try the

     case?

2. Whether there is any deficiency on the part of opposite parties?

3. Whether the complainant is entitled for the relief as prayed?

4. Relief and cost.

            The evidence in this case consists of the oral evidence of PW1, Exts.A1to A4 and B1.

Issues 1 to 4

            A parcel which contains valuable documents has been entrusted   with 1^st opposite party to deliver the same to Vayalil Muhammed, Delight Grocery UAE by the complainant but that is not delivered by1st opposite party is the main case of the complainant.  1^st opposite party on the other hand contended that complainant did not entrust any such parcel as stated in the complaint to  1^st opposite party and no remuneration received by him. 2^nd opposite party contended that complainant has not hired any service for consideration from 2^nd opposite party. The relationship between 1^st opposite party and 2^nd opposite party is on principal to principal basis and 2^nd opposite party is not liable for the wrong done by 1^st opposite party.

            Complainant filed chief affidavit in tune with the pleadings. He has stated in the proof affidavit that on  30.8.08 he entrusted 1^st opposite party a parcel to deliver to Vayalil Muhammed, Delight Grocery, Near Palm Beach Hotel, Khalid Bin Waleed Road, UAE and paid an amount of Rs.1200/- as charge. Ext.A1 is the receipt issued by DTDC, Thalassery the 1^st  opposite party. The amount shown is correct Rs.1200/- as stated by complainant. The address of the 2^nd opposite party is printed at the top of receipt attracting the notice of all as “DTDC Courier & CARGO LIMITED Regd. Office. DTDC House, No.3, Victoria Road, Bangalore 47. the same receipt contains the shipper name receiver name and address. Shipper Name is T.K. Moosa, the complainant. The Receiver name and address are shown as follows: Vayalil Mohammed, Delight Grocery, Nr.Palm Beach Hotel, Khalid Bin Waleed Road, UAE, and P.B.No.19918. The consignor signed in the receipt on 30.8.08. It has specifically printed in bold legible letters readable to every body easily as thus: “we also have international service”.

            Ext.A1 proves that 1^st opposite party has received an amount of Rs.1200/- from complainant to send the consignment to Vayalil Mohammed, UAE. The consignment note is issued by booking branch Thalassery 1^st opposite party whose registered office is shown at this top of the note at Bangalore that also reveals the relation ship between opposite parties 1 and 2.

            Ext.A2 dated 24.10.2008 is the copy of the lawyer notice to 1^st opposite party. The notice contains the allegations that the complainant entrusted 1^st opposite party on 30.8.08 to deliver a parcel to Vayalil Muhammed UAE and for that he has received Rs.1200/- from complainant. The notice further stated that the parcel has not yet been delivered to the addressee Vayalil Muhammed. It has also mentioned that the complainant understood that the said parcel was lost from1st opposite party due to negligence. 1^st opposite party was also informed the estimated loss of complainant as Rs.1, 00,000/- and called upon to pay the amount as compensation. Ext.A3 receipt and Ext.A4 acknowledgement proves that complainant has sent the lawyer notice to 1^st opposite party. But 1^st opposite party has not sent any reply to this notice which itself is undoubtedly a deficiency in service.

            1^st opposite party has raised certain contentions in his version while attempting to place answers to the allegations of the complainant. Opposite party contended that complainant has not entrusted a parcel as is stated in the complaint to send to the address Vayalil  Muhammed, Delight Grocery, Near Palm Beach Hotel, Khalid Bin Waleed Road, UAE. But he has not given explanation for the reason why the above said same address is written in Ext.A1 in the column Receiver Name and address. What does it mean? What is the purpose for which this address is written therein in the specified column of Receiver Name and address? Opposite party also contended that they have not received any amount from complainant. It can be very well be seen written in Ext.A1 in the column ‘total amount’ as Rs.1200/- there is no need of more explanation to say that opposite party’s contention is utter false hood. 1^st opposite party filed version but at the evidence stage he remained absent as a tactical approach to face the defence standing behind the curtain, which only reveals his style of unfair trade practice in dealing the affairs.

            The way in which the 1^st opposite party conducted the case and the non reply of lawyer notice is large and enough to establish the case of the complainant 1^st opposite party failed to discharge his obligation in answering the relevant questions raised against him. Obfuscating the actual facts of truth by mere denial will not in any way help to save the position of 1^st opposite party. 2^nd opposite party also cannot escape from the liability since the consignment note Ext.A1 issued to complainant is printed showing the address of 2^nd opposite party. 2^nd opposite party is not a stranger to 1^st opposite party. Ext.A1 shows that 1^st opposite party is the branch. Address of 2^nd opposite party is given in the top as head office. Knowing well that consignment note is issued in the name of 2^nd opposite party if no action has been taken against 1^st opposite party it can very well be considered that it is nothing but unfair trade practice. Action is not being taken since there is consent which itself constitutes the liability for the negligent act of 1^st opposite party. 2^nd opposite party has kept silent with the contents of Ext.A1 knowingly to hide the actual link between opposite parties 1 and 2.  2^nd opposite party produced Ext.B1 document. It is booked by Tellicherry, Cannanore on 14-10-2008 where as Ext.A1 booked on 30-8-2008. Hence what is to be proved by Ext.B1 is not clear. No other evidence adduced neither by 1^st opposite party nor by 2^nd opposite party. Though complainant was elaborately cross examined by 2^nd opposite party nothing could be brought out to shake the evidence of complainant. Hence we are of opinion that complainant is succeeded in proving deficiency of service on the part of 1^st opposite party for which 2^nd opposite party is also answerable.

            Anyhow complainant could not produce adequate materials to prove his real loss. Though he has stated that valuable documents are lost he was not able to convince the Forum the actual loss that he has sustained. Hence we are not in a position to award an amount as it is prayed by the complainant. We are under the impression that an amount of Rs.5000/- as compensation will meet the ends of justice. Complainant also entitled for a sum of Rs.1000/- as cost of this proceedings. Thus issues 1 to 4 are found in favour of complainant.

            In the result, the compliant is allowed partly directing the opposite parties to pay a sum of Rs.5000/- (Rupees Five thousand only) as compensation together with an amount of Rs.1000/- (Rupees One thousand only) as cost of this proceedings within one month from the date of receipt of this order        , failing which the complainant is entitled for 12% interest p.a from the date of order to the realization of the amount. The complainant is at liberty to execute the order against opposite parties under the provisions of consumer protection Act.

                              Sd/-                            Sd/-                              Sd/-

                        President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Receipt issued by OP

A2. Copy of the lawyer notice sent to OP

A3. & 4.  Postal receipt and AD card

Exhibits for the opposite parties

B1. Copy of delivery report of consignment dt.15.10.08.

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties: Nil

                                                                                    /forwarded by order/

                                                                                    Senior Superintendent

Consumer Disputes Redressal Froum, Kannur.