Andhra Pradesh

Chittoor-II at triputi

CC/77/2013

B.Sudha Rani W/o. B.Siva Kumar - Complainant(s)

Versus

The Regional Manager,DTDC Courier and Cargo Ltd - Opp.Party(s)

K.Chengalrayulu

14 Jul 2014

ORDER

                    Date of filing:03.12.2013

                                                                                                        Date of Disposal:14.07.2014

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, TIRUPATI.

 

PRESENT:Sri.M.Anand, President (FAC)

      Smt.T.Anitha, Member

                                  

MONDAY THE FOURTEENTH DAY OF JULY, TWO THOUSAND AND FOURTEEN

 

C.C.No.77/2013

 

Between

 

Smt.B.Sudha Rani,

W/o. B.Siva Kumar,

D.No.1-22, Srinivasapuram,

Tiruchanoor Road,

Tirupati.                                                                        …..Complainant.

 

And

 

 

1.       The Regional Manager,

          D.T.D.C. Courier and Cargo Ltd.,

          No.3, Victoria Road,

          Bangalore – 560 047,

          Karnataka State.

 

2.       The Branch Manager,

          D.T.D.C. Courier and Cargo Ltd.,

          D.No.245, G.N.Mada Street,

          Tirupati.                                                            …..Opposite parties.

 

          This complaint coming  before us for final hearing on 30.06.14 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.K.Chengalrayulu, counsel for the complainant and Sri.G.Ramaiah Pillai, counsel for the opposite party, and having stood over till this day for consideration, the Forum makes the following:-

 

ORDER

DELIVERED BY T.ANITHA, MEMBER

ON BEHALF OF THE BENCH

                                                                                                                                                                                                                                          

          This is a complaint filed under Section-12 of Consumer Protection Act 1986, complaining deficiency of service, as the opposite parties failed to deliver the consignment in time.

          The case of the complainant is that she studied up to M.Tech and working as Lecturer in Krishna Teja College of Engineering and she applied for the post of Adhoc Lecturer in JNTU, Ananthapur, which was published in the notification dt:04.09.2013 and the last date of receiving application is dt:10.09.2013. Accordingly, she prepared her Bio-Data along with other requisite documents and she approached opposite party No.2 and sent through courier on dt:06.09.2013 by paying Rs.160/- with special type service i.e. Premium Express Product Regional Plus to Ananthapur. The said consignment was delivered to JNTU, Ananthapur on 11.09.2013 and the last date of receipt of application is dt:10.09.2013. Because of the delay in delivery of the consignment, she lost a fair chance in securing Government job and hence there is deficiency of service on the part of the opposite parties. She caused a legal notice dt:21.09.2013 to the opposite parties and after receiving the legal notice they failed to give reply to the same. Hence, the complainant filed the present complaint praying the Forum to direct the opposite parties to pay Rs.2,50,000/- towards compensation for the deficiency of service and to pay Rs.50,000/- towards mental agony and to pay Rs.2,000/- towards costs.

          3.  The 2^nd opposite party came into appearance and filed the written version and the same was adopted by opposite party No.1, admitting the receipt of the consignment and also charging of Rs.160/- but pleaded ignorance with regard to the contents in the cover and contended that it is not mentioned on the top of the envelop that it should reach by 10.09.2013 and pleaded that there is no negligence on their part and non-delivery was beyond their control as the Samaikyandhra agitation was there in Andhra region and further contended that the complainant failed to implead Ananthapur DTDC courier center as a necessary party and further contended that the said consignment was signed by one B.Siva Kumar, who is the husband of the complainant and copy of the consignment was given to him at the time of booking to know the terms and conditions of the contract, which are binding on him and also contended that the liability of the opposite party for delay in delivery shall be to the extent of basic freight charges only and in case of delay or non-delivery, the maximum amount payable is only Rs.500/- as per the terms and conditions and infact legal notice should have been given within 30 days and hence there is no deficiency of service on their part and the complaint is liable to be dismissed.   

          4.  The complainant and 2^nd opposite party filed their evidence on affidavits and the complainant on his behalf marked Exs.A1 to A11 and the opposite party on their behalf marked Ex.B1. Both sides also filed written arguments and heard oral arguments.       

5. Now the points for consideration are:-

(i).  Whether there is any deficiency of service on the part of the opposite

        parties ?

(ii).  Whether the complainant is entitled for the reliefs as prayed for? If so,

         to what extent?

(iii). To what result?

6.  Point No.(i):- The indisputed fact remains that the husband of the complainant approached the 2^nd opposite party on 06.09.2013 to send a cover to Ananthapur, as the same was admitted by the opposite party and the opposite party collected Rs.160/-, which included the nominal freight charges as well as special service charges. The cover should reach by 10.09.2013 by 4 p.m., which is the last date for the receipt of the applications.

7.  The counsel for the opposite party submitted that on the cover it was not mentioned that it should reach by 10.09.2013 itself and due to Samaikyandhra agitation, it was delivered on 11.09.2013 and as such there is no deficiency of service. The cover is received with specific understanding. It is the duty of the 2^nd opposite party to see that the cover reaches the destination by 10.09.2013 itself as promised. Nothing should have prevented the 2^nd opposite party to know the condition of the delivery, apart from that the complainant was again and again reminding the 2^nd opposite party over phone, as well as the numbers, which were mentioned in consignment note i.e. Ex.A1 from morning to evening on 10.09.2013 to expedite the delivery that the cover should reach by 4 p.m. on 10.09.2013, which was clearly revealed by Ex.A8, photocopy of telephone list. But the cover was delivered on 11.09.2013 at 11 a.m. If there is any force in the arguments of the opposite party that the Samaikyandhra agitation was going on in Andhra Pradesh, how they delivered the said cover on 11.09.2013 by 11 a.m. and what hurdles made them not to deliver on 10.09.2013. Hence, their argument has no force.

8.  The counsel for the opposite party contended that the DTDC office at Ananthapur should have made as a necessary party and they could have been in better position to explain. The 1^st opposite party is a limited company, which is having branches all over India and as the 1^st opposite party impleaded as a party, there is no need to implead branch office at Ananthapur. Above top of it, nothing should have prevented the opposite parties to enquire their branch office at Ananthapur to find out the cause of delay. It is the duty of the opposite party to ascertain the reasons for non-delivery of the cover in time i.e. on 10.09.2013. When the 2^nd opposite party has accepted to deliver the cover on or before 10.09.2013, they have not complied the undertaking and how they could collect additional consideration for express delivery without any explanation. The complainant could prove the deficiency of service and accordingly this point is answered in favour of the complainant.

9. Point No.(ii):-  Now the next contention of the opposite party is that as per the cover note, their liability is restricted to Rs.500/-. The relevant clause of the terms and conditions, in condition No.14 in Ex.B1, it is felt appropriate to extract:-

“Claim up to Rs.25,000/-: should be insured by consignor or can be carried without insurance or under DTDC risk surcharge. It not insured by either of the party, then as per the claim policy of the company, the company will be liable to pay maximum up to the sum of Rs.500/-. If insured by consignor then DTDC will charge 0.2% of invoice value / Declared value as processing charge for issue of COF, or Rs.25/-, whichever is higher in the absence of insurance cover, the consignor may opt for the DTDC risk coverage policy by paying 2% on invoice value / Declared value or Rs.50/- whichever is higher”

                        

In this connection, the counsel for the opposite parties drawn attention to the decision of National Commission in Desk to Desk Courier and Cargo Vs. Kerala State Electronics Development Corporation Ltd. [F.A.42 of 1996 decided on 17.02.2004] and pointed out that following the decision of Supreme Court in Bharti Knitting Company case [1996 CTJ 557 (SC) (CP)] it was observed that once the challan contain the terms and conditions and signed by the parties, unless it is insured, the company is not liable to pay more than Rs.500/- for any risk. However, it is also worthwhile to consider recent decision of National Commission in Blaze Flash Couriers Pvt.Ltd Vs. Rohit.J Poladiya [F.A.673 of 1996 delivered on 09.01.2008] wherein also the decision of Supreme Court in Bharati Knitting Company was considered and observed that if the terms and conditions are shown to be agreed then only the decision in Bharati Knitting Company case should be followed.

10.  In the present context, it is not known whether there is insurance coverage was undertaken by the opposite parties and how the amount of Rs.160/- shown to be collected. Above top of all these what is the “Risk” within the ambit of consignment note should be taken into consideration vis.a.vis, the special contract of charging additional amount at the time of accepting the consignment. It is the case of specific breach of contract of inability to deliver the consignment in time. Now accepting the consignment by charging additional fees and however failure to comply the same and contends that the claim is restricted to only Rs.500/- in each and every case appears to be nothing but a false inducement and it should also amounts to a most unfair trade practice. At any rate, this Forum has already reached the conclusion about the deficiency of service. The complainant assessed the value of Rs.2,50,000/- for compensation is also not made known and the complainant herself only can secure the job among the applicants. But already she is working as lecturer and earning the income and the same was evidenced by Ex.A10 appointment letter of present working college. Hence, the value assessed by her cannot be considered. But at the same time the contention of the opposite party they would give only Rs.500/- irrespective of breach of contract could not be accepted and awarding such nominal compensation would be nothing short of encouraging such practice. No doubt, the terms and conditions are printed in Ex.A2 and Ex.B1 but at the same time the complainant was actually made to understand that the claim restricts to Rs.500/- even if it is not delivered in time. Infact, it is not practicable, they ought not to have accepted the consignment. Once the opposite parties have taken specific task, it must be treated as a special contract, unless it is so explicitly mentioned it cannot be stated that it covered the nature of risk of this nature. At the same time, we cannot also permit the complainant to take advantage and to have a gain without actual proof of damage. Now as it is stated that the charges are 5 times the nominal charges. Hence, the compensation also should be higher than the normal damages. In the above circumstances this Forum feels that a sum of Rs.4,000/- would be quite adequate compensation for mental agony and torture and another sum of Rs.2,000/- towards punitive damages to discourage the unfair trade practice. Thus both the opposite parties are liable to pay Rs.6,000/- (Rupees seven thousand only) with interest at 9% per annum from the date of complaint, till the date of realization.  The complainant is also entitled for costs of Rs.1,000/- (Rupees one thousand only).           

  11. Point No.(iii):-  In the result, the complaint is allowed in part directing the opposite parties to pay Rs.4,000/-  + 2,000/-  (Rupees six thousands only) with interest at 9% per annum from the date of complaint, till the date of realization.  The complainant is also entitled for costs of Rs.1,000/- (Rupees one thousand only).   

Typed by the stenographer, to the dictation and corrected by me and pronounced in the Open Forum this the 14^th day of July, 2014. 

 

      Sd/-                                                                                             Sd/-                       

Lady Member                                                                          President (FAC).

 

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BOTH SIDES

 

PW-1: Smt. B.Sudha Rani (Chief Affidavit filed).

RW-1: M.Krishnamurthy (Evidence Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Date	Description of Documents
Ex.A1	04.09.2013	A copy of announcement letter.
2	06.09.2013	D.T.D.C. courier receipt.
3.	12.09.2013	A copy of tracking result of the document.
4	21.09.2013	Office copy of  Legal Notice issued by the Complainant to the Opposite Parties.
5	24.05.2013	Acknowledgement.
6	23.05.2013	Acknowledgement.
7		Photo Copy of  Provisional certificate of Complainant.
8		Photo Copy of  Telephone list.
9		Photo Copy of  National eligibility test for lectureship.
10		Photo Copy of  Appointment order of Chadalawada Engineering College, Tirupati.
11		Photo Copy of  Service Certificate of Shree Institute of Technical Education.

 

 

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Date	Description of Documents
Ex.B1		Terms and conditions DTDC courier service under DTDC Plus.

 

 

 

                                                                                                                                                                                                           Sd/-      

President (FAC)

 

// TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

                                           Dist. Consumer Forum-II, Tirupati.  

 

  

Copies to:

 

 

1.  The complainant.
2. The opposite parties.