Punjab

StateCommission

FA/784/2013

M/s Trackon Courier Private Limited - Complainant(s)

Versus

Varinder Kumar Jindal - Opp.Party(s)

Sanjeev Sharma & Hoshiar Singh

17 May 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.784 of 2013

 

                                                          Date of Institution: 22.07.2013

                                                          Date of Decision:  17.05.2016

 

Trackon Courier private limited, Zinda Kunji Morcha, near Sadar Bazar, Barnala, District Barnala through its Assistant General Manager

                                                                       Appellant/Opposite party   

                  Versus

 

Varinder Kumar Jinda s/o Hans Raj resident of Street No.4-A, Near New Grain Market, Opp. , FCI Godown Barnala , District Barnala.

 

                                                                   Respondent/Complainant

 

First Appeal against order dated 06.06.2013 passed by the District Consumer Disputes Redressal Forum,  Barnala

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Mrs.Surinder Pal Kaur, Member

Present:-

          For the appellant         : Sh.Sanjeev Sharma, Advocate  

          For the respondent      : None

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

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party in the complaint) has directed this appeal against order dated 06.06.2013 of District Forum Barnala accepting the complaint of the complainant by directing the appellant to refund the amount of Rs.1400/- to the respondent of this appeal as courier charges along with interest @ 9% per annum from the date of receiving the amount till realization and to pay consolidated amount of compensation of Rs.40,000/- to the respondent of this appeal. The respondent of this appeal is the complainant in the complaint and appellant of this appeal is OP in the complaint and they be referred as such hereinafter for the sake of convenience.

 2.     The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that he contacted OP for sending original certificates of Kamaljeet Kaur daughter of Ajit Singh wife of Kuldeep Singh, who was residing at Australia, which were required thereat in connection with her service. OP assured that they have their own arrangement to send the documents/certificates through courier to Australia and they would reach the destination within 15 days.  They have also stated that OP is the franchisee of Trackon Couriers Pvt. Ltd New Delhi. The complainant sent the original details marks certificates of Matric, Matriculation Examination Certificate, Detail marks card of 10+2 class, 10+2 examination certificate through OP and paid a sum of Rs.1400/- for this purpose. Kuldip Singh husband of Kamaljeet Kaur brought this fact to the notice of complainant that courier had not reached the destination. The complainant has, thus, filed complaint against OP for claiming compensation of Rs.50,000/- for mental harassment, refund of Rs.1400/- as courier charges, besides Rs.6000/- as litigation expenses.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in legal objections by OP that complaint is bad for non-joinder and mis-joinder of necessary parties. The complaint gave wrong address of OP; hence, no deficiency in service is involved in this case. The complainant has no locus standi or cause of action to file the complaint. The complainant is estopped by his act and conduct from filing the complaint. It was averred that complaint is only misuse of process of law and is not maintainable. On merits, it was pleaded that M/s Bansal Enterprises Sadar Bazar Barnala represented by Anish Bansal proprietor has been working as authorized agent of Trackon Couriers Pvt. Ltd 59 Community Centre Naraina Industrial Area Phase-1 New Delhi. OP is working at Barnala on behalf of Trackon Couriers Pvt. Ltd. It was admitted that complainant had booked a consignment on 13.06.2012 with OP at Barnala, which was meant for perth (Australia). The complainant wanted the shipment to be couriered through ARAMEX Exp. Courier, which he referred to as its preferred International Courier. The consignment of complainant was admitted to be delivered to the consignee for a continuous period of almost a month. ARAMEX tried its best delivery to the consignee at the address given by the complainant. The consignment was repeatedly tried to be delivered from 18.06.2012 till 10.07.2012 but without success because the premises of the consignee was perpetually closed each time. It was further averred that, as per norms of International delivery followed by International Courier Worldwide, any consignment, which was not possible to be delivered for a period of two weeks for the fault of the complainant in not furnishing correct address, the consignment was to be destroyed. Having no option left, ARAMEX was forced to destroy the consignment on 11.07.12 after its last attempt to deliver it on 10.07.12. It was denied that any assurance regarding delivery of the consignment within any particular time, as alleged, was ever given. Delivery of couriers, moreso; if the same happens to be international depends on a variety of factors, such as fulfillment of necessary formalities, like proper customs duty, documents pertaining to the consignment, its nature and value, complete and correct address etc for which a courier cannot take any responsibility. OP denied any deficiency in service and attributed it towards the wrong address given by the complainant. OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, his affidavit Ex.C-7 along with copies of documents Ex.C-1 to Ex.C-6. As against it; OP tendered in evidence affidavit of Sh.Ashim Kumar authorized representative of M/s Bansal Enterprises agent of Trackon Courier Pvt. Ltd Ex.R-1 along with copies of documents Ex.R-1 to Ex.R-4. On conclusion of evidence and arguments, the District Forum Barnala accepted the complaint of the complainant by virtue of order dated 06.06.2013. Dissatisfied with the order of the District Forum Barnala dated 06.06.2013, the opposite party the present appellant, carried this appeal against the same.

5.      We have heard learned counsel for the appellant as none appeared on behalf of respondent in this appeal before us for the last so many dates and have also examined the record of the case.

6.      We proceed to decide the case on the basis of evidence on the record. The courier receipt is Ex.C-1 on the record with regard to booking of consignment by the complainant with OP for delivery to destination at Australia through international shipper ARAMEX Courier.  The courier charges of 1400/- was received by OP, as proved by receipt Ex.C-1. Ex.C-2 is list of index of documents sent through consignment. Ex.C-3 is copy of details marks of Matriculation certificate of Kamaljeet Kaur. Ex.C-4 is matriculation certificate of Kamaljeet Kaur. Ex.C-5 is detail marks of 12th class of Kamaljeet Kaur issued by Punjab School Education Board. Ex.C-6 is copy of certificate of 12th class. Ex.C-7 is affidavit of complainant on the record.

7.      OP relied upon affidavit of Sh.Ashim Kumar authorized representative of M/s Bansal Enterprises agent of Trackon Courier Pvt. Ltd Ex.R-1 on the record. He stated in this affidavit that the consignment was packed with it by complainant on 13.06.2012, which was meant for Perth (Australia). The complainant insisted the shipment to be couriered through ARAMEX Exp. Courier, which he referred to as its preferred International Courier. Repeatedly the international courier essayed to deliver the consignment at given address but the premises was found to be closed each time from 18.06.2012 to 10.07.2012. The consignment was sought to be delivered by making repeated attempts by the courier, but consignee was not found available in the premises as the same was perpetually closed. No particulars were given of the locality. This witness apprised the complainant that it was not possible to keep the consignment after a period of two weeks and complainant paid no heed. As per norms of international delivery followed by international courier worldwide, any consignment which was not possible to be delivered for a period of two weeks or so for the fault of the complainant in not furnishing correct address, the consignment was to be destroyed having no option left ARAMAX was forced to destroy the consignment on 11.07.2012 after its last attempt to deliver on 10.07.2012. Ex.R-2 is certificate issued by K.S Narang, Assistant General Manger of OP. Ex.R-3 is the shipment details. We find from perusal of Ex.R-3 that repeated attempts were made to give consignment to consignee but office was found closed each time. It was recorded that address was incorrect and incomplete and eventually it was destroyed on 11.07.2012. From perusal of shipment details or shipment summary, we find that repeated attempts were made to deliver the consignment at the destination of the consignment but office was found closed, incorrect or incomplete address was recorded. It is not the case of the parties that consignment had not reached the destination. The original receipt is Ex.R-4 on the record, which has been produced by the OP. It contains terms and conditions, which were printed on receipt. Condition no.5 lays down "if not covered by special risk surcharges, claim value on this shipper shall in no circumstances exceed.        Rs. 2000/- (Rupees two thousand only) for parcels and Rs.100/- for packet of documents." Ex.R-4 is blank receipt produced by the OP, which is without any meaning. The complainant has produced copy of receipt and original receipt had not been produced by the complainant. The contention of OP finds merit that terms and conditions were printed on the overleaf of the receipt. The original receipt is not intentionally produced by the complainant and complainant wanted to conceal the terms and conditions of the receipt from the Forum. We are of this view that consignment reached at the destination and repeated attempts were made to deliver the consignment at the destination and on account of closed office or incomplete address; it could not be delivered. We, thus, found that shipment summary Ex.R-3 is quite material document on the record. It has proved that consignment reached the destination at Australia and repeated attempts were made to deliver the consignment at destination but since consignment was not delivered due to incomplete or incorrect address, hence it could not be delivered and eventually it was destroyed. The entire fault is on account of incomplete and incorrect address given on it. Otherwise, it is a renowned international courier agency and would not have destroyed it in that way. Even otherwise, as per clause (v) printed on receipt Ex.R-4; the primary liability of OP is restricted to Rs.2000/- only at the best. The Apex Court has examined this point in Bharti Knitting Company versus DHL Worldwide Express Courier Division of Airfreight Ltd, reported in II (1996) CPJ 25 (SC) that the liability was limited to the extent of Rs.100/- for domestic loss and US Dollar 100 for international loss of consignment.  Since the liability undertaken under contract entered into between the parties is restricted, hence the amount more than contracted amount cannot be awarded. Our State Commission has also held in Parveen Kumar versus Trackon Courier in First Appeal No.1899 of 2011 decided on 16.02.2015 that the liability of courier is limited as per terms and conditions of the contractual liability to the extent of liability undertaken by the courier in it. It cannot exceed Rs.2000/- for parcel. District Forum should have been aware of the law laid down by Apex Court in the above authority. Consequently, we find that order of the District Forum cannot be sustained in this appeal. The OPs are liable to pay the amount of Rs.2000/- to complainant as contractual obligation undertaken by OP in this case.

8.      As a result of above discussion, we partly accept the appeal of the appellant and modify the order of the District Forum to the above extent.

9.      The appellant had deposited an amount of Rs.21,900/- with this Commission at the time of filing the appeal. Out of this amount, Rs.2000/- be remitted to the complainant by the registry and the remaining amount with interest, if any, accrued on the total amount out of Rs.21,900/-  be refunded by the registry to the appellant by way of crossed cheque/demand draft after the expiry of 45 days.

10.    Arguments in this appeal were heard on 13.05.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                   (SURINDER PAL KAUR)

                                                                              MEMBER

 

May 17,  2016                                                             

(ravi)