Karnataka

Belgaum

CC/23/2015

TSS Service Solution Pvt Ltd. Rep By Branch Manager Milind S Walvekar - Complainant(s)

Versus

The Managing Director Track on Courier Pvt Ltd - Opp.Party(s)

K M Walvekar

23 Jun 2017

ORDER

                 

ADDITIONAL  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BELAGAVI

C.C.No.23/2015

 

                     Date of filing: 08/01/2015

 

                                                                  Date of disposal: 23/06/2017

P R E S E N T :-

 

 

	(1)	Shri. A.G.Maldar, B.Com,LL.B. (Spl.) President.
	(2)	Smt.J.S. Kajagar, B.Sc. LLB. (Spl.)  Lady Member.

 

COMPLAINANT          -

M/s. TSS Service Solution Pvt. Ltd., Rep. by its Branch Manager, Shri. Milind S/o Surendra Walvekar, R/o: Shop No.9, Cantonment Complex, Khanapur Road, Camp, Belgaum, Tq: & Dist.Belgaum.                       (Rep. by Sri.K.M.Walvekar, Adv.)

- V/S -

 

OPPOSITE PARTIES   -

1.             2.             3.

The Managing Director, Track on Courier Pvt. Ltd., R/o: Head Office, A-64, Naraina, Industrial Area, Phase-I, Near PVR, Naraina, New Delhi-110028.   The Manager, Track on Courier Pvt. Ltd., R/o: 219, 1st Main Road, 5th Cross, Domlur Layout, Bangalore-560071.                                    (Op.No.1 & 2 Ex-parte)   The Manager, Track on Courier Pvt. Ltd., R/o: Shop No.3, Cantonment Complex, Khanapur Road, Camp. Belgaum.                            (Rep. by Sri.S.N.Goudar, Adv.)

JUDGEMENT

 

By  Sri.A.G. Maldar, President.

 

 

1.      This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as Act) against the Opposite Parties (in short the “Ops”) directed to trace and return the misplaced parcel bearing consignment No.356596225 or to replace the said Apple Mobile Model
No. “I Phone – 5C” or the cost of the mobile i.e. Rs.45,000/- and Rs.3,00,000/- towards Compensation for mental harassment and any other reliefs.  

 

2.      The facts of the case in brief are that;

 

          It is case of the complainant that, the complainant is a service/solution provider for repair of Apple Mobiles and further one of the customers of the complainant from Nanded, Maharashtra i.e. ‘Rajshree Mobile Dealer’ had sent an Apple Mobile Model No.”I Phone 5C” for the repair of certain defects and for servicing of the said handset on 04.07.2014 and further contended that, after rendering the services for the said defects, the complainant has dispatched the same through Op.No.3 courier services on dtd: 14.07.2014 vide consignment No.356596225.

 

          It is further complainant contended that, the said consignment sent on 14.07.2014 was dispatched from Belgaum to Bangalore, then from Bengalore to Delhi, then from Delhi to Mumbai, then from Mumbai to Aurangabad and lastly from Aurangabad to Nanded through OP.No.3 and further on reasonable enquiry, he came to know that, the said consignment has been misplaced by the Ops. On initial enquiry made by the complainant, the Ops had assured the delivery of the consignment within 4 days from the date of dispatch i.e. 18.07.2014, but till this day the consignment is still not traceable and further the complainant has communicating with the Ops about the status of the search promised by them through e-mails and by giving written complaints, but the bonafide effort made by the complainant was not fruitful, as there was no communication in respect of the said consignment on the part of the Ops.

 

          It is further complainant contended that, the user of the said misplaced mobile has been frequently calling the complainant’s customer and pressurizing him to replace the misplaced mobile with a new one or to pay Rs.45,000/- cost of the said misplaced mobile i.e. Apple Mobile Model No.”I Phone 5C” and complainant’s customer inturn is insisting the complainant to bear the consequences of such negligent act of the Ops. Finally, the complainant has issued a legal notice on dtd: 26.09.2014 calling upon the OP to reimburse the loss bared or to trace and return the lost parcel under the consignment No.356596225. But, the OP has not replied to the said notice nor complied with it and OP has kept on making oral promises and has misguided the complainant. Therefore, there is deficiency in service on the part of the OPs. Hence, the complainant is constrained to file this complaint.

         

3.      After issue of notice to the OPs, the OP.No.1 & 2 have neither appeared nor filed any version. Hence, the Hon’ble Forum considered the OP.No.1 & 2 are placed Ex-parte. The OP.No.3 has appeared through his Counsel and resisted the claim of the complainant is false, frivolous and vexatious and same is deserves to be dismissed in limine.

 

          It is further case of the OP.No.3 that, the complainant has booked for consignment on dtd: 14.07.2014 by this Op.No.3, the OP.No.3 is denied that, the consignment contains a mobile phone wherein the consignment booked under consignment and further the complainant has not declared the value of goods consigned at the time of booking the consignment, even he has been asked for the content of the consignment and its value and further contended that, it is the bounden duty of the customer to disclose the contents and its value of the consignment. The Op.No.3 on discloser of the same is at liberty to accept the same or not and further, if the said consignment is valuable one then the Op.No.3 will arrange to deliver the same by way special service “Prime Track” services on higher service charges and further contended that, the OP.No.3 taking ordinary charges dispatched the same through its main office at Bangalore and fulfilled its part of obligation and there is no deficiency in service on the part of the Op.No.3.

             

          It is further case of the OP.No.3 that, neither any value of the articles was declared at the time of booking of the articles for delivery through courier service nor any bill was shown or produced before this OP.No.3 courier service. In absence of any such material, the complainant is not entitle for any award by this Forum. Therefore, he is stopped from contending that, the value of the equipment was Rs.45,000/- and further contended that, the complainant is a service solutions Pvt. Ltd., ought to have taken all care and caution while entrusting the consignment. The package was not even insured. He supposed to have taken care and insured the package, the non-delivery of the consignment, the liability of the Op.No.3 is restricted to Rs.100/- as per the terms and conditions of the consignment letter. The complainant has not come with any concrete proof about the bill etc., and complainant has not come to the court with clean hands and in absence of proof the complaint of the complainant cannot be entertained and same is deserves to be dismissed with cost. 

 

4.        The Adv. for complainant has filed his affidavit in support of his case and produced 06 documents which are marked as Ex.P-1 to Ex.P-6, and on behalf of the OP.No.3 has filed his affidavit and also filed 02 documents and same are marked as Ex.R-1 & Ex.R-2, for sake of our convenience, we have marked as P & R series. The complainant neither filed written argument nor oral argument, but the Adv. for Op.No.3 has filed his written argument, the argument of both sides taken as heard.

 

          Now on the basis of these facts, the Points that would arise for our consideration are as fallows;

 

01. Whether the complainant has proved that there    

 is deficiency in service on the part of the OPs?

 

02.To what relief the parties entitled?

 

5.     Our findings to the above points are as under:

 

1. Partly Affirmative. 
2. As per the final order for the following:

 

R E A S O N S

 

6.    POINT NO.1:  Admittedly, the complainant booked one consignment article on dtd: 14.07.2014 vide consignment No.356596225. It is also not in dispute that, the Op.No.3 has collected the articles charged Rs.50/- on dtd: 14.07.2014. The Op.No.3 in the instant case denied the consignment which consists of Apple Mobile IPhone, but absolutely there is no explanation regarding the articles as alleged by the complainant regarding IPhone its value before the Forum. The case of the complainant that, one of the customers of the complainant from Nanded, Maharashtra i.e. ‘Rajshree Mobile Dealer’ had sent an Apple Mobile Model No.IPhone 5C for the repair of certain defects and for servicing of the said handset on 04.07.2014 and further case of the complainant that, after rectification of the defects in the said mobile handset, the complainant has dispatched the same through Op.No.3 courier services on dtd: 14.07.2014 vide consignment No.356596225.

 

          In order to prove the said contention in support of his case complainant filed affidavit evidence only and he has not attempt to convenience the Forum regarding said consignment which consist of IPhone which is packed. So in our consider opinion, the complainant ought to have disclosed the all material facts of consignment, but the complainant neither disclosed regarding IPhone nor produced the material bill nor explain regarding the said consignment consist of valuable article i.e. Rs.45,000/- and even the complainant did not lead the evidence of owner of IPhone mobile to hold that, the said consignment consists of Apple IPhone Mobile 5C with cost of Rs.45,000/- before the OP.No.3 courier by the complainant.       Merely booking a consignment article without mentioning or disclosing that, the said consignment is very costly IPhone, though the complainant having a knowledge regarding IPhone and he is a service solutions Pvt. Ltd., ought to have taken all care and caution while entrusting the consignment article before the Op.No.3. So, in our consider view, if the said consignment is valuable one then the Ops will arrange to take extra care and deliver the same by way of special service i.e. “Prime Track” services by imposing on higher service charges towards said consignment as alleged by the complainant and even by perusing the pleading of complainant it is found that, the complainant has booked the consignment by giving ordinary charge i.e. Rs.50/- which is already marked as Ex.P-1. Therefore, in our consider view, the complainant has failed to substantiate the contention as alleged in the complaint as well as affidavit evidence and also has failed to produced cogent material document to hold that, the alleged contention has proved beyond reasonable doubt and further it is not the case of the complainant that, at the time of booking the said consignment he has disclose each and everything by explaining the said consignment consist of valuable mobile i.e. Apple IPhone 5C mobile. There is no any case as alleged in respect of mobile and there is no any explanation in detail regarding the mobile phone, but it is beyond the thought of a ordinary prudence that the consignment consists as alleged by the complainant. Hence, the said contention as alleged in the complaint is not believable and it is not acceptable. Therefore, the complainant has not proved regarding consignment consist of IPhone as alleged in the complaint, so in our consider view that, the complainant is not entitled for cost of IPhone.

 

          The learned counsel for the OP.No.3 stated that, at the time of booking the said consignment the complainant has not disclosed each and everything by explaining the said consignment article which consist of valuable mobile i.e. Apple IPhone 5C mobile and further stated in the written argument the liability is restricted as per terms and conditions of courier which is printed as the liability is limited to Rs.100/- and further stated that, when the complainant is not disclosed regarding the article, the courier company was not liable to pay any compensation and it was not responsible of Op.No.3.

 

          In order to establish the contention the OP.No.3 has not produced any cogent material document and acceptable evidence towards the said consignment has delivered to the addressees and even has not made any effort to furnish any explanation for not delivered the same and even there is not even whisper in the written version as to whether any enquiry was conducted towards to cause for not delivered the said consignment to the addressee.

 

          So, under these circumstances is manifest from the above observation, there is a negligence on the part of Ops towards not delivered the said consignment to the addressee  and even the complainant has also not proved regarding IPhone as alleged in the complaint, so the complainant is not entitled for the IPhone. For that proposition, we refer a cardinal principle of law, the burden of proving the fact rests on their party who asserts the affirmative issues and not on the party who denies it. Nevertheless, there is distinction phrase ‘burden of proof’ and ‘ onus of proof ’ there is essential distinction between burden of proof and onus of proof. Burden of proof lives on the person who has to prove a fact and it never shifts, but the onus of proof shifts. In the instant case, the burden of proof lives on the complainant, the complainant fails to prove the burden of proof which is lives on him.       

          However, the OPs are responsible for the consignment which is booked before the Trackon Couriers Pvt. Ltd., At this juncture, we have no hesitation to hold that, the OPs have not delivered the consignment to the addressees, for that proposition, the Ops are not produced a single document to show that, the said consignment is reached/delivered to the addressees as address given by the complainant to the OP.No.3.

 

     However, the consignment received by the OP.No.3 which is not disputed and it is clearly shown that, the consignment article has been sent to sub-branches of OP.No.3 office and they were handed over to OP.No.1 & 2 for due service. We are of the considered view that under the circumstances of Op.No.3 the collected article and issued receipts and in the event of showing the same in daily collection report it is the bounden duty of the Op.No.3 to serve/deliver the consignment article to the addressees. The Op.No.3 infact in a better position to disclose exactly on what date the said consignment were served to the addressees.

 

     Strangely enough the OP.No.3 denied the entire case of Complainant which is untenable in law. It is also necessary to mention here that, the Complainant has got issued a legal notice dated: 26.09.2014 calling upon to pay the compensation for the deficiency in service, but it was not at all reply by the OPs. Hence, we are of the considered view that the Ops denied the entire case of the Complainant which is unsustainable in law. On the strength of the affidavit of the Complainant coupled with documentary evidence referred above the only irresistible conclusion that arises is that the OPs are guilty of deficiency in service not delivered the consignment to the proper addressees.

 

          Therefore, the Ops cannot be escape its liability to pay compensation for loss of said article and the loss suffered by complainant on account of not delivered the said consignment and the Ops merely by taking shelter as per terms and conditions of courier receipt is not sufficient to accept the contention of OP.No.3, for that proposition, we would like to refer a decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi and wherein the Hon’ble Forum, specifically observed in case of Thiruvalluvar Transport Corporation Ltd., V/s A.Marimuthu and others reported in 2011 CTJ 62 that ‘by merely printing the clause on the receipt that they were not liable for any loss or damage they could not get away from their moral and legal liability’. In the light of the above referred principle, the contention that liability if any is restricted to Rs.100/- cannot be accepted at all.

 

          Here in the instant case, it is proved that the OPs have not delivered the consignment article to the addressees. Therefore, having regard to the facts and circumstances of the case, taking into consideration that, it would be just and proper to award a compensation of Rs.15,000/ regarding negligence on the part of Ops for not delivered the consignment to the addressee. Further, we also award litigation expenses of Rs.2,000/-. In the result, we proceed to pass the following:

  

O R D E R

 

For the reason discuss above, the complaint filed by the complainant U/s 12 of the C.P. Act – 1986 is here by partly allowed.

 

The Ops jointly and severally are hereby directed to pay compensation of Rs.15,000/- to the complainant.  

 

The OPs jointly and severally are directed to pay a sum of Rs.2,000/- towards litigation expenses to the complainant.

 

The OPs are granted 10 weeks time for compliance of this order, failing to which the OPs are liable to pay together with interest @ 8 % p.a. from the date of this order till realization.  

 

             (This order is dictated to the Stenographer, transcript edited, corrected and then pronounced in the open forum on this  23^rd day of June, 2017).

 

Sri. A.G.Maldar,     President.

Smt. J.S. Kajagar,    Lady Member.