Punjab

StateCommission

A/11/1899

Parveen Kumar - Complainant(s)

Versus

Trackon Courier - Opp.Party(s)

16 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No. 1899 of 2011

 

                                                Date of Institution:   26.12.2011.

                                                Date of Decision:             16.02.2015.

 

Parveen Kumar son of Ratan Lal, aged 30 years, (Proprietor P&P Medical Agencies), resident of St. No.2, Nai Abadi, Abohar, Tehsil Abohar, Distt. Fazilka, Punjab.

 

                                                     …..Appellant/complainant.

Versus

 

1.      Trackon Courier, South Circular road, near Haqiqat Rai, Abohar, Tehsil Abohar through its Incharge/Manager /Proprietor.

 2.     Trackon Courier Pvt. Ltd., C-143, Narain Industrial Area, Phase-I, New Delhi through its M.D.

                                                     ….Respondent/opposite parties

 

First Appeal against order dated 15.11.2011 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:-

 

     Shri J. S. Klar, Presiding Judicial Member.

             Shri Vinod Kumar Gupta, Member.     

 

Present:-

 

     For the appellant                   :     Sh. Munish Goel, Advocate

For the respondents    :     Sh. Hoshiar Singh, Advocate.

     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                           ORDER

                                 

                    The appellant (complainant in the complaint) has directed this appeal against the respondents (opposite parties in the complaint) challenging the order dated 15.11.2011 passed by the District Consumer Disputes Redressal Forum Ferozepur (in short, “the District Forum”), vide which, the complaint of the complainant was dismissed.

2.           The complainant Parveen Kumar has filed this complainant under under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the opposite parties/respondents on the allegations that he has been doing the business of medicines under the name and style of P&P Medical Agencies and is proprietor thereof. That the medicines were purchased by the complainant on the condition, that if medicines are not sold before the expiry period or same was damaged or non-moving, the complainant would have the option to return the medicines to get the replacement or refund of the value of the medicines. That complainant hired the services of the OPs for sending the medicines of Intas Pharma Ludhiana, vide receipt no.185888636 dated 19.04.2010, weighing 11 kilo 200 gm by paying the amount of Rs.20 per kg valuing Rs.57,277.63/- and, vide receipt no.176366608 dated 24.01.2010 weighing 5 kg by paying Rs.20/- per kg of total value of Rs.25,705/- and the later receipt has been lost. That the above referred articles/parcels of the medicines were expected to reach at destination Ludhiana within 2-3 days from the date of booking, but these parcels had not reached the destination. That OPs went on making false excuses on one pretext or other regarding the non-delivery of the parcels. The complainant has accordingly filed the consumer complaint against the OPs praying that OPs be directed to pay Rs.82,982/- on account of loss of goods along with interest @ 12% p.a. and Rs.5000/- as compensation for the mental harassment.
3.           Upon notice, the opposite parties appeared and filed written reply raising preliminary objections that unless and until the booked parcel is covered by special risk surcharges, claim value of the courier would in no circumstances exceed Rs.2000/- per parcels and Rs.100/- for packet of documents. The complainant lost the booking receipt of booking of one consignment, which has only proved the mala fide intention of the complainant. The other consignment dated back to more than a year old i.e. 19.04.2010 and no address of the consignor and consignee is mentioned. It has been further pleaded by the OPs that there is nothing to show that complainant has booked medicines worth Rs.57,277/-, as alleged. That as per clause 7 of the agreement, all disputes are subject to the jurisdiction of the city of Delhi only. The complaint was resisted even on merits by OPs pleading it to be renowned courier and logistic concerns, which handles 1,50,000 shipments on daily basis. It was denied that complainant suffered any loss due to negligence of OPs. The OPs prayed for dismissal of the complaint.
4.           The complainant tendered in evidence his affidavit
   Ex.C-1 along with documents Ex.C-2 to C-4 and closed the evidence. In rebuttal of this evidence, the opposite parties tendered in evidence authority letter Ex.R-1 and affidavit of Naresh Kumar agent of OPs Ex. R-2 and closed the evidence.  On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant by virtue of order dated 15.11.2011, under challenge in this case. Dissatisfied with the order of District Forum, the complainant not appellant has preferred this appeal against the same.
5.           We have heard learned counsel for the parties and also examined the record of the case. The contention of the appellant is that he booked the medicines by virtue of above referred two receipts, one of which has been lost and the booked parcels had not been delivered at the destination by the OPs. That complainant suffered loss and hence, prayed for compensation. On the other hand, the OPs contested the contention of the appellant vehemently. We have to refer to evidence on the record to determine the point in dispute. The affidavit of complainant Parveen Kumar Ex.C-1 is on the record, Ex.C-2 is the booking receipt of 11 kilo 200 gm weight, Ex.C-3 is the statement of complainant, Ex.C-4 is the certificate of consignee to the effect that they have not received the parcels against docket Nos.185888636 dated 19.04.2010, 176366608 dated 24.01.2010 and 601724968 dated 04.05.2011. To counter this evidence, the OPs tendered in evidence, the affidavit of Naresh Kumar Ex.R-2 to the effect that he has working as agent of OPs. That the written reply filed by the OPs is stated to be correct by him.
6.           We find that the complainant booked one parcel of 11.200 KG without declaring its contents and its value, vide receipt Ex.C-2 is on the record. The complainant has not produced any other receipt on the record in this regard. From perusal of Ex.C-2, we find that it proves that one parcel was booked by the complainant of the weight of 11.200 kg with the OPs, whereas the complainant has not produced on record any other receipt to substantiate his contention regarding booking of his other consignment. The complainant relied upon his medicines bill Ex.C-3. We have gone through this statement of account, it seems that it has been prepared desultorily by the complainant, as the dates are not in seriatim therein. We, thus, placed no reliance on this medicines bill. Ex.C-4 has further proved that parcel has not reached the destination and it is so written by the consignee in writing.
7.           Undoubtedly, it has been proved on record that complainant booked the above parcels because the consignee gave the certificate Ex.C-4 to the effect that he has not received the booked parcels at the destination. The District Forum observed in the order under challenge in this case, that no claim could be entertained by the company after 30 days from the date of booking of consignment as per clause 7 of the terms and conditions printed on the overleaf  of receipt Ex.C-2. The complainant can file the complaint before District Forum within a period of 2 years from the date on which cause of action accrued, as per Section 24-A of the Consumer Protection Act. When law has given remedy to the complainant to file the complaint within a period of two years from the date of accrual of cause of action, therefore, this statutory remedy, which is available to complainant, cannot be taken away by means of any contract, which is against the statute and would be inconsequential, being against law.
8.           We find force in the submission of the OPs that complainant has not declared the contents of the booked parcel in the receipt Ex.C-2 and unless and until the contents thereof are declared by paying extra charges, the liability of the OPs is restricted as per the agreement printed on the back page of receipt Ex.C-2. Clause 5 of this terms and conditions printed on overleaf of Ex.C-2 lays down that if not covered by special risk surcharges, claim value on this shipper shall in no circumstances exceed Rs.2000/- for parcels and Rs. 100/- for packet of documents. Apex Court also held in  "Bharti Knitting Co. Vs.  DHL Worldwide Express Courier Divn. of Airfreight Ltd.", II (1996) CPJ-25 (SC) that where the complainant sent the document through a courier to his foreign customer, documents did not reach the destination, consignee instead of paying fixed value of the invoice, agreed to pay less amount. The Apex Court held that as per the contractual obligations, the liability of the courier is limited to the extent of Rs.100/- for domestic loss and US dollar 100 for international loss of consignment.  When a person signs a document, which contains certain contractual terms, the parties are normally bound by such contract, it is for the party to establish exception thereto. When a party to the contract disputes the binding nature of the signed contract, it is for him to prove the terms in the contract or circumstances, in which he came to sign the documents and he was required to establish this on the record. We find that the parties are bound by the same. The Apex Court further held in the above authority that henceforward, it is settled law and all the Tribunals and Foras would follow the same to the effect that the liability of the courier, is limited and the deficiency in service is to the extent of liability undertaken by the courier. In view of law laid down by the Apex Court in the above referred authority, there is no further scope in the matter. As per clause 5 of terms and conditions of receipt Ex.C-2, the liability of OPs in no circumstances exceed Rs.2000/- for parcels. Consequently, we conclude that the OPs are liable to pay the amount of Rs.2000/- to the complainant only as per their contractual obligations, as discussed above.
9.           In the light of our above discussions, we accept this appeal pro-tanto by setting aside the order of District Forum under challenge this appeal. Consequently, the complaint of complainant stands accepted pro-tanto. We direct the OPs to pay the amount of Rs.2000/- to the complainant along with interest @ 9% p.a. from the date of booking receipt till actual payment. The awarded amount be paid to the complainant within 45 days by the OPs from the date of the receipt of certified copy of this order.
10.           Arguments in this appeal were heard on 11.02.2015 and the order was reserved. Now the order be communicated to the parties.        The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                           (J. S. KLAR)

                                                         PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

February 16, 2015.                                                             

(MM)