Chandigarh

DF-II

CC/19/2014

Kapoor Optical Co - Complainant(s)

Versus

The Trackon Couriers Private Limited - Opp.Party(s)

04 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

============

Consumer Complaint  No	:	19 of 2014
Date  of  Institution	:	10.01.2014
Date   of   Decision	:	04.02.2015

 

 

 

 

M/s. Kapoor Optical Co., Shop No.2-3,Sector 22-D, Chandigarh, through its partner Anil Kapoor.

 

             Complainant

Versus

 

1]  The Trackon Courier Private Limited, C-143, Naraina Industrial Area, Phase-I, New Delhi through its Managing Director.

 

2]  M/s. Daya Shankar Enterprises, Shop No.38, First Floor, Sector 41, Badheri, U.T., Chandigarh through its Proprietor.

 

3]  M/s. Safilo India Private Limited, RPT House (Jaysumtj Centre), Plot No.6, Sector 24, Turbhe, Opp. Sanpada Railway Station, Navi Mumbai 400705 (Maharashtra) India.

 

 

   Opposite Parties

 

BEFORE:  MRS.MADHU MUTNEJA     PRESIDING MEMBER

SH.JASWINDER SINGH SIDHU  MEMBER

           

 

Argued By: Sh.Mohd. Shameem and Sh.Sandeep Moudgill, Counsel for the complainant.

Sh.Sanjeev Sharma Kaushal and Sh.Hoshiar Singh, Counsel for OPs No.1 & 2.

None for Opposite Party-3

 

 

PER MADHU MUTNEJA, MEMBER

 

1]      The complainant is a partnership firm dealing in sale and purchase of sunglasses and spectacles.  The complainant had availed the services of OPs No.1 & 2 for sending the articles i.e. four pieces in number costing approximately Rs.40,000/- to be delivered to Opposite Party NO.3 at Navi Mumbai.  The said consignment was dispatched on 10.6.2013 vide POD No.347714084 (Annexure C-1).  However, the consignment did not reach the destination.  The complainant thus tried tracking the same by making numerous visits to the Delhi Office of Opposite Party No.1.  Many days later the delivery person brought back the consignment to the complainant with three pieces of sun glasses instead of four pieces. The complainant has stated that the Opposite Party No.3 had refused to accept the parcel as it was brought to them in an open and damaged condition (Ann.C-3 & C-4). Thereafter, the complainant sent a legal notice to Opposite Party No.1 & 2 claiming compensation for the loss, but they did not consider his claim.  The complainant has alleged that as the consignment was never delivered to the Navi Mumbai address and the long delay in the whole process has not been adequately explained by the Opposite Parties No.1 & 2 in the reply to the legal notice (Ann.C-6); this has caused financial loss of more than Rs.75,000/- to the complainant.  The complainant has thus filed the instant complaint alleging deficiency in service and claiming refund of Rs.75000/- besides compensation for loss of reputation and harassment. 

 

2]       Notice of the complaint was sent to Opposite Parties seeking their version of the case.

 

3]      The Opposite Parties No.1 & 2 filed joint reply and have taken preliminary objections that as the services of OPs were hired by the complainant for purely commercial purpose, the complainant is not a consumer within the meaning and ambit of Consumer Protection Act and the complaint is liable to be dismissed as such.  Otherwise, as per terms & conditions written overleaf of courier receipt, the Courier Company had specifically limited its liability to the tune of Rs.2000/- for a parcel and Rs.100/- for a packet of documents if not covered by special risk surcharge, which comes with insurance for reimbursement of the declared value at slightly higher charges (Ann.R-1).  Besides, the complainant itself has annexed receipt as per which the complainant was fully aware about the terms & conditions on which the courier packet were accepted for delivery.  Though an option was given to the consumer to declare the value and pay 1% F.O.V. charges in order to secure the packet, but neither the value of the packet was declared nor were proportionate charges paid. Even weight of packet was not mentioned on the receipt. 

         On merits, the OPs No.1 & 2 have contended that their services were hired by the complainant for commercial purpose. The cost of the four articles alleged to be Rs.40,000/- has been denied.  Neither the contents of the packet nor value thereof was declared and the complainant failed to pay any surcharge after declaring the value of the alleged consignment, therefore, the liability of the answering OPs under the agreed terms & conditions is limited. In fact the packet reached its destination on 12.6.2013 but the addressee refused to receive the same despite a number of attempts of the delivery person to deliver the consignment.  The OPs were left with no other alternative but to bring the packet back to Delhi.  The complainant then requested the OPs to retain the consignment at Delhi enabling the consigner to get in touch with the consignee as the consignment may have to be resent.  The complainant finally on 6.8.2013 gave in writing that he refused to accept the packet alleging that the same is in damaged condition.  The consignment is still kept in safe and secure custody of the OPs at Chandigarh. However, at the same time, the Opposite Party specifically denies the contents of the packet.  With regard to the legal notice, the OPs has stated that the complainant in the notice stated the financial loss of Rs.75,000/- but in the present complaint, the figure has been given as Rs.38,170/-.  All other allegations of the complainant have been stated to be wrong and hence denied.  The OPs No.1 & 2 have reiterated that the complainant has refused to accept back the packet.  A prayer has been made that the complaint be dismissed. 

         The Opposite Party No.3 has filed short reply stating that the complainant had sent an assignment on 10.6.2013 through Trackon Courier-Opposite Party No.1 containing articles i.e. four pieces of sunglass of Jimmy Choo Eyewear Brand of International Fame valued at Rs.38,170/-.  The said assignment reached the answering Opposite Party for delivery on 12.6.2013 at Mumbai on the given address.  The said consignment was not accepted since it was opened and in damaged condition.  It is also stated that the answering Opposite Party No.3 found that the consignment contained only three pieces instead of four pieces.  It is submitted that it was revealed that the said consignment /parcel has not been returned to the complainant after it was refused to be accepted by answering Opposite Party.  The answering Opposite Party NO.3 also issued a certificate in this regard dated 17.9.2013 (Ann.C-4).  Opposite Party No.3 has pleaded that the complainant has not claimed any relief against the answering Opposite Party No.3, hence no cause of action has arisen qua the answering Opposite Party No.3 in favour of the complainant.

 

4]      The complainant has filed rejoinder to the reply of OPs No.1 & 2 thereby controverting the submission of OPs No.1 & 2 as made in the reply and reiterated the assertions as made in the complaint.

 

5]       Parties led evidence in support of their contentions.

 

6]       We have heard the ld.Counsel for the complainant, ld.Counsel for OPs No.1 & 2 and have also perused the record.

 

7]       The grievance of the complainant is due to non-delivery of packet sent to Opposite Party No.3 at Navi Mumbai through Opposite Parties No.1 & 2.  The consignment was refused by Opposite Party No.3 as the packet was found to be open and damaged.  It was thus brought back to the complainant, allegedly after much delay. The complainant refused to accept the parcel as one item out of the four dispatched was found to be missing. The instant compliant has been filed alleging deficiency in service on the part of OPs No.1 & 2 for damage and loss of the articles dispatched.   

 

8]       In this regard, the OPs No.1 & 2 have contended that the delay had occurred because the consignee refused to accept the same. The consignment was then kept at Delhi on the request of the complainant to persuade the consignee to accept it.  Ultimately, the consignment was brought back to Chandigarh to return to the complainant. The complainant further refused to accept the consignment saying that it has been damaged as also alleging that one of the four sunglass was missing.  As per the complainant, the sunglasses were of international brand valuing Rs.38,170/-.

 

9]       On record is Ann.C-1, which is the receipt issued by the OPs No.1 & 2 to the complainant.  The charges paid by the complainant to OPs No.1 & 2 for the consignment have not been mentioned.  Also there is no mention about the details of the article dispatched or the value of the same.  The complainant has placed on record Ann.C-9, which is a bill for about 11 sunglasses.  According to the complainant, four items from this list were dispatched to Opposite Party No.3 at Navi Mumbai.  Unfortunately, there is no proof of the number or value of the articles dispatched. The complainant has also mentioned the price of the article in the complaint as Rs.38,170/- whereas a financial loss of Rs.75000/- has been claimed along with compensation.  This financial loss of Rs.75,000/- has also not been explained.

         Though OPs No.1 & 2 have contested the claim by stating that the complainant is not a consumer as the consignment was booked for commercial purpose which is undisputed, the Opposite Parties No.1 & 2 has also stated that as per the terms & conditions contained in the courier receipt, the courier company had specifically limited its liability to the tune of Rs.2000/- for a parcel and Rs.100/- for a packet of documents if not covered by special risk surcharge.  We do not think we can order the Opposite Parties NO.1 & 2 to pay more than Rs.2000/- for the value of the articles of the parcel, if lost/damaged in the transit especially when the value of articles in the packet are not declared. Admittedly, the Opposite Parties No.1 & 2 have tried to return the consignment to the complainant which was refused.

 

10]     In the circumstances, we direct the OPs No.1 & 2 to pay Rs.2000/- as per its liability for the damage/loss. We also order the  OPs No.1 & 2 to return the parcel to the complainant with the three remaining articles as stated by both parties. The OPs No.1 & 2 will also pay Rs.5000/- as cost of litigation.

         This order shall be complied with by OPs NO.1 & 2 within a period of 45 days.

 

11]      The complaint qua Opposite Party No.3 stands dismissed as no relief has been sought against it by the complainant.

         Certified copies of this order be communicated to the parties, free of cost. After compliance file be consigned to record room.

Announced

4^th February, 2015

                                               Sd/-

 (MADHU MUTNEJA)

PRESIDING MEMBER

 

 

 

(JASWINDER SINGH SIDHU)

                                                                  MEMBER

 

Om                                                                                         

 

 

 

DISTRICT FORUM – II

CONSUMER COMPLAINT NO.19 OF 2014

PRESENT:   None   Dated the 4th day of February, 2015

O R D E R             Vide our detailed order of even date, recorded separately; the complaint has been allowed against Opposite Parties No.1 & 2 and dismissed qua Opposite Party No.3.           After compliance, file be consigned to record room.

 

(Jaswinder Singh Sidhu)		(Madhu Mutneja)
Member		Presiding Member