Orissa

Cuttak

CC/205/2022

MOHAMMED ARIF BAIG - Complainant(s)

Versus

UTS CARGO PACKERS & MOVERS - Opp.Party(s)

Self

21 Sep 2023

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.205/2022

 

          Mohammed Arif Baig,

          At:Simalpara,PO:Pikol,Salipur,

          Cuttack-754221.                                                   ... Complainant.

 

          Vrs.

 

1.      Tushar Sharma,

Owner of UTS CARGO PACKERS & MOVERS

Plot No.344,Near DDA Flat Dwarka,Sec-26,

New Delhi-110077.

 

2.      DELHIVERY

Plot No.5,Sector-44,Gurugram.                            ...Opp. Parties.

 

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    17.04.2022

Date of Order:  21.09.2023

 

For the complainant:             Self.

For the O.P.no.1       :             None. 

For the O.P No.2:                   Mr. S.Biswal,Advocate.

 

Sri Debasish Nayak,President                   

          Case of the complainant as made out from the complaint petition in short is that the O.Ps are service-providers being Packers & Movers.  On 11.12.2021 the O.P no.1 packed and collected the household articles of the complainant from Mahipalpur,New Delhi which were shipped on 16.12.2021 with Tracking No.LRN#212590498.  The complainant had made partial payment of Rs.25,300/- to the O.Ps through his Phone No.9813581184 vide Phone Pay on 13.12.2021.  Again, on 20.12.21 when the goods were delivered at his place at Salipur of Cuttack another payment was made by the complainant to the O.P for a sum of Rs.9000/- through Google Pay.  But the goods were received in damaged condition which consisted of two aluminium boxes, three severe dents and deep scratches on the fridge, body bent, sewing machine cover broken to pieces, packages open and items were outside separately kept-heavy fan motor, big bucket broken to pieces and materials outside, repacked, glass items broken.  It is for this when the complainant raised his issue, which was filed with National Consumer Helpline, the O.P no.1 had assured for refund of the said damages vide Docket #3273251.  But when the O.Ps remained silent, the complainant has filed this case seeking directions from this Commission to the O.P in order to pay him an amount of Rs.34,300/- as paid by him together with a sum of Rs.1,00,000/- towards compensation for the damaged goods and for his mental agony as suffered.

          Together with his complaint petition, the complainant has filed copies of e.mail/online correspondences in order to prove his case.

2.       Out of the two O.Ps as arrayed in this case, having not preferred to contest this case, O.P no.1 has been set exparte vide order dated 3.1.2023.  However, O.P no.2 has contested this case and has filed his written version wherein it is mentioned that the complainant does not have any loco-standi to file this case against him.  According to O.P no.2, it was a simple responsibility on his part to effectuate delivery of the products as received by O.P no.1.  He admits about the goods of the complainant which were packed of course by O.P no.1 on 11.12.21 and on 16.12.21.  The information regarding delivery of the said goods were shared by the O.P no.1 to the complainant.  O.P no.2 has refused to have opened or checked any of the items and thus according to him, he is not liable in any manner.  As such, he has prayed for dismissal of the complaint petition as filed against him.  He has relied upon certain decisions of the Hon’ble Higher Courts which he has mentioned in his written version those which are here under:

i.          In the case of Delhi Assam Roadways Corporation Vs. B.L.Sharma of Hon’ble National C.D.R.Commission in F.A. No.107 of 2001 wherein it is held that in case of absence of a Notice under the Carriers Act,1865, the complaint cannot be entertained under the C.P.Act against a common carrier.

ii.         In the case of Arvind Mills Ltd. Vs. Associated Roadways, [(2004) 11 SCC 545] of Hon’ble Supreme Court of India wherein it is held that merely because the procedure under the Consumer Protection Act is summary in nature, it does not in any way warrant the abrogation of the requirement to serve notice U/S-10 of the Carriers Act before fastening any liability under that Act on the carriers.

iii.        In the case of Associated Road Carriers Ltd. V. Kamlender Kashyap & Ors, of Hon’le Supreme Court of India in Civil Appeal Nos.4412-4413 of 2010 decided on 17.8.21 it is held that consumer complaint against a common carrier is not maintainable without serving it a prior notice before initiation of any legal proceeding.  Further while overruling the Hon’ble National Commissions observation, held that even if the consumer complaint is filed within 180 days of the handing over of consignment, it could not be treated as a notice under the Act.

Together with his written version he has filed copies of several documents showing delivery of the articles.  He has also filed evidence affidavit through one Abinash             Barik working as Security Executive at Delhivery Ltd., New office at Cuttack but contention of his evidence affidavit appears to be a reiteration of the contents of the written version of O.P no.2 only and nothing else.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

i.          Whether the case of the complainant is maintainable?

ii.         Whether there was any deficiency in service on the part of the O.Ps and if the O.Ps have practised any unfair trade?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issue no.II.

Out of the three issues, issue no.ii  being the pertinent issue is taken up  first for consideration here in this case.

After perusing the averments as made by the complainant in his complaint petition, the contents of the written version as made by the O.P no.2 together with the written notes of submissions as filed from both the sides and also after perusing the copies of documents those which are filed from either sides, it is noticed that in fact the complainant had entrusted the O.Ps to carry his household articles from Mahipalpur of New Delhi to his place at Salipur of Cuttack and the same is not in dispute.  Admittedly, the O.Ps have knowledge about some of the household articles of the complainant to have been damaged.  The correspondences as made in between the complainant and the O.Ps goes to show that after knowing about such damages of the household articles of the complainant, the O.P no.1 had remained silent only submitting one online reply mentioning that he will be looking into the matter.  The O.P no.1 has also not preferred to contest this case.  O.P no.2 had tried to shift his responsibility upon O.P no.1 by thrusting the burden.  After going through the facts and circumstances of this case, this Commission finds that though the O.Ps had taken the responsibility for shifting the household articles of the complainant from Mahipalpur of New Delhi to Salipur of Cuttack as service providers and O.P no.2 had effected the transportation of such goods of the complainant.  But O.P no.1 had remained silent and the other, O.P no.2 had tried to shift his responsibility upon the other (O.P. No.1) which clearly indicates about the deficiency in both of their service as well as practise of unfair trade by both of them.  Accordingly, this issue goes in favour of the complainant.

Issues no.i & iii.

From the discussions as made above, the case of the complainant is definitely maintainable and the complainant is entitled to the reliefs as claimed by him.  Hence it is so ordered;

                                              ORDER

Case is decreed on contest against the O.P no.2 and exparte against O.P no.1.  Both the O.Ps are found to be jointly and severally liable here in this case.  They are directed to pay the complainant a sum of Rs.34,300/- towards value of his damaged articles as well as to pay a sum of Rs.1,00,000/- to the complainant towards compensation for his mental agony and harassment.    This order is to be carried out within a period of 30 days from the date of receipt of this order.

Order pronounced in the open court on the 21^st day of   September,2023 under the seal and signature of this Commission.         

                                                                                       Sri Debasish Nayak

                                                                                              President

                                                                                                                                   

                                                                                        Sri Sibananda Mohanty

                                                                                                      Member