SMT. RAVI SUSHA: PRESIDENT

Complainant filed this case U/s 35 of Consumer Protection Act 2019 against OP for getting an order directing OP to pay Rs.18,000/- towards financial loss and Rs.10,000/-  as compensation and cost of the proceedings of the case alleging deficiency in service on the part of OP.

Brief fact of the case

            Complainant was engaged in selling the products of Mi Life Style Marketing Global Private Limited online network company.  Complainant was used to purchase the item from the above said company’s store at Kannur and being sold in market in its MRP rate for his livelihood on 09/09/2020.  Complainant purchased some items as per the instruction from his friend at Thelungana named Ganaveri Gopi and entrusted the consignment to OP courier company for carriage to his friend Ganaveri Gopi in two packets.  But at the destination place item in one of the packet were completely destroyed the condition.  So the consignee rejected one packet and returned the packets to consignor.  Complainant alleged that he had purchased the product worth Rs.14,627/- and paid Rs.1850/-as service to OP.  Thus complainant had sustained loss of Rs.16,477/- due to the deficient service  of OP.  Hence filed this complaint.

            After receiving notice, OP filed version.  OP contended that complainant had availed services of the OP for commercial/business purpose and hence the complainant has not availed the services of the OPs for his livelihood and therefore he is not a consumer as defined under Section 2(d) (ii) of the Consumer Protection Act and hence the above complaint is not maintainable before this commission as he is not a consumer.  The consignment was entrusted for carriage to the OP’s booking office in a packed condition, without disclosing its contents and the OPs had no opportunity to verify its contents and asked the consignor to provide for the details regarding the contents of the Consignment and its Invoice/Bill in support of the value of the goods and pay the Risk Surcharges as per the terms of the contract which is normally of 2% of the declared value of the consignment for its carriage at the carrier’s risk.  It is denied that the consignment contained any products valued at Rs.14,627/-.   No such value was disclosed and therefore no declaration of any value was made on the Consignment Note Leaf.  The 2 packets under the said Consignment Number reached the destination which comes under Hyderabad on 15/10/2020 and the delivery of the same was offered to the Consignee on 15/10/2020 itself by the delivering Franchisee in the same packed condition as entrusted to the OPs without any damage or delay.  The consignee accepted one packet and refused to accept the 2^nd packet for reasons best known to him.  It is also denied that any mental and /physical agony was caused to the complainant by OP.  The consignee had not made any complaints.  It is denied that the complainant had made any payments as alleged in the complaint to the said Mi Life Style Marketing Global Private Ltd. for allegedly purchasing such alleged items.  The absence of any bill or cash receipt along with the complaint proves his claims to be false.  The complainant had not made any complaints to the 1^st OP in writing.  There is no deficiency in service, unfair trade practice or any wrongful act on the part of the OPs.  There is no willful laches or negligence either.  Moreover, the consignor is not entitled any consequential or indirect losses or damages on account of any alleged loss or damage to shipment, under the contract.  OP further pleaded that in the event of damage or loss to goods the liability of the OP under the contract between the parties is limited to Rs.100/- or the amount as mentioned under the terms and conditions written on the consignment Note Leaf, the original Shipper Copy  of which is in the custody of the complainant, unless the sender declares a higher value as “declared value for carriage” and also pays the applicable Risk Surcharge thereof as “Carrier’s Risk” at the time of tendering the shipment.  The sender will have to produce documents to prove the contents and its declared value at the time of booking.  In the instant case, the complainant has not produced any documents to prove the contents in the consignment.  As per the complainant, he has only paid freight charges and nothing else. The consignment did not contain any such items as now falsely alleged.  There is no deficiency in service, unfair trade practice on the part of the OPs.  There is no willful laches or negligence.  Hence prayed for the dismissal of complaint.

            Complainant had filed his chief affidavit and documents for his evidence.  He was  examined as  PW1 and marked  Ext.A1 to Ext.A4.  Ext.A1 is the Brochure, Ext.A2 is order from (2 in Numbers) Ext.A3 is Tax invoice (marked subject to proof) Ext.A4 is courier service bill.  Pw1 was cross examined for OP.  OP has not adduced oral or documentary evidence.  After that the Learned counsel for the OP argued the matter.

            We have heard counsel for the OP and perused the record.  First legal issue raised by the learned counsel that since complainant has availed the services of the OP for commercial or business purpose he does not come under the definition of a consumer as per section 2(d)(ii) of Consumer Protection Act.  With regard to this point it is well settled by now that the complainant is a consumer and his complaint in respect of alleging deficiency against the transportation of carriage of goods in question is maintainable under the Consumer Protection Act 2019.  Further Ext.A4 shows that he had booked the consignment in OP’s courier service by remitting service charges Rs. 1850.  So considering the facts stated in Ext.A1, complainant is a consumer and he has locus standi to file consumer complaint.  The next point pleaded by the learned counsel for the OP that complainant has not complied section16 of the Carriers Act.  The counsel pleaded that the statutory notice as laid down under section 16 of the Carriers Act was not given to courier company within the prescribed  period of six months when the loss happened to the consignor.  Since it is a mandatory provision without sending prior notice, the complaint is not maintainable.  It has no where been averred by the complainant that he had sent statutory notice under section16 of the carriers Act to OP before instituting this complaint.  In view of this, it is established that complainant failed to give the statutory notice.  Further in the instant case complainant failed to substantiate that the consignee refused to receive the article in question and returned it to complainant.  Neither produced any receipt or damaged packet before this commission. Ext.A2 series order form and Ext.A3 series are not sufficient to prove that those items were entrusted to OP courier company for transportation and to substantiate the return  damaged items as alleged by complainant.  Complainant has not placed any material on record to rebut or deny the contentions of the OP.  In view of all these aspects of the present case, we are of the considered opinion that the consumer complaint of the complainant is not maintainable and the same is dismissed accordingly.

            In the result complaint fails and hence it is dismissed.  No order as to cost.

Exts.

A1       - Brochure

A2       - Order form (2 in Nos)

A3       - Tax invoice (a to h) subject to proof

A4       - Courier Service bill

Pw1    - Complainant

        Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

/Forward by order/

Assistant Registrar