Haryana

Karnal

CC/416/2021

Apurva Mittal - Complainant(s)

Versus

Trackon Couriers Private Limited - Opp.Party(s)

Vishal Goel

22 Apr 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No.416 of 2021

                                                        Date of instt.18.08.2021

                                                        Date of Decision:22.04.2024

 

Apurva Mittal D/o Shri Sanjiv Mittal, resident of 702, Sector-13, Urban Estate, Karnal.

                                               …….Complainant.

                                              Versus

 

1.     Trackon Couriers Pvt. Ltd. C/o Anjali Enterprises, Shop No.3, Karantal Market, SAdar Bazar, Karnal (Haryana) 132001, through its Manager.

2.     Trackon Couriers Pvt. Ltd. Branch Office at SCO No.24-25, Main Market Ground Floor, Sector-13, Karnal, (Haryana), through its Branch Manager.

3.     Trackon Couriers Pvt Ltd. Registered office at A-64, Naraina Industry Area, Phase-1, Naraina, New Delhi, through its Directors.

 

                                                                         …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.      

      Sh. Vineet Kaushik…….Member

      Dr. Suman Singh….….Member

          

 Argued by: Shri Vishal Goel, counsel for complainant.

                    Shri Ashok Kadiyan, counsel for OPs.

 

                    (Jaswant Singh President)

ORDER:                    

                  The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that the complainant is doing business of Manufacturing Macrame decor and tutorial, glass Macrame mirrors, having its Registered Office at 396P, 2nd floor, Sector-40, Gurugram & having its branch office at 702 Sector 13, Karnal. Complainant had received an order of two Glass Macrame Mirrors from one Mr. Rakesh Patel and charged Rs.5200/- from sald Mr.Rakesh Patel for both the mirrors. The said Mr.Rakesh Patel instructed the complainant to send one mirror to him and another one to Mr.Vinod Sharma, both residents of Panipat Refinery, Panipat. The complainant entrusted Opposite Party no.1 for carrying two consignments through courier and the courier was booked with opposite party no.1 vide consignments no.1418504767 & 1418504768. On 23.06.2021 the complainant enquired from Opposite Party no.1 about reaching of packages on destination and then the Opposite Party no.1 had given the phone number of dealing person namely Mr.Madaan of Panipat Refinery. The complainant called the dealing person about the reaching of the packages at the destination but the dealing person refused to deliver the consignments, by saying that both the packages are damaged. On persistent requests done by the complainant, the receiver Mr.Rakesh Patel personally went to take up the packages at the office of Opposite Party no.3 at Panipat. On opening the said packages Mr.Rakesh Patel found that both the packages were in damaged condition and after opening the packages it seems that someone had opened the packages during transit and repacked the same. The damage caused to the consignments is only due to negligency, carelessness and default of the opposite parties. When Mr.Rakesh Patel, asked from the dealing person about the damaged consignments then the dealing person Mr.Madaan failed to give any satisfactory reply and also misbehaved with the receiver. Both the mirrors were damaged due to negligency, carelessness and mishandling of the opposite parties The Complainant had requested the opposite parties to pay the cost of the damaged glass macrame mirrors and also pay for the mental agony and harassment suffered by him but the opposite parties failed to pay the cost of damaged mirrors and for the mental agony and harassment suffered by the complainant, so a legal notice dated 02.07.2021, was served upon the opposite parties which were duly received by the opposite parties but none of the opposite parties responded to the notice neither made payment of the damaged product and amount of compensation. Hence this complaint.

2.             On notice, OPs appeared and filed its written version, raising preliminary objections with regard to maintainability; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that complainant had availed the services of the OPs in the normal course of his business in order to make profit and not for personal use and therefore is barred to raise any claims against the OPs. The OPs have made known their liability by very categorically declaring on the front page of the booking receipt which reads '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. By agreeing to such stipulations a consignor cannot at a later stage claim more than what is stipulated therein as per his whims and wishes. The complainant has not deliberately filed the booking receipt to suppress and accordingly mislead this learned Commission. The booking receipt further gives the consignor the option of sending valuable items through the express service of the OPs called Prime Track. The complainant was pointed out about this option as mentioned in the booking receipt, however the complainant insisted ordinary delivery as nothing valuable was booked by it. Moreover, at the time of booking, the complainant has not disclosed the item was having glass. If the applicant disclosed about the item is glass, then the OPs have taken charges of insurance premium i.e. 2% and also written in the packet of parcel the aid item is handle with care. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of bill Ex.C1, copy of courier receipts Ex.C2 and Ex.C3, CD Ex.C4, legal notice Ex.C5, copies of postal receipts Ex.C6 to Ex.C8, copies of postal tracking reports Ex.C9 to Ex.C11 and closed the evidence on 18.05.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Ankit Ex.DW1/A, courier receipt Ex.D1 and closed the evidence on 05.10.2023 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant had sent two Glass Macrame Mirrors through courier of OP No.1, but when the said courier was not reached at the destination then the complainant enquired from Opposite Party no.1 and then came to know from the dealing hand that both the packages were damaged. The damage caused to the consignments is only due to negligency, carelessness and default of the opposite parties. The complainant requested the opposite parties to pay the cost of the damaged glass but the opposite parties failed to pay the cost of damaged mirrors. There is deficiency in service and unfair trade practice on the part of OPs and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that the OPs have made known their liability by very categorically declaring on the front page of the booking receipt. By agreeing to such stipulations a consignor cannot at a later stage claim more than what is stipulated therein as per his whims and wishes. Moreover, at the time of booking, the complainant has not disclosed the item was having glass and if complainant disclosed about the item, then the OPs have taken charges of insurance premium i.e. 2% and also written in the packet of parcel the aid item is handle with care and lastly prayed for dismissal of complaint.  

9.             Admittedly, the complainant sent two Glass Macrame Mirrors through courier of OP No.1. It is also admitted that both the said mirrors were damaged in transit.

10.           Firstly, we decide the question whether this complainant falls within the definition of consumer as per Consumer Protection Act, 2019 or not?

11.           The first plea taken by the OPs is that the complainant, does not fall within the definition of a consumer, as the parcels, in question, containing the articles, were booked with the Opposite Parties, for commercial purpose. We do not agree with the contention of the OPs. As there is nothing, on the record, that the complainant was running a manufacturing unit, on a large scale, by employing a number of persons, with an intent to earn profits. There is also, nothing, on record, that the complainant was doing any other business, wherefrom, he was getting handsome returns. From the facts and circumstances of the case, it is evident, that the complainant, is running the said business, by way of self-employment, with a view to earn her livelihood. Under these circumstances, the submission of the OPs, that the complainant did not fall within the definition of a consumer, being without merit, must fail, and the same stands rejected.

12.           The next plea taken by the OPs is that the description of the goods, contained in the parcels, were not given by the complainant, at the time of booking the same, with the courier agency. The total value of the parcels were declared by the complainant as Rs.5200/- and to prove this fact, the complainant has placed on file bill of the said glass mirros Ex.C1 dated 20.06.2021. No doubt, on the reverse of the courier receipts, terms and conditions, in fine print are printed. However, these courier receipt is not bear the signatures of the complainant. In the absence of the acceptance by the complainant, admitting the terms and conditions mentioned, on the receipts, it cannot be said that she (complainant) agreed to the same. These terms and conditions are not binding, on the complainant. Under these circumstances, it cannot be said that the liability of the courier agency, was only to the extent of that amount mentioned in the receipt. Moreover, it is the duty of the OPs/Courier agency to check the items at the time of its booking. In this regard, we place reliance on the judgment titled as Sudhir Deshpande Versus Elbee Services Ltd., Bombay, I (1994) CPJ 140 (NC), wherein it was held by the National Consumer Disputes Redressal Commission that we may make an observation here that the mention of the limited liability is in very small print at the back of consignment note which is not necessarily read by the consignor before he/she entered into the transaction of despatch of the consignment and hence it cannot be said to be a part of negotiation between the two parties. Further, whatever may be the binding nature of the said clause in an action based on breach of contract we are of the view that it cannot restrict the liability of the courier for the consequences flowing out of its negligence and deficiency in the performance of the service undertaken by it. In Skypak Couriers Pvt. Ltd. Vs. Consumer Education and Research Society, 1986-96, the National Consumer Disputes Redressal Commission has held that the objection of the Couriers that liability of the opposite party was limited to Rs.100/- did not carry any weight as the printed memo containing the above condition was neither signed by anybody nor there was any evidence to show that the terms printed therein were shown to the consignor or the consignee or that the same were agreed upon by the consignor. In Airstar Express Courier Vs. Inder Medical Store, II (2012) CPJ 167 (NC), the Hon’ble National Consumer Commission has held that the parcel of medicines was booked through courier, by the complainant, but the same was not delivered to the consignee. The value of medicines was Rs.26,137/-. The courier receipt contained a condition of limited liability of Rs.100/-, in case of damage to the parcel, or non- delivery of the same. These conditions were mentioned, in fine print, on the courier receipt. When the grievance of the consumer was not redressed, he filed a complaint, in the District Forum, which was allowed, and he was refunded Rs.26,137/-, being the price of the goods, contained in the parcel, which was booked with the courier agency, alongwith interest. The appeal, filed before the State Consumer Disputes Redressal Commission, was dismissed, and the Revision Petition filed before the National Consumer Disputes Redressal Commission, was also dismissed, holding that the complainant, being not a signatory to the terms and conditions of the courier receipt, and there was nothing, on record, to prove, that the same were explained to him, he was not bound by the same, and, was rightly granted the relief of refund of the amount of the value of the goods, booked with the courier agency.

13.           The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. As stated above, the limited liability Clause, mentioned on the courier receipts, to which the complainant, was not a signatory nor any evidence, was produced by the Opposite Parties, that the said Clause was read over and explained to the complainant, no help could be drawn by the Opposite Parties, therefrom.

14.           Keeping in view the ratio of the law laid down in the abovesaid judgments and the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs amounts to deficiency in service and unfair trade practice.

15.           In view of the above discussion, we allow the present complaint and direct the OPs to pay Rs.5200/- (Rs.Fifty two hundred only) to the complainant as cost of glass mirrors. We further direct the OPs to pay Rs.5,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.5500/- for the litigation expense. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 22.04.2024   

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

       (Vineet Kaushik)        (Dr. Suman Singh)

           Member                          Member