SMT.MOLYKUTTY MATHEW : MEMBER

       This is a complaint filed by the complainant U/S 12 of  Consumer Protection Act 1986 for an order directing the opposite party to pay the sum of Rs.12,598.30 with 15% interest  per annum with  compensation for the  deficiency of service on his part.

   The case of the complainant in brief .

       The complainant has sent a parcel containing medicines worth Rs.12,598.30 which are not consumable as it completed expiry date to its producer Albert David Ltd of Chennai through  the OP on 22/7/2016 as per prior communication  between  the complainant and the Albert David Ltd.  On receipt of parcel containing the medicines the Albert David Ltd has agreed to return the value of Rs.12598.30 to the complainant.  After receiving  of the said parcel weighing 11kg the OP has issued goods receipt No.4100125623 dtd.22/7/2016 to the complainant to send the parcel from Kannur to  Chennai.  The  courier charge of Rs.385/- was also paid by the complainant.  But the parcel has not  reached the consignee Albert David Ltd.  Then the complainant enquired with the staff of OP about the parcel and demanded to deliver the parcel without any further delay.  They informed the  complainant that they would deliver the  parcel without any further  delay to the consignee at the earliest but the parcel was not delivered.  On 31/1/2017 one of the manager of OP met the managing partner of the complainant in the meeting  and he informed that  the parcel was perished in the flood in Chennai in July 2016.  The information was given  6 months after booking the parcel and prior to this meeting.  So the parcel was lost due to the  improper handling of the OP’s staff.  Then the complainant  send notice on 31/1/2017 and 27/5/2017 to OP for  demanding sufficient compensation to the complainant for the loss of parcel.  But the OP has not taken any steps to settle the loss.  Thereafter on 27/7/2017 the complainant send a registered lawyer notice to OP to pay the value of medicine with 15% interest per annum within 15 days of receipt.  The OP received the notice and not paid the value of the medicine also.  The act of the opposite party , the complainant caused much  mental agony and financial loss.  So there is deficiency of service and unfair trade practice  on the part of opposite party.    Hence the complaint.

     After receiving the notice the  opposite party   entered appearance before the commission and  filed his  written version  contending that the complainant is not a consumer as per Sec.2(d)(i) and (II) of the C.P. Act.  Moreover the complainant is a person who had availed services for commercial purposes.  Moreover,  the OP contended that there is no deficiency of service  and unfair trade practice  on the  part of  OP as alleged in the complaint.  The allegation that  the complainant has enquired with the staff of the OP about the parcel  and demanded to delivering  the parcel without any further delay is denied by the OP.  The OP states that the consignment received was properly delivered without any misusing to the  proper address as it is the routine business of the OP and there was no complaint against the OP as it does business in a most careful and cautious manner.  The complainant had not issued a notice as envisaged under Sec.10 of the Carriers Act 1865.  In this view also the complaint is not maintainable and liable to be dismissed with cost.

            On the basis  of the rival contentions  of both sides the following  issues  were framed for consideration.

1.Whether the complaint is maintainable?

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

3.Whether the complainant is entitled for any relief?

4.Relief and cost?

     The  evidence consists of the oral testimony of PWs 1&2, Exts A1 to A12 documents also  marked on the side of complainant .  No oral and documentary evidence from the side  of  opposite party. 

Issue No.1:   The  opposite party states that the complainant is  not a consumer as per Sec.2(d)1&II of the Consumer Protection Act.  The complainant is a person who had  availed services  for commercial purpose.  But in this case the services  availed by the complainant from the OP is not for commercial purpose.  On receipt of the parcel  containing  the date  expired medicines to its producer Albert David Limited has agreed  to return the value of the medicine to the complainant and not for making profit.  The complainant is doing the business for earning his livelihood.  Hon’ble Supreme Court reported in 2018 KHC 6179 in paramount Digital Colour Lab vs. M/s Agfa India Pvt.Ltd held that “ Despite commercial activity, whether a person  would  fall within  the definition of consumer or not would be a question of fact in every case, such question of fact ought to be decided in  the facts and circumstances of each case”.  So in this case the complainant is a consumer and the issue No.1 is found in favour of the complainant and answered accordingly.

 Issue Nos.2 to 4:  The complainant filed the power of attorney  before the commission as the legal executive of the partnership firm.  Then he adduced evidence by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version.  As per Ext.A1 is the power of attorney of the complainant and he is the managing partner of the  firm.  In Ext.A2 show that the debit note No.344 dtd.30/6/2016 the value ,number and  date of expired medicines  Rs.12,598.30 which were forwarded to the producer Albert David Ltd Chennai.  The opposite party after receipt of the parcel containing medicines weighing 11kg. Issued goods  receipt No.4100125623 dtd.22/7/2016 to the complainant to send the parcel from Kannur to Chennai marked as Ext.A3.  In Ext.A4 , the courier charge of Rs.385/- paid by the complainant with invoice No.2016-KNR-323 dtd 1/8/2016 issued by the OP  also produced.  Moreover, the complainant had sent notices to OP on 31/1/2017 and 27/5/2017  are marked as Exts.A5&A6.  The postal receipt and acknowledgment card marked as Exts.A7&A8.  After receiving  the notice the OP has not any steps to settle the matter.  Thereafter the complainant send lawyer notice to OP on 27/7/2017 and lawyer notice marked as Ext.A9.  The postal receipt and acknowledgment card also  marked as Exts.A10&A11.  One Mr. Satheesan is examined as PW2 in this case.  Ext.A12 the service record is also marked.  Moreover PW2 produced the authorisation letter before the commission to prove the computer print out transaction done by the firm during the period. The complainant has availed the service of delivery of the parcel through OP as per Ext.A4 believing that the OP will  deliver the parcel to the consignee .  After receiving the parcel and courier charge the OP assured that the parcel will be delivered to the consignee in time. But the OP is failed to deliver  the parcel at its destination  is deficiency  of service and unfair trade practice on the part of opposite party.  The act of the opposite party the complainant caused much  mental agony , physical harassment and financial loss.  There is  deficiency of service and unfair trade practice  on the part of opposite party.  Hence the issue No2 found in favour of the complainant and answered accordingly.

    Regarding  the issue  No.3 and 4 as discussed  above the opposite party is liable to pay the value of the date expired medicines of Rs.12,598.30 along with Rs.5000/- as compensation and Rs.3000/- as litigation cost to the complainant.

       In the result the complaint is allowed in part directing the opposite party to pay the value of the date expired medicines of Rs.12,598.30 along with Rs.5000/- as compensation for mental agony and Rs.3000/- as litigation cost to the complainant within 30 days of receipt of  this order.  In default the claim amount of Rs.12598.30 carry interest @9% per annum from the date of order till realization, failing which the complainant is  at liberty to execute the order as per the  provisions of Consumer Protection Act 2019.

Exts.

A1- Certified copy of power of attorney

A2- Certified copy of  debit note

A3- goods receipt  dtd.22/7/2016

A4-Invoice dt.1/8/2016

A5&A6-office copy of notice dtd.31/1/17&27/5/17 

A7&A10- Postal receipts 29/5/17,27/7/17

A8&A11- acknowledgment dt.31/5/17, 29/7/17

A9- registered lawyer notice

A12- copy of service record.

PW1- Rajan witness of complainant

PW2- Satheesan- do-

Sd/                                                                   Sd/                                                          Sd/

PRESIDENT                                                MEMBER                                         MEMBER

Ravi Susha                                          Molykutty Mathew.                                  Sajeesh K.P

eva         

                                                   /Forwarded by Order/

                                                    SENIOR  SUPERINTENDENT