Andhra Pradesh

East Godwari-II at Rajahmundry

CC/41/2015

Yerra Srinivas - Complainant(s)

Versus

The Managing Director,ANL Parcel Service - Opp.Party(s)

Ch.S.K.V.Suryaprabha

06 Jun 2016

ORDER

                                                                                                Date of filing:   06.07.2015

                                                                                                Date of Order: 06.06.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                       PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                           Monday, the 6^th day of June, 2016

 

 

C.C.No.41 /2015

Between:-

 

Yerra Srinivas, S/o. Basava Mallayya,

Aged 34 years, Business, Veeravaram,

Kadiyam Mandal.                                                                          …        Complainant

 

                        And

 

1)  The Managing Director,

      ANL Parcel Service,

      D.No.5-9-30/1/5/B, Road No.4,

      Basheerbagh Palace Colony,

      Hyderabad – 63.

 

2)  ANL Parcel Service,

      Mandapeta Branch, Alamuru Mandal,

      E.G. District.                                                                     …        Opposite parties

  

 

            This case coming on 02.06.2016 for final hearing before this Forum in the presence of Sri M.R. Satya Sai, Advocate for the complainant and Sri P.L.N. Prasad, Advocate for the opposite parties, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Smt.H.V. Ramana, President(FAC)] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties to pay Rs.40,000/- towards cost of the goods lost in the transit and Rs.1,00,000/- towards damages and compensation for causing mental agony and physical strain to the complainant;  pay Rs.10,000/- towards expenses for phone calls and pay Rs.5,000/- towards costs of this complaint.

2.         The case of the complainant is that he is a resident of Veeravaram village and he is doing communal profession namely weaving sarees and other clothes at Veeravaram.  One Kanchi Saree Mandir of Karimnagar booked 20 sarees worth Rs.2,000/- each and requested the complainant to send those sarees by parcel on credit basis. As per the understanding between the complainant and the said Kanchi Saree Mandir, Karimnagar, they have agreed to receive the parcel by paying the charges for the transport and after receipt of the parcel, they will make payment through bank account. As per the order placed by Kanchi Saree Mandir, Karimnagar, the complainant booked the parcel on 17.1.2015 in the 2^nd opposite party branch at Mandapeta with a freight charge of Rs.293/- payable by addressee and later it came to light that the said parcel has not reached the destination. Few days after making enquiry with the consignee, the complainant approached the 2^nd opposite party to verify whether the parcel was sent to the consignee or not. After verifying the record, the 2^nd opposite party informed to the complainant that they will make enquiry as to why the parcel did not reach the consignee. Even after several days, there was no communication from the 2^nd opposite party, he directed the complainant to submit a representation to the 1^st opposite party. The complainant submitted a representation to the 1^st opposite party on 5.2.2015 by registered post and the 1^st opposite party having received the said representation failed to give any information regarding the said parcel and so far the parcel was not returned to the complainant. The complainant got issued a legal notice dt.14.3.2015 to the opposite parties and the opposite parties having received the said notice and got issued a reply notice dt.27.3.2015 admitting the missing of parcel and informing the complainant about their pursuing the issue and hence, there is gross negligence and deficiency in service on the part of the opposite parties. Hence, the complaint.     

3.         The 2^nd opposite party filed its written version and the same was adopted by the 1^st opposite party and they denied all the allegations made by the complainant. This opposite party submits that the complaint is barred by limitation as envisaged under Section 24(a) of the Consumer Protection Act. Hence, the present complaint is liable to be dismissed as the same is barred by limitation. This opposite party submits that the complainant is not a consumer as defined under Section 2(d) of C.P. Act and the complaint filed by the complainant does not comes under the purview of consumer dispute envisaged in section 2(e) of C.P. Act. Hence, this Forum has no jurisdiction to entertain the present complaint. It is specifically admitted in his complaint that he is doing in sarees business. Therefore, the complaint is to be dismissed in limini. This opposite party submits that the complainant had booked a parcel consignment through the opposite party through Mandapeta branch for which he was given receipt under GC No.10735740 dt.17.1.2015 for delivery at Karimnagar. The consignment dispatched from Mandapeta to Karimnagar was lost in transit due to the circumstances beyond control of the opposite parties. However, the opposite parties tried their level best to trace out the same but in vain. The misplacement is neither willful nor wanton, but due to the circumstances beyond control of the opposite parties. This opposite party further submits that without prejudice its contentions that the opposite party is liable only for Rs.100/- as per the conditions made in the consignment note or Rs.5/- per kg of the weight. It is submitted that as per the terms and conditions, any dispute arising under the contract that would be subject to Hyderabad jurisdiction only. As such, the Hon’ble Forum has no jurisdiction to entertain the claim of the complainant. This opposite party had disclosed the terms and conditions of services to the complainant. Goods forwarding note contains all the terms and conditions. As such the opposite party is not known the nature, contents and condition of the consignment and it carries the goods at owners risk only. The opposite party not aware of the contents of the consignment since the consignment are booked and transported as packed and sealed condition by the complainant. The complainant did not submit bill/invoice at the time of booking. If the consignment value is higher side, the complainant ought to have insured the consignment. The complainant or his representative had signed on the courier consignment note agreeing that the company liability is up to Rs.100/- in the event of loss, damage or non delivery of the courier consignment. The opposite party is not responsible for consequential losses against the loss of the consignment in transit due to the circumstances beyond its control. It is submitted that since the condition was specifically incorporated as per the terms and conditions, this condition is binding on both parties. This opposite party submits that immediately after receipt of the notice, reply was also given to the complainant.  Hence, absolutely there is no deficiency of service by the opposite party and the complaint is liable to be dismissed with exemplary costs.   

4.         The proof affidavit filed on behalf of the complainant and Exs.A1 to A4 have been marked for the complainant. The proof affidavit filed on behalf of the 2^nd opposite party and there is no documentary evidence is adduced by them.

5.         Heard both sides. The opposite party filed written arguments.

6.         Points raised for consideration are:

 

1. Whether the complaint is barred by limitation?

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

            3.   Whether the complainant is entitled for the reliefs asked for?

            4.   To what relief?

 

               

7.   Point No.1:- The opposite parties contended that the complaint is barred by limitation under Section 24A of Consumer Protection Act, 1986.

            After perusing the material on record, it is observed that the complainant booked the consignment on 17.1.2015 vide Ex.A1 with the 2^nd opposite party branch and the freight charges of Rs.293/- payable by addressee.

As per Section 24A “(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.” Basing on this Section, the complainant filed the complaint within the limitation period. Hence, the point No.1 is answered accordingly.

8.   Point No.2 & 3:- The admitted facts of the case are that the complainant is a weaver by caste and he is doing his family profession by weaving sarees and cloth. When Kanchi Saree Mandir ordered some sarees, the complainant booked 20 sarees worth about Rs.40,000/- with the 2^nd opposite party vide Ex.A1.  When the opposite parties failed to deliver the consignment, the complainant approached the 2^nd opposite party whether the parcel was sent to the consignee or not.  The 2^nd opposite party informed the complainant that he will enquired about the consignment and informed the complainant, but they failed to inform the same even inspite of his approach to the 2^nd opposite party. The 2^nd opposite party directed the complainant to give the representation to the 1^st opposite party and the complainant made a representation to the 1^st opposite party on 5.2.2015 vide Ex.A4. After receiving the said representation, the opposite parties failed to deliver the parcel or gave any information to the complainant. The complainant finally got issued a legal notice on 14.3.2015 vide Ex.A2 to the opposite parties by demanding the value of the goods and also damages for mental agony. The opposite parties gave a reply vide Ex.A3 stating that they are pursuing the matter with their branch office and action will be taken and communicate the complainant, but the opposite parties did not inform the complainant even after 6 months.

The opposite parties contended that the complainant is not a consumer under Section 2(d) of the Consumer Protection Act and also stated that the dispatched consignment was lost in transit due to circumstances beyond control of the opposite parties and also contended that the opposite parties is liable only Rs.100/- as per the terms and conditions. They further contended that this Forum has no jurisdiction to file the case as per the terms and conditions, subject to Hyderabad jurisdiction only. The opposite parties also contended that they does not know the nature, contents and condition of the consignment and it carries the goods only at owners risk and the complainant has not submitted the bill at the time of booking the consignment and the opposite party is not entitled to pay any amount to the complainant and there is no deficiency in service on their part. 

After perusing the material on record, we observed that the complaint is filed within the limitation period and the complainant is a consumer under Section 2(d) (ii) of C.P. Act, 1986 and he is availing services from the opposite parties. As per Ex.A1, it is evident that the complainant booked consignment with the opposite parties and also mentioned the value of the goods on Ex.A1. In this case, the complainant is a weaver by profession and weaving the sarees and cloths under self employment.   Therefore, he is not a business man, but doing his family profession for earning his livelihood, for which the complainant relied the following citation: Sanjeev Kumar and Brothers Vs. Calcutta Tramways Co. (1978) Ltd., and another: 2016 AILD 1 (Cal.), High Court of Calcutta and the same is applicable to the facts of the complaint.

 As seen from Ex.A4, the complainant made a representation to the 2^nd opposite party and also mentioned his telephone number in the said representation. As seen from the record, he has not received any reply from the opposite parties until he issued a legal notice vide Ex.A2. The opposite parties gave a reply vide Ex.A3 and stated that they are pursuing the matter, but they failed to trace the consignment and deliver the same to the consignee. The opposite parties admitted that the said consignment was lost in the transit and contended that they are not responsible as there is no willful negligence. The opposite parties also contended that the complainant signed on the receipt and admitted for their terms and conditions. But these terms and conditions are one sided and there is a settled law for self serving conditions are need not be considered.

These opposite parties filed written arguments, in which they relied on the Apex Court in a judgment in Civil Appeal No.8701/1997 in Ranveet Singh Bagga Vs. M/s. K.L.M. Royal Dutch Airlines and another held that “the deficiency in service cannot be alleged without attributing fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is require to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency of service is upon the person who alleged it”. The above citation is not applicable to the present case on hand. The opposite parties also relied on some citations which we could not go through them as they have not filed the full text of the citations before this Forum.

As per the discussion held supra, we opined that there is deficiency in service on the part of the opposite party by not delivering the consignment to the consignee and the opposite parties are liable to pay the value of the goods, damages for mental agony and costs.

9.   Point No.4:  In the result, the complaint is allowed in part, directing the opposite parties to pay Rs.40,000/- (the value of goods) and to pay Rs.5,000/- towards damages for mental agony to the complainant. We further direct the opposite parties to pay Rs.1,000/- towards costs of the complaint to the complainant.  Time for compliance is two months from the date of this order.   

 

Typed to dictation, corrected and pronounced by us in open Forum, on this the 6^th day of June, 2016.

    

                 Sd/-                                                                                            Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

         

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

 

Ex.A1    Parcel receipt issued by the opposite party No.2 dated 17.1.2015.

Ex.A2    Office copy of legal notice dt.14.3.2015 issued by the complainant to the opposite

              parties.

Ex.A3    Reply notice dt.27.3.2015 issued by the opposite parties to the complainant.

Ex.A4    Copy of complaint submitted to the opposite party No.1.

 

 

FOR OPPOSITE PARTIES:-          - Nil -

 

 

                      Sd/-                                                                                        Sd/-

              MEMBER                                                                              PRESIDENT(FAC)