Haryana

StateCommission

A/557/2016

ON DOT COURIER AND CARGO LTD. - Complainant(s)

Versus

UDAY PARTAP SINGH - Opp.Party(s)

SIKANDER BAKSHI

29 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      557 of 2016

Date of Institution:      21.06.2016

Date of Decision :       29.08.2017

1.     On-Dot Couriers & Cargo Ltd., 8/42, Kirti Nagar, Industrial Area, New Delhi-110015.

2.     Ajay Bhardwaj On-Dot Couriers Private Limited, Amartex Service Road, SCO 40, First Floor, Sector-11, Panchkula.

3.     Geeta Enterprise, SCO 865, NAC, Mani Majra.

 

                                      Appellants-Opposite Parties

Versus

 

Uday Partap Singh son of late Sh. Rambir Singh, Resident of MDC-6, District Panchkula.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Sikander Bakshi, Advocate for appellants.

                             None for respondent.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated May 05^th, 2016 passed by District Consumer Disputes Redressal Forum, Panchkula (for short ‘the District Forum’) in Complaint No.273 of 2015.

2.                Uday Partap Singh-complainant, sent a courier parcel having consignment No.636080624 from Panchkula to Shamli containing a body steamer and a pair of clothes, through On Dot Couriers & Cargo Limited but the parcel has not been delivered at the destination. The complainant contacted the opposite parties No.3 and 4 (appellants herein) and tried to know the reason of non-delivering the parcel. In the beginning, the complainant was asked to wait assuring that the parcel would be delivered very soon. After one month, the complainant was told that the courier was retained back by the officials of Sale-tax department who demanded an amount of Rs.2,000/- for release of the parcel. The complainant refused to make payment of Rs.2,000/- as the parcel did not contain any commercial item or the item which does not hold bill. The complainant requested the opposite parties to provide him the challan supplied to them by Sale-tax department but the opposite parties failed to do so. In this regard, the complainant also sent letter dated November 19^th, 2015 mentioning final warning to the opposite parties through speed post. Thus, alleging it a case of deficiency in service on the part of the opposite parties, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 directing the opposite parties to release the claim of the complainant; to pay an amount of Rs.5,000/- as compensation being actual value of consignment; to pay an amount of Rs.30,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.5,000/- as litigation expenses.

3.                The opposite parties in their written version have taken plea that the complaint is not maintainable in the present form; that the complaint is bad for want of service of statutory legal notice under Section 10 of the Carriers Act and that the District Forum, Panchkula has no jurisdiction to decide this complaint. As per version of the opposite parties, the consignment was withheld by the Sale-tax department in transit as the complainant had sent the consignment at his risk without declaring the value of the goods and without handing over the bill of the goods. Moreover, the insurance cover was also not provided.  The opposite parties have taken back the consignment from the sale-tax department by making payment of an amount of Rs.2,000/- as penalty but the complainant refused to pay the penalty amount. As per terms and conditions mentioned in the consignment note, the opposite parties have specifically limited their liability to a maximum amount of Rs.100/- per consignment for any loss to the consignment within India and to a maximum of US$100 for international consignment.  In this case, no loss has been caused to the consignment and in fact consignment was withheld by the sale-tax department in transit.  Moreover, the consignment was booked for a place namely Shamli in Uttar Pradesh and the addressee of the consignment has not been impleaded as a party to the proceedings of the complaint. The complainant cannot be allowed to take benefit of his faults and mistakes.  Denying any kind of deficiency in service on their part, the opposite parties have prayed for dismissal of the complaint with costs.

4.                Parties led evidence in support of their respective claims before the District Forum.

5.                After hearing arguments, vide impugned order dated May 05^th, 2016 passed by the learned District Forum, the complaint filed by the complainant was allowed directing the opposite parties to deliver the product to the complainant in safe condition without paying any penalty amount; to pay an amount of Rs.20,000/- to the complainant as compensation for deficiency in service and on account of un-necessary mental harassment and an amount of Rs.5,000/- as litigation expenses.

6.                Aggrieved with the impugned order dated May 05^th, 2016 passed by the learned District Forum, the opposite parties have filed the present appeal No.557 of 2016 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant.

7.                We have heard Shri Sikander Bakshi, learned counsel for the appellants and have gone through the entire record on the file. None has appeared on behalf of the respondent-complainant Uday Pratap Singh in the proceedings of this appeal despite service.

8.                From the pleadings and other record on the file, there appears to be no controversy of any type that a courier article having consignment No.636080624 was sent by the complainant through the opposite parties. The consignment having a body steamer and pair of clothes was to be delivered at Shamli, U.P. The required amount was paid to the opposite parties by the complainant. What happened, the consignment parcel could not be delivered to the consignee at Shamli and when the complainant enquired from the opposite parties, he was told that delivery of the consignment parcel could not be possible as the sale-tax department had imposed an amount of Rs.2,000/- as penalty. 

9.                Admittedly, the complainant was asked to make payment of an amount of Rs.2,000/- as penalty amount to receive back the consignment parcel but the complainant refused to make payment of the penalty amount stating that receipt regarding payment of the amount or copy of challan had not been provided to him.  Ultimately, the complainant did not agree to make payment of Rs.2,000/- as penalty amount and the opposite parties did not agree to return the consignment parcel to the complainant or to the consignee. Facing this situation, the complainant thought it proper to file the present complaint before the District Forum.

10.              Learned District Forum has given findings that the complaint filed by the complainant cannot be dismissed for want of notice under Section 10 of the Carriers Act stating that service of legal notice is needed in case the aggrieved person wants to file a civil suit. During the course of arguments, there was not so much controversy on this point.  After close perusal of Section 10 of the Carriers Act, we feel no hesitation in holding that there was no necessity to serve notice upon the opposite parties before filing the complaint under Section 12 of the Consumer Protection Act, 1986.  Findings of the learned District Forum on this point of controversy stands affirmed.

11.              As per version of the complainant, the opposite parties cannot force the complainant with any liability of payment of penalty amount because the opposite parties did not inform the withholding of courier by the Sales Tax Department to the complainant and due to this reason the complainant could not convince the Sales Tax Department that no penalty was leviable on the courier. learned District Forum gave findings considering the above mentioned version of the complainant and as the opposite parties failed to place on record any receipt to prove that an amount of Rs.2,000/- was paid to the Sales Tax Department for that consignment.  As per version of the opposite parties, in fact, at the time of checking, the parcel belonging to the complainant and few other parcels were checked and Sales Tax Department imposed an amount of Rs.49,960/- as penalty which includes an amount of Rs.2,000/- regarding courier consignment parcel of the complainant. Copy of the receipt dated December 03^rd, 2015 (Annexure C-1) has been adduced in evidence.

12.              In this case, the problem arose as the Sales-Tax Department did not issue a separate receipt regarding imposing an amount of Rs.2,000/- as penalty with respect to the items kept in courier consignment parcel belonging to the complainant. Anyhow, it would have been better if the receipt regarding payment of the penalty amount would have been issued separately but the Sales Tax Department issued receipt along with parcel consignment of the complainant and all other persons. From the facts and circumstances of this case it does not appear to be a case of any foul play on the part of the opposite parties. The opposite parties are ready and willing to deliver back the consignment parcel to the complainant or the consignee in case the penalty amount of Rs.2,000/- is paid to the opposite parties as the opposite parties had to pay that amount to the Sales Tax Department. In our view, when the complainant was specifically told in this regard by the opposite parties and there was correspondence in between the complainant and the opposite parties, the best course for the complainant was to seek clarification, if any, in this regard from the   Sales Tax Department. Anyhow, it is evident from the receipt Annexure C-1 that the opposite parties made payment of an amount of Rs.49,960/- to the Sales Tax Department, as penalty.  In these circumstances as receipt regarding payment of the amount has been adduced in evidence, it will be justified to give directions to the opposite parties to return the courier consignment parcel belonging to the complainant to him immediately as and when the complainant makes payment of an amount of Rs.2,000/- to the opposite parties. 

13.              Keeping in mind all these circumstances, the findings given by the learned District Forum cannot be held to be valid and justified.  The findings of the learned District Forum regarding imposing an amount of Rs.20,000/- as compensation on account of un-necessary harassment and an amount of Rs.5,000/- as litigation expenses cannot be held to be justified.

14.              As per discussions above in detail, the appeal is partly allowed. The opposite parties are directed to hand over the courier consignment parcel to the complainant in safe condition in case the complainant makes payment of an amount of Rs.2,000/- to the opposite parties. The opposite parties shall not be liable to pay any compensation amount of Rs.20,000/- and litigation expenses, as awarded by the District Forum. With these findings, the impugned order passed by the learned District Forum stands modified accordingly.

15.              The statutory amount of Rs.12,500/- deposited at the time of filing the appeal be refunded to the appellants-opposite parties against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 29.08.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL